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Revision of the Draft Constitution of the Quebec People of May 29, 2019
Part II: Study of the second and third articles
dealing with the right to education
Publication date: June 26, 2019.
Author: Martine Labossière
Introduction
On May 29, 2019, forty-two participants of a movement have submitted a draft
Constitution of the people to the National Assembly of Quebec.
We can applaud their initiative and their efforts.
However, this does not mean that we must consider their project as a final
document.
On the contrary, honouring and perfecting what these brave individuals have done
require us to make a serious analysis and a constructive criticism of their work.
It may be by paying the necessary attention to this project that the citizens of the
State of Quebec will succeed in working together to build a wise Constitution
capable of getting them out of the unbearable status quo.
In this revision, we will study the second and the third of the 21 articles included
in the Charter of Fundamental Rights and Duties of this draft Constitution of the
people.
Here is the original wording of these second and third articles:
2. Chaque personne a droit à l’éducation, y compris l’éducation de base,
gratuite et de qualité, à l’éducation à l’environnement et à l’écocitoyenneté
ainsi qu’à une éducation politique citoyenne, sans aucune discrimination.
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3. Toute personne a le droit d’éduquer ou de confier l’éducation de ses enfants
selon la méthode d’apprentissage qui lui convient en autant que l’acquisition
des notions de base soit garantie et que cela mène au plein épanouissement de
la personnalité humaine et à son intégration harmonieuse dans la société.
And here is a suggested translation:
2. Everyone has the right to education, including free basic and quality
education, environmental and eco-citizenship education and civic education
without discrimination.
3. Everyone has the right to educate or to entrust the education of his children
according to the method of learning which suits him as long as the acquisition
of the basic notions is guaranteed and that this leads to the full development of
the personality and its harmonious integration into society.
Analysis:
These articles deal with education as a fundamental right.
As a first remark, we may say that it is surprising to see this right appear as early
as the 2nd rank in the catalogue of fundamental rights and duties of the draft
Constitution.
We may be against this hierarchical choice consisting in dealing with this right to
education even before:
–the rights to life, security, integrity, legal personality and assistance when one is
in danger, dealt with in sections 1 and 2 of the Quebec Charter of Human Rights
and Freedoms 1975;
–the right of peoples to self-determination, to freely determine their political status
and to guarantee their development in accordance with the first article of the
International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights 1966;
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–and all the rights set out in the first 25 articles of the 1948 Universal Declaration
of Human Rights.
The drafters of our Constitution must be aware of the importance of a good
hierarchy of fundamental rights and duties in order to facilitate the work of all
citizens who will eventually use the chart to inform the situations of abuse of
power they witness.
It would be judicious to question the participants as to the reasons for their choice
to place education in such a prominent position.
They may have been influenced by the fact that education was a very popular topic
at the time they met because several politicians have prioritized it during the
Quebec election campaign of the fall of 2018.
We could also ask the constituent citizens about their choice to write two articles
rather than one for the right to education, even if they had to be concise in order to
cover all the subjects necessary for the good functioning of an autonomous State.
It would also be good to know what the drafters of the constitutional project meant
by “basic education” when they established that it should be free and of good
quality.
The theme of “basic education” was dealt with in article 26 of the Universal
Declaration of Human Rights in 1948 and article 13 of the International Covenant
on Economic, Social and Cultural Rights in 1966:
Article 26 of the UDHR
1. Everyone has the right to education. Education shall be free, at least in the
elementary and fundamental stages. Elementary education shall be
compulsory. Technical and professional education shall be made generally
available and higher education shall be equally accessible to all on the basis of
merit.
2. Education shall be directed to the full development of the human personality
and to the strengthening of respect for human rights and fundamental
freedoms. It must promote understanding, tolerance and friendship among all
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nations, racial or religious groups, and shall further the activities of the United
Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given
to their children.
Article 13 of the ICESCR
1. The States Parties to the present Covenant recognize the right of everyone to
education. They agree that education shall be directed to the full development
of the human personality and the sense of its dignity, and shall strengthen the
respect for human rights and fundamental freedoms. They further agree that
education shall enable all persons to participate effectively in a free society,
promote understanding, tolerance and friendship among all nations and all
racial, ethnic or religious groups, and further the activities of the United
Nations for the maintenance of peace.
2. The States Parties to the present Covenant recognize that with a view to
achieving the full realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education, in its different forms, including technical and
vocational secondary education, shall be made generally available and
accessible to all by every appropriate means, and in particular by the
progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of
capacity, by every appropriate means, and in particular by the progressive
introduction of free education;
(d) Fundamental education shall be encouraged or intensified, as far as
possible for those persons who have not received or completed the whole
period of their primary education;
e) The development of a system of schools at all levels shall be actively
pursued, an adequate fellowship system shall be established, and the material
conditions of teaching staff be continuously improved.
3. The States Parties to the present Covenant undertake to respect for the
liberty of parents and, where applicable, legal guardians to choose for their
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children schools, other than those established by the public authorities, which
conform to such minimum educational standards as may be laid down or
approved by the State and to ensure the religious and moral education of their
children in conformity with their own convictions.
4. No part of this Article shall be construed so as to interfere with the liberty of
individuals and bodies to establish and direct educational institutions, subject
always to the observance of the principles set forth in paragraph 1 of this
article and to the requirement that the education given in such institutions shall
conform to such minimum standards as may be laid down by the State.
In the international treaties of the last century, “basic education” was at the level
of primary education, but needed to be gradually improved to possibly include
technical and vocational secondary education.
If they have taken into account this duty of “continuous progress”, it is not
impossible that the drafters of our constitutional project refer today at an even
higher level of “basic education”.
The concepts of “environmental education”, “eco-citizenship” and “citizen
political education” mentioned by the writers of the project have a positive
connotation, but they need to be better explained.
It may be necessary to come back in future studies to the phrase “without any
discrimination”, which is commonly used in articles dealing with fundamental
rights.
But let’s just expose for the moment a reality of our daily lives explaining why it
should be avoided...
It is time to speak openly about the fact that we discriminate every day on many
occasions to describe things and to differentiate them from each other...
We do it so often that we are actually called to recognize that discriminating is
necessary and is in the very nature of human!
Therefore, this daily gesture cannot be reprehensible in itself.
The perversion and trivialization that the jurists made of the term “discrimination”
– perhaps especially in Quebec and Canada – has unfortunately contributed to the
confusion and misunderstanding of the science of fundamental rights.
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It is incumbent on us today to take responsibility for breaking out of this
confusion.
We must do this by ceasing to use the term “discrimination” when we are actually
talking about a “prejudicial abuse of power”.