A Layman's Quest For Legal/Moral Foundation Of The Head Tax Redress Campaign
I am not a legal expert, but I need to find a legal/moral foundation for the head tax redress campaign so that I can decide if the payees should be compensated for. My view in this matter is at best that of a layman who has a personal interest in legal/moral thinking. My argument may be totally off track, but I hope it at least reflects how I arrived at my conclusion that the Head Tax law was an unjust law, and that our courts today should address this injustice directly instead of leaving it to the political arena for resolution.
The basis for my thinking, not surprisingly, is the Canadian Charter of Rights and Freedom, specifically Section 15 that deals with Equality Rights.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Although the Charter was enacted in 1982, almost a century after the passing of the Chinese Head Tax Act in 1885, I would argue that the moral values as enshrined in the Charter - being universal - should not be bound by time. As a result of the universality of these values, such as Eqaulity Rights, laws that were enacted before the Charter can be judged retrospectively, and if deemed violating the Charter, be nullified.
This view, however, was not the view of the courts during the case (2001-03) involving head tax payees (Mack vs Attorney General of Canada). I do not pretend to know law better than the judges, but I do know that their judgements were not plainly accepted in the law circle.
In 2003, after the verdicts, the Faculty of Law at the University of Toronto organized a conference called Achieving Human Rights in a Multicultural Society: Reparations, Human Rights and the Limits of Law. While the conference did not focus exclusively on the head tax verdicts, the case formed the basis for discussions. Like any conference of a similar design, there was obviously no consensus on how the courts' judgements should be interpreted. I had to admit that I did not understand a lot of the presented ideas (I watched the archived webcasts on the Faculty site), but one particular perspective caught my attention, which I re-presented in this article in my own, not at all legal, language.
In his paper for the conference, The Limits of Influence: Mack and the Influence of the Charter on Private Law, Mayo Moran (Associate Professor in the Faculty of Law at the University of Toronto) makes this conclusion which I think would best be quoted here in full as the ending of my little discource on the legal/moral foundation of the Head Tax redress campaign.
"The ultimate question in Mack and many other reparations cases thus seems to engage our attitude to the sovereignty of our own past. Why would we, judging in our own cause so to speak, be more deferential to our own past 'sovereigns' even when we acknowledge the acts they proclaimed in our collective name were profoundly wrong and invidious. Indeed, respect for our collective polity may be better expressed by frankly acknowledging now where we went terribly wrong and using our law - a formidable weapon in our wrongdoing - not as a shield to protect the unassailable sovereignty of the past, but rather as a means of rectifying now what we did wrong then. Periods in our history like that implicated in the Mack case are generally recognized as moments not only of collective political failure but also of the failure of law in particular. And so part of the task here, like in other cases of 'transitional justice', is to ask how law can best reassert the possibility of its moral meaning. Though the temptations to do so may be strong, it seems unlikely that this will be accomplished by ignoring its contemporary imperatives and 'blindly adhering' to the sovereignty of our own racist past. So while it may well risk the charge of 'activism', reasserting the primacy of law's own fundamental values and its substantive, now constitutionalized, commitment to equal human dignity seems more promising as a path towards the law's reconciliation with its own ignominious past." (p.27)
The basis for my thinking, not surprisingly, is the Canadian Charter of Rights and Freedom, specifically Section 15 that deals with Equality Rights.
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Although the Charter was enacted in 1982, almost a century after the passing of the Chinese Head Tax Act in 1885, I would argue that the moral values as enshrined in the Charter - being universal - should not be bound by time. As a result of the universality of these values, such as Eqaulity Rights, laws that were enacted before the Charter can be judged retrospectively, and if deemed violating the Charter, be nullified.
This view, however, was not the view of the courts during the case (2001-03) involving head tax payees (Mack vs Attorney General of Canada). I do not pretend to know law better than the judges, but I do know that their judgements were not plainly accepted in the law circle.
In 2003, after the verdicts, the Faculty of Law at the University of Toronto organized a conference called Achieving Human Rights in a Multicultural Society: Reparations, Human Rights and the Limits of Law. While the conference did not focus exclusively on the head tax verdicts, the case formed the basis for discussions. Like any conference of a similar design, there was obviously no consensus on how the courts' judgements should be interpreted. I had to admit that I did not understand a lot of the presented ideas (I watched the archived webcasts on the Faculty site), but one particular perspective caught my attention, which I re-presented in this article in my own, not at all legal, language.
In his paper for the conference, The Limits of Influence: Mack and the Influence of the Charter on Private Law, Mayo Moran (Associate Professor in the Faculty of Law at the University of Toronto) makes this conclusion which I think would best be quoted here in full as the ending of my little discource on the legal/moral foundation of the Head Tax redress campaign.
"The ultimate question in Mack and many other reparations cases thus seems to engage our attitude to the sovereignty of our own past. Why would we, judging in our own cause so to speak, be more deferential to our own past 'sovereigns' even when we acknowledge the acts they proclaimed in our collective name were profoundly wrong and invidious. Indeed, respect for our collective polity may be better expressed by frankly acknowledging now where we went terribly wrong and using our law - a formidable weapon in our wrongdoing - not as a shield to protect the unassailable sovereignty of the past, but rather as a means of rectifying now what we did wrong then. Periods in our history like that implicated in the Mack case are generally recognized as moments not only of collective political failure but also of the failure of law in particular. And so part of the task here, like in other cases of 'transitional justice', is to ask how law can best reassert the possibility of its moral meaning. Though the temptations to do so may be strong, it seems unlikely that this will be accomplished by ignoring its contemporary imperatives and 'blindly adhering' to the sovereignty of our own racist past. So while it may well risk the charge of 'activism', reasserting the primacy of law's own fundamental values and its substantive, now constitutionalized, commitment to equal human dignity seems more promising as a path towards the law's reconciliation with its own ignominious past." (p.27)
posted by Michael Yue (Blog Owner) | 9:46 p.m.
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