Peter Russell was a leading Canadian scholar of constitutional law who taught at the University of Toronto from 1958 to 1997.  Numerous Canadian Supreme Court judges have read and cited his work in their rulings. Professor Russell passed away on January 10, leaving behind an enormously rich academic legacy. Known for his openness, Peter Russell took time to speak with young students who showed a curiosity about federalism and the inner workings of Canada’s constitution — topics he devoted much of his academic career to exploring.  

As a young undergraduate student at the University of Toronto, JURIST’s Senior Editor for Long Form Content, Pitasanna Shanmugathas, began reading some of Professor Russell’s works in his Canadian politics class and sought to interview Professor Russell to further explore his views on federalism, power sharing, separatism, and the notion of inalienable rights.  

This previously unreleased interview was conducted prior to his death and is being published as a tribute to Professor Russell.  

JURIST’s Pitasanna Shanmugathas: In order to prevent the appeal of separatism, in what ways can federalism accommodate the diverse linguistic, ethnic and cultural identities of a people in a nation?

Professor Peter Russell: Federalism is a good solution for a country with deep diversity—whether that diversity is regional, ethnic, linguistic, or even religious. It allows for self-rule combined with shared rule, which is the essence of federalism. Self-rule enables people at the local level to manage matters important to their distinct culture, while shared rule ensures cooperation on issues of common interest, such as economic trade, foreign trade, defense, and similar matters. It’s a good compromise, but it can always be somewhat fragile if one of the units seeks a high degree of independence within the federation.

Shanmugathas: In Canada, there are tensions between the Francophone and Anglophone speakers. Quebec considers itself a nation. This concept of multiple nations within a state in a federal system, is that a hindrance toward unified governance? Would you agree with former Prime Minister Pierre Trudeau’s assertion that ultimately nationalism threatens federalism?

Russell: I wouldn’t agree with him. He was a nationalist himself, so there is an element of false consciousness in his statement. He was a strong Canadian nationalist, and it doesn’t help to be somewhat hypocritical—to be a nationalist while condemning nationalism. So, I don’t agree with Trudeau.

To answer your question directly, multinational federations are certainly possible and viable. Canada is one. We’re a multinational federation in that we recognize two kinds of nations within: the French nation, which is essentially the French-speaking population in Quebec. All of our national political parties, including the Conservatives (who were the last to do so), now recognize this.

We also have Aboriginal nations, which predate Canada itself. We recognize First Nations, Inuit, and Métis as having equivalent rights. These are nations within Canada, and they haven’t hindered our national unity. On the contrary, they have strengthened it. By recognizing French Quebec as a nation within Canada, we have reduced support for separatism.

Similarly, with Aboriginal people—though they have never had a secessionist movement—they are divided into many different groups and are heavily reliant on the Canadian welfare state for their well-being. They are not viable as separate entities. However, their loyalty to Canada has been strengthened by recognizing their right to self-government and their nationhood within Canada.

So, by recognizing nations within, we have strengthened rather than weakened the country. It has taken us a long time to reach this point. As an English-speaking majority, we didn’t get there quickly.

Shanmugathas: What conflicts do various political parties tend to encounter in their efforts to introduce genuine constitutional reforms? How can political leaders generally overcome these obstacles? In the case of Canada, we saw how Prime Minister Pierre Trudeau excluded Quebec when he patriated the constitution, creating animosity among Quebecers that persists to this day.

Russell: Well, generally speaking, the leaders of different parts of the country, different sections, or different divisions are more moderate than their followers. One of the responsibilities of leaders in a diverse society is to moderate the demands of their followers, as followers are often less willing to compromise. Constitutional peace and security cannot be achieved without compromise. If you can’t compromise, the alternative is civil war or breakup.

Compromise is crucial. Leaders are often capable of compromise, but followers frequently are not. They are not face-to-face with the people they dislike or distrust. Instead, they see them as “the other,” remain distrustful, and are unwilling to accommodate.

The art of leadership in a deeply divided society is the ability to win the trust of your own people while being able to accommodate other divisions within the country. And that’s tough.

Shanmugathas: And often we see because of narrow political interests of certain leaders in political parties to appease the constituency that—

Russell: Exactly. I mean, the easy thing to do is to please your own people—whether they are an ethnic group, a religious group, or a geographic group that you come from—by saying things they like and applaud. That’s easy. But it won’t lead to constitutional peace in the country. Instead, it will deepen the cleavages and differences, making civil order, civil peace, and constitutional coherence even harder to achieve.

So, I’m a strong believer that constitutional peace depends on brilliant leadership. And brilliance lies in the ability to accommodate.

Shanmugathas: In a federal system of governance, how is it better in terms of giving power to various groups in contrast to a unitary system of governance?

Russell: Oh, well, because, again, it comes back to the basic principle of federalism, which combines self-rule and shared rule. Self-rule means that, at a more local level where people are more homogeneous, many policies with particular cultural or religious overtones can be handled locally. A federal structure allows this to happen while still maintaining a unified country.

You have a central government that manages policies in areas where it’s easier to achieve a coherent position that all groups can agree on, such as foreign trade, defense, and similar issues.

Shanmugathas: So ultimately, Canada, it’s one of the most decentralized in terms of politics, authority, powers, and financial resources. So, is a decentralized form of federalism the best genuine form of federalism to accommodate various groups in a nation?

Russell: I think so, but I would not agree that Canada is highly decentralized compared with most other federations. The American, German, South African, Australian, and Russian systems, and almost any other you can think of, are less centralized than ours. However, we are actually a very balanced federation, with strong and popular governments at both levels.

Canadians are somewhat schizophrenic in this regard. They want strong provinces, but they also want a strong national government—and they want both. Our national government, currently led by Justin Trudeau, is strong, with significant public support for its policies, programs, and initiatives. At the same time, the provinces are also strong and well-supported.

On major national issues—such as climate change and energy policy—the Prime Minister must meet with the provincial first ministers to negotiate a deal. That’s the only way it can work. In more centralized federations, local areas are typically represented in the national Congress or Parliament. For example, in Germany, the United States, and the Russian Federation, local representation is often found in the upper house of the central parliament. Basic issues of the federation are worked out in the national legislature rather than through intergovernmental meetings and negotiations.

In Canada, however, we rely on intergovernmentalism more than any other federation in the world. We are the most intergovernmental, whereas most other federations are what we call intragovernmental, with local areas represented within the institutions of the national government.

Shanmugathas: In what way is federalism under a two unit system viable?

Russell: They’re not very viable. What the separatists in Quebec were proposing for Canada was essentially a two-unit federation: all of English-speaking Canada as one unit, which would comprise the vast majority of the country, and Quebec as the other unit. The global track record of two-unit federations—or diarchies, as they’re sometimes called—has not been good. Examples include Czechoslovakia, with its Czech and Slovak sections, and Nyasaland in Africa.

The issue is that, typically, one unit is much larger than the other. The smaller unit often becomes disgruntled, feeling unfairly treated, while the larger unit grows impatient with the smaller one.

In the context of Sri Lanka, a federation consisting of just two units—a Tamil section and the rest of the country—would be similar to Quebec and the rest of Canada, and I see it as a less-than-promising solution. I think it’s better to have multiple units, not just two, in your federal planning.

This is what made the South African federation viable with its nine provinces. Interestingly, the African National Congress (ANC) did not initially want federation; it was forced on them by the white minority.

I’m still somewhat involved with Nepal, where they’re working on creating a multi-unit federation that isn’t based on ethnicity but rather on other local interests. I believe it’s better to aim for a multi-unit federation than to settle for just two units.

Shanmugathas: And with a multi-unit federation, there’s also greater possibility for more diversification of powers in terms of….

Russell: That’s right, yes, indeed.

Shanmugathas: In terms of financial powers, courts, police.

Russell: Yeah, it’s harder to operate. It’s more expensive to have multiple provinces, or whatever they’re called, because each one needs its own state apparatus—a court system, a health system, and an entire structure of public servants and bureaucrats, all of which cost money. So, it does increase the cost of government; there’s no question about that.

But I think it’s more likely to result in greater longevity for the federation. No federation will last forever, including mine—my Canadian one. Nothing that humans create is eternal; they all eventually come to an end. But the goal is to create a federation with a good life expectancy.

Shanmugathas: Federation—isn’t it also an evolving concept, I guess, in terms of the constitution? We saw an example of living constitutionalism.

Russell: Yeah, we’re watching that in the United Kingdom because it’s a natural federation. If only they could get over the word “federalism.” They hate that word in the United Kingdom. But if you look at Northern Ireland, Wales, Scotland, and England itself—particularly the north, which is industrial and poorer, compared to the wealthy, metropolitan London and other areas—it would, in my view, function better as a federation than as a unified state.

Shanmugathas: Where do you think this negative connotation comes from? I remember when I was interviewing [Canadian politician] Bob Rae; he called it the F-word—federalism. Where do you think that negative connotation stems from?

Russell: I think it’s just the tradition of having one government in London, one parliament, and parliamentary sovereignty, whereas federalism divides up sovereignty. The Scots are ready for that, but I think the Irish, even the Welsh, and probably the majority of English people in England are not ready for it. It’s just a heritage thing.

I’ve given lectures in England and talked about federalism, just as I’m talking to you now, and I could see the crowd did not like what I was saying. There’s nothing I can do to change that, though I think I have colleagues in England who are strong federalists, and they face the same response. The “F word” is the kiss of death. But that may change.

Shanmugathas: In a pluralistic society, what issues can it pose if a particular religion is given the foremost place within a constitution?

Russell: Well, that’s very difficult if there’s the imposition of a state religion, even if it’s the religion of the majority, on religious minorities. It’s a very dangerous thing to do in our day and age. The British used to do that with an established church. Many Catholic countries did the same. There are certainly Islamic countries that do it. And we know that, in Islamic countries where they try to impose the Muslim religion on the people as a whole, they tend to become less and less liberal and democratic. I think it’s very dangerous to do.

Shanmugathas: In terms of democratic countries like Israel who say that they are a Jewish state.

Russell: Yes.

Shanmugathas: And I believe they don’t have a written constitution, but I believe it’s a….

Russell: They have a basic law. Yeah.

Shanmugathas: In terms of Israel, do you believe that poses a conflict because of the various other ethnic and pluralistic—

Russell: I do indeed. Even though Israel is a Jewish state, it’s more of a Jewish civic state. In other words, the Jewish religion isn’t imposed on Christians, Muslims, atheists, and other minorities in the country, but it is a Jewish state in a civil sense. That can be very alienating to minority groups, the largest of which, of course, are the Palestinians within Israel. They make up a significant portion of the population and are a minority, but they may, in a few years, actually become the majority. It will be an odd situation to have a Jewish state with an Islamic majority. I think Israel will eventually have to reconsider this. Not under the Netanyahu government, of course—he’s very conservative and relies on Jewish religious parties to keep him in power. So, he’s not going to change anything. But I think that, eventually, another generation of Israelis will have to question whether it can remain a Jewish state.

Shanmugathas: In the Canadian constitution—and this is something you point out—mobility rights and language rights are unifying characteristics. With that in mind, regarding a constitution for a multiethnic, multicultural population, what do you believe are the fundamental unifying characteristics that are inalienable? These are rights that cannot be revoked under any circumstances.

Russell: I don’t go in for inalienable rights. I’m a moderate man. No rights are absolute. Even freedom of speech.

Shanmugathas: Even language rights and mobility rights?

Russell: Absolutely. Take Canada. I’m very proud of our mobility rights and language rights, but let’s be clear: there are limits to both. For language rights, take the school rights, for example. If you’re a minority French group in English Canada, you have a right to a school board where numbers warrant. That means you must show you have enough families in your community to economically justify a separate school system, with a school board that runs a French-language school system. So, if you’re in a relatively small French community in English Canada, you don’t have that right. The right isn’t absolute. It doesn’t say, “wherever you live in Canada, even if there’s only one family, you have a right to an education in French.” Similarly, the same applies to the English minority in Quebec—where numbers warrant, there are conditions on the right to minority language education.

The same thing applies to mobility. The mobility rights are pretty wide open, and I think they should be. But there’s one limit that was built in, mainly to protect Newfoundland. Without going into the exact wording, you’ll find that a province like Newfoundland can limit the right of Canadians from other provinces to come there if it has a below-average level of employment and new economic opportunities, such as new oil and gas discoveries. If they want to preserve jobs for the local population, they can restrict the mobility of other Canadians coming into the province—but only if they have below-average unemployment. So, if the local population needs jobs and there are new resources or opportunities, they can restrict mobility. But this is not an absolute right.

And to add to that, you have the first section of our Charter, which makes most rights subject to reasonable limits that are justifiable in a free and democratic society governed by law. All rights are limited. That’s crucial. It’s very dangerous for anyone to enter a debate and say, “This right is absolute, and there’s no restriction on it.” For example, freedom of speech: I’m not free to go, as an Islamic person, to a Jewish synagogue and insult Jews. I’m not free, as a Jew, to go into a Christian church and call the Pope a bastard. You are not free to do that in Canada. You are limited.

We have hate propaganda laws that limit free speech, and rightly so. You’re not free to incite others to violence or stir up hatred. You’re not free to do that. So, to emphasize this: all rights are limited.

Shanmugathas: In section one, mobility rights and language rights there are – they’re off limits. You can’t….

Russell: Yeah, but they have their limits built-in where numbers warrant. And then there’s the lower than average national employment.

Shanmugathas: So, what you’re saying is that inalienable rights are not actually realistic–they’re both impractical and unrealistic.

Russell: Well, not only are they unrealistic, but they’re also undesirable. I don’t want to live in a country where a Muslim person can walk into a Jewish synagogue and insult Jews, or vice versa. That’s a horrible country to live in.

It’s not just about what’s realistic; it’s about what’s decent and reasonable. It’s not decent or reasonable to go around insulting others because of their colour or religion. We don’t want that in our society. We don’t want hate propaganda to go unpunished. We punish people who deliberately try to incite racial hatred. We’re different from the Americans. We’ve taken a different route. It’s very important to understand that. So have some Europeans, with their bills of rights.

Shanmugathas: Right. Americans have this right-wing culture which—

Russell: They’ve gone the other way. You can promulgate hate in the United States and not go to jail. And I think they suffer from that. I think they suffer a great deal as a society. You can go around insulting Muslims now, calling them all terrorists. You can’t do that in Canada.

Shanmugathas: There are some people that say, in the context of free speech, putting any limitations on free speech acts as a precedent to restrict free speech even further.

Russell: Well, that hasn’t happened in our country or in other countries that limit free speech. And there are limits on free speech in the United States. If you read the Supreme Court cases starting in the 1920s, both the state and the federal government can limit free speech if there’s a “clear and present danger”—that’s their phrase—that the speech will result in a danger to civil order. In the United States, it has to be a clear and present danger. So, there’s no country in the world that has no limits on free speech, and for very good reasons. Free speech is terrific. I love it. I’m glad we have as much as we do. But I don’t want any more.

Shanmugathas: Going back to unifying characteristics, Canadian philosopher James Tully, this is an argument that he poses, he says three basic principles which are indispensable to any free and democratic society are freedom, equality and distinctiveness. Having diverse identities. I’d like to know, what’s your response to his—

Russell: I think that’s a good formula. It’s very simplistic, especially with all those words like freedom and equality. Because we haven’t discussed equality, which is a very difficult concept in political philosophy. We don’t all want to be the same, and that’s why James also lists diversity. Some people have different abilities than others.

Do we want everybody to have the same right to sing in the Canadian Opera Company, which is publicly supported? Or do we want everyone to have the same right to teach at a Canadian university, which is government-supported, regardless of their level of knowledge or intelligence? I don’t think so.

We have all kinds of differentiations, but what we do want is equality of opportunity. We want to remove any systemic barriers that are built into the structure of our society that prevent certain groups from advancing. For example, we have many barriers for women and for gay people in achieving a full life. We’ve removed quite a few of those, but not all of them. There are still structural barriers.

So, freedom to fulfill your own personal abilities is important. But absolute equality—equality of income, equality of power for all people—I don’t believe everyone should have the same amount of political power. In a representative democracy, some people are going to have a lot more power than ordinary citizens: those we elect to run the government. So, we’re not going to have complete equality of power. We’re not going to have complete economic equality of wealth. And so it goes.

Shanmugathas: Thanks so much for speaking with me.