Buying Out: Of Capitulation and Contestation
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Buying Out:
Of Capitulation and Contestation

The Charest government’s imposition of Special Law 78 was seen by many to have crossed a line. The formal constraints it placed on the right to association and the exercise of free speech have been challenged in court by student associations backed by a coalition of 70 civil society organisations. The emergency measure has received widespread attention in the international press, drawing regular comparisons to Putin’s Russia and attracting a strongly-worded denunciation from Amnesty International. Most importantly, it strengthened the resolve of the striking students in their battle against tuition increases, while broadened support for their movement among other sectors of Quebec society. Rather than putting the movement to rest, it intensified it, pushing it toward the threshold of a general movement of contestation. Anger boiled over at the unabashed attempt to short-circuit the social negotiation of a major political issue with an autocratic decree from the top.

Perhaps more sobering than Charest’s crossing of the line was his government’s apparent surprise at the reaction it elicited. The law was presented with a notable nonchalance, as if its provisions were not in fact in rupture with normal operating procedure, but merely represented a change in degree rather than kind. This attitude should not be too hastily dismissed. Implicit in the government’s attitude is the proposition that Law 78 should be seen in continuity with the normal situation. The tacit hypothesis contained in the government’s nonchalance is that the law merely formalised a de facto situation. In other words, the short-circuiting of social negotiation – the effacing of the political understood more broadly than as the ritual abdication of decision to a managerial elite of surrogate deciders through the periodic exercise of voting for the least-worst option one can bear – is a fact of life to which the populace should already be inured.

The first indication that this is indeed the case is that as of yet the Montreal City Police Service (SVPM) has not found it necessary to invoke Law 78. Its policing has indeed continued as if nothing had changed. The normal policing approach in Quebec, as throughout Canada, has shifted since the Summit of the Americas protests in Quebec City in 2001 and the 2010 G20 protests in Toronto. The shift has been from enforcement to preemption. Preemption is not prevention. The difference is that preemption actively produces what it fights, the better to choose the battle ground and respond with prepared tactics of choice.1 What policing is ostensibly designed to fight is illegality. In the course of the spring 2012 student demonstrations, the SVPM adopted the practice, for example, of declaring the entirety of a demonstration illegal and responding with overwhelming, life-threatening force against all those present when a small minority provoked the police with violence against property or stone-throwing. What is this, if not the mass production of illegality as a strategy of the state? It amounts to criminalising the exercise of the rights of assembly and free speech on the part of the great majority of those participating whose actions were and remained nonviolent, effectively shortcircuiting social contestation. This was done purely on the grounds of physical proximity to others alleged to have committed infractions. In other words, peaceful protesters were declared guilty on the basis of association.

The only change that Law 78 has brought to this strategy is that after its passage the police began to declare demonstrations illegal before any infractions had been committed by anyone – in some cases, before the demonstration even began. Police spokesmen were careful to emphasize that this was done without invoking Law 78.2 Emboldened by Law 78, but not as a function of it, the SVPM took the logic of preemption a step further in its natural direction. From shortcircuiting contestation through criminalisation by association, the police moved to criminalising it a priori—in order to preempt the association from occurring in the first place. Any gathering not pre-authorised by the police and conducted entirely on the terms laid out by them was to be considered illegal by nature. But of course, any demonstration...