Justice Minister Irwin Cotler and the Canadian Bar Association's aboriginal law section are urging the federal government to guarantee aboriginal people a permanent place on the Supreme Court of Canada (SCC). The proposal amounts to an affirmative action plan for Canada's courts.

One of the arguments used by the bar association is that many groundbreaking decisions involving aboriginal issues are before the courts. And by having an aboriginal person on the bench, the Supreme Court could better understand and appreciate those issues with representation from aboriginals. There are two flaws to this argument.

First, decisions rendered by any court, let alone the country's highest court, must be based on points of law - not on emotion. Second, affirmative action, by its very nature, is a form of discrimination.

When someone is appointed to a position based on their race, gender or religion, someone who is equally or more qualified maybe overlooked for the simple reason they do not meet the required quota criteria.

Furthermore, if affirmative action is applied to the Supreme Court of Canada, the policy would inevitably be applied to lower courts. Would it follow then, in places like the Lower Mainland of British Columbia, a prescribed number of Chinese Canadians and Indo Canadians must be appointed to provincial courts as judges Where would the application stop

There are currently two vacancies on the Supreme Court of Canada that Prime Minister Paul Martin must fill. The Court is comprised of nine members. By law, three seats are assigned to Ontario, three to Quebec, two for the West and one for Atlantic Canada. If one seat must be guaranteed for an aboriginal person, which region in Canada would give up a seat Quebec The West

There has never been a member of a visible minority on Canada's Supreme Court. The last several decades have seen a growth in post-secondary enrolment by visible minorities - including aboriginals. It is only a matter of time before visible minorities are appointed to the highest court.

If the idea of appointing an aboriginal to the SCC was based on merit, there would likely be little if any opposition. But the proposal is not based on merit, it is based on race. Canadians need to be assured their judges have a seat on the bench due to their abilities and knowledge of the law and not to fill a quota.