Edmonton
In August 1998, the Supreme Court of Canada formulated an opinion concerning the secession of Quebec. On March 15, 2000, the government of Canada submitted Bill C-20 which was described as « an Act to give effect to the requirement for clarity as set out in the opinion of the Supreme Court of Canada in the Quebec Secession Reference ». In general, the Supreme Court’s opinion was acclaimed by everyone as a quite sophisticated and subtle piece of argument, we cannot say the same thing concerning Bill C-20.
Before saying anything about C-20, I shall first provide a general outline of the Supreme Court’s judgement. And then I shall try to show that Bill C-20 goes far beyond anything that was said in the Supreme Court’s document. I shall thus argue that there is a deep discrepancy between C-20 and the Supreme Court’s opinion on the secession of Quebec.
The detailed argument is to be found in my paper « Le pari de la démesure: la dérive anti-démocratique du gouvernement fédéral ». An English translation of the paper should be available in the weeks to come. Those interested can contact me, and I shall be pleased to send you the English version as soon as possible.
I have also included two documents at the end of this paper.
The Supreme Court’s opinion
Let me first restate the main conclusions of the Supreme Court on the secession of Quebec.
The Court had to answer three different questions. The federal asked the Court if Quebec could unilaterally declareits own independence in accordance with the Canadian constitution. It also was asked to determine whether Quebec could unilaterally secede in accordance with international Law. In both cases, the Court answered negatively. The third question was asked just in case the two questions would receive a different answer. The judges were invited to determine which of the two levels (internal or international) would supersede the other. But since the answers to the first two questions were negative, the third question was irrelevant.
The federal governement immediately reacted by saying that it had won against the sovereignists. But the details of the answers made by the supreme Court werein effect quite favourable to the sovereignists.
The Court says that Quebec could initiate a referendum on the question of secession. If the question was clear and the majority in favour of secession was clear enough, then there would be an obligation to negotiate the terms of secession. This would be a constitutional obligation. These negociations would have to be conducted between the Quebec government, the Federal government and the nine provinces. The negociations would have to be conducted in conformity with four fundamental underlying principles in the Canadian Constitution. These are : the principle of democracy, the principle of federalism, the principle of constitutionalism and the Rule of Law, and the principle of the protection of minorities.
As I said, a unilateral process of consultation may be initiated by a province on the issue of secession and it yields an obligation to negotiate if there is a clear majority on a clear question. This obligation follows from the principles of federalism and the principle of democracy. A unilateral secession is declared illegal and it is described as a secession that would be declared without previous negotiations between Quebec and the other provinces and the federal governement.
If the negotiations were conducted in conformity with the principle of constitutionalism and the rule of Law, there should also be a constitutional amendment in the Canadian constitution. The Court does not specify which amending formula should be used. This is not yet a judicial matter. Be that as it may, it appears that a declaration of independence would be unconstitutional if it were done without an amendment to the Constitution.
However, the Court also recognizes the possibility that the political actors could be reluctant to engage into a process of negotiations on secession. Quebec could then be forced to declare its own independence without the consent of the federal governement and the provinces. This would be « illegal » and « unconstitutional » but the international community would assess the legitimacy and the legality of the process. Quebec could indeed conduct negotiations in good faith and in accordance with the underlying principles while the provinces and / or the federal government would not. Or all the political actors could act in conformity with the four principles but still reach an impasse.
If that were to happen, then the legitimacy of a declaration of independence could count as a justification for recognizing the sovereignty of Quebec. The international community could be led to such a recognition despite the fact that the declaration is « illegal ». According to the Supreme Court, the international community will assess the legitimacy and the legality issues by determining whether the political actors are acting in conformityy with the the four underlying principles during the negotiations.
This amounts to subordinate up to a certain point the international law to the internal or canadian constitutional law.
The Court talks about the need to get a clear majority on a clear question, but it leaves to the political actors some leverage on these issues.
The Clarity Bill
In his quick examination of the Clarity Bill, Reg Whitaker wrote on the INROADS discussion group :
« It is actually without precedent in the western world that the highest court and the national parliament should both formally declare that, yes, a part of the federation may secede, and then set up as many guidelines as are possible to ease that process, should it occur, withthe least degree of uncertainty as is possible under the circumstances.
How this can be construed as an attack on democracy is beyond me. Quebec asks a question it determines, but the rest of the country has to determine for itself if the question and the answer are clear enough to trigger good faith negotiations. To suggest that Quebec should be the sole arbiter of what constitutes a clear question and answer and then impose its preferred resolution on the rest of us is undemocratic in the opposite direction.
The Reference and the Clarity act are about how national self-determination could evenuate in sovereignty, but also about how the process of transition can be maintained within the rule of law and with respect for the democratic rights of all parties. This may be a tall order in practice, but the intentions are good. »
However, I submit that the situation is unfortunately not as simple as that.
1.- The attacks are directed against the Clarity Bill, not against the Supreme Court Reference. One may feel uncomfortable with many aspects of the Supreme Court ruling, but it is overall a well balanced, detailed and subtle argument. Unfortunately, we cannot say the same thing concerning C-20.
So my first point is that we should not confuse the two documents: C-20 and the Reference. It is not fair to suggest that those who oppose C-20 also oppose the Reference. On the contrary, all those who have opposed C-20 have used the Reference in their arguments.
2.- Of course, the Quebec government has to submit a clear question. This will first be assessed by the national assembly, and then by the Quebec population. And after the vote, the federal government and the provinces will assess the results and the clarity of the question, and then the international community. So it wrong to suggest that those who oppose C-20 want to exclude Canadians from the process.
It is indeed without precedent in the western world that the highest court and the national parliament should both formally declare that a part of the federation may secede. But Canada is also the inly long standing democratic regime that has imposed a new constitutional order to one of its peoples without referendum and without consultations. Even worse, it has imposed such a new constitutional order against the explicit will of the vast majority of Quebec MPs in the Quebec national assembly. To this day, Quebec has still not signed the new constitutional order. It is declared illegitimate by sovereignists and federalists alike.
But we also have very good reasons to believe that, through C-20, and contrary to the Supreme Court, the federal government is not setting up "as many guidelines as are possible to ease that process". Quite the contrary, it is doing exactly the opposite. It is multiplying obstacles to complicate the process.
3.- Indeed, C-20 raises numerous obstacles that are not contained in the Reference: interference with the National Assembly deliberations; endless consultations with an indeterminate number of political actors; rejection of the rule of absolute majority; rejection of any question involving a reference to an offer of partnership; obligation to negotiate the partition of Quebec, etc. While the Supreme Court tries to ease down the process leading to sovereignty, C-20 raises new obstacles in the opposite direction to make it as difficult as possible.
4.- These numerous hurdles are desperate ways to remove one self from the constitutional obligation to negociate, despite the fact that the Court repeatedly stresses in the Reference that there is such an obligation.
5.- The Clarity Bill contains an ambiguous, unconstitutional clause concerning the clarity of the majority. It does not comply with the Court's recommendations concerning clarity.
6.- C-20 involves a violation of the principles of federalism since it allows the House of Commons to interfere with the process involved in the national assembly. It allows in effect the House of Commons to intervene during the deliberations on the wording of the question that will take place within the Quebec national assembly. This contradicts the Supreme Court judges who allows the national assembly to unilaterally initiate a process leading to a referendum. (par. 86)
7.-The Clarity Bill suggests that the rule of the absolute majority is not acceptable. It stipulates that the House of Commons will "take into account the size of the majority of valid votes in favour of the secessionist option". The majority must therefore go beyond 50% + 1.
But nowhere do we find such a claim in the Reference. When the Court speaks of a "clear majority", it refers to a real absolute majority as opposed to an apparent one. The absolute majority would only be only apparent if there were a large number of rejected votes, or if there was an absolute majority of yes votes to an ambiguous question, or if there was a very low participation.
The Court confirms this interpretation when it explicitly claims that the word "clear" in "clear majority" must not be interpreted in quantitative terms. It has in the context a qualitative sense. So one cannot use the Court's recommendations on the clear majority as a suggestion that the majority should be qualified. It is often said that if the Court had wanted to speak about an absolute majority, it would have done so, and that shows that the words 'clear majority' cannot mean 'absolute majority'. I agree completely and this is why I gave another interpretation to those words. But the same remark applies to the other interpretation according to which the words 'clear majority' mean 'qualified majority'. This is not what the Court meant, for it would have used those words if it was her intention to mean a qualified majority.
It is true that the Court ultimately leaves the interpretation of what is to count as a clear majority into the hands of the political actors. So let us look at the positions held by the different political actors. Almost all political actors on the federal scene (NDP, Conservatives, Canadian Alliance, BQ), representing 62,2 % of the Canadian population, have explicitly repudiated the qualified majority rule, even if some of them ultimately voted for C-20 as a whole. And we know that there has been a lot of turmoil on this question even within the Liberal Caucus itself.
Also, all political parties within Quebec representing 99% of the population agree on this issue.
Moreover, all the Canadian political actors in the past have accepted the 50%+1 rule in referendums: 1949, 1980, 1992 and 1995.
The same remarks apply at the international level. The United nations, the European countries, etc. have explicitly accepted the rule. So there is an established consensus among political actors.
Here are some figures:
France has ratified Maasstricht with 51,4 % of the vote in 1991.
Denmark has voted NO with 50,7 % of the vote in 1992.
Switzerland has rejected its integration within the european economic community with 50,3 % of the vote in 1992.
Sweden held a referendum favorable to its entrance in Europe with 52,2 % of the vote in 1994.
Norway has voted against the European Union in 1994, also with 52,2% of the vote.
These figures concern questions that cannot be compared with a question on secession? Well the sovereignists do not wish to simply secede from Canada. They want Quebec to become independent and to offer an economic and political union with Canada similar to the one that is now prevalent in Europe. So there is perhaps not such a big difference between the referendum questions of the sovereignists and the referendum questions in Europe.
The absolute majority rule is also the one that would apply in Scotland if there ever was a referendum on sovereignty. Both Scottish and English political leaders agree with that. That's what they told Daniel Turp, the BQ MP.
The United Nations have applied a similar rule for East Timor, Erytrea and are about to do the same for Western Sahara.
The Canadian political leaders have also agreed with that in the past, and now the NDP, Conservative, Bloc, Alliance, within Canada, and PQ, Liberals and ADQ within Quebec all agree on the absolute majority rule.
Everywhere there has been a referendum with a large majority, still absolute majority was the rule.
I call that a consensus among political actors.
So the feds are trying to change the rules at the very last minute, because they are afraid to lose the next referendum, and this is clearly anti-democratic.
The only exceptions that we can mention are : Gorbatchev who desperately tried to prevent Baltic States from recovering their sovereignty, or the Knesset who recently voted for implementing the requirement of a qualified vote to approve any agreement with Syria. However, these are perhaps not good examples to follow.
Almost all the other exceptions involve cases where the voters are not individuals but representatives of different regions, or cases where there is an explicitly formulated rule to that effect in the constitution, or cases where the issue involves the dissolution of the encompassing entity, and not a desaffiliation, as it is the case for Quebec. US modifications of the constitution do indeed involve a qualified majority but they concern representatives of different regions, states, etc. and not individual voters. My argument is precisely that when the voters are individual citizens, then 50%+1 is the rule to follow.
Similarly for Canada, even if the required majority is 50% +1 in a referendum in which the participants are individual voters, we must try very hard to achieve a successful negotiations with the federal government and the provinces that will yield an amendment to the Canadian constitution.
Of course, Quebec does not recognize the constitutional order that was imposed upon us in 1982, and thus we don't accept the amending formula that was incorporated in the constitution. So we don't accept the requirements of a unanimous ratification by all the provinces within three years. After all, Ann Mclellan (Federal minister of Justice) conceded that secession is such an extraordinary event that it cannot be forced into the mold of an ordinary constitutional amendment. But there must be some kind of agreement to be reached upon a transition process that will enable Quebec to enforce a new constitutional order while Canada amends its own constitution. And all this should take place before Quebec declares its sovereignty. Thus, there must be some kind of qualified majority within Canada after a yes vote for sovereignty in Quebec, if the process is to count as constitutional.
But what happens if negotiations come to an impass? Well, as the Court suggested, if Quebec declares its own sovereignty without an amendment to the Canadian Constitution, then the international community will assess the legitimacy and legality issues. As the supreme court recognized in the reference, even if a declaration of sovereignty were illegal and unconstitutional, it could still be legitimate and this could lead the international community to recognize the existence of a sovereign Quebec.
So the process leading to sovereignty is indeed very complicated. After an absolute majority of Yes votes, we all have an obligation to negotiate: Quebec, the federal government and the other provinces (and Quebec must also negotiate directly with its eleven aboriginal peoples). These negotiations must take place in accordance (for Quebec) or conformity (for ROC) with the underlying constitutional principles mentioned by the supreme court: the democratic principle, the principle of federalism, the principle of constitutionalism and of the rule of law, and the principle of protection of minorities. During the negotiations, we must take into consideration the economic union, the interests of the provinces, Quebec, the federal government, linguistic minorities and aboriginal peoples. All these negotiations should (if all goes well) lead to a constitutional amendment on the part of Canada.
So in a way a simple majority vote is not a sufficient condition for sovereignty. But this does not entail that we need a qualified majority in a Quebec referendum. The only clear and admissible interpretation that we can make of the democratic principle is the rule 50%+ 1, but the democratic principle is NOT the only guiding principle that we must follow in the process leading to sovereignty. And during that process, we must try to achieve an agreement with the provinces that goes far beyond the existence of a simple majority within Quebec.
8.- The Clarity Bill also prevents the government of Quebec from asking a question involving a reference to an offer of partnership. Of course, nowhere do we find such a recommendation in the Supreme Court Reference. Worse, this aspect of C-20 goes against the very ideological roots of the sovereignist movement which was created initially as the "Mouvement Souveraineté-Association". The offer of an association or partnership with Canada was always part of the sovereignist ideological position, but a negociation with Quebec after a referendum involving a reference to an offer of partnership is now declared illegal by C-20. According to the feds, there just can't be a way to formulate a clear question involving both sovereignty and an offer of partnership.
This clause also goes against the contemporary international scene in which nation-states simultaneously want to remain sovereign while accepting economic and political interdependence with other states. But the feds are trying to exclude that option. They want to force sovereignists into a hard-line position: a complete independence from Canada. They prevent the sovereignists from proposing a reasonable and balanced question to the population of Quebec. They are trying to force sovereignists to ask a question concerning the creation of a traditional type of nation-state. This too, I suggest, is anti-democratic.
9.- Finally, the Clarity Bill validates partition. It compels the federal government to negotiate the borders of the new state. Of course, nowhere do we find in the supreme court Reference such a recommendation to redraw the borders of Quebec. But partition is now officially promoted and approved by the federal government.
This particular aspect of C-20 is immoral and should be condemned by everyone.
It goes against the actual practice of international law, which now systematically applies the uti possidetis principle. In the recent past, all federated states have kept their borders after secession or after the dissolution of the encompassing federation : Yougoslavia, USSR, Tchekoslovaquia. The borders of Mali and Burkina Fasso have also been kept intact after decolonisation.
There was a ruling of the International Court of justice to that effect in the case of Mali and Burkina Fasso. This ruling has then inspired the Badinter Commission concerning Yougoslavia.
And these rulings and recommendations have also influenced the report of the five international experts on international law during the hearings of the Quebec commission on sovereignty.
Conclusion
So it should not come as a surprise to find that moderate federalists who are concerned about Quebec are severely criticizing or rejecting C-20: The Conservative Party, the Quebec Liberal Party, The Action Démocratique du Québec, Claude Ryan, Roger Gibbins, Gordon Gibson, Guy Laforest, Christian Dufour, Sen. Jean-Claude Rivest, André Tremblay, John Conway, Judy Rebick, Sen. Pierre-Claude Nolin, not to mention the group of 160 intellectuals and 10 canadian associations led by Gary Kinsman.
In any case, C-20 has been rejected by 2/3 of the Quebec MPs in the House of Commons. It has been rejected by the three parties in the national assembly, and by 60% of the Quebec population.
So I guess that the federal government should, by its very own very standards, withdraw the Bill.
Of course, there isn't anyone in the streets of Quebec denouncing the Bill. But a quiet rejection is a rejection all the same.
