Sunday, November 3, 2013

Québec’s Right to Secessionist Self-Determination

Quebec's National Assembly

The Colliding Paths of Canada’s Clarity Act and Québec’s Fundamental Rights Act

The political and constitutional future of Québec has been hotly debated from the time of the "Quiet Revolution" - circa 1960 - right up to 1995, with unflagging intensity.  A democratic intensity, I should perhaps add, because these debates have taken place within the context of referendums, general elections, hearing of parliamentary commissions and in the many other places where both the options for Canada’s federal unity or Québec’s national sovereignty were brought forward. During those three and a half decades, the issue of Québec’s right of self-determination and secession was debated in academic - and to a less extent - political circles, yet the discussion of the legal aspects of Québec’s claim for independence law remained limited.

But, suddenly, just before the October 30th, 1995 referendum, the right of Québec to become a country was challenged before the court.  A first judgment on this issue was delivered a few weeks before the referendum and alluded to the fact that a unilateral declaration of independence (UDI) might contravene the Constitution of Canada and provisions of the Canadian Charter of Human Rights and Freedoms. The Court refused however to grant an injunction to prevent the holding of a referendum related to the question of Québec’s accession to sovereignty as well as its offer of partnership to Canada.

The referendum having almost been won by the sovereigntists (50,48% NO- 49,52%- a mere 54,288 votes of the 4,671,008 ballots cast making the difference), the issue of Québec’s right to achieve sovereignty and to secede from Canada took a very legal bend . This slim victory of the NO camp caused a significant shift in attitude among certain federalists, especially those governing in Ottawa. A plan which came to be known as plan B- intended to hobble the sovereignist movement in Quebec and to muzzle the Quebec nation.  Devised by the new minister of Intergovernmental Affairs and president of the Privy Council of Canada, my colleague at the Université de Montréal, Mr. Stéphane Dion, this plan is comprehensive and has several components, i.e a propaganda component where Canadian flags and subsidies to celebrate Canada Day are distributed very generously in Québec, a territorial aspect through the threat of partition of a sovereign Québec’s territory and a diplomatic nature illustrated by a catechism to be applied by Canada’s foreign agents when sovereigntists like myself promote Québec sovereignty abroad.

In its legal dimension, this plan B first found expression in the request for an advisory opinion by the Supreme Court of Canada on the issue of Quebec's secession.  This request rendered moot the case that had been filed just before the 1995 referendum and which had been continued.  It had given rise to a judgement on preliminary exceptions which were rejected by the Québec Superior Court.  This Court formulated however a number of questions that in its view required an answer when the merits of the case would be debated.

Claiming the need that such answers should be given quickly by the highest court of the land, the government of Canada submitted in September 1996 a request for an advisory opinion to the Supreme Court of Canada on the position of Canadian constitutional law and international law and on the issue of secession.  The Government of Canada put three questions on Quebec's right to unilateral secession to Canada's final court of appeal, one of which referred to the right of peoples to self-determination.  The questions read as follows:

Question 1Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

Question 2Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?  In this regard, is there a right to selfdetermination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?

Question 3:  In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?

These questions were severely criticized by the former head of the International Law Commission of the United Nations in a legal opinion sought by the amicus curiae of the Court.  The renowned international French scholar Alain Pellet stated:

I am profoundly distressed and upset by the partisan manner in which the questions are put and I take the liberty of suggesting that a court of justice has the duty to react to what appears to be a blatant attempt at political manipulation.”

Yet, contrary to all expectations and as constitutional experts have pointed out, the Court refused, in its August 28th 1998 Reference re Secession of Quebec to answer YES or NO to the questions put to it.  And, rather than simply denying Quebec's right to declare independence unilaterally and state that international law on the self-determination of peoples did not recognize the right to unilateral secession, it noted that the federal and provincial governments had a constitutional and mandatory duty to negotiate should Quebec vote in favor of sovereignty.  It also considered the question of the international community's recognition of Quebec's sovereignty, linking the two questions.  It said:

“The corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table. The clear repudiation by the people of Quebec of the existing constitutional order would confer legitimacy on demands for secession, and place an obligation on the other provinces and the federal government to acknowledge and respect that expression of democratic will by entering into negotiations and conducting them in accordance with the underlying constitutional principles already discussed. “

The advisory opinion of the Supreme Court hurt the federalists especially because it recognized that Quebec could turn to the international community if Canadian governments failed in their obligation to negotiate in good faith.  The Court said:

“To the extent that a breach of the constitutional duty to negotiate in accordance with the principles described above undermines the legitimacy of a party's actions, it may have important ramifications at the international level. Thus, a failure of the duty to undertake negotiations and pursue them according to constitutional principles may undermine that government's claim to legitimacy which is generally a precondition for recognition by the international community. Conversely, violations of those principles by the federal or other provincial governments responding to the request for secession may undermine their legitimacy. Thus, a Quebec that had negotiated in conformity with constitutional principles and values in the face of unreasonable intransigence on the part of other participants at the federal or provincial level would be more likely to be recognized than a Quebec which did not itself act according to constitutional principles in the negotiation process. Both the legality of the acts of the parties to the negotiation process under Canadian law, and the perceived legitimacy of such action, would be important considerations in the recognition process. In this way, the adherence of the parties to the obligation to negotiate would be evaluated in an indirect manner on the international plane.”

In order to neutralize, indeed circumvent, the obligation to negotiate set out in the advisory opinion by the Supreme Court of Canada, the Parliament of Canada tabled on December 10th, 1999 (International Human Rights Day!) 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 (Bill C-20).  This federal initiative, which I fought with vigour during several months as the critic for Intergovernmental Affairs for the Bloc Québécois, led to the passing of the Clarity Act on June 29, 2000 which purports to impose conditions on Québec before the federal government fulfills its obligation to negotiate with Québec.

The adoption of such a law casted a pall on Canadian democracy and struck a chord with the Government of Quebec, which considered it necessary to reply with a bill entitled An Act Respecting the Fundamental Rights and Prerogatives of the Québec People and of the Québec State.  This piece of legislation was adopted by Québec’s National Assembly on December 7th 2000 and reaffirms Québec’s right of self-determination and its right to choose freely its political status.

With these two pieces of legislation, Canada and Quebec are more than ever before on colliding paths, a course where not only ideas but interests have and will continue to collide.

The Clarity Act and Quebec: Ideas in collision

After its tabling in the House of Commons of Canada, the so-called Clarity Act was debated in conditions unworthy of a parliamentary democracy in which the government repeatedly invoked closure in order to ensure quick passage of this bill, through the legislative committee struck for the purposes of the bill and through the House of Commons itself.  It was passed on March 15, by a vote of 208 to 55, including 47 nay votes from among the 73 Quebec members present at the time of the vote (64% of Quebec's MP’s).  The bill was subsequently examined by the Senate of Canada and passed on June 29, despite strong opposition, especially by senators from Quebec.  It received royal assent from the Governor General the same day.

The Clarity Act attempts essentially to define the wording of the question in a future referendum on Quebec's sovereignty and to determine the majority threshold that would allow the Canadian government to shirk its obligation to negotiate.  By doing so, it collides headlong with ideas that have prevailed for decades and guaranteed the Quebec nation a freedom the government is now trying to take away.

It had long ago been agreed that Quebecers could organize referendums on their future through their National Assembly.  In the organization of these referendums, Quebec's elected representatives would decide the wording of the referendum question.  This notion was destroyed by the Clarity Act, which will give the House of Commons the power to determine the clarity of the question.  This House of Commons - where only 25% of the members are from Quebec (75 of 301) - is to be given, in the name of clarity, the right to reject a question formulated by a democratic institution in Quebec, the National Assembly of Quebec.  And yet this Quebec institution is the seat of the sovereignty of the people of Quebec, and their elected representatives exercise this sovereignty on their behalf.

The idea that a referendum is won with a majority of 50 per cent plus one of the valid votes cast seemed also to have prevailed in all referendums organized with respect to the political and constitutional future in Quebec and Canada.  Here too, ideas are in collision, since the intent of the Clarity Act is to give the House of Commons the power to decide that a majority of 50 per cent plus one of valid votes cast is not enough to oblige the federal government to assume its constitutional and mandatory duty to negotiate.  On this point, the collision is all the more real and the undemocratic nature of the bill all the more obvious in the light of Canadian practice on the subject of majority rule.  All referendums in Canada have been held on the basis of majority rule.  Newfoundland joined Confederation with 52% of the valid votes cast.  All referendums on Quebec's and Canada's political and constitutional future -- on sovereignty-association of 1980, on the Charlottetown Accord in 1992 or on sovereignty and partnership in 1995 -- were all governed by majority rule of 50% of the valid votes cast.

To cast doubt on the rule of 50 per cent plus one is also to contravene the fundamental principle of the equality of voters.  The vote of some must have the same value as the vote of others.  This is a matter of equity and justice the Supreme Court of Canada recognized in its 1991 decision on electoral boundaries in Saskatchewan: "...dilution of one citizen's vote as compared with another's should not be countenanced."

The three parties represented in the Quebec National Assembly, the Parti Québécois, the Quebec Liberal Party and the Action démocratique du Québec, all rejected the Clarity Act, as did a very clear majority of the federal members for Quebec, as mentioned earlier.  Hence, nearly two thirds of the Quebec members of Parliament in attendance during the vote at third reading on March 15, 2000 voted against Bill C-20, including the 44 members of the Bloc Quebecois.  Civil society, through the voices of trade unions, student associations, women's groups and community groups is also nearly unanimous in its rejection of this law.  Very few groups in Quebec supported this federal initiative.

The Clarity Act breaks the democratic tradition in Canada that, up to now, had taken into account Quebec's desire to freely decide its future.  It cannot be ignored.  It is no credit to a country that boasts of itself in international circles as a model of democracy and the best country in the world.  Canada's aboriginal nations know this not to be true as do its poor children, whose defence the UN has taken up.
Quebec appears today to be the victim of a country described as unique by its ability to recognize its own divisibility, when, in actual fact, its Clarity Act is intended to confront what the Minister of Intergovernmental Affairs, Stéphane Dion, calls "any threat of separation" and "to guarantee the unity of Canada", according to Prime Minister Jean Chrétien.

This sort of attitude is not going to deny Quebec its right to self-determination.  Every ten years or so, it seems that Quebec has to reaffirm its freedom to determine its political status.  In 1980, the Prime Minister of Quebec, René Lévesque, noted in the days after the May 20 referendum that "the recognition of this right to self-determination was the most important outcome of the Quebec referendum".  Another Prime Minister of Quebec, Robert Bourassa, said on June 22, 1990 that "no matter what is said or done, Quebec is now and will always be a distinct society, free and the master of its destiny and its development."  In 2000, the Government of Quebec took a solemn stand on the Clarity Act by tabling in turn An Act Respecting the Fundamental Rights and Prerogatives of the Québec People and of the Québec State, setting a collision course with the interests of Canada.

The Fundamental Rights Act and Canada: Interests in collision

In reaction to such a serious threat to the freedom of the people of Quebec to determine their future, the Government of Quebec tabled, on December 15, 1999, two days after the tabling of the Clarity Bill, a bill entitled An Act respecting the fundamental rights and prerogatives of the Québec people and of the Québec State (Bill 99).  With this bill, the government called on the National Assembly of Quebec to reaffirm Quebec's freedom to determine its future and to adopt measures to establish this freedom on solid legal grounds.

The Quebec Fundamental Rights Bill was debated at length in the National Assembly and in its Committee on Institutions.  A number of amendments were made to it as the result of proposals by individuals and groups that testified before the parliamentary committee. Adopted on December 7th 2000, the bill received the support of the members of the Parti Québécois and the Action démocratique du Québec.  Despite an attempt to achieve a consensus, the members of the Liberal Party of Quebec refused to support the bill and would have preferred to see the National Assembly pass a solemn declaration on this matter.

The Fundamental Rights Act has a much broader scope than the Clarity Act and was described by the Prime Minister of Quebec as a charter of collective rights for Quebec.  As such, it is in collision not only with the Clarity Act but with the vision of Canada held by its leaders and the interests they appear to promote.

One of the dominant features of the Fundamental Rights Act is its unreserved affirmation of the existence of the Quebec people and its establishment in law of this affirmation.  Thus the first chapter of the act affirms, as no Quebec legislation has ever done, the concept of a Quebec people.  This affirmation was necessitated by Canada's inability to recognize the existence of the people of Quebec.  After consistently refusing to consider that Quebeckers constituted a people, albeit a nation, the attempt to affirm the existence of a "distinct society" in Quebec was also challenged by the rest of Canada and its representatives.

The affirmation of the existence of the people of Quebec is therefore necessary in this context and permits the bill to enshrine the right to self-determination and the right to choose a political system and a legal status for Quebec.  Thus, section 4 of the Fundamental Rights Act provides clearly that "when the Québec people is consulted by way of a referendum under the Referendum Act, the winning option is the option that obtains a majority of the valid votes cast, namely fifty percent of the valid votes cast plus one."

Section 5 of the Fundamental Rights Act rightly provides that the Quebec state derives its legitimacy from the will of the people inhabiting its territory and contains an affirmation fully consistent with the third paragraph of article 21 of the Universal Declaration of Human Rights, which provides that "the will of the people shall be the basis of the authority of government".  The subsequent reference to the fact that the will of the people is expressed through the election of members to the National Assembly by universal suffrage, by secret ballot, under the one person, one vote system, pursuant to the Election Act and through referendums held pursuant to the Referendum Act is also consistent with the requirements of this international instrument and sets out the two Quebec laws whose democratic nature is incontrovertible.

The objective of protecting Quebec's internal and international jurisdictions is apparent in the other sections of chapter II of the Act and is set to collide with the interests of the federal government, which has tried to progressively expand its jurisdiction.  Accordingly, section 6 of the Fundamental Rights Act states that "the Québec State is sovereign in the areas assigned to its jurisdiction by laws and constitutional conventions."  There are recent examples to support the argument that Quebec's jurisdiction has been infringed by federal authorities, whether it be in the case of the millennium scholarship institution or of the passage, without Quebec's approval, of a framework agreement on Canada's social union.

This sort of attitude reflects an increasingly obvious desire on the part of these authorities to assume a determinant role in all spheres of activity and to use their spending power to this end.  Quebec has consistently disputed the exercise of this power, but its pleas have been ignored.  Accordingly, the government decided to remind Parliament and the Government of Canada of Quebec's profound commitment to its areas of jurisdiction and to their integrity and of its intention to resist any attempt to further usurp these areas that were given to Quebec by law and constitutional convention.

In addition, Quebec's exercise of international jurisdiction has consistently been disputed by the federal government of Canada, and here again the differing interests of Canada and Quebec collide.  Arguing that only the federal government had international jurisdiction as granted by royal prerogative, successive Canadian governments have rejected the doctrine formulated in 1965 by Minister Paul Gérin-Lajoie to the effect that Quebec could extend its internal jurisdiction internationally.  Under these conditions, the principle enshrined in the first paragraph of section 7 of the Fundamental Rights Act whereby "the Québec State is free to adhere to any treaty, convention or international agreement in matters under its constitutional jurisdiction" and "the Québec State is not bound by any treaty, convention, agreement or Act in the areas under its jurisdiction unless it has formally adhered to it by a decision of the National Assembly or the Government, subject to the applicable legislative provisions."

In its application as well to the question of international representation, the Gérin-Lajoie doctrine was also rejected by the Government of Canada and has been the source of considerable conflict between Canadian and Quebec government officials.  Whether it concerned participation in international forums on cultural diversity or in meetings between representatives of Quebec with heads of state or foreign governments (e.g. Bouchard-Zedillo) or the refusal to give Quebec its proper place in the context of the Free Trade Area of the Americas (FTAA), the doctrine of the federal government's monopoly over foreign policy has caused considerable and ongoing conflict.  Accordingly, the Government of Quebec wanted to affirm in the third paragraph of section 7 that Quebec "may, in areas under its jurisdiction, transact with foreign states and ensure its representation outside Quebec."  In this era of globalization, such an affirmation seems all the more compelling in the light of what the Quebec Minister for Canadian Intergovernmental Affairs, Joseph Facal, called a "Canadian federal deficit", which aims to prevent Quebec from reaching out as it will onto the international scene.

Added following the hearings of the National Assembly's Committee on Institutions, section 8 of the Fundamental Rights Act reiterates Quebec's jurisdiction over issues of language and reiterates that French is the official language of Quebec. It also emphasizes the fact that the "Québec State must promote the quality and influence of the French language" and that it "shall pursue those objectives in a spirit of fairness and open-mindedness, respectful of the long-established rights of Québec's English-speaking community". This desire to preserve and promote Quebec's French language also conflicts with another desire, that of the federal government to promote two official languages in Canada.

In the chapter on the territory of Quebec, the National Assembly of Quebec reaffirmed that "the territory of Québec and its boundaries cannot be altered except with the consent of the National Assembly."  This provision is intended to ensure that the existing boundaries of Quebec are respected and maintained and to counter the partitionist reveries in subsection 3(2) of the Clarity Act.  This provision is intended primarily to temper and limit the right of the Quebec people to choose their political future and status freely. Quebec's territorial integrity, the intangibility of its borders and the rule of law form the cornerstone of a very broad consensus emerging in Quebec.

The Fundamental Rights Act assures the Abenaki, Algonquin, Attikamek, Cree, Huron, Innu, Malecite, Micmac, Mohawk, Naskapi and Inuit Nations of a rightful place and sets forth, in the fifth clause of the preamble, the principles associated with the recognition of the aboriginal nations including their right to autonomy within Quebec.  In addition, in sections 11 and 12 of the act, the National Assembly recognizes, in exercising its constitutional jurisdiction, the existing rights -- aboriginal and treaty -- of the aboriginal nations of Quebec, and the government undertakes to promote the establishment and maintenance of harmonious relations with these nations and to foster their development and improvement of their economic, social and cultural conditions.

On all these matters, the Fundamental Rights Act and the Clarity Act differ in their concepts of the future.  However, with the final provision of the Fundamental Rights Act, the collision becomes headlong.  Section 13 of this act provides that "no other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Québec people to determine its own future."

This provision is fundamental and is designed to nullify any effect of the Clarity Act on Quebec.  It must also be seen as a stand taken against any power this law might give the House of Commons to decide on the clarity of a measure of the National Assembly and specifically the clarity of a question selected by a motion of the National Assembly.  It also nullifies the effect of any measure by the House of Commons to determine the clarity of the result of a referendum and the votes cast by Quebec electors.


In this pivotal year 2001, the right of peoples and nations to self-determination remains as relevant as ever.  It underlies claims to autonomy and independence and the calls for freedom heard on every continent.  This right rests on the guarantee of rights to national and ethnic, cultural or religious minorities and on the recognition of the right of peoples and nations to self-determination.  It should notably evolve towards the recognition that political independence is a means to implement such a right in a democratic context, such as the context of Québec’s claim for independence.

So long as governments and international institutions continue to question the right to self-determination and refuse to give it effect, they exacerbate conflicts and promote neither political harmony nor cultural diversity.  However, their democratization is essential and cannot be achieved at a cost to the minorities, peoples and nations that fashion this international system and give meaning to the concept of international community.  This democratization must, however, be based on principles that neither threaten freedom nor impose trusteeship regimes on minorities, peoples or nations.  It must never be based on the principles that gave rise to the Clarity Act recently enacted by the House of Commons of Canada, which represents the antithesis of the process of democratization that springs from true recognition of the right to self-determination.  This democratization must be based on a real desire to recognize minorities, peoples and nations and an absence of meddling in the process of determining their political and constitutional future.

This conference, as well as the other conferences organized under the auspices of the Consortium on International Disputes Resolution, may help give the right to self-determination the letters patent it deserves and permit it to be linked with the principle of democracy which was given a key role by the Supreme Court of Canada Advisory Opinion on Québec’s Secession. I will continue to argue, as do Puerto Ricans and Hawaiians, Scots and Palestinians, to give but a few examples, in favour of the application of democratic right of self-determination.  A right that should be the key foundation for peoples who desire to take charge of their economic, social and cultural development and intend contribute in their own way to the enrichment of humanity's common heritage.

By Daniel Turp,  February 2, 2001 at Santa Clara University School of Law, Santa Clara, California