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Kanadan, ez dago legezko ageriko justifikaziorik, alde batek eragindako sezesiorik izan dadin. Alabaina, Kanadako Auzitegi Gorenak ezarri zuenez, Kanadako federalismoaren funtsezko oinarrien arabera, Quebeceko herritarrek sezesioa aldezten badute, eta hartarako galdera argi baten eta hautesleen gehiengoan oinarritzen badira (baldintza horietarik batere ez da argiro zehazten); bada, orduan gainontzeko bazkide federalek beste harreman bat negoziatzeko obligazioa izango lukete. Kanada zatitu ahal izatearen aldeko irizpena eman zuen Auzitegi Gorenak; hortaz, munduko herrialde bakanetarikoa da, non aitortu egiten baita sezesiorako eskubide konstituzionala. Giltza-Hitzak: Konstituzioa. Konstituzionalismoa. Demokrazia. Federalismoa. Gutxiengoak. Nazioak. Pluralismoa. Identitateak.
No existe una justificación legal explícita para la secesión unilateral en Canadá. Sin embargo, el Tribunal Supremo de Canadá estableció que los principios fundamentales del federalismo canadiense implican que si los ciudadanos de Quebec apoyaran la secesión en respuesta a una pregunta clara y con un voto mayoritario claro (ninguna de las dos condiciones se especifica claramente), entonces el resto de socios federales tendrían la obligación constitucional de negociar una nueva relación. El Tribunal Supremo dictaminó que Canadá es divisible –y, por lo tanto, es uno de los pocos países del mundo en el que se reconoce el derecho constitucional a la secesión. Palabras Clave: Constitución. Constitucionalismo. Democracia. Federalismo. Minorías. Naciones. Pluralismo. Identidades.
Il n’y a aucune justification légale explicite pour la sécession unilatérale au Canada. Toutefois, la Cour suprême du Canada a statué que les principes fondamentaux du fédéralisme canadien impliquent que si les Québécois appuient la sécession, en réponse à une question claire et une majorité claire (aucune de ces deux conditions n’étant clairement spécifiée), les autres partenaires fédéraux auraient l’obligation constitutionnelle de négocier une nouvelle relation. La Cour Suprême a statué que le Canada est divisible et, par conséquent, l’un des rares pays au monde qui reconnaît le droit constitutionnel de sécession. Mots-Clés : Constitution. Constitutionnalisme. Démocratie. Fédéralismo. Minorités. Nations. Pluralisme. Identités.
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Constitutional Referendums and the Democratic challenge: Canada as a role model?
Gagnon, Alain-G Université du Québec à Montreal. Faculté de Science Politique et de Droit. CP 8888, succursale Centre-Ville. Montréal H3C 3P9 (Canada)
[email protected] BIBLID [ISBN: 978-84-8419-271-8 (2015); 18-31]
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Gagnon, Alain-G: Constitutional Referendums and the Democratic challenge: Canada as a role model?
Introduction As a starting point, let us remind ourselves that most countries have been founded following some acts of violence. So, to turn to a referendum as a political instrument is a clear democratic advance. It is, to use Dimitrios Karmis’ expression, “a noble idea”1 – a noble political project. Resisting domination has resulted, over time, in clear progress for humanity.2 A caveat is in order: I will be examining Quebec from a comparative perspective, especially in relation to the Basque Country, Catalonia, Scotland and their respective contexts. While it is not perfect, Canada (although a young country) is already a wellestablished democracy. Over time Canada has emancipated itself from the British Empire and sought to advance its own nation building and to superimpose a Canadian identity on top of all other identities, at the risk of alienating its founding nations (Aboriginals, Acadians, French Canadians). In contrast, I would depict the United Kingdom as an established democracy and an old country that has been challenged at various critical historical moments to reassess its power relations with its national partners. Finally, I would qualify Spain as an old country that embodies a young, fragile democracy uncertain about its own capability to deal with its old demons. Each of these countries has imposed, or attempted to impose, its political authority on its member communities at the origin of its constitutional pact with unequal degrees of success.
1. Dimitrios Karmis, “Referendum and Democracy in Deeply Diverse Democracies,” Paper presented at the International Workshop on Constitutional Referendums and the Democratic Challenge: Quebec and Scotland in Focus, University of Edinburgh, 29-30 April 2013. 2. For a solid philosophical account of this argument, see Philip Pettit, Republicanism. A Theory of Freedom and Governance, (Oxford: Oxford University Press, 1999), especially Chapter 3, dealing with “nondomination as a political ideal.”
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When examining these three cases we can see the uneven capabilities of the majority nations to accommodate, recognize and empower minority nations. Indeed, in some cases, we can even speak of efforts to misrecognize and threats to bully, if not disempower, national communities. Cases of misrecognition have contributed to increasing political tensions with various levels of intensity. In the case of Quebec and Scotland, it appears that defining the people has been much less of a problem since, in both cases, the central government agreed that the Scottish and Quebec nations could cast a vote with respect to their constitutional futures – and that (although the Constitution remains silent on this) these constitutive nations have the right to hold a referendum on their political future within the all-encompassing state.3 One of the toughest questions to be addressed in the case of Spain has been to determine “Who is the people?” in other words, “Who is the people that can selfdetermine?” This is currently a problem in Catalonia and this was also a problem in the case of the Basque country at the time of the Ibarratxe Plan. So, in Canada and the UK, two firmly established multinational democratic states, the political argument is that there is more than one demos, and – to borrow an idea from Will Kymlicka – that “the authority from the larger political community cannot be assumed to take precedence over the authority of the constituent national communities. If democracy is the rule of ‘the people’, national minorities make the claim that there is more than one people, each with the right to rule themselves”.4
Contentment versus containment Shortly after the 1995 Quebec referendum, which the nationalists lost by 52,000 votes (1%), Ottawa moved quickly to adopt a containment strategy known as Plan B. Here is how Stéphane Dion, a key political actor, depicted it and why he felt the central government was justified to go ahead with such a strategy. According to the tenets of containment, nationalists cannot be contented: they need their own country. The more that you give them, the more they will demand, leading eventually to secession. Each new concession will allow them to mark off more of their territory, to define themselves as an increasingly exclusive ‘us,’ to further exclude the other group and to reject common institutions that are perceived as a threat to the nation and embodiments of a foreign entity.5
3. Cf. Stephen Tierney, Constitutional Referendums: The Theory and Practice of Republican Deliberation, (Oxford: Oxford University Press, 2012), p. 107. 4. Will Kymlicka, Multinational Citizenship, (Oxford: Oxford University Press, 1995), p. 182. 5. Stéphane Dion, “Belgique et Canada: une comparaison de leurs chances de survie,” in Serge Jaumain, Ed., La réforme de l’État … et après ? L’impact des débats institutionnels en Belgique et au Canada, (Brussels: Éditions de l’Université Libre de Bruxelles, 1997), p. 152. Author’s translation. S. Dion sees Pierre Elliott Trudeau as the father of this strategy. See, Juan Claudio de Ramón, “¿Donde está nuestro Pierre Trudeau?,” El País, January 19, 2013, p. 4.
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So, rather than attempting to appease political tensions and to imagine scenarios to get out of the political impasse, as suggested by most politically involved intellectuals,6 political actors in Ottawa have responded to Quebec’s claims by advancing a competing nation-building project.7 With the Liberals in Ottawa under the leadership of Pierre Elliott Trudeau (1968-1979, 1980-1984) and Jean Chrétien (1993-2003), the central government generally pursued a strategy of containment through different means and implemented centralizing initiatives. Those that come to mind include: • the unilateral patriation of the Canadian Constitution from Britain in 19811982; • the imposition of a constitutional amending formula in 1982 that failed to recognize Quebec’s historical veto right; • the repeated use by the central government of its spending power in areas of exclusive provincial jurisdiction; • the adoption in 1999 of a social union framework without the consent of Quebec; and • the use of public funds to advance Canadian unity and identity as well as to promote the central government’s initiatives within Quebec. In the meantime, the governing party in Ottawa decided to call upon the Supreme Court to examine whether, based on Canadian jurisprudence, Quebec, or any other member state of the federation for that matter, has the right to secede from the country. The following three questions were asked specifically: 1. Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? 2. Does 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 self-determination 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? 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 ef-
6. There is a vast body of literature on this. In addition to the influential work of Charles Taylor, James Tully and Jeremy Webber, let me simply point to research done by members of the Groupe de recherche sur les sociétés plurinationales, based at the Université du Québec à Montréal, including that done by Eugénie Brouillet, Dimitrios Karmis, Guy Laforest, André Lecours, Jocelyn Maclure, Geneviève Nootens, François Rocher and José Woehrling. 7. See also Alain-G. Gagnon and Raffaele Iacovino, Federalism, Citizenship, and Quebec: Debating Multinationalism (Toronto: University of Toronto Press, 2007), especially chapters 5 and 6.
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fect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?8 The Supreme Court delivered its unanimous response on August 20, 1998. Expectedly, and in summary, the Supreme Court stated that Quebec could not simply break away from Canada. So, a unilateral declaration of independence was not acceptable. The Court also stipulated that were Quebec to seek to obtain its independence from Canada, the Canadian government would have the obligation to negotiate the terms of secession in good faith as long as two conditions were met: • First: Quebecers needed to decide on a clear question of secession; • Second: To be considered, a referendum question needed to obtain a clear majority. It remains uncertain though what the Court exactly understood to be a clear majority. For most Quebecers it means a 50% + 1 (absolute majority) vote while for other partners in the federation it usually refers to a qualified majority, that is, a result significantly higher than a 50% + 1 vote. In its 1998 reference case, the Supreme Court of Canada made clear that, although Quebec has a recognized right to secede, some principles cannot trump other principles – this is known as the equal primordiality thesis – identical political weight must be given to unity and multiplicity. So, what matters is less the right of Quebec to secede than the percentage to be obtained in order to be in a position to proceed. This judicial interpretation of Canada’s highest tribunal confirms that the Quebec government was free to consult its population in 1980 and 1995 with respect to its political future in Canada. In other words, the principle of secession has been accepted as legitimate by the Supreme Court of Canada. This decision helped to somewhat ease existing tensions between Quebec and Ottawa and contributed to giving back some legitimacy to the Supreme Court of Canada, the credibility of which had been severely diminished when it had declaring in 1980 that Ottawa could patriate the Constitution after having secured substantial support from member states of the federation. To come back to the reference case concerning Quebec’s right to secede, both sides were quick to declare victory. Ottawa looked at one side of the reference case, namely, the idea that a unilateral declaration of independence (UDI) would be declared illegal under Canadian law and current international law, while the Quebec government was pleased to read that the Supreme Court of Canada would be willing to recognize, under certain conditions, Quebec’s right to self-determination.
8. Our emphasis. Reference re Secession of Quebec, [1998], 2 S.C.R. 217: http://scc.lexum.org/decisiascc-csc/scc-csc/scc-csc/en/item/1643/index.do
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The Supreme Court’s justices stayed away from the most controversial issues such as (1) the amendment procedure that would be used were Quebec to attempt to secede, (2) the role of other member states, (3) questions concerning Aboriginal peoples, (4) borders, (5) sharing of assets. With Jan Erk, I have argued elsewhere that the nine justices were right to avoid being too specific as this would have augmented tensions and taken political leaders into a real political impasse.9 This was to come later with the 2000 Clarity Bill, as Ottawa took a new step in an effort to intimidate the Quebec government. The Supreme Court’s reference decision also identified a series of 4 constitutional principles (namely, federalism, democracy, constitutionalism and the rule of law, and respect for minority rights – see para. 49) that need to be taken into account when reimagining relations between political communities and institutions that shape the country. In a sense, these principles constitute the cornerstone of the (unwritten) constitution (para. 53). These principles are of equal value and cannot be traded one against another. The Supreme Court of Canada’s reference on the right of Quebec to secede provided important insight as to how an equitable process of national self-determination could be undertaken by the Quebec government, and warned Quebec’s partners in Confederation of the need to engage in a Canadian conversation in good faith. In paragraph 92, the Supreme Court states: The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to the underlying constitutional principles that must inform the amendment process, including the principles of democracy and federalism. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. Negotiations would be necessary to address the interests of the federal government, of Quebec and the other provinces, and of other participants, as well as the rights of all Canadians both within and outside Quebec.
The secession reference points to the possibility of other methods of responding to claims-making beyond the containment/contentment dyad that I referred to at the outset of this contribution. However, rather than taking seriously the Supreme Court’s advice, the central government wanted to settle the score with Quebec, and it embarked on a risky road by adopting what was termed the Clarity Act (C-20), which sought to fix the rules of the game were Quebec (or any other member state for that matter) to opt to go ahead with a new referendum. The Act was passed by the House of Commons on 15 March 2000 and adopted by the Senate on 29 June 2000.
9. Jan Erk and Alain-G. Gagnon, “Constitutional Ambiguity and Federal Trust: Codification of Federalism in Canada, Spain and Belgium,” in Regional and Federal Studies, Vol. 10, No 1, 2000, pp. 92-111.
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The Clarity Act stated six main points: 1. That the House of Commons had the power to determine whether a referendum question was clear before people could vote; 2. Only a question concerning secession would be considered clear; 3. Ottawa would wait after the votes were counted before stating what was a clear result, suggesting that 50% + 1 was unacceptable and that a substantial majority would be necessary; 4. Ottawa, member states of the federation and Aboriginal nations would be part of the negotiation process; 5. Ottawa could override a vote in favour of secession if it felt that aspects of the Clarity Bill had been violated; 6. An amendment to the Constitution would be required to allow the secession of a province.10 This aggressive (and provocative) gesture on the part of the central government led members of the Quebec National Assembly to respond by adopting, in the very same year, the Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the Quebec state.11 Political tensions increased significantly as Quebec was determined to stop any other government from attempting to limit its political authority. Article 13 of the Act stipulated 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 Quebec people to determine its own future.” The passing of the Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the Quebec state put a stop, at least for a while, to the constitutional saga involving Ottawa and Quebec, as both sides felt that they had made clear to the other exactly where they stood on the matter of Quebec’s right to secede.
What next? In their efforts to maintain the status quo and discourage the holding of referendums, majority nations represented by Ottawa, Madrid and London have developed a two-pronged strategy: • First, they point out a series of constitutional and political repercussions as well as economic consequences to discourage their member states from holding a genuine referendum. • Second, they limit options as much as possible and expand the gap between the current situation and the new situation.
10. http://laws-lois.justice.gc.ca/PDF/C-31.8.pdf, Consulted on 25 January 2013. 11. http://www.m-e-s.org/gauche/bibliotheque/interne/99, Consulted on 25 January 2013.
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To illustrate the first element of this strategy with respect to the Quebec case… Quebecers were told about: • economic consequences • loss of jobs • loss of prestige and exclusion from international forums • increased rivalries and bickering • social disruptions • uncertainty • increased debts • increase of interest rates • living conditions being threatened • old-age pensions being reduced or even lost • individual rights being jeopardized • loss of passports • frontiers to be renegotiated • loss of population • aboriginal rights to be renegotiated • amendment procedures to be initiated before secession could be granted • and so on. All of this was in order to make the status quo looks like an ideal situation, viable and, in the end, the best option in the minds of voters. However, painting such a poor image can backfire since people will not consider such a scenario credible. Now, let’s turn our attention to the second element of the strategy. Here, the idea is to reduce and limit democratic options to the largest imaginable extent. In the case of Catalonia and the Basque country, the central state has simply refused to authorize the holding of a referendum, arguing that Madrid alone is the sole constituent power and that, additionally, this option simply does not exist in the constitution. In the case of Quebec and Scotland, the situation is quite different. After two failed attempts by the Quebec government to advance a sovereignty-association proposal in 1980, followed in 1995 by a sovereignty-partnership scenario, the central government decided to reduce Quebec’s options by seeking to impose its own authority/power on all member states. Contrary to what was proposed by the Supreme Court in its 1998 reference case, Ottawa now requires that Quebecers express themselves on their right of exit without being able to propose any constitutional modifications. In other words, the only acceptable question would be a direct, specific question on secession. Our colleague Stephen Tierney commented critically on this Ottawa strategy when he said that the Clarity Act limits constitutional options which can be proposed to the people of a province in a referendum on secession. As a result, a question to the population of a province would not be considered clear if it were to suggest a third option. In addition, “‘a clear expression’ of the will of the population of a
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province that the province cease to be part of Canada could not result from: (a) a referendum question that merely focuses on a mandate to negotiate without soliciting a direct expression of the will of the population of that province on whether the province should cease to be part of Canada; or (b) a referendum question that envisages other possibilities in addition to the secession of the province from Canada, such as economic or political arrangements with Canada that obscure a direct expression of the will of the population of that province on whether the province should cease to be part of Canada.”12 So, the political issue is often much less about the rules per se than about who sets the rules and with what intentions. After some encouraging signs following the election of his Conservative government in 2006 – with a political programme that advanced an agenda in favour of “open federalism” – Harper’s subsequent governments have paid more attention to national unity and the national interest than to appraising Quebec’s claims and continued demands for constitutional recognition. As I wrote in a recent book entitled Ziurgabetasunen Aroa: Federalismoari eta nazio aniztasunari buruzko saiakera,13 instead of building on a politics of contentment through recognition, self-rule, shared-rule and autonomy in various policy fields (internal self-determination if you like) to accommodate Quebec’s claims, Ottawa (with the complicity of the nine anglophone provinces) has been pursuing a politics of containment14 by limiting Quebec’s power to its simplest expression. Confronted with such attitudes on the part of the central government, it is not surprising that political actors of various stripes will do all they can to remove political obstacles, or else disengage from politics. It is in such a context that the referendum becomes a demos-enabling instrument and a tool of last resort for political empowerment to attenuate political disruptions and put an end to ongoing political instability. Being able to hold a constitutional referendum is assuredly the most significant experience in demos construction that one can imagine. It is very disappointing to see majority nations investing so much effort in implementing demos-constraining actions (for example to make it impossible for Basques and Catalans to hold referendums on their constitutional future, and to
12. For a solid development on this point, see Patrick Taillon, “De la clarté à l’arbitraire: le contrôle de la question et des résultats référendaires par le parlement canadien,” in Revista d’Estudis Autonomics i Federals, No. 20, October 2014, pp. 13-59, especially pp. 27-8. 13. Published in English as Minority Nations and the Age of Uncertainty: New Paths to National Emancipation and Empowerment, (Toronto: University of Toronto Press, 2014). 14. The work of Elisenda Casanas Adam and François Rocher is useful here, cf. “(Mis)recognition in Catalunya and Quebec: The Politics of Judicial Containment ,” forthcoming. See also Alain-G. Gagnon, “Reconciling Autonomy, Community and Empowerment: The Difficult Birth of a Diversity School in the Western World,” in Alain-G. Gagnon and Michael Keating, Eds., Political Autonomy and Divided Polities, (Basingstoke: Palgrave Macmillan, 2012), pp. 49-60, in which I discuss strategies of contentment and containment that could be adopted by majority nations to bring back political stability.
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limit constitutional options to extremes, as in the case of Canada post-1999 and the United Kingdom in 2014). Limits imposed on the democratic principle have to be questioned and challenged (Daniel Weinstock). The value of the referendum as a demos-enabling instrument is extremely high for small nations since, to quote René Lévesque, Quebec’s former Premier “the right to control its own national destiny is the most fundamental right possessed by the Quebec nation” (9 June 1980, First Ministers Conference, Ottawa). Expression of the democratic principle has never been clearly challenged by Ottawa. What has been challenged is the percentage to be obtained to satisfy the majority nation and the conditions that need to be met. These conditions seem to be augmenting exponentially over time. • As if an absolute majority (50% + 1) vote were not clear. • As if questions dealing specifically with renewed federalism, a reformed State of Autonomies, a proposal based on sovereignty-association or a proposal advancing shared sovereignty could be not clear from the point of the view of the majority nation. This raises issues related to the principle of feasibility, good will and future collaboration among the partners in the unfolding political events. So far, Quebec has been able to hold two constitutional referendums, one on sovereignty-association and one on sovereignty-partnership (the latter corresponding to DevoMaxmax). While the rules have been set by the Quebec National Assembly alone (since Quebec is a founding member of a multinational federal state), it remains that other provinces and Ottawa have attempted to influence the process by investing a lot of money in favour of the No campaign, developing a strategy reminiscent of that of good cop/bad cop and resorting to various initiatives that have been questionable in terms of fair play. Now, and following the Clarity Act of 1999, Ottawa wants to dictate the rules of the game by skirting around the 1998 reference case with respect to Quebec’s ultimate right to secede.
Reinforcing and conflicting principles Current-day politics confirms revived interest in self-rule in several plurinational democratic settings. Catalonia, Quebec and Scotland are the three cases that monopolize international attention in Western democracies. In those three political settings, political parties wishing to reverse homogenizing trends with respect to language and identity have become increasingly vocal and have been able to mobilize support efficiently. This leads me to the question: Are the circumstances today more conducive to the emergence of new states in democratic settings, particularly in countries
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where the demos is fragmented or plural? It would be intellectually misleading to seek to provide a final opinion on this subject. Yet, it is useful to identify some principles that would make it possible to envisage such a scenario.
The democratic principle Canada is one of the most well-established democracies in the Western world and, as such, it would be natural for it to encourage the development of values underlying and strengthening liberal values. It is relevant to point out the American experience, which is a case of emancipation from the mother country and an important precedent in terms of unilateral declaration of independence. However, recourse to unilateral declaration of independence has long been discouraged by the international community in the post-colonial period and in the post-Soviet Union period. The fact that Québec has been in a position to hold two referendums (with the involvement of the central government on the No side) confirms clearly and explicitly that Quebec has the right to self-determination. Here is an excerpt of what René Lévesque, Premier of Québec from 1976 to 1984, said at the First Ministers’ Conference in Ottawa on 9 June 1980, a few weeks after the first referendum had been held: During the recent May 20 [1980] referendum, the people of Québec exercised, for the first time, their right to self-determination. They exercised it – democratically and legally. This has been acknowledged as such by the rest of Canada and the premiers of a number of provinces have taken personal positions on this. It has also been recognized by the international community, which has shown a great deal of interest in the events. Clear recognition of this right is the most valuable achievement of the Québec referendum. [...] The right to control its own national destiny is the most fundamental right possessed by the Québec community.15
Expression of the democratic principle has never formally been challenged by the central government. What was later questioned was the percentage needed to achieve independence and the clarity of the question to be asked of Quebec’s voters. This brings us to the principle of feasibility.
The principle of feasibility Following Québec’s second referendum (on October 30, 1995), which essentially concerned Quebec’s right to renegotiate the federal pact, the Supreme Court of Canada had the opportunity to give its opinion in Reference re. Secession of Québec. The Supreme Court identified four underlying principles that were equally important for ensuring just and equitable relations among all the political partners
15. Notes for an speech by René Lévesque at the First Ministers’ Conference in Ottawa on June 9, 1980, cited in Daniel Turp, “Le droit de sécession: l’expression du principe démocratique,” in Alain-G. Gagnon and François Rocher, Eds. Répliques aux détracteurs de la souveraineté du Québec, (Montréal: VLB éditeur, 1992), p. 62. [Our translation.]
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in the Canadian federation: democracy, federalism, constitutionalism and rule of law, and, finally, respect for minorities’ rights. Moreover, it also clearly recognized that there were two national majorities in Canada: one located in Québec and the other in the rest of Canada. Paragraph 93 of the Reference contains the following on Québec’s right to secede: (...) so long as Quebec exercises its rights while respecting the rights of others, it may propose secession and seek to achieve it through negotiation. The negotiation process precipitated by a decision of a clear majority of the population of Quebec on a clear question to pursue secession would require the reconciliation of various rights and obligations by the representatives of two legitimate majorities, namely, the clear majority of the population of Quebec, and the clear majority of Canada as a whole, whatever that may be. There can be no suggestion that either of these majorities “trumps” the other. A political majority that does not act in accordance with the underlying constitutional principles we have identified puts at risk the legitimacy of the exercise of its rights.16
The Court did not clarify all aspects of the debate, but it did provide a framework for managing disputes and it identified all sides’ duty to act responsibly. This brings us to the principle of effectiveness.
The principle of effectiveness This is the principle that allows nations seeking recognition and enfranchisement to take in hand, unconstrained by the former encompassing state, the destiny of the national community reformed around recomposed institutions. This can be done in a civilized manner, as in the case of the “velvet divorce” in Czechoslovakia, or in a more tense way, as with Kosovo. If there is a clear answer to a clear question, we should expect that, in Québec’s case, the government could go ahead and establish a revamped set of institutions in a new democratic environment.
Conclusion In Quebec since the 1995 referendum, there has been much more energy spent on avoiding the issues of constitutional recognition and judicial and political empowerment than on displaying moderation and hospitality or on advancing the principle of substantive17 equality between Canada’s multinational partners. If there is a lesson to be learned from Quebec’s two lost constitutional referendums, it is that there can be a significant price to pay if a state-challenger fails. The stakes are very high and the majority will attempt to make them even higher at the cost of undermining it own status internationally. But as the stakes get higher
16. Reference re. Secession of Québec, [1998] 2 SCC 217. 17. See Eugénie Brouillet, “Le fédéralisme canadien d’hier à aujourd’hui : quelle reconnaissance de la nation québécoise ?” in Revista de Derecho Histórico y Autonómico de Vasconia, VIII Symposium de derecho histórico y Autonómico de Vasconia sobre Las Sociedades plurinacionales y cambio constitucional, (San Sebastian, 2010), pp. 407-427.
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Gagnon, Alain-G: Constitutional Referendums and the Democratic challenge: Canada as a role model?
and higher, minority nations have a fair amount to gain if they win considering that, after a defeat, their political space might be reduced. As a result, this might constitute an incentive to vote Yes. Self-determination has two dimensions. On one hand, the process of self-determination has been presented by majority nations as an attempt to disrupt and destabilize economic, political, social and international relations. On the other hand, self-determination can lead to a process of political, constitutional and judicial empowerment that can make a concrete difference for nations seeking democracy founded on fairness, trust, justice and dignity. However, and to conclude, the logic of a referendum in segmented/fragmented polities can be analyzed from four angles: 1. As a zero-sum game in which what is gained by one partner is lost by the other. 2. As winner takes all (Russia’s perspective). 3. As presenting a danger of communities becoming further estranged and alienated if nothing is done. For example, Quebec’s youth are disengaging from Canada’s political institutions (secession by stealth). 4. As an opportunity to make the majority nation aware of the importance of making changes through implementation of public policies that are better connected with community claims (the UK route – see the Smith Commission). It is hard to predict which state, Scotland, Quebec, Catalonia or Flanders, will be first to enter the United Nations. Political will or, perhaps even more, absence of political will and economic circumstances matter a lot. It is quite possible that emulation has a role to play as well. So, what is happening in Flanders, the Basque country, Quebec, Scotland, and the European Union in general, matters for the evolving situation in Catalonia, and vice versa. Finally, and to echo what the Supreme Court of Canada stated in its 1998 reference case: “Secession is a legal act as much as a political one” (para. 217) to be taken seriously and discussed openly. Any attempt to impede democratic nations in their efforts to discuss their political and constitutional futures seems to be counterproductive and would contribute to the disenfranchisement of large segments of the population who share a culture, a way of life, a system of meaning, as well as a set of values and a territory. In the end, what is a referendum if not a political instrument for achieving peaceful, constitutional change and enhancing democracy?
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