The Quebec Secession Reference: The Law Of Politics Or The Politics Of Law?
| Author: |
Greg Craven B.A. (Melb.), LL.B. (Hons.) (Melb.), LL.M. (Melb.)
Professor and Foundation Dean of Law, College of Law, University of Notre Dame Australia
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| Issue: |
Volume 6, Number 1 (March 1999)
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Note: Some Comparative Reflections On The Québec Secession Decision: Three Papers
The release on August 20 1998 of the Supreme of Canada's advisory opinion
on the right of the Province of Québec to secede from the
Canadian
federation (the Québec Secession case) occasioned considerable interest from observers of federal systems. The decision prompted the School of Law at Murdoch University,
in
collaboration with the Federal Court of Australia in Perth, to organise a
roundtable discussion. This became "Constitutional
Principles for a
Principled Constitution: Lessons from the Québec Secession Decision",
Murdoch University, School Of Law Seminar Series, Federal Court Boardroom,
Perth,
Thursday, 15 October 1998.
The purpose of the roundtable was to stimulate interest in the decision,
by exploring different ways in which it might be considered.
Three of the
four contributions to that roundtable are published in this issue of E Law with some
modifications made after their
presentation.
Each such contribution indeed adopts a different perspective on the
decision. Taking the authors alphabetically, Professor Greg
Craven's paper (The Quebec Secession Reference: The Law Of Politics Or The Politics Of Law?)
considers the problematic character of the decision considered as a formal
legal document. His concern is with the strains produced
by the variety of
objectives the Supreme Court could be seen to have set itself. His
particular interest is in the use of Canadian
material in the current
constitutional discussions in Australia, in which he has been an active
participant. Professor Craven has
written extensively on secession.
Professor Ralph Simmonds (Why Québec Secession Matters) focusses on and celebrates one of those objectives of concern to Professor Craven, the decision's intended
contribution to the debate
about the nature of Canadian federalism. His
particular interest stems from his background as some one who has spent
considerable
time living and working in Québec, and who is interested in
theories of federalism when it is under threat.
Dr James Thomson (Getting Out: Secession and Constitutional Law) reflects on the character of the Québec secession decision particularly when viewed from the perspectives of provinces and states
in a federation and comparative constitutional law.
Ralph Simmonds, April 1999
Contents
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The Quebec secession reference[1] falls into an extremely select genre of Canadian constitutional jurisprudence. With one or two other notable decisions of the Canadian
Supreme Court,[2] it in a very real sense occupies the dangerous and disputed no-man's land between constitutional law and constitutional politics.
This is a dubious territory into which, to a large extent, the Court has been forced by the substantial failure of the Canadian
constitutional process to deal with the separatist impulses of the Province of Quebec. The object of this piece is, very briefly,
to analyse the general significance of the reference, both as a distinctly Canadian phenomenon, and from the point of view of its
potential parallels with Australia.
-
Probably the most fundamental aspect of the secession reference is that the Supreme Court clearly and unequivocally recognises the
potential secession of Quebec as a grave and impending threat to the continuity of the Canadian federation. This might be regarded
as a matter so obvious as to require no notice, were it not for the fact that federal states and their organs all too typically fail
to appreciate the seriousness of secessionist movements until it is too late to prevent disruption of their union.[3] This certainly was the case with the United States of America during the 1850's and 60's, when northern political leaders were dismissing
the danger of that the southern states might secede right up to the beginning of the Civil War.[4] A local parallel is to be found in Australian constitutional politics of the 1930's, where Federal leaders remained naively confident
that the Western Australian secession movement was essentially trivial, up to and even after the holding of a resoundingly successful
referendum on the subject.[5] Indeed, even today, Australian historical and constitutional scholars are inclined to down-play the significance of the Western Australian
secession crisis, almost as if the episode is a painfully embarrassing one, which ought to be decently forgotten.[6] In fact, both selective history and the failure of "early warning signals" are symptomatic of the same generic difficulty: federal
states typically are markedly unwilling to look the spectre of secession squarely in the face.[7]
-
This tendency has been particularly pronounced in Canada. Throughout the on-going political lurches and constitutional crises of
the 1970's and 80's, much of "the rest of Canada" has remained profoundly unconvinced that their Quebecois brethren actually would
push their quaint separatist tendencies to the point of secession.[8] Thus, one reason for the rejection of Meech Lake in many quarters undoubtedly was the comfortable belief that Quebec, in the final
analysis, never would never act upon its threats to secede, while similar reasoning undoubtedly underlay the rejection of the Charlottetown
accord by large numbers of Canadians. The reality, however, is that this bland confidence on the part of english-speaking Canadians
is based upon a marked refusal to face the simple if profoundly unpalatable fact that one of the component integers of their polity
possesses a demonstrably and possibly terminal dissatisfaction with the federal bond.
-
Of course, to almost any reasonably objective observer, the threat of secession by Quebec has been, and continues to be, extremely
serious . It is worth noting in this connection that, in assessing the gravity of secession movements, it is particularly difficult
for citizens of the federation concerned, imbued as they ordinarily are with feelings of ownership and allegiance towards their country,
to arrive at an accurate diagnosis of their nation's state of constitutional health. This particularly is the case if they seek to
predict the course of a secession movement according to the established "norms" of that country's constitutional politics, the point
being that secession movements, by definition, are not "normal" in this sense.
-
Rather, comparison of a secession movement with other, similar movements in comparable federations ordinarily will more readily reveal
the intensity of such an episode. This is a matter that was discussed at considerable length specifically in relation to Quebec in
my 1990 article "Of Federalism, Secession, Canada and Quebec", published in the Dalhousie Law Journal.[9] Briefly, any intelligent assessment of the Quebec secession movement quickly reveals it to be a secessionist impetus of the most
fundamental, and from the point of view of the integrity of the Canadian federation, the most dangerous kind. Thus, it is a secession
movement fuelled by intense ethnic and cultural feeling, drawing upon deep wells of historic resentment.[10] Moreover, the alienation felt towards english-speaking Canada by a very significant proportion of the population of Quebec is mirrored
in the hostility of many non-francophone Canadians towards Quebec, particularly those Canadians resident in the Western Provinces.
Perhaps most dangerous of all, the debate has shown signs in recent years of moving beyond fiery disputation towards a dull and settled
resentment, within which many Canadians are intolerant of any suggestion of compromise; while others, more conciliatory, despair
of the very possibility of accommodation.[11]
-
All things being equal, therefore, a study of recent Canadian constitutional history would strongly suggest that Quebec is highly
likely to continue in its campaign for secession, and that there is at the very least the serious possibility either that it will
succeed, or that it will be denied success only at enormous constitutional, political and economic cost. Consequently, in a prevalent
climate of what might be referred to by constitutional psychologists (were such beings to exist) as "denial" among many Canadians,
the Supreme Court of Canada undoubtedly is to be lauded for the impressive achievement of having publicly recognised secession as
a major and current threat to Canadian constitutionalism,[12] which recognition is, in a sense, the single most significant feature of the reference judgement.
-
This recognition may well prove critical within the Quebec secession debate, starkly juxtaposed as it is with the apparent insouciance
of a great many opinion-shapers within english-speaking Canada, as indeed with the position of many Canadian interest groups, who
have seemed more interested in preserving or extending their own constitutional recognition, than in ensuring the integrity of the
Federation. Indeed, it is this implicit and entirely accurate recognition of crisis that colours the entire reference judgement.
Clearly, the Court understands that Canada is under severe constitutional threat, and the imperative to "do something" in response
to that threat is the leitmotiv of the reference. In this sense, the Supreme Court properly may be regarded as having been placed
in an excruciating constitutional position. The politics of federation having failed to resolve what is a genuine crisis, the law
of federation needs must step forward, or so the Court evidently believed.
-
One thing which must immediately strike Australian readers of the Supreme Court's opinion is that it is a fundamentally political
document. By this is meant not merely that it more closely resembles in style of argumentation a policy speech (or possibly a heavily
political sermon) than it does a traditional, legally reasoned judgement - which clearly is the case - but that the various considerations,
arguments and justifications which the Court brings forward in support of its position almost invariably call to political, social
and cultural values, rather than to strictly legal considerations.[13]
-
For this, the Court undoubtedly will face cogent criticism, particularly by those most opposed to what they would see as the intrusion
of the "political" into the legal sphere. These normally would include within their ranks the author of this article,[14] but in the case of the Quebec secession reference, some sympathy must be felt for the Supreme Court in the position in which it found
itself. In the circumstance of what appears to be resounding constitutional stale-mate, quite possibly followed by federal disintegration,
and certainly by further grave constitutional destabilisation, the willingness of the Court to adopt radical techniques of constitutional
reasoning in an attempt to structure a process of conciliation is at the very least understandable, even if it is not may not be
supportable.
-
Moreover, one must here keep clearly in mind the true role of "legal argument" in virtually any secession crisis within a federation.
Many constitutionalists have make the fatal mistake of believing that legal argument is dispositive in such circumstances, as if
jurisprudence may be employed to silence artillery, or to halt cavalry charges. As the American Civil War brutally proved, secessions
ultimately are won or lost on battlefields, not in courts.[15] Rather, the real role of legal argument within a secession crisis such as that which threatens to envelope Canada is, in a very real
sense, a highly critical one of moral propaganda. Thus, while the proximate issue of secession ultimately will be determined by questions
of power, rather than those of law, along the road to such a conclusion of Realpolitik legal argument often will be critical as providing
a means of stigmatising this or that cause, secessionist or unionist, as illegal and therefore constitutionally invalid.[16] Thus, just as Lincoln's arguments concerning the indissolubility of the union were not addressed primarily to the Supreme Court,
but rather to the newspapers of the north and the politicians of the south, so the Canadian Supreme Court's demands for considered
negotiation undoubtedly are not intended to operate primarily as some fully binding legal pronouncement. Rather, they are cast
so as to stigmatise those who would seek to resolve Canada's dilemma without such bilateral accommodation as constitutional outlaws,
acting outside conventional modes of constitutional morality.
-
There is, in fact, a strong analogy between this usage of constitutional argument as a weapon or moral suasion, and the probable
deployment by monarchists during the imminent republican referendum in Australia of legal argument casting doubt upon the capacity
of Australia to convert itself into a republic pursuant to section 128 of the Commonwealth Constitution. When monarchists argue, as they almost certainly will, that section 128 does not extend to the amendment of the covering clauses, or to the removal of this or that fundamental feature of the Constitution, they will not really be seeking to lay the ground for argument before the High Court. Rather, they will be attempting to place in
the minds of the Australian people the potentially devastating doubt that what is being put before them is not merely ill-advised,
but positively illegal. The reception of such a doubt by a significant proportion of the population would have serious implications
for the chances of success of any referendum proposal.[17]
-
A similar understanding of this potential role of legal argument seems to have motivated the Supreme Court in penning its reference
opinion. In this sense, therefore, that opinion is not so much about the law of secession, as about the enlisting of the moral force
of law to structure the future of the secession dilemma. What the Court apparently is attempting to do is to force political and
other players to the negotiating table by effectively pronouncing a rule of constitutional morality in favour of negotiation. True,
there are appropriately broad references to this or that provision of the Constitution of Canada, but in essence this is a judgement of political morality, not law. This at least partly explains the Court's repeated
slipperiness on the issue of whether the key components of the reference judgement are or are not justiciable.[18]
-
Probably the most notable "legal" feature of the secession reference opinion is its exposition of the "organising principles" of
the Canadian constitutional system. These organising principles are said to be federalism;[19] democracy;[20] protection of minorities;[21] and the rule of law and constitutionalism.[22] It is these principles that are used by the Court to found the critical obligation on the part of Canadian constitutional players
to negotiate, and which clearly are seen as the basis of the moral "solution" which the Court propounds to the present impasse in
relations between Quebec and the rest of Canada.
-
The question which naturally arises in relation to these principles is as to their true character. Clearly, with the possible exception
of federalism, they cannot be textually derived from the Constitution of Canada, in the sense that they do not comprehensively form the explicit subject of this or that provision or series of provisions.
One view would be that these principles are "implications", a concept with which we are familiar, at various levels of plausibility,
in Australia. Yet they clearly are not implications in the narrow sense, as arising directly and necessarily from the constitutional
text and its underlying intention, such as those found to be inherent in the Australian Constitution's particular adoption of a federal
form of government, expounded by Sir Owen Dixon in the Melbourne Corporation case.[23] Thus, even the most benign conventional reading of the Constitution of Canada could not extract any comprehensive abstract principle of "the rights of minorities" in the sense that it is expounded
by the Court in the secession reference. Once again, therefore, the question must be raised as to the nature of these organising
principles.
-
The truth is that these principles bear a striking resemblance to the "implications" that were used by the Mason High Court to found
the implied right of freedom of communication during the 1990's.[24] These "implications" were, of course, nothing of the sort. True implications, by definition, ultimately are referable to the intent
of those who frame the document from which they derive, constitution or not, and we know as a matter of simple historical fact that
the Australian Founding Fathers had no intention to constitutionally privilege some generic concept of representative democracy,
let alone a judicially enforceable right of freedom of political speech.[25]
-
In the same way, the Supreme Court makes no serious attempt to found its "organising principles" in any narrow implicatory sense.[26] Rather, these principles are best understood not as implications but as "extrapolations", just as the Mason Court's "implied" rights
in reality fall into that category. By "extrapolations" are meant themes derived from a constitution, not by reference to its factual
history, genesis, underlying intent or text, but rather through a subjective reading of the that constitution by particular judges
at a particular point in history, from which those judges derive some highly personalized conception of the "essence" of the constitution.[27] In this sense, the constitution is read very much like a book, with the meaning of that book in terms of its basic undercurrent having
relatively little to do with the intentions of its authors, and everything to do with the reaction of the reader. Thus, just as the
Mason Court read the Australian Constitution as endowing the Australian people with an abstract guarantee of "representative democracy", and with certain rights that the Court
saw as necessarily following from that endowment, so the Supreme Court has read the Constitution of Canada as propounding the four great themes of federalism, democracy, protection of minorities and the rule of law. None of these
may be directly derived, at least in such broad and conceptual terms, directly from the text of the Canadian Constitution, or from any conventional process of constitutional interpretation. Rightly or wrongly, the Court seems less engaged in the construction
of the Constitution of Canada, than in divining the entrails of the Canadian polity.
-
Moreover, the difficulty that arises from the secession reference opinion is that the four organising principles which it contains
are so inherently vague that they conceivably could be applied in the future so as to mean virtually anything, depending only upon
the views of the Supreme Court which happened to be utilising them at the time. Thus, if the Constitution of Canada really does contain so abstract a stipulation as democracy, how is that fundamental stipulation to be constrained in the
future in relation to the almost infinite variety of matters upon which it conceivably could touch? Again, what is implicit - or
perhaps it would be fairer to say, what could not be implicit - in so broad a concept as the rule of law? In effect, the potential
of the secession reference is to equip the Canadian Supreme Court with four vast subject matters of constitutional morality upon
which it conceivably could legislate with much the same freedom as the Canadian parliament legislating upon a subject matter within
its competence. This is a matter which must give Australian readers some cause for thought, particularly as they contemplate calls
at the Constitutional Convention in February for a vastly widened preamble to their own Constitution, enunciating similar fundamental values to those endorsed in the secession reference opinion.[28]
-
The other obvious point to be made about the four organising principles does not relate to what they include, but rather to what
they omit. What the Supreme Court has done is to selectively privilege four themes which it argues are pre-eminent within the Canadian
constitutional structure, but this is achieved at the expense of ignoring a great many other potential inclusions. For example, it
surely would be plausible to argue from a Quebecois point of view that a fundamental, arguably the fundamental theme of the Canadian
constitutional settlement, is the duality of the two founding nations, French and English. Indeed, this is precisely the argument
upon which much Quebec separatist jurisprudence is based,[29] and is a very different concept from the altogether more generic notion of "protection of minorities". Why, then, has the Canadian
Supreme Court chosen to privilege the four organising principles that it has selected? A substantial answer, of course, is that it
is these four principles which may most effectively be used to secure the negotiated settlement for which the Court so profoundly
and wisely hopes, but this is only to underline the essentially political, extra-legal character of the reference opinion.
-
The effect of the secession reference judgement has been to place negotiation as the foreseeable end-point of Canadian constitutionalism.
The Court's opinion in effect propounds that the very nature of the Constitution of Canada is such as to impel the parties towards a constitutional communion. The question which has to be asked of this proffered
solution, while fully acknowledging the practical difficulty of suggesting any other, is whether Canada is a federation whose difficulties
may intelligently be addressed by yet more negotiation?
-
On one analysis, Canada has been engaged in a seemingly endless process of constitutional negotiation for at least the past decade.
Discernible to almost any visitor to Canada is a strong sense of constitutional exhaustion, particularly among those whose professional
livelihood does not lie in connection with the reform of the Constitution. After Meech Lake and Charlottetown, not to say the narrowly failed secession referendum itself, there seems to be an understandable
feeling in many parts of English Canada that Quebec "may as well get on with it". In these circumstances, it may be wondered whether
mandating still further consultation may not prove to have been a risk-filled option for the Supreme Court. Thus, if curially sponsored
negotiation fails, where does the Court go from there? Troublingly, its own prestige will have been fully deployed, and possibly
exhausted by the negotiating process. Would its sponsorship of a failed negotiation process seriously weaken the Court's authority
were it ever to have to pronounce upon aspects of a far more developed secession initiative by Quebec? Once again, however, whatever
misgivings may be felt concerning the course adopted by the Court, it is difficult to see what other solution it could have proposed,
assuming always that the Court was prepared to propose any solution at all.
-
Perhaps one of the most marked impressions left by the secession reference and its surrounding circumstances must be the warning
that it sounds in relation to well-meant proposals for far-reaching constitutional reform. In many ways, the Constitution of Canada has been the darling of Australian academics, most particularly for its far flung Charter of Rights and Freedoms. Yet since
the patriation of the Constitution in 1982, Canada seems to have lived permanently on the edge of a constitutional precipice. Pondering this fact, one must seriously
consider the question of whether the fracturing of an old, but nevertheless effective constitutional consensus, may not assist in
the release of forces dangerous to the constitutional order as a whole. This is a matter which would be of some interest to Australia
in the upcoming referendum upon conversion to a republic. It certainly is unsurprising that, at the Constitutional Convention convened
to consider the conversion of Australia to a republic, Canada invariably was put forward not as a model for emulation, but as an
example devoutly to be eschewed. Pondering the desperate manoeuvres of the Supreme Court in the secession reference, it is little
wonder.
*Foundation Dean and Professor of Law, University of Notre Dame Australia.
[1] In the matter of Section 53 of the Supreme Court Act, R.S.C., 1985, C.S-26; and in the matter of a Reference by the Governor in council
concerning certain questions relating to the Secession of Quebec from Canada, as set out in Order in Council P.C. 1996-1497, stated
September 30, 1996 (http://www.droit.umontreal.ca/doc/csc-scc/en/pub/1998/vol2/html/1998scr2_0217.html).
[2] The chief examples are Reference re Resolution to Amend the Constitution [1981] 1 S.C.R. 753; and Reference re Manitoba Language Rights [1985] 1 S.C.R. 721 ; Reference re Amendment
[3] See Craven, G., "Of Secession, Federalism, Canada and Quebec" (1991) Dalhousie Law Journal 231.
[4] Ibid. 261; and see Stampp, K., And the War Came: The North and the Secession Crisis, 1860-61 (1964).
[5] See Craven, G., Secession: The Ultimate States' Right (1984) ch.3, esp. 34-5.
[6] Ibid. 55-60.
[7] Craven, "Of Federalism", 261-2.
[8] Ibid.
[9] Already cited. The object of that article was to place the Quebec secession movement within the context of similar movements in
other Federations. The article is not cited in the reference opinion, although there are some amusing coincidences of thought and
syntax: see e.g. the definition of secession in "Of Federalism" at 232, and in the opinion at para. 83.
[10] "Of Federalism", 237-40. See also R. Watts, "Survival and Disintegration" in R. Simeon (ed.), Must Canada Fail? (1977).
[11] Craven, "Of Federalism", 261-2.
[12] Ibid.
[13] See e.g. the discussion of the protection of minority rights at paras. 79-82; and the discussion of the rule of law in paras. 70-74.
[14] See eg Craven, G., The High Court of Australia: A Study in the Abuse of Power (Thirty First Alfred Deakin Lecture) 1997; forthcoming,
University of New South Wales Law Journal.
[15] As James Bryce remarked of the American Civil War, "When treason prospers, none dare call it treason": Bryce, J., The American Commonwealth
(2nd ed., 1890), I, 409-10.
[16] Craven, "Of Federalism", 255-7
[17] See Craven, G., "The Constitutional Minefield of Australian Republicanism" (1992) Policy 33.
[18] See e.g paras. 97-105.
[19] Paras. 55-60.
[20] Paras. 61-69.
[21] Paras.79-82.
[22] Paras. 70-78.
[23] Melbourne Corporation v. Commonwealth [1947] HCA 26; (1947) 74 C.L.R. 31
[24] See e.g. Australian Capital Television Pty. Ltd. v. Commonwealth [1992] HCA 45; (1992) 177 C.L.R. 106 Theophanous v. Herald and Weekly Times Limited [1994] HCA 46; (1994) 182 C.L.R. 104.
[25] Craven, "The High Court of Australia", 10-12.
[26] See e.g. the discussion of democracy at paras. 61-69
[27] Craven, "The High Court of Australia", 10-12.
[28] See e.g. the comments of Senator Stott-Despoja, Report of the Constitutional Convention (1998), IV, 501.
[29] See e.g. Morin, J.Y., "Le nationale et federalisme" (1964) 49 Rev. Jur. Them. 90.
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