The Canadian Contribution to a Comparative Law of Secession: Legacies of the Quebec Secession Reference

295 Pages·2019·2.309 MB·English

by  Giacomo Delledonne, Giuseppe Martinico

The Canadian
Contribution to a
Comparative Law
of Secession
Legacies of the
Quebec Secession
Reference
Edited by
Giacomo Delledonne
Giuseppe Martinico
The Canadian Contribution to a Comparative
Law of Secession
Giacomo Delledonne · Giuseppe Martinico
Editors
The Canadian
Contribution
to a Comparative
Law of Secession
Legacies of the Quebec Secession Reference
Editors
Giacomo Delledonne Giuseppe Martinico
Comparative Public Law Comparative Public Law
Sant’Anna School of Advanced Studies Sant’Anna School of Advanced Studies
Pisa, Italy Pisa, Italy
ISBN 978-3-030-03468-9 ISBN 978-3-030-03469-6 (eBook)
https://doi.org/10.1007/978-3-030-03469-6
Library of Congress Control Number: 2018960251
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F
oreword
The SeceSSion reFerence TwenTy yearS LaTer
I remember quite vividly the night of the Quebec referendum in 1995.
My mother and I were home in Orleans, just east of the Canadian
national capital, watching the results broadcast live on television as the
votes were tabulated, the yes and no sides exchanging leads back and
forth. Even before the network announced the final tally—a razor-thin
margin of 54,288 votes rejecting secession out of 4,671,008 valid b allots
cast—the closeness of the vote and the emotions that accompanied it
yielded only one certainty: the Canada I knew would change no matter
the outcome.
We are still today living the consequences of the turbulent referen-
dum campaign and its culminating vote. The strength of the support in
Quebec for independence surprised Canadians in all corners of the land,
and it has reawakened the country to the pressing challenge of internal
reconciliation. And yet the secession referendum also reopened wounds
that for many have yet to heal and perhaps never will, further deepening
old fault lines that continue to divide Canadians.
The referendum result triggered a sequence of events that produced
one of Canada’s most well-known legal exports: the Secession Reference.
Alongside the “living tree doctrine,” the Oakes test, purposive interpreta-
tion and the Notwithstanding Clause, the Secession Reference has become
what public law scholars around the world associate with Canada. The
brilliance of the judgment doubles at once as its strength and weakness:
v
vi FOREWORD
it gives something of a victory to all sides but it defers many questions
for future resolution, some in the heat of the very moment when the
choice between recognizing and refusing independence hangs in the bal-
ance. For some, this is a virtue of the judgment because it will catalyze
democratic deliberation about the future of Quebec in Canada, includ-
ing its implications for citizenship and borders, the national debt and the
armed forces, commercial and economic relations, mobility and migra-
tion, currency and monetary policy, and Indigenous Peoples. For others,
the Reference is a profound failure of jurisprudence because in fashioning
a legal framework for a decidedly political question the Court fell short
of specifying clear instructions for the circumstances in which they were
needed most.
What strikes me as most fascinating about the Reference is neither
whether the Supreme Court was right or wrong nor whether political
actors are themselves right or wrong to find favor or fault in the judg-
ment. I am most intrigued by the Supreme Court’s view that provincial
secession may proceed by simple formal amendment. The Court was
careful to note that although a referendum has no “direct role or legal
effect in our constitutional schedule, a referendum undoubtedly may
provide a democratic method of ascertaining the views of the elector-
ate on important political questions on a particular occasion.” On the
strength of a clear majority vote in favor of secession, Quebec political
actors could point to the “expression of the democratic will of the peo-
ple” to initiate a constitutional amendment. The Court stressed that any
amendment arising out of these negotiations must respect the unwritten
principles of the Canadian Constitution, including federalism, democ-
racy, constitutionalism, the rule of law, and respect for minority rights.
But the Court’s decision did not specify which of Canada’s five
amendment procedures must be used to formalize a provincial secession.
It seems clear that neither the unilateral provincial amendment proce-
dure nor the federal amendment procedure could be used to formalize
a provincial secession, nor could the regional amendment procedure be
used either. The debate therefore pits the general default multilateral
procedure versus the unanimity procedure. Yet in a meaningful way, both
of these may well be inappropriate, particularly in the case of Quebec,
because the rules of constitutional amendment appear in the Constitution
Act, 1982, which lacks both legal and sociological legitimacy for many in
Quebec and well beyond its borders.
FOREWORD vii
I was an undergraduate student at Yale University when the
Court issued its Reference. In my capacity as Chair of the Yale College
Association of Canadian Students, I convened a public forum featuring
Justice John Major, then a sitting member of the Supreme Court of
Canada, and Professor Jack Balkin, then and still today on the faculty
at the Yale Law School. Justice Major and Professor Balkin had many
enlightening exchanges that kept the audience captivated throughout
the program, but one in particular touched on a simple but powerful
contrast that may reveal something quite poignant about constitutional
politics in Canada and the USA: the USA fought a Civil War over seces-
sion, losing quite literally hundreds of thousands of lives in battle, while
Canada resolved its own secession crisis in Court.
Twenty years later, the 1998 Secession Reference continues to echo in
Canadian law and politics. In April 2018, the Quebec Superior Court
upheld the “Act respecting the exercise of the fundamental rights and
prerogatives of the Québec people and the Québec State,” a law adopted
in Quebec in response to the Reference. The law recognizes that the
“Québec people has the inalienable right to freely decide the political
regime and legal status of Québec,” a declaration some have interpreted
as asserting the unilateral power to secede. The Superior Court rejected
that reading of the law but still affirmed the law’s broad declarations of
Quebec’s nationhood and self-determination. Perhaps this provocative
law will continue to wind its way through the courts.
Much remains to be written about the Secession Reference, especially
on its vicennial anniversary, which we mark this year in 2018. Professor
Giuseppe Martinico and Dr. Giacomo Delledonne deserve great thanks
from the community of public law for giving us the gift of this com-
memorative volume of reflections on the Secession Reference from
scholars around the world. They have gathered a magnificent group of
eminent and fresh voices, whose perspectives are as varied as they are
rich. Whether interested in secession or federalism itself, or in larger
questions of difference and diversity, or more generally in public law in
times of pressure and change, this volume offers scholars an opportunity
to look back on one of Canada’s most important moments and the legal
and political infrastructure that has bloomed in its aftermath, both in
Canada and elsewhere in the world, including countries in Africa, Asia
and Europe, as this volume reveals.
A word about Professor Martinico and Dr. Delledonne is appropriate
if only by way of gratitude for all they have done and continue to do
viii FOREWORD
to enrich our study of public law. From their perch at the picturesque
Scuola Superiore Sant’Anna in the Sant’Anna Legal Studies program,
Professor Martinico and Dr. Delledonne have convened countless pro-
grams of integral importance to deepening the values of public law, they
have published a mounting collection of papers on the great questions
of our time, and they have seeded and sowed vibrant scholarly collabora-
tions throughout the world. It is no exaggeration to say that comparative
public law would not be what it is today without the excitement and cre-
ativity that their partnership has brought to the field.
Austin, USA Richard Albert
William Stamps Farish
Professor of Law, The University
of Texas at Austin
Richard Albert is the William Stamps Farish Professor of Law at the University
of Texas at Austin. He is currently completing a monograph on constitutional
amendment, soon to be published by Oxford University Press. A graduate
of Yale, Oxford and Harvard, he is a former law clerk to the Chief Justice of
Canada.
c
onTenTS
Introduction: The Legacy of the Reference Re Secession
of Quebec 1
Giacomo Delledonne and Giuseppe Martinico
The Legacy of the Quebec Secession Reference Ruling
in Canada and Internationally 9
Errol P. Mendes
The Law and Politics of Secession: From the Political
Contingency of Secession to a “Right to Decide”? Can
Lessons Be Learned from the Quebec Case? 33
Jean-François Gaudreault-DesBiens
The Reception in Spain of the Reference of the Supreme
Court of Canada on the Secession of Quebec 69
Josep Maria Castellà Andreu
The Reference Re Secession of Quebec, the Kosovo Advisory
Opinion and the Questions They Leave Open: The Right to
Decide, the Principle of Stability, and the Duty to Negotiate 89
Luigi Crema
ix
x CONTENTS
Metaconstitutionalising Secession: The Reference and
Scotland (In Europe) 111
Alastair MacIver
Constitutional Migrations in the Commonwealth:
The Quebec Secession Reference and Sri Lankan
Constitutional Discourse 135
Asanga Welikala
The Reference and Ethiopian Constitutionalism 161
Erika Arban
Secessionist Impulses and the Italian Legal System:
The (Non)Influence of the Secession Reference 185
Giacomo Delledonne and Matteo Monti
Secession Reference and Its Intellectual Legacy:
Sceptical Notes from the European Peripheries 209
Zoran Oklopcic
A Political Theory Perspective on the Reference 231
Roberto Castaldi
“A Message of Hope”: A Legal Perspective on the Reference 249
Giuseppe Martinico
Towards a Comparative Constitutional Law of Secession? 265
Francesco Palermo
Index 283