It's not often that you attend a symposium on constitutional law in Quebec and expect to be flummoxed. This in a province where, not that long ago, it was thought that children dreamed not of playing in the NHL but of teaching constitutional law.
But on a cold morning last December, in a small, dark room at the Université de Montréal, those in attendance witnessed an extraordinary political scene. There they were, in a high-noon intellectual shoot out: Stéphane Dion, father of the Clarity Act, and his old political foe, Joseph Facal, former intergovernmental minister in the PQ cabinet.
The astounding thing is that not a shot was fired. Fifteen years after the fact, both men praised the wisdom of the 1998 Supreme Court of Canada's decision on Quebec Secession.
In a week when Catalonia canceled its Nov. 9 referendum over a pending court challenge over its "legality," perhaps Spain's judges could use some advice from our top court.
First off, you would have a hard time finding a constitution on this planet that would recognize a right to secede.
Texas was told by the U.S. Supreme Court 150 years ago that the Union is like Hotel California: you can freely come in, but you can never leave. Spain's constitution states "the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards." France's uses similar language. Canada? Not a word on such an extreme and terminal constitutional amendment. So, what does a judge say to a Quebec City lawyer who asks to declare the unilateral secession of a province illegal?
And how come nobody asked before 1998? What was the legal basis for Québec independence? It wasn't asked by the former constitutional law professor Pierre Elliott Trudeau during the 1980 referendum campaign. Not by the former justice minister Jean Chrétien in 1995. It was simply not an issue, as everybody assumed a "yes" would create a new country. The same attitude guided the United Kingdom during Scotland's recent referendum on independence.
OK, but… there is some legal guidance, right? Many would refer to the self-determination right of peoples enshrined in international treaties. The only trouble is, this right applies only in cases of massive oppression and human rights violations. All other "peoples" are presumed to self-determine within their actual country. So Quebec, Catalonia, Scotland, Corsica, Sardinia… would not qualify. What happens then?
When Canada's secession case reached the final stage, in February 1998, it was arguably the most politically explosive case ever heard by the Supreme Court. Nothing in the Constitution nor in international law would provide a satisfying answer. What would the Nine conclude?
"The Constitution is not a straightjacket," the Court said. One should not resort to a "superficial" reading of the law, but dig into its founding principles. Among them: the democratic principle.
If a "clear majority" of people in Quebec said "yes" to a "clear question", then the rest of Canada would be under a legal obligation to negotiate; if those negotiations were not conducted in good faith, then Quebec would have a right to secede unilaterally. It satisfied both sides by rejecting extreme or simplistic views. After all, even without a revolution, founding a new state requires to leave the former legal frame.
The Court exposed the limits of law and left it to politicians the task of defining what is "clear" and what is a fair negotiation.
Spain's Supreme Court suspended the "advisory" Catalonian referendum and is likely to declare any further attempt unconstitutional.
A vast majority seems to be angry about Spain's central government straightjacket approach. But polls show an equal majority want the local government to not to defy the Court's decision. The road towards more "autonomy" (the most popular option) or full independence has to be smooth.
As fanciful as it can be to try to retain a "nation" or a "people" by a mere legalistic argument, the fact that Catalonia would rather postpone its referendum than defy the court order is indication less of law abiding than the absence of a "clear majority" for independence – as in Quebec, as in Scotland.