Madam Speaker, I am glad to intervene in this debate on the bill that would give effect to the principle of clarity described by the supreme court in the reference regarding Quebec's right to secede because I want to talk about the clarity of the principles described in this bill. I will try to deal with five or six of these principles.
The first principle is the following: Mr. Bouchard says, and I agree with him, that it is the prerogative of the national assembly to prepare the referendum question and to decide on it. The prerogatives of the national assembly must be respected.
However, that referendum question must also respect the principle of clarity, that there must be a clear question on secession. In other words, constitutional rights carry with them constitutional responsibilities. Nor is the principle of clarity a matter of constitutional law theory or a narrow technical requirement. Rather, it is a principle that goes to the core of the rule of law.
It is the principle of the rule of law that has to be respected. He was saying, and I quote “I am all for the principle of the rule of law. Rights must be respected”.
The clarity of the question is a condition of due process of procedural and substantive justice necessary for the referendum process and without which the referendum process would itself lack basic legitimacy. And more, the principle of clarity is at the core of the democratic principle.
Unless the question is clear, the people of Quebec cannot give authentic expression to their democratic will. Unless the question is clear, the people of Quebec cannot give expression to their right to self-determination. Unless the question is clear, the people of Quebec are denied the right to pronounce themselves on this most existential of concerns.
As Mr. Bouchard said, and I quote “The question must be clear so that we receive a clear answer, a significant answer. I do not like the idea of an ambiguous response to an ambiguous question, which would lead to a new debate on the meaning of the answer”.
The national assembly has the constitutional right to frame the referendum question, but it also has a constitutional responsibility to respect the principle of clarity. The litmus test of democracy will be determined by whether Quebecers will have a right to express their democratic will on a clear question of secession.
The second principle: Mr. Lucien Bouchard has said, and I agree, that as a result of the supreme court reference, “there is a duty on the federal government to negotiate secession, and that duty has constitutional status”.
However, that duty to negotiate has constitutional status only because the judgment of the supreme court as a whole has constitutional status. That judgment stated unanimously that the duty to negotiate presupposes that two conditions of constitutional obligations have been satisfied: one, that there is a clear question on secession; and two, that there is a clear majority in favour of a clear question on secession.
As the supreme court put it:
The referendum process, if it is to be taken as an expression of the democratic will, must be free of ambiguity in terms of the question asked and in terms of the support it received.
This projet de loi du gouvernement fédéral is nothing more and nothing less than an attempt to give effect to the supreme court judgment, to the principle of clarity, to the rule of law, to the democratic principle. For Mr. Bouchard or anyone else to call this projet de loi “an affront to democracy” has the effect of impugning the very supreme court decision which Mr. Bouchard has rightly said has constitutional status and should be respected.
The third principle is as follows. Mr. Bouchard said, and I quote “that the doors will be wide open for a unilateral declaration of independence, based on the authority of the supreme court”.
The point is that there is no support in the supreme court decision for any unilateral declaration of independence. On the contrary, the supreme court has said, unequivocally and unanimously, that there is no right to a unilateral declaration of independence either under Canadian constitutional law or under international law.
In other words, even if the two principles and conditions of clarity and democracy are met, this does not authorize or legitimize a unilateral declaration of independence. What is affected by respecting the principle of clarity is the right of the secessionist party, whatever it may be, to negotiate terms of secession but not to treat secession as if it is already a matter of fact and a matter of law. Secession is not self-executing. A clear majority in support of a clear question on secession triggers a right to negotiate and a duty to negotiate, a duty that the federal government has said it will respect if the principle of clarity is respected, both in the question put and in the majority secured.
The fourth principle is that Quebecers may be said to constitute a people historically, culturally, politically. As a people Quebecers have a right to self-determination, but that right to self-determination, as the supreme court put it, does not include a right to secession under international law unless there exists, also as the court put it, a situation of colonial domination or gross violations of the rights of Quebecers, something that the Supreme Court of Canada and Mr. Bouchard himself have acknowledged is not the Quebec reality.
On the contrary, where there exists a free and democratic society like Canada, albeit with its imperfections, albeit with its inequities, the international law principle, as the court put it, is organized around the protection of territorial integrity, not its dismemberment.
This has emerged not only as a foundational principle of public international law but of international human rights law in particular. Indeed, not only does international human rights law not authorize secession in the absence of a state of colonialism or repression of fundamental rights, but it considers that secession from an existing free and democratic society may itself breach the foundational principle of our constitution, the principle of the rights of minorities and in particular the rights of aboriginal peoples.
The fifth principle is that if the Quebec people are permitted to democratically give expression to their will and if there is a clear majority in favour of secession, that will give rise to a right to negotiate and to a corresponding duty on behalf of the federal government to negotiate. However, that negotiating process as the supreme court put it, and as it appears to be forgotten in this debate, will be governed by four basic principles.
The issue will be settled by the four basic principles. These principles are: federalism, democracy, constitutionality and the rule of law, and protection of minorities.
Again, secession is not self-executing. The negotiating process, if it even gets to that, will not only be governed by these four foundational principles but it will involve protracted and painful discussion of final status questions: borders, the debt, assets, the rights of minorities, the rights of aboriginal peoples, and the like.
The sixth and final principle, as the supreme court put it, is “any attempt to effect the secession of a province from Canada must be undertaken pursuant to the constitution of Canada or else violate the Canadian legal order”.
In a word, the right road to secession presupposes that a legitimate, democratic, constitutional referendum process has taken place as follows: first, that the right of the national assembly to formulate the referendum question is respected; second, that the referendum question respects the principles of clarity enunciated by the Supreme Court of Canada; third, that the Quebec national assembly respects the constitutional role as authorized by the supreme court of other political actors just as other political actors must respect the rights of the National Assembly of Quebec; fourth, that constitutional rights come with constitutional duties; fifth, that, as the supreme court put it, there is no right to unilateral secession either in domestic or international law; and, sixth, that if there is a clear majority in support of a clear question on secession that gives rise only to a right to negotiate pursuant to the four fundamental principles I enunciated earlier.
The secessionist outcome can only be reached, if it is indeed reachable at all, after a protracted and difficult process in juridical terms and a painful and wrenching process in human terms. If the threads of a thousand acts of accommodation are the fabric of a nation, it would take a thousand cuts to dismember it. Accordingly, Quebecers and Canadians are entitled, if the referendum process proceeds, to express their will on a clear question on secession.
That is what the principles of la primauté de droits, la justice fondamentale et la démocratie as enunciated by the Supreme Court of Canada require. This is what is required for the authentic expression of the democratic will of Quebecers.
