Clarity Act
Encyclopedia
The Clarity Act is legislation passed by the Parliament of Canada
that established the conditions under which the Government of Canada would enter into negotiations that might lead to secession
following such a vote by one of the provinces. The Clarity Bill (C-20) was tabled for first reading in the House of Commons on December 13, 1999. It was passed by the House on March 15, 2000, and by the Senate
, in its final version, on June 29, 2000.
The Clarity Act was created in response to the 1995 Quebec referendum
and ongoing independence movement in that province
. The content of the Clarity Act was based on the 1998 secession reference
to the Supreme Court of Canada
made by the federal government under Jean Chrétien
. Previously in 1996, a private member's bill, the The Quebec Contingency Act (Bill C-341)
was introduced to establish the conditions which would apply to a referendum regarding the separation of Quebec from Canada, but it did not proceed further than the First Reading.
An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State was passed in the National Assembly of Quebec
by the Parti Québécois
government two days after the Clarity Act had been introduced in the Canadian House of Commons.
, in which the people of Quebec voted against the sovereignty
option by a small margin (50.58% to 49.42%). Controversy surrounded the ambiguity and wording of the ballot question.
appointed political scientist Stéphane Dion
(first elected as Member of Parliament
for the riding
of Saint-Laurent–Cartierville in Montreal
in 1996) as Minister of Intergovernmental Affairs
in 1996. Dion would challenge Quebec sovereignist assertions about the legal validity of the 1995 Quebec referendum
question in three open letters to Quebec Premier Lucien Bouchard
and Quebec Intergovernmental Affairs Minister Jacques Brassard
.
In the first open letter, Dion challenged three assertions that Bouchard had made: that a unilateral declaration of independence is supported by international law, that a majority of "50% plus one" was a sufficient threshold for secession, and that international law would protect the territorial integrity of Quebec following a secession. Against the first assertion, Dion argued that the vast majority of international law experts "believe that the right to declare secession unilaterally does not belong to constituent entities of a democratic country such as Canada." In regard to the simple majority argument, Dion argues that due to the momentous changes to Quebecers' lives that would result from secession, a simple majority that could disappear in the face of difficulties would be insufficient to ensure the political legitimacy of the sovereignist project. In regard to the territorial integrity of Quebec, Dion retorts that "there is neither a paragraph nor a line in international law that protects Quebec's territory but not Canada's. International experience demonstrates that the borders of the entity seeking independence can be called into question, sometimes for reasons based on democracy."
In Dion's second open letter to Jacques Brassard
, Quebec's intergovernmental affairs minister, Dion expands upon his earlier arguments against the territorial integrity of Quebec following secession by highlighting the inconsistency in the argument that Canada is divisible but Quebec is not. Secondly, Dion underscores that without recognition by the Government of Canada
and when opposed by a strong minority of citizens, a unilateral declaration of independence faces much difficulty in gaining international recognition.
In Dion's third open letter to Lucien Bouchard
, he criticizes the Quebec premier for accepting some aspects of the Supreme Court ruling on Secession
(such as the political obligation for the Government of Canada to negotiate secession following a clear expression of will from the people of Quebec) and not other sections of the ruling (such as the need for a clear majority on a clear question and the unconstitutionality of a unilateral declaration of independence). In regard to the ruling, Dion makes three claims: that the federal government has a role in the selection of the question and the level of support required for it to pass, that secession can only be achieved through negotiation rather than a "unilateral declaration of independence", and that the terms of negotiation could not be decided solely by the Government of Quebec.
constituting the Supreme Court Reference re Secession of Quebec
:
As soon as these questions were made public, both parties of the National Assembly, the Bloc Québécois
and numerous federalists denounced Ottawa's gesture.
On August 20, 1998, the Supreme Court answered, concluding that Quebec
does not have the right to secede unilaterally under Canadian or international law. However, the Government of Canada
would have to enter into negotiations with the Quebec government if Quebeckers expressed a clear will to secede. It confirmed that the Parliament of Canada
had the power to determine whether or not a referendum question was clear enough to trigger such negotiations. The Constitution of Canada
would remain in effect until terms of secession were agreed to by all parties involved, and these terms would have to respect principles of democracy, minority and individual rights as outlined in the Canadian constitution.
Both the Government of Quebec
and the Government of Canada
publicly stated that they were very pleased with the opinion of the Supreme Court
, which stated both that Quebec could not legally separate unilaterally from Canada and that the Government of Canada
would have a 'political obligation' to enter into separation negotiations with Quebec in the event that a clear majority of its populace were to vote in favor of independence
.
would go on to organize and host the First International Conference on Federalism in Mont Tremblant in October 1999 to foster international support for the cause of federalism
in Canada. Quebec sovereignist leaders were granted a prominent role in the conference and would use their floor time to denounce Canadian federalism
to an international audience to the great annoyance of their federalist host. But the Clarity Act would get a big boost during the closing speech by United States President Bill Clinton
. While looking directly at Quebec
Premier Lucien Bouchard
, who was present in the audience, Clinton appeared to echo the Supreme Court Reference
, warning that "when a people thinks it should be independent in order to have a meaningful political existence, serious questions should be asked ... Are minority rights as well as majority rights respected? How are we going to co-operate with our neighbours?". Clinton argued that federalism
allows peoples seeking recognition of their identity a way to do so without isolating themselves in a nation-state. The speech would lay to rest any doubts about the U.S. position on the legality and desirability of unilateral secession in Quebec.
, and many federalists. The Progressive Conservative Party
, led by Joe Clark
, also opposed the Act. The NDP voted in favour of the Clarity Act. Following its adoption by the Parliament of Canada
, an open letter supporting Quebec's right to self-determination
was published and signed by numerous intellectuals from Quebec and other parts of Canada.
William Johnson
, leader of Quebec's largest anglophone rights group, Alliance Quebec
said the Act would prevent the typical misinformation of separatists.
Former Prime Minister
Jean Chrétien
has often stated that the Clarity Act was among his proudest achievements in federal politics.
In an interview with CTV
News aired on May 15, 2005, separatist former Premier of Quebec Jacques Parizeau
said that the Clarity Act "meant nothing" and would be ignored.
On December 7, 2005, in the midst of a federal election, NDP
leader Jack Layton
too announced that he backed the Clarity Act. This was in contrast to comments made in the 2004 election
where he said that Canada should recognize a declaration of Quebec independence if sovereigntists win a referendum.
, the Quebec
provincial government adopted its own law An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, This provincial act was inspired by the same decision of the Supreme Court of Canada
that the federal
one was.
This Quebec act emphasizes the right to self-determination
according to public international law. It also claims the right to territorial integrity
of the province of Quebec. The Act also recognizes the rights of Quebec's English-speaking minority and of the First nations
of Quebec. Finally, Article 13 clearly responds to the Canadian federal Clarity Act by stating: "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 Québec people to determine its own future."
. However, in Reference re Secession of Quebec
, the Supreme Court of Canada
has essentially said that a democratic vote in itself would have no legal effect, since the secession
of a province in Canada would only be constitutionally valid after a negotiation between the federal government and the provincial government; whose people would have clearly expressed, by a clear majority, that it no longer wished to be part of Canada
. Only then could a constitutional amendment be considered.
On the other hand, the Supreme Court of Canada
stated that a de facto
unilateral secession of a province would violate the Canadian Constitution, but it could still be recognized by the international community
and that such recognition may result from the conduct of the provincial and the federal government. Thus, these two laws are subjugated by the good or bad faith shown during negotiations. Indeed, it could affect the international recognition of a secession
's validity. Under the unwritten constitutional principles of Canada, both parties have an obligation to negotiate.
delivered an advisory opinion concerning the unilateral declaration of independence by Kosovo. The court had to decide if the declaration did not violate general international law. The court concluded that the unilateral declaration of independence did not violate international law, because it was not issued by any official body bound by Serbian or UN administration rules, and international law does not contain a prohibition against declarations of independence.
The unique situation of Kosovo was not discussed nor presented as a reason for the exclusion of Serbian laws (internal law) to analyse the matter. The court stated that only general international law applies to the situation of a unilateral declaration of independence. The court also stated that a referendum was not required.
However, the ICJ's opinion did not conflict with the Clarity Act, because the former only addresses the ability to issue a declaration, and the Clarity Act does not prohibit any person from issuing a declaration of independence. The advisory opinion also stated that it was up to individual states whether or not to recognize independence of a state so declared, and thus permitting the Canadian government, by the Clarity Act, to refuse or set conditions on recognition of independence.
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
that established the conditions under which the Government of Canada would enter into negotiations that might lead to secession
Secession
Secession is the act of withdrawing from an organization, union, or especially a political entity. Threats of secession also can be a strategy for achieving more limited goals.-Secession theory:...
following such a vote by one of the provinces. The Clarity Bill (C-20) was tabled for first reading in the House of Commons on December 13, 1999. It was passed by the House on March 15, 2000, and by the Senate
Canadian Senate
The Senate of Canada is a component of the Parliament of Canada, along with the House of Commons, and the monarch . The Senate consists of 105 members appointed by the governor general on the advice of the prime minister...
, in its final version, on June 29, 2000.
The Clarity Act was created in response to the 1995 Quebec referendum
1995 Quebec referendum
The 1995 Quebec referendum was the second referendum to ask voters in the Canadian province of Quebec whether Quebec should secede from Canada and become an independent state, through the question:...
and ongoing independence movement in that province
Quebec sovereignty movement
The Quebec sovereignty movement refers to both the political movement and the ideology of values, concepts and ideas that promote the secession of the province of Quebec from the rest of Canada...
. The content of the Clarity Act was based on the 1998 secession reference
Reference re Secession of Quebec
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
made by the federal government under Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
. Previously in 1996, a private member's bill, the The Quebec Contingency Act (Bill C-341)
Quebec Contingency Act
The Quebec Contingency Act was a private member's bill tabled in Canada's federal Parliament in 1996 to establish the conditions which would apply to a referendum regarding the separation of Quebec from Canada...
was introduced to establish the conditions which would apply to a referendum regarding the separation of Quebec from Canada, but it did not proceed further than the First Reading.
An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State was passed in the National Assembly of Quebec
National Assembly of Quebec
The National Assembly of Quebec is the legislative body of the Province of Quebec. The Lieutenant Governor and the National Assembly compose the Parliament of Quebec, which operates in a fashion similar to those of other British-style parliamentary systems.The National Assembly was formerly the...
by the Parti Québécois
Parti Québécois
The Parti Québécois is a centre-left political party that advocates national sovereignty for the province of Quebec and secession from Canada. The Party traditionally has support from the labour movement. Unlike many other social-democratic parties, its ties with the labour movement are informal...
government two days after the Clarity Act had been introduced in the Canadian House of Commons.
Ambiguity of Referendum Question
The motivation behind the Clarity Act was largely based on the near separation vote of the 1995 Quebec referendum1995 Quebec referendum
The 1995 Quebec referendum was the second referendum to ask voters in the Canadian province of Quebec whether Quebec should secede from Canada and become an independent state, through the question:...
, in which the people of Quebec voted against the sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
option by a small margin (50.58% to 49.42%). Controversy surrounded the ambiguity and wording of the ballot question.
Stéphane Dion and the Three Letters
Prime Minister Jean ChrétienJean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
appointed political scientist Stéphane Dion
Stéphane Dion
Stéphane Maurice Dion, PC, MP is a Canadian politician who has been the Member of Parliament for the riding of Saint-Laurent–Cartierville in Montreal since 1996. He was the leader of the Liberal Party of Canada and the Leader of the Opposition in the Canadian House of Commons from 2006 to 2008...
(first elected as Member of Parliament
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
for the riding
Electoral district (Canada)
An electoral district in Canada, also known as a constituency or a riding, is a geographical constituency upon which Canada's representative democracy is based...
of Saint-Laurent–Cartierville in Montreal
Montreal
Montreal is a city in Canada. It is the largest city in the province of Quebec, the second-largest city in Canada and the seventh largest in North America...
in 1996) as Minister of Intergovernmental Affairs
Minister of Intergovernmental Affairs (Canada)
The Minister of Intergovernmental Affairs is the Minister of the Crown in the Canadian Cabinet who is responsible for the federal government's relations with the governments of the provinces and territories of Canada...
in 1996. Dion would challenge Quebec sovereignist assertions about the legal validity of the 1995 Quebec referendum
1995 Quebec referendum
The 1995 Quebec referendum was the second referendum to ask voters in the Canadian province of Quebec whether Quebec should secede from Canada and become an independent state, through the question:...
question in three open letters to Quebec Premier Lucien Bouchard
Lucien Bouchard
Lucien Bouchard, is a Canadian lawyer, diplomat, politician and former Minister of the Environment of the Canadian Federal Government. He was the Leader of Opposition in the Canadian House of Commons from 1993 to 1996, and the 27th Premier of Quebec from January 29, 1996 to March 8, 2001...
and Quebec Intergovernmental Affairs Minister Jacques Brassard
Jacques Brassard
Jacques Brassard is a former Quebec politician and Cabinet Minister. He was the National Assembly of Quebec for Lac-Saint-Jean from 1976 to 2002 and occupied several portfolios as a Minister under the Parti Québecois governments of Rene Levesque, Pierre-Marc Johnson, Jacques Parizeau, Lucien...
.
In the first open letter, Dion challenged three assertions that Bouchard had made: that a unilateral declaration of independence is supported by international law, that a majority of "50% plus one" was a sufficient threshold for secession, and that international law would protect the territorial integrity of Quebec following a secession. Against the first assertion, Dion argued that the vast majority of international law experts "believe that the right to declare secession unilaterally does not belong to constituent entities of a democratic country such as Canada." In regard to the simple majority argument, Dion argues that due to the momentous changes to Quebecers' lives that would result from secession, a simple majority that could disappear in the face of difficulties would be insufficient to ensure the political legitimacy of the sovereignist project. In regard to the territorial integrity of Quebec, Dion retorts that "there is neither a paragraph nor a line in international law that protects Quebec's territory but not Canada's. International experience demonstrates that the borders of the entity seeking independence can be called into question, sometimes for reasons based on democracy."
In Dion's second open letter to Jacques Brassard
Jacques Brassard
Jacques Brassard is a former Quebec politician and Cabinet Minister. He was the National Assembly of Quebec for Lac-Saint-Jean from 1976 to 2002 and occupied several portfolios as a Minister under the Parti Québecois governments of Rene Levesque, Pierre-Marc Johnson, Jacques Parizeau, Lucien...
, Quebec's intergovernmental affairs minister, Dion expands upon his earlier arguments against the territorial integrity of Quebec following secession by highlighting the inconsistency in the argument that Canada is divisible but Quebec is not. Secondly, Dion underscores that without recognition by the Government of Canada
Government of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
and when opposed by a strong minority of citizens, a unilateral declaration of independence faces much difficulty in gaining international recognition.
In Dion's third open letter to Lucien Bouchard
Lucien Bouchard
Lucien Bouchard, is a Canadian lawyer, diplomat, politician and former Minister of the Environment of the Canadian Federal Government. He was the Leader of Opposition in the Canadian House of Commons from 1993 to 1996, and the 27th Premier of Quebec from January 29, 1996 to March 8, 2001...
, he criticizes the Quebec premier for accepting some aspects of the Supreme Court ruling on Secession
Reference re Secession of Quebec
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
(such as the political obligation for the Government of Canada to negotiate secession following a clear expression of will from the people of Quebec) and not other sections of the ruling (such as the need for a clear majority on a clear question and the unconstitutionality of a unilateral declaration of independence). In regard to the ruling, Dion makes three claims: that the federal government has a role in the selection of the question and the level of support required for it to pass, that secession can only be achieved through negotiation rather than a "unilateral declaration of independence", and that the terms of negotiation could not be decided solely by the Government of Quebec.
Supreme Court Reference re Secession of Quebec
On September 30, 1996, Dion would submit three questions to the Supreme Court of CanadaSupreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
constituting the Supreme Court Reference re Secession of Quebec
Reference re Secession of Quebec
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
:
- Under the Constitution of Canada, can the National AssemblyNational Assembly of QuebecThe National Assembly of Quebec is the legislative body of the Province of Quebec. The Lieutenant Governor and the National Assembly compose the Parliament of Quebec, which operates in a fashion similar to those of other British-style parliamentary systems.The National Assembly was formerly the...
, legislature, or government of Quebec effect the secession of Quebec from Canada unilaterally? - 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?
- In the event of a conflict between domestic and international law on the right of the National Assembly, legislature, or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?
As soon as these questions were made public, both parties of the National Assembly, the Bloc Québécois
Bloc Québécois
The Bloc Québécois is a federal political party in Canada devoted to the protection of Quebec's interests in the House of Commons of Canada, and the promotion of Quebec sovereignty. The Bloc was originally a party made of Quebec nationalists who defected from the federal Progressive Conservative...
and numerous federalists denounced Ottawa's gesture.
On August 20, 1998, the Supreme Court answered, concluding that Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
does not have the right to secede unilaterally under Canadian or international law. However, the Government of Canada
Government of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
would have to enter into negotiations with the Quebec government if Quebeckers expressed a clear will to secede. It confirmed that the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
had the power to determine whether or not a referendum question was clear enough to trigger such negotiations. The Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
would remain in effect until terms of secession were agreed to by all parties involved, and these terms would have to respect principles of democracy, minority and individual rights as outlined in the Canadian constitution.
Both the Government of Quebec
Government of Quebec
The Government of Quebec refers to the provincial government of the province of Quebec. Its powers and structure are set out in the Constitution Act, 1867....
and the Government of Canada
Government of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
publicly stated that they were very pleased with the opinion of the Supreme Court
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
, which stated both that Quebec could not legally separate unilaterally from Canada and that the Government of Canada
Government of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
would have a 'political obligation' to enter into separation negotiations with Quebec in the event that a clear majority of its populace were to vote in favor of independence
Independence
Independence is a condition of a nation, country, or state in which its residents and population, or some portion thereof, exercise self-government, and usually sovereignty, over its territory....
.
Bill Clinton and the First International Conference on Federalism
Stéphane DionStéphane Dion
Stéphane Maurice Dion, PC, MP is a Canadian politician who has been the Member of Parliament for the riding of Saint-Laurent–Cartierville in Montreal since 1996. He was the leader of the Liberal Party of Canada and the Leader of the Opposition in the Canadian House of Commons from 2006 to 2008...
would go on to organize and host the First International Conference on Federalism in Mont Tremblant in October 1999 to foster international support for the cause of federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
in Canada. Quebec sovereignist leaders were granted a prominent role in the conference and would use their floor time to denounce Canadian federalism
Canadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
to an international audience to the great annoyance of their federalist host. But the Clarity Act would get a big boost during the closing speech by United States President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
. While looking directly at Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
Premier Lucien Bouchard
Lucien Bouchard
Lucien Bouchard, is a Canadian lawyer, diplomat, politician and former Minister of the Environment of the Canadian Federal Government. He was the Leader of Opposition in the Canadian House of Commons from 1993 to 1996, and the 27th Premier of Quebec from January 29, 1996 to March 8, 2001...
, who was present in the audience, Clinton appeared to echo the Supreme Court Reference
Reference re Secession of Quebec
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
, warning that "when a people thinks it should be independent in order to have a meaningful political existence, serious questions should be asked ... Are minority rights as well as majority rights respected? How are we going to co-operate with our neighbours?". Clinton argued that federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
allows peoples seeking recognition of their identity a way to do so without isolating themselves in a nation-state. The speech would lay to rest any doubts about the U.S. position on the legality and desirability of unilateral secession in Quebec.
Passage and Reactions to Clarity Act
The Clarity Act (Bill C-20) was later drafted and presented to the House of Commons on December 13, 1999. This was more bitterly denounced by all provincial parties in the Quebec National Assembly, the Bloc QuébécoisBloc Québécois
The Bloc Québécois is a federal political party in Canada devoted to the protection of Quebec's interests in the House of Commons of Canada, and the promotion of Quebec sovereignty. The Bloc was originally a party made of Quebec nationalists who defected from the federal Progressive Conservative...
, and many federalists. The Progressive Conservative Party
Progressive Conservative Party of Canada
The Progressive Conservative Party of Canada was a Canadian political party with a centre-right stance on economic issues and, after the 1970s, a centrist stance on social issues....
, led by Joe Clark
Joe Clark
Charles Joseph "Joe" Clark, is a Canadian statesman, businessman, and university professor, and former journalist and politician...
, also opposed the Act. The NDP voted in favour of the Clarity Act. Following its adoption by the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
, an open letter supporting Quebec's right to self-determination
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
was published and signed by numerous intellectuals from Quebec and other parts of Canada.
William Johnson
William Johnson (author)
William Johnson, CM is a Canadian academic, journalist and author.Johnson's mother was francophone and his father anglophone and Johnson himself speaks both English and French...
, leader of Quebec's largest anglophone rights group, Alliance Quebec
Alliance Quebec
Alliance Quebec was a group formed in 1982 to lobby on behalf of English-speaking Quebecers in the province of Quebec, Canada. It began as an umbrella group of many English-speaking organizations and institutions in the province, with approximately 15,000 members. At its height in the mid-1980s,...
said the Act would prevent the typical misinformation of separatists.
Former Prime Minister
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
Jean Chrétien
Jean Chrétien
Joseph Jacques Jean Chrétien , known commonly as Jean Chrétien is a former Canadian politician who was the 20th Prime Minister of Canada. He served in the position for over ten years, from November 4, 1993 to December 12, 2003....
has often stated that the Clarity Act was among his proudest achievements in federal politics.
In an interview with CTV
CTV television network
CTV Television Network is a Canadian English language television network and is owned by Bell Media. It is Canada's largest privately-owned network, and has consistently placed as Canada's top-rated network in total viewers and in key demographics since 2002, after several years trailing the rival...
News aired on May 15, 2005, separatist former Premier of Quebec Jacques Parizeau
Jacques Parizeau
Jacques Parizeau, is an economist and noted Quebec sovereignist who was the 26th Premier of the Canadian province of Quebec from September 26, 1994 to January 29, 1996.-Early life and career:...
said that the Clarity Act "meant nothing" and would be ignored.
On December 7, 2005, in the midst of a federal election, NDP
New Democratic Party
The New Democratic Party , commonly referred to as the NDP, is a federal social-democratic political party in Canada. The interim leader of the NDP is Nycole Turmel who was appointed to the position due to the illness of Jack Layton, who died on August 22, 2011. The provincial wings of the NDP in...
leader Jack Layton
Jack Layton
John Gilbert "Jack" Layton, PC was a Canadian social democratic politician and the Leader of the Official Opposition. He was the leader of the New Democratic Party from 2003 to 2011, and previously sat on Toronto City Council, serving at times during that period as acting mayor and deputy mayor of...
too announced that he backed the Clarity Act. This was in contrast to comments made in the 2004 election
Canadian federal election, 2004
The Canadian federal election, 2004 , was held on June 28, 2004 to elect members of the Canadian House of Commons of the 38th Parliament of Canada. The Liberal government of Prime Minister Paul Martin lost its majority, but was able to form a minority government after the elections...
where he said that Canada should recognize a declaration of Quebec independence if sovereigntists win a referendum.
Key points
The key points of the legislation included the following:- Giving the House of Commons the power to decide whether a proposed referendum question was considered clear before the public vote;
- Specifically stating that any question not solely referring to secession was to be considered unclear;
- Giving the House of Commons the power to determine whether or not a clear majority has expressed itself in any referendum, implying that some sort of supermajoritySupermajorityA supermajority or a qualified majority is a requirement for a proposal to gain a specified level or type of support which exceeds a simple majority . In some jurisdictions, for example, parliamentary procedure requires that any action that may alter the rights of the minority has a supermajority...
is required for success; - Stating that all provinces and the First NationsFirst NationsFirst Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
were to be part of the negotiations; - Allowing the House of Commons to override a referendum decision if it felt the referendum violated any of the tenets of the Clarity Act;
- The secession of a province of Canada would require an amendment to the Constitution of Canada.
Quebec mirror law
Following the adoption of the Clarity Act by the federal governmentGovernment of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
, the Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
provincial government adopted its own law An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, This provincial act was inspired by the same decision of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
that the federal
Government of Canada
The Government of Canada, formally Her Majesty's Government, is the system whereby the federation of Canada is administered by a common authority; in Canadian English, the term can mean either the collective set of institutions or specifically the Queen-in-Council...
one was.
This Quebec act emphasizes the right to self-determination
Self-determination
Self-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
according to public international law. It also claims the right to territorial integrity
Territorial integrity
Territorial integrity is the principle under international law that nation-states should not attempt to promote secessionist movements or to promote border changes in other nation-states...
of the province of Quebec. The Act also recognizes the rights of Quebec's English-speaking minority and of the First nations
First Nations
First Nations is a term that collectively refers to various Aboriginal peoples in Canada who are neither Inuit nor Métis. There are currently over 630 recognised First Nations governments or bands spread across Canada, roughly half of which are in the provinces of Ontario and British Columbia. The...
of Quebec. Finally, Article 13 clearly responds to the Canadian federal Clarity Act by stating: "No other parliament
Parliament
A parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
or government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
may reduce the powers, authority
Authority
The word Authority is derived mainly from the Latin word auctoritas, meaning invention, advice, opinion, influence, or command. In English, the word 'authority' can be used to mean power given by the state or by academic knowledge of an area .-Authority in Philosophy:In...
, sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
or legitimacy of the National Assembly
National Assembly of Quebec
The National Assembly of Quebec is the legislative body of the Province of Quebec. The Lieutenant Governor and the National Assembly compose the Parliament of Quebec, which operates in a fashion similar to those of other British-style parliamentary systems.The National Assembly was formerly the...
, or impose constraint on the democratic will of the Québec people to determine its own future."
Impact of both laws
The constitutional validity of both laws and the compliance of their provisions remain uncertain - most likely - until the eve of a new referendumReferendum
A referendum is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal. This may result in the adoption of a new constitution, a constitutional amendment, a law, the recall of an elected official or simply a specific government policy. It is a form of...
. However, in Reference re Secession of Quebec
Reference re Secession of Quebec
Reference re Secession of Quebec, [1998] 2 S.C.R. 217 was an opinion of the Supreme Court of Canada regarding the legality, under both Canadian and international law, of a unilateral secession of Quebec from Canada....
, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
has essentially said that a democratic vote in itself would have no legal effect, since the secession
Secession
Secession is the act of withdrawing from an organization, union, or especially a political entity. Threats of secession also can be a strategy for achieving more limited goals.-Secession theory:...
of a province in Canada would only be constitutionally valid after a negotiation between the federal government and the provincial government; whose people would have clearly expressed, by a clear majority, that it no longer wished to be part of Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
. Only then could a constitutional amendment be considered.
On the other hand, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
stated that a de facto
De facto
De facto is a Latin expression that means "concerning fact." In law, it often means "in practice but not necessarily ordained by law" or "in practice or actuality, but not officially established." It is commonly used in contrast to de jure when referring to matters of law, governance, or...
unilateral secession of a province would violate the Canadian Constitution, but it could still be recognized by the international community
International community
The international community is a term used in international relations to refer to all peoples, cultures and governments of the world or to a group of them. The term is used to imply the existence of common duties and obligations between them...
and that such recognition may result from the conduct of the provincial and the federal government. Thus, these two laws are subjugated by the good or bad faith shown during negotiations. Indeed, it could affect the international recognition of a secession
Secession
Secession is the act of withdrawing from an organization, union, or especially a political entity. Threats of secession also can be a strategy for achieving more limited goals.-Secession theory:...
's validity. Under the unwritten constitutional principles of Canada, both parties have an obligation to negotiate.
International law
On July 22, 2010, the International Court of JusticeInternational Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
delivered an advisory opinion concerning the unilateral declaration of independence by Kosovo. The court had to decide if the declaration did not violate general international law. The court concluded that the unilateral declaration of independence did not violate international law, because it was not issued by any official body bound by Serbian or UN administration rules, and international law does not contain a prohibition against declarations of independence.
The unique situation of Kosovo was not discussed nor presented as a reason for the exclusion of Serbian laws (internal law) to analyse the matter. The court stated that only general international law applies to the situation of a unilateral declaration of independence. The court also stated that a referendum was not required.
However, the ICJ's opinion did not conflict with the Clarity Act, because the former only addresses the ability to issue a declaration, and the Clarity Act does not prohibit any person from issuing a declaration of independence. The advisory opinion also stated that it was up to individual states whether or not to recognize independence of a state so declared, and thus permitting the Canadian government, by the Clarity Act, to refuse or set conditions on recognition of independence.
See also
- Quebec referendum, 1995
- Quebec sovereignty movementQuebec sovereignty movementThe Quebec sovereignty movement refers to both the political movement and the ideology of values, concepts and ideas that promote the secession of the province of Quebec from the rest of Canada...
- Politics of QuebecPolitics of QuebecThe politics of Quebec are centred on a provincial government resembling that of the other Canadian provinces, namely a constitutional monarchy and parliamentary democracy. The capital of the province is Quebec City, where the Lieutenant Governor, Premier, the legislature, and cabinet reside.The...
- Politics of CanadaPolitics of CanadaThe politics of Canada function within a framework of parliamentary democracy and a federal system of parliamentary government with strong democratic traditions. Canada is a constitutional monarchy, in which the Monarch is head of state...
External links
- Text of the Clarity Act
- Full text of the Reference re Secession of Quebec
- 1995 Act Respecting the Future of Quebec
- Open letter in support of the democratic right to self-determination for Quebec
- Debates - Issue 44 - April 6, 2000 (Senate's Second Reading debate about the passage of specific powers to the House of Commons; notable because the Senate is a co-equal body)
- CBC report on introduction of Clarity Bill