Clarity Act


Clarity Act
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The Clarity Act (known as Bill C-20 before it became law) 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.[1]

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.

Contents

Background

Ambiguity of Referendum Question

The motivation behind the Clarity Act was largely based on the near separation vote of the 1995 Quebec referendum, 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.

Stéphane Dion and the Three Letters

Prime Minister Jean Chrétien 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.[2][3][4]

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."[2] 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."[2]

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.[3]

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.[4]

Supreme Court Reference re Secession of Quebec

On September 30, 1996, Dion would submit three questions to the Supreme Court of Canada constituting the Supreme Court Reference re Secession of Quebec:

  1. Under the Constitution of Canada, can the National Assembly, legislature, or government of Quebec effect the secession of Quebec from Canada unilaterally?
  2. 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?
  3. 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 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.[5]

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.

Bill Clinton and the First International Conference on Federalism

Stéphane Dion 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.[6]

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 Québécois, and many federalists.[citation needed] The Progressive Conservative Party, led by Joe Clark, also opposed the Act[citation needed]. The NDP voted in favour of the Clarity Act.[7] 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.[8]

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.[9]

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 supermajority is required for success;
  • Stating that all provinces and the First Nations 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 government, 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,[10] 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."

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 referendum. 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.

International law

On July 22, 2010, the International Court of Justice 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.[11]

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.[12]

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

References

  1. ^ "Clarity Act". Government of Canada Privy Council Office. http://www.pco-bcp.gc.ca/aia/index.asp?lang=eng&page=federal&doc=constitution/clarityact/ClarityAct_e.htm. Retrieved 2008-02-17. 
  2. ^ a b c Dion, Stéphane (1997-08-11). Letter to Premier Lucien Bouchard Concerning his Position on a Unilateral Declaration of Independence. Ministry of Intergovernmental Affairs Canada. http://www.pco-bcp.gc.ca/aia/index.asp?lang=eng&Page=archive&Sub=letters-lettres&Doc=19970811-eng.htm. Retrieved 2006-12-04. 
  3. ^ a b Dion, Stéphane (1997-11-19). Letter to Mr. Jacques Brassard in Response to his Ministerial Statement on the Territorial Integrity of Quebec. Ministry of Intergovernmental Affairs Canada. http://www.pco-bcp.gc.ca/aia/index.asp?lang=eng&Page=archive&Sub=letters-lettres&Doc=19971119-eng.htm. Retrieved 2006-12-04. 
  4. ^ a b Dion, Stéphane (1998-08-25). Letter to Premier Lucien Bouchard on the Need to Respect the Supreme Court's Decision in its Entirety. Ministry of Intergovernmental Affairs Canada. http://www.pco-bcp.gc.ca/aia/index.asp?lang=eng&Page=archive&Sub=letters-lettres&Doc=19980825-eng.htm. Retrieved 2006-12-04. 
  5. ^ Supreme Court of Canada (1998-08-20). Reference re Secession of Quebec. Supreme Court of Canada. http://scc.lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.html. Retrieved 2006-12-21. 
  6. ^ Bruce Wallace (1999-10-18). Clinton Defends Canadian Federalism. Maclean's Magazine. http://www.canadianencyclopedia.ca/index.cfm?PgNm=TCE&Params=M1ARTM0012024. Retrieved 2006-12-21. 
  7. ^ Paul Wells (2011-04-27). "The NDP, Quebec and the constitution". Macleans. http://www2.macleans.ca/2011/04/27/the-ndp-quebec-and-the-constitution/. 
  8. ^ "PQ takes clarity bill complaints to Ottawa". CBC News. 2000-11-11. http://www.cbc.ca/canada/story/2000/02/24/clarity000224.html. 
  9. ^ "NDP's Layton would repeal federal Clarity Act". CTV Toronto. 2004-05-29. http://regina.ctv.ca/servlet/an/local/CTVNews/20040529/layton_quebec_040528?hub=TorontoNewHome. 
  10. ^ An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State, R.S.Q., chapter E-20.2
  11. ^ André Binette, Analyse du jugement de la cour internationale de justice sur le Kosovo, L'Action Nationale, septembre 2010, pages 11-23
  12. ^ André Binette, Analyse du jugement de la cour internationale de justice sur le Kosovo, L'Action Nationale, septembre 2010, page 23

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