Getting Out: Secession and Constitutional Law

Author:	James A Thomson LLB (Hons), BA (UWA); LLM, SJD (Harvard)
Subjects:	Constitutional law Canada cases (Other articles) Federalism (Other articles) Secession (Other articles)
Issue:	Volume 6, Number 1 (March 1999)
Category:	Current Developments

Note: Some Comparative Reflections On The Québec Secession Decision: Three Papers

The release on August 20 1998 of the Supreme of Canada's advisory opinion on the right of the Province of Québec to secede from the Canadian federation (the Québec Secession case) occasioned considerable interest from observers of federal systems. The decision prompted the School of Law at Murdoch University, in collaboration with the Federal Court of Australia in Perth, to organise a roundtable discussion. This became "Constitutional Principles for a Principled Constitution: Lessons from the Québec Secession Decision", Murdoch University, School Of Law Seminar Series, Federal Court Boardroom, Perth, Thursday, 15 October 1998.

The purpose of the roundtable was to stimulate interest in the decision, by exploring different ways in which it might be considered. Three of the four contributions to that roundtable are published in this issue of E Law with some modifications made after their presentation.

Each such contribution indeed adopts a different perspective on the decision. Taking the authors alphabetically, Professor Greg Craven's paper (The Quebec Secession Reference: The Law Of Politics Or The Politics Of Law?) considers the problematic character of the decision considered as a formal legal document. His concern is with the strains produced by the variety of objectives the Supreme Court could be seen to have set itself. His particular interest is in the use of Canadian material in the current constitutional discussions in Australia, in which he has been an active participant. Professor Craven has written extensively on secession.

Professor Ralph Simmonds (Why Québec Secession Matters) focusses on and celebrates one of those objectives of concern to Professor Craven, the decision's intended contribution to the debate about the nature of Canadian federalism. His particular interest stems from his background as some one who has spent considerable time living and working in Québec, and who is interested in theories of federalism when it is under threat.

Dr James Thomson (Getting Out: Secession and Constitutional Law) reflects on the character of the Québec secession decision particularly when viewed from the perspectives of provinces and states in a federation and comparative constitutional law.

Ralph Simmonds, April 1999

Introduction

1. Exiting from federations[1] is not impossible. Secession of component entities - states, provinces, cantons or territories - does, however, confront, in addition to political, cultural, economic, religious, military and other issues, a major legal conundrum: does constitutional law authorise secession? One extreme includes express authorisation.[2] Opposing that position is preclusion of any secession.[3] Juxtaposed somewhere near the middle, at least according to the Canadian Supreme Court,[4] is Canada.[5] More indeterminate, especially without judicial perspectives,[6] is secession under Australian constitutional law.[7] Of course, in this context[8] comparative constitutional law flourishes.[9] Combined with the Australian High Court's not infrequent consideration of other countries' constitutional law,[10] that pushes the Quebec Secession case[11] into a position of some prominence.[12]
    
   
2. Responding to two central questions[13] - did the National Assembly, Legislature or government of Quebec have a right to unilaterally secede from Canada under the Canadian Constitution or international law? - the Canadian Supreme Court, in a unanimous opinion and decision, appears to have rendered an unequivocal response: "[T]here is no right, under the [Canadian] Constitution or at international law, to unilateral secession . . . ."[14] Even so, a puzzle remains. From a perspective of constitutional law, who won? In this context, one response can be proffered: Two winners - Quebec and the Canadian Supreme Court - emerged from the Quebec Secession case.

   Provincial Secession

3. Why did Quebec win? The answer inheres in the recognition or endorsement of three propositions by Canada's Supreme Court justices. First, despite the absence of an express provision in the Canadian Constitution,[15] secession is constitutionally possible and feasible under that Constitution if there are, at least, negotiations between the provinces and central government and radical and extensive constitutional amendments which come within the Constitution's amendment power. Secondly, Quebec has a constitutional right to pursue (that is, to propose and seek) secession from Canada. Thirdly, secession is possible and feasible on a totally unilateral basis and legitimacy and legality may come to attach to that secession prospectively but not, for Canadian law purposes, retrospectively.
    
   
4. Comparatively, four observations ensue. First, the Quebec Secession case confirms President Lincoln's view, before and during the 1861-1865 American Civil War, that southern states' unilateral secession could not, constitutionally or by force, be achieved. Only via the Constitution's amendment procedures in Article V was secession legally attainable.[16] However, the US Supreme Court's view in Texas v White is more restrictive:[17] "[t]he [US] Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States."[18] Interestingly, the Quebec Secession case does not refer to these events despite their virtual simultaneous occurrence with the drafting and debating, between 1864-1867, of Canada's Constitution.[19] For some, that American background and its apparent message that the US constitutional structure adumbrated a weak central government and too powerful states may have given impetus to the intention to form a strong central Canadian government with relatively weaker provinces.[20] That traditional view of the Canadian framers' intentions - a dominant centre and dependent provinces[21] - does not provide an historical foundation for a constitutional recognition of secession. More helpful, though also not mentioned in the Quebec Secession case, is the emerging revisionist provincial autonomy thesis.[22] Intriguingly, this newer perspective of Canadian constitutional history may have given some credibility to the Court's three secessionist propositions.
    
   
5. Secondly, those three Quebec Secession case propositions are opposite to the 1935 decision - that state secession was unconstitutional in Australia - of the Joint Select Committee of the House of Lords and House of Commons.[23] Again, like the American comparison, this Australian analogy is missing from the Quebec Secession case.
    
   
6. Thirdly, this Canadian recognition of secession is opposite to the Australian High Court's general tendency[24] to favour unity and nationhood (especially through the expansion and dominance of Commonwealth legislative and fiscal powers) over state powers and rights.[25] Of course, historical and textual factors may erect a Canadian-Australian distinction. For example,[26] the ability of Canada's provinces, but not Australia's states, to formally initiate constitutional amendments[27] and the Judicial Committee of the Privy Council's solicitude for provincial powers and rights compared with the Engineers[28] and post-Engineers[29] position of the High Court.[30]
    
   
7. Fourthly, however, the Quebec Secession case, without any overt citation, confirms two occurrences. First is the American colonies' unilateral secession from England.[31] That is, even if the 1776 Declaration of Independence[32] was unlawful and unconstitutional,[33] subsequent events[34] have conferred legitimacy and legality on that secession. Second is the severance - constitutionally or unilaterally - of Australia from United Kingdom parliamentary sovereignty.[35] Without elaboration or explanation it has been asserted that "the Australia Act (UK) marked the end of the legal sovereignty of the Imperial Parliament and recognized that ultimate sovereignty resided in the Australian people."[36] Assistance with doctrinal reasoning and analyses as to how and why such an Australian revolution occurred and its consequences may well come from the Quebec Secession case.

   Judicial Review Of Secession

8. A second answer to the constitutional law puzzle - who won? - is the Canadian Supreme Court.[37] Without a hint of hesitation,[38] that Court was prepared to and did decide "momentous questions"[39] relating to the constitutional validity of secession.[40] This occurred on several levels. Firstly, the Canadian Supreme Court decided whether (and to what extent) these secession questions and issues were justiciable. In this context, the Canadian Court's position is similar to that adopted by the United States Supreme Court and Australian High Court; namely, the question - is this issue justiciable or non justiciable? - is itself a justiciable issue.[41] Secondly, on a substantive dimension, the Supreme Court of Canada decided at least three Canadian constitutional issues: no constitutional right or power exists in relation to unilateral provincial secession; provinces (including Quebec) have a constitutional right to pursue secession; and provincial secession is constitutionally feasible. Thirdly, the Quebec Secession case decided that a number of aspects, for example, issues concerning the content and process of secession negotiations between provinces and the federal government, were non-justiciable. Fourthly, the Canadian Supreme Court left for future consideration an important and, perhaps, ominous[42] question: Would the Court intervene (and, if so, when and how) if secession negotiations did not conform to the Quebec case observations or reached an impasse?
    
   
9. To achieve this position the Canadian Supreme Court[43] used a generalised two-step methodology to surmount or avoid the gruelling debate between interpretivism and non-interpretivism.[44] First, the Quebec Secession case declares that the Canadian Constitution is more than a textual document or documents:[45] it consists of written and unwritten rules, principles and conventions. Secondly, the Canadian Supreme Court indicated that these unwritten (and justiciable) aspects of Canada's Constitution emerge from an understanding - presumably, the Court's understanding - of that Constitution's text, history and prior judicial adumbration.

   Conclusion

10. Of course, the Quebec Secession case, like all judicial opinions, can be criticised[46] and praised.[47] Whatever position might be chosen, a larger quandary emerges: Is the Canadian Supreme Court a continuing Constitutional Convention permanently[48] in session? Perhaps, not unlike other jurisdictions,[49] the answer is - yes.