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Date: Sun, 23 Aug 1998 10:10:09 -0300
From: Parker Barss Donham <[EMAIL PROTECTED]>
Reply-To: [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Subject: [PARKER:1190] Column: 8-23-98 SCOC and Quebec
23 August 1998
As predicted, the Supreme Court of Canada landed squarely on the
federalist side of legal arguments surrounding separation.
And as also predicted, the court softened the blow by noting the
political imperatives that will arise if a clear majority of Quebecers
ever votes in favor of a clear proposal to separate.
The skill and tact with which the court traversed this
legal-political tightrope was evident in the resulting declarations of
victory from both sides.
At one level, the conflicting claims of victory merely represent
attempts at spin control. Since the court conceded that legal
separation could only occur through a process of political
negotiations, it's natural that both sides would seek political
advantage in the outcome.
But at another level, the fact that separatists found themselves with
little choice but to praise the decision, albeit selectively,
represents a setback for separatist strategy.
The narrow legal issues framed by Ottawa were never seriously in
doubt. The Quebec government, with ample access to constitutional
scholarship, knew it was being set up for a defeat.
Accordingly, it not only refused to participate in the reference, it
denounced Ottawa's decision to take the matter to the high court, and
did so with such vehemence that even soft federalists like Jean
Charest were swept up in the chorus of criticism.
No court will ever stand in the way of Quebec's absolute right to
self-determination, went the rallying cry. Any judicial attempt to do
so would invite more shirt-rending declarations of humiliation and
oppression.
The court _ in make-up, structure, and authority, as unambiguously
federalist as any Canadian institution _ did indeed side with Ottawa.
But it did so in a way so subtle and skillful as to deprive Lucien
Bouchard of the humiliation card.
Positive separatist spin arises from the court's finding that, even
though a referendum on secession ``has no direct legal effect,'' and
could not, by itself, authorize a unilateral declaration of
independence, ``a clear expression by the people of Quebec of their
will to secede'' would ``confer legitimacy on demands for secession,
and place an obligation on the other provinces and the federal
government to acknowledge and respect that expression of democratic
will by entering into negotiations . . . ''
In short, Ottawa and the other provinces can't refuse to negotiate,
as some federalists have sometimes threatened to do, in the face of a
successful referendum on sovereignty _ at least not a clear referendum
that is clearly successful.
If this is a victory, it's one Quebec ought to have. No reasonable
Canadian wants to force Quebec to stay in Canada against the will of
its people. If the Supreme Court decision removes from the federalist
arsenal the threat of a refusal to negotiate, so be it.
What the decision also does is to raise the bar for success of the
separatist option. It does so in several ways.
To force negotiations, the referendum question must be clear. The
court doesn't say what would constitute a clear question, or even who
would judge its clarity. It specifically abjures any supervisory role
for the courts, declaring this to be a political question.
In the past, the framing of a referendum question has generated some
of separatism's most intellectually dishonest posturing. The first
two referenda featured questions that were convoluted and unclear.
Challenged on this point, separatists usually insist _ unconvincingly
_ that ``Quebecers understand the question.'' But if Quebecers
understand the question in any case, why the need for abstruse
wording?
The answer is that, for a referendum to win a clear majority, the
separatists need every break they can get: weather, organization,
federalist blunders, charismatic leader, perceived slights aggravating
a sense of grievance.
In that long shot context, separatists are reluctant to forego any
strategic advantage, including the right to frame the question in
soft, seductive wording.
Last week's decision deprives them of that option. Any attempt to
use weasel words in a third referendum will be greeted with scorn by
Ottawa and the other provinces _ and rightly so.
The court says the referendum must attain a ``clear majority,'' that
it must be ``free of ambiguity . . . in terms of the support it
receives.''
Once again, the court does not define clarity in this context,
leaving that to politicians. They were quick to respond with
contradictory, self-serving interpretations. Bouchard said 50 percent
plus one. Prime Minister Jean Chretien said something substantially
more than that.
Effectively, the court leaves us with a continuum. A 90 percent vote
in support of a plainly worded question would give Quebec a very
strong mandate in the negotiations the courts says must follow. A
vote of 50 percent plus one would give it a feeble mandate, if any.
Moreover, the negotiations must be carried out in good faith, and in
accordance ``with underlying constitutional principles,'' including
``federalism, democracy, constitutionalism and the rule of law, and
respect for minorities.''
The court is clear that negotiations would focus on a number of
vexatious issues Quebec might prefer to avoid, including the
boundaries of the new state, and the rights of linguistic minorities
and aboriginal people.
``No one suggests that it would be an easy set of negotiations,'' the
court says bluntly.
A refusal to negotiate has never been the mainstay of the Chretien
government's so-called Plan B. Rather, Plan B insists on plain talk
about the difficult topics that would have to be discussed, and a
range of outcomes that may not sit well with Quebec voters.
By insisting that negotiations must follow a successful referendum,
the court has ensured that future referendum campaigns will focus on
the probable course of those negotiations. It's far from clear that
this makes separatist strategy easier.
Moreover, by praising the result of a process it once scorned,
Bouchard has forfeited the ability to dismiss the court's tough
warnings on the need for a clear question, a clear result, and good
faith negotiations on a range of tough issues.
Result: Canada is further from breakup today than it was a week ago.
<I> Copyright (C) by Parker Barss Donham. All rights reserved.
([EMAIL PROTECTED]) <I>
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