Ottawa, 21 August 1998 (RFE/RL) -- The Supreme Court of Canada says the French-speaking province of Quebec does not have the right to separate unilaterally under either Canadian or international law.
The province has been talking about separation for nearly three decades, claiming its French-language identity makes it unique. The federal government referred the matter to the highest court in the land two years ago, in an effort to head off further talk of the break-up of Canada.
The Court handed down its judgment in Ottawa on Thursday and both sides -- the federalists and the separatists -- are claiming victory -- of a sort. Prime Minister Jean Chretien called the decision "an important reminder of democracy." The Canadian Justice Minister, Anne McLellan, said it was "balanced and carefully considered."
However, the head of the separatist Bloc Quebecois party, Gilles Duceppe, took the view that the Supreme Court ruling confers legitimacy on Quebec's aspirations for independence. The Premier of the province, Lucien Bouchard, said he would have no comment until Friday because he wanted to study the Court's decision carefully.
While ruling that separation would be illegal under both Canadian and international law, the Court said it was a political -- not legal -- issue.
The judgment says "the provinces and federal government would have no basis to deny the rights of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others."
In other words, while separation might not be possible legally, it could happen if the political will existed -- with the proviso that such a move would have to be voted for by a "clear majority" of both Quebecers and Canadians living in the other nine provinces and two territories. And, says the decision, the negotiations to break up the country would be a "long, complex, difficult process and create a period of instability."
The leaders of the provinces and territories reacted conservatively. All, except Quebec, issued statements along the lines that unity was a political issue that must be ironed out by politicians, not the courts.
The Canadian government had asked the Court to pass judgment on three questions:
1.) Does the Canadian Constitution allow the province of Quebec to unilaterally secede;
2.) Does international law allow unilateral
secession; and 3.) Which law would take precedence -- Canadian or international.
On the first question, the Supreme Court said secession of a province under the Constitution could not be achieved unilaterally..."within the existing constitutional framework."
On the second, it ruled that the province did not constitute "a people" and, as such, "a right to secession only arises under the principle of self-determination of people at international law where 'a people' is governed as part of a colonial empire...subject to alien subjugation, domination or exploitation; and...denied any meaningful exercise of its right to self-determination within the state of which it forms a part." Quebec, ruled the court, "does not meet the threshold of a colonial people or an oppressed people, nor can it be suggested that Quebecers have been denied meaningful access to government to pursue their political, economic, cultural and social development."
The Supreme Court also noted that Quebec could go ahead with a unilateral declaration of independence and then wait to see what the federal government -- and the international community -- would do about it: "the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out. The ultimate success of such a secession would be dependent on recognition by the international community... Even if granted, such recognition would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law."
The ruling by the Court could well be the spring-board from which Quebec Premier Lucien Bouchard calls a provincial election this fall, followed by another referendum on separation.
In his statement on today (Friday), he is expected to say the Court's ruling legitimizes the aspirations of Quebecers for an independent nation and offer to open negotiations with the federal and provincial governments.
To get that negotiating mandate, he could call a quick election -- one that he would likely win. With that, he could argue that the "will of the people" compel him to pursue independence. If the federal and provincial governments refuse to talk, Bouchard could claim the rest of Canada was trying to deny Quebec its "distinct status."
Such a strategy would leave the federal government on the defensive, having to explain why the status quo works. And that would probably result in growing support for separation in Quebec and a stronger sense of alienation from the English-speaking majority.