Sujit Choudhry On Quebec Secession And Canada’s Constitution

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There have been recent rumors of Quebec trying to secede from Canada again. This is not new information to seasoned legal experts like Sujit Choudhry. A secession attempt happened in 1995, and a referendum was held. In one of his notable research essays, Choudhry discussed referendum regulations, secession terms and what Canada can expect if another referendum happens.

Disagreement: The Root Of The Problem

In his essay, Choudhry emphasized that the next referendum would be different from the last event. He believes that referendums are likely to happen in the future multiple times because of how strongly Canadians disagree on important issues. Many people seem to share the view that the solution is to divide rather than to compromise. As Choudhry pointed out, the goal of a constitution is to keep these disagreements from turning into such drastic reactions.

Instead, he said that disagreements should be channeled into institutions that follow procedural rules regarding political decisions. However, a big problem with this model arises when citizens disagree with those fundamental rules and reject their finality. Canada originally created an option for Quebec to secede in the future using the precedent of Montenegro seceding from Serbia. While the option’s existence is questionable after several changes, Choudhry believes that the chances of Quebec’s secession actually happening are slim.

Is Secession Constitutional?

As an expert in constitutional law, Choudhry pointed out that the Canadian Constitution defines Quebec’s territory and specifically names it as part of Canada. For this reason, the province of Quebec making a decision to secede is not constitutional. It would be a provincial legal decision rather than a federal one, and federal law trumps provincial law. However, the Canadian Constitution does not explicitly prohibit secession. In theory, the document could be amended to allow secession, and that would make Quebec’s future decision to leave constitutional.

Since even the citizens behind the movement to make Quebec an independent nation rejected the idea of making amendments in the past, it is not likely to happen soon. In 1998, the Supreme Court decided that unilateral secession was unconstitutional. The justices also said that if they saw a strong majority in favor of Quebec’s secession, political actors had a duty to negotiate terms in good faith. The Supreme Court noted that it would not be a part of those negotiations.

What Would A Secession Attempt Bring?

It appears that the Supreme Court does not want to see backlash from the ensuing chaos if there is a strong push for Quebec’s secession again that leads to a referendum. The decision that secession is unconstitutional but still warrants good-faith negotiations lays the groundwork for legal catastrophes. In his essay, Choudhry noted that a unilateral independence vote would lead to Canada saying that Quebec cannot displace its authority, and provincial authorities would try to displace the Canadian government’s authorities within Quebec to retaliate. Businesses and individuals would be confused and would not know which laws to follow. If the people tried to follow federal laws knowing that Quebec’s provincial changes were unconstitutional and Quebec tried to strictly enforce its laws, Choudhry said that the outcome would be even worse.

Does The Clarity Act Help?

In 2000, the Clarity Act was passed. It outlines federal response choices for a future referendum. The Clarity Act states that Canada must have a constitutional amendment for Quebec to successfully secede, and it also states that unilateral independence decisions are unconstitutional. According to the document, the House of Commons must verify the following for a referendum consideration:

  • Quebec has formed a clear and legitimate question.
  • The level of support for the question is large enough to trigger federal attention.
  • The question’s support is significant enough to affect voter turnout and minority votes.

Quebec’s response to the Clarity Act was the provincial Fundamental Rights Act or Bill 99, which states that Quebec claims jurisdiction over future referendum processes. It defines a majority as 50 percent plus one. If enough support is garnered to trigger the majority clause, Quebec claims that it can initiate and oversee a referendum. Since this still leaves conflicting views on authority, Jacques Parizeau suggested skipping a referendum entirely. The idea was applauded by some but rejected by more, and it was rejected by people from both viewpoints.

Will Quebec Secede?

According to Choudhry, the enacting of legislation by the government in response to secession talks was a calculated risk. It helped provide an avenue for people to voice their concerns if there was a majority in support for secession. At the same time, the Supreme Court’s ruling that secession was and always will be unconstitutional is the thread that will likely keep Quebec as part of Canada. While Choudhry does not believe that secession will happen, he said that the legislation passed after the 1995 referendum will at least make the next event dramatically different.

About Sujit Choudhry

Sujit Choudhry earned his law degree from Harvard University. Before he attended law school, he worked as a legal clerk for the Supreme Court of Canada. Choudhry has served as a professor, a visiting professor and an assistant professor at several educational institutions including the New York University School of Law, the University of Toronto Faculty of Law and the University of California Law School in Berkeley.

Choudhry is currently the director of the Center for Constitutional Transitions, which is an organization designed to promote constitutional construction. The organization was also founded by him. He and the team of legal experts at the Center for Constitutional Transitions have helped build constitutions in Libya, Jordan, Egypt, Nepal and several other countries. They use evidence-based policy and research to make positive changes. The team includes more than 50 experts who represent over 25 different countries. Also, the organization has partnerships with NGOs, think tanks and multinational organizations. Sujit Choudhry is recognized across the globe as a political and constitutional law authority. He has traveled to over 20 countries as an expert speaker or lecturer.

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