Nationalism and the Pathology of Legal Systems: Considering the Quebec Secession Reference and its Lessons for the United Kingdom
| Date | 01 May 1999 |
| DOI | http://doi.org/10.1111/1468-2230.00212 |
| Published date | 01 May 1999 |
Nationalism and the Pathology of Legal Systems:
Considering the Quebec Secession Reference and its
Lessons for the United Kingdom
Mark D. Walters*
Questions relating to the disintegration and destruction of legal systems – or what
H.L.A. Hart called the ‘pathology of legal systems’1– are extremely difficult to
confront as questions of law. When political allegiance to one legal system begins
to erode, the natural tendency of judges may be to struggle to save the system from
collapse, thereby putting at risk the chance of orderly transition to succeeding
nascent legal systems. However, just as it is best for a natural person to order his or
her affairs and write a will while of sound mind, perhaps a legal system – even one
with promise and potential remaining – should likewise plan for its orderly, and
lawful, demise. Indeed, by confronting the unthinkable, perhaps it can (unlike a
natural person contemplating eventual death) achieve partial survival, so that in the
aftermath of its dismemberment a remnant of the system remains worthy of
allegiance from at least some of its citizens.
This was, in essence, the task that the Supreme Court of Canada accepted in
Reference re the Secession of Quebec from Canada.
2
In what the Chief Justice of
Canada, Antonio Lamer, described as the most important judgment in the Court’s
history,
3
the nine Supreme Court justices ruled unanimously that the Dominion of
Canada is divisible and (by implication) destructible, and that there are legal rules
governing such division and destruction. The case arose when the federal govern-
ment of Canada invoked the advisory jurisdiction of the Court by referring to it three
questions, namely: (1) Can the government or legislature of the province of Quebec
effect the secession of Quebec from Canada unilaterally under Canadian law? (2)
Can the government or legislature of Quebec effect secession unilaterally under
international law? (3) If Canadian and international law conflict on this point, which
prevails?
4
Thus, the Court confronted the same basic legal issue as did the Judicial
Committee of the Privy Council in the famous case of Madzimbamuto vLardner-
Burke
5
with the critical difference that, in that case, the Rhodesian government had
ßThe Modern Law Review Limited 1999 (MLR 62:3, May). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 371
* New College, Oxford.
I am grateful to Peter Oliver for his comments on an earlier draft of this article.
1 H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) 114.
2Reference by the Governor in Council, pursuant to s 53 of the Supreme Court Act, concerning the
secession of Quebec from Canada [1998] 2 SCR 217, hereinafter Quebec Secession Reference .
3 Tu Thanh Ha, ‘Quebec on edge ashistoric ruling set for Thursday’ The Globe and Mail (Toronto) 15
August 1998, A1.
4 The full text of the questions is: ‘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?’ (Order in Council PC 1996–1497 30 September 1996).
already made its unilateral declaration of independence (UDI) by the time its legality
was judicially tested – the old legal regime was, in practical terms, dead – whereas in
the Quebec Secession Reference the Court considered the legality of a UDI by
Quebec that has not been, and may never be, made, and in the context of a Canadian
constitutional order that, it must be said, still has plenty of life in it.
The Court gave negative answers to the first two questions and, therefore, did not
need to address the third. The opinion in the Quebec Secession Reference contains
much of interest to public lawyers in other common law jurisdictions, as well as
other multinational states. Indeed, it will be of particular relevance to those who
advocate the independence of Scotland, Wales or Northern Ireland from the United
Kingdom. The Court ventured well beyond the textual confines of the Canadian
constitution and engaged in the theoretical analysis of general principles of
constitutional law, including federalism, democracy, sovereignty, the rule of law,
the concept of justiciability and rights of minorities. The purpose of this article is to
review the events leading to the reference, to summarise the Court’s answers to the
questions, and then to discuss in more detail some of the general legal, constitu-
tional and jurisprudential issues that the case raises, with particular reference to its
significance to questions of nationalism and secession in the United Kingdom.
Events leading to the Quebec Secession Reference: the 1995
referendum and the development of ‘Plan B’
On 30 October 1995, the 132-year old federation of Canada came precariously
close to collapse: in a province-wide referendum the Quebec electorate voted by a
narrow margin (50.56 to 49.44 per cent) against the provincial government’s plan
for the independence of Quebec from Canada.6Had the separatist Parti Que´be´cois
(PQ) government won the referendum, it would have initiated a prepared indepen-
dence strategy: draft legislation provided that Quebec would have offered Canada
an opportunity to negotiate a new Canada-Quebec economic and political partner-
ship, but if agreement was not reached within one year or if Canada refused to
negotiate, the Quebec National Assembly could declare Quebec to be a ‘sovereign
country’ and seek international recognition as such.7As Lesage J observed in
Bertrand vQuebec (Procureur General), in which an injunction to stop the
referendum was sought and denied, the PQ government had undertaken to ‘proceed
with a unilateral declaration of independence’ and was ‘seeking to overthrow the
constitutional order’.8
Prior to the 1995 referendum, Canada’s federal government insisted that a
separatist referendum victory was unlikely and there was no need to debate or
challenge the legality of PQ plans for independence. Shocked by the closeness of
6 The referendum question was: ‘Do you agree that Quebec should become sovereign, after having
made a formal offer to Canada for a new Economic and Political Partnership, within the scope of the
Bill respecting the Future of Quebec and of the agreement signed on 12 June 1995?’. See K.
McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University
Press, 1997) 230–231.
7 An Act Respecting the Sovereignty of Quebec, Quebec, National Assembly, 1st sess., 35th leg (draft
bill issued on 6 December 1994 but not enacted) and An Act respecting the Future of Quebec ,
Quebec National Assembly, 1st sess, 35th leg Bill 1 (introduced in the provincial legislature on 7
September 1995 but not enacted). See, Jose´ Woehrling, ‘Les aspects juridique d’une e´ventuelle
se´cession de Que´bec’ (1995) 74 Can Bar Rev 293, 297–309 and H. Wade MacLauchlan, ‘Accounting
for Democracy and the Rule of Law in the Quebec Secession Reference’ (1997) 76 Can Bar Rev 155,
156–160.
8Bertrand vQuebec (Procureur General) (1995) 127 DLR (4th) 408 (Que Sup Ct) 428–429.
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