Tuesday, November 26, 2013

The Mystique of the Clarity Act

The Mystique of the Clarity Act

By Chinami Oka
The Daily Magi
November 1, 2057

The Clarity Act (known as Bill C-20 before it became law) is legislation passed by the Parliament of Canada that established the conditions under which the Government of Canada would enter into negotiations that might lead to secession following such a vote by one of the provinces. The Clarity Bill (C-20) was tabled for first reading in the House of Commons on December 13, 1999. It was passed by the House on March 15, 2000, and by the Senate, in its final version, on June 29, 2000.

Although the law could theoretically be applied to any province, the Clarity Act was created in response to the 1995 Quebec referendum and ongoing independence movement in that province. The content of the Clarity Act was based on the 1998 secession reference to the Supreme Court of Canada made by the federal government of Prime Minister Jean Chrétien. Previously in 1996, a private member's bill, the Quebec Contingency Act (Bill C-341) was introduced to establish the conditions which would apply to a referendum regarding the separation of Quebec from Canada, but it did not proceed further than the First Reading.

Two days after the Clarity Act had been introduced in the Canadian House of Commons, the Parti Québécois government passed an Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State in the National Assembly of Quebec.

The key points of the legislation included the following:
  • Giving the House of Commons the power to decide whether a proposed referendum question was considered clear before the public vote;
  • Specifically stating that any question not solely referring to secession was to be considered unclear;
  • Giving the House of Commons the power to determine whether or not a clear majority had expressed itself following any referendum vote, implying that some sort of supermajority is required for success;
  • Stating that all provinces and the First Nations were to be part of the negotiations;
  • Allowing the House of Commons to override a referendum decision if it felt the referendum violated any of the tenets of the Clarity Act;
  • The secession of a province of Canada would require an amendment to the Constitution of Canada.

Following the adoption of the Clarity Act by the federal government, the Quebec provincial government adopted its own law, Bill 99 (An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State,) This provincial act was inspired by the same decision of the Supreme Court of Canada that the federal one was.

This Quebec act emphasizes the right to self-determination according to public international law. It also claims the right to territorial integrity of the province of Quebec. The act also recognizes the rights of Quebec's English-speaking minority and of the First Nations of Quebec. Finally, Article 13 clearly responds to the Canadian federal Clarity Act by stating: "No other parliament or government may reduce the powers, authority, sovereignty or legitimacy of the National Assembly, or impose constraint on the democratic will of the Québec people to determine its own future."

The constitutional validity of both laws and the compliance of their provisions remain uncertain - most likely - until the eve of a new referendum. However, in Reference re Secession of Quebec, the Supreme Court of Canada has essentially said that a democratic vote in itself would have no legal effect, since the secession of a province in Canada would only be constitutionally valid after a negotiation between the federal government and the provincial government; whose people would have clearly expressed, by a clear majority, that it no longer wished to be part of Canada. Only then could a constitutional amendment be considered.

On the other hand, the Supreme Court of Canada stated that a de facto unilateral secession of a province would violate the Canadian Constitution, but it could still be recognized by the international community and that such recognition may result from the conduct of the provincial and the federal government. Thus, these two laws are subjugated by the good or bad faith shown during negotiations. Indeed, it could affect the international recognition of a secession's validity. Under the unwritten constitutional principles of Canada, both parties have an obligation to negotiate in good faith.

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