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Volume 24 - Issue 06 :: Mar. 24-Apr.

• Contents
06, 2007
INDIA'S NATIONAL MAGAZINE
from the publishers of THE HINDU

A Blog on
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Examining rumors,
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India must heed the lessons from the spirit and skills that
underlay Canada's efforts at nation-building.
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for over $100. Free 21, as his wife Michelle Dionne (left) watches.
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ON November 27, 2006, the House of Commons of Canada passed by
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a massive vote - 265 for, 16 against, and four absentees - a motion
which declared: "That this House recognise that the Quebecois form a
nation within a United Canada." This did not mark a victory for the
separatist Parti Quebecois (P.Q.), which its founder Rene Levesque
had led to power in the predominantly French and Roman Catholic
province of Quebec 30 years ago on November 16, 1976. The vote
registered its defeat, the triumph of Canadian nationalism and of the
values on which it is based. Respect for diversity is chief among them.

Between the electoral triumph of 1976 and the vote of 2006 lies a
record of national statesmanship and judicial fairness and creativity
that has few parallels anywhere else.

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No two situations are alike. An India split into two on the basis of a
false and poisonous two-nation theory, which few now uphold even in
Pakistan, cannot and should not contemplate any such move in the
course of its efforts at nation-building. But what India can and must
heed are the lessons from the spirit and skills that underlay Canada's
efforts at nation-building. Not only India's political class and its
academia and media, but its lawyers and judges would also profit by
it. The Supreme Court of Canada rose to the challenge of secession
and contributed to successful political solutions by its manifest
fairness, a liberal approach, judicial erudition and creativity of the
highest order. Quebec holds lessons we can apply to Kashmir,
Nagaland and other areas where we face separatist movements.

Thanks to the liberal approach that Indian leaders adopted towards

the Dravidian movement, the Dravida Munnetra Kazagham and the All
India Anna Dravida Munnetra Kazagham have emerged as champions
of Indian democracy and federalism. It is a success story to which
C.N. Annadurai, a real statesman, contributed. Had the Congress
leaders listened to C. Rajagopalachari, or Rajaji, a leader vastly more
far-sighted than any of the trio - Gandhi, Jawaharlal Nehru or
Vallabhbhai Patel - India would not have been partitioned.

It would astonish people to recall today that on April 23, 1942, he got
the Madras Legislature Congress Party to pass, after a six-hour
debate, a motion that said that to facilitate the formation of a
"National Government" in order to resist "invasion by enemy power", it
had become necessary to "choose the lesser evil and acknowledge the
Muslim League's claim for separation, should the same be persisted in
when the time comes for framing the Constitution for India, and
thereby remove all doubts and fears in this regard, and to invite the
Muslim League for consultation for the purpose of arriving at
agreement and securing (sic) of a National Government to meet
present emergency" (The Transfer of Power; 1942-7; Volume I, page
842; emphasis added, throughout).

The italicised qualification reflected a shrewd calculation, which he

bared to Prof. Reginald Coupland, adviser to Stafford Cripps, whose
proposals were rejected by the Congress and the League. They
permitted a Province not to accede to the Union if it so desired. Rajaji
wanted to confront Mohammad Ali Jinnah with an open door to leave
and face the consequences early in the day. "Two leading
Congressmen" agreed with this approach (The Cripps Mission;
Coupland; page 36). The Congress, at Gandhi's prodding, missed
another chance when it wrecked the Cabinet Mission's Plan (1946)
based on a Union of three groups of Provinces, with the right to
secede from the group, but not from the Union.

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After Independence, the same folly governed policy. Kashmir was

robbed of its guaranteed autonomy. In Canada, Quebec was granted
greater autonomy than it enjoyed under the Constitution. Kashmir
was promised a plebiscite, as was Pakistan. This was recorded in
United Nations resolutions. It was never held, because our policies
ensured defeat in the plebiscite. The Government of Quebec held two
referenda. Separatists lost both. On May 20, 1980, a proposal that
was broadly for "sovereignty-association" (economically) was rejected
by a 59.56 per cent vote. The supporters polled 40.44 per cent votes;
85.61 per cent of total voters participated. In 1981, the same
electorate returned the P.Q. to power. It is important to read results
of elections to legislatures - as distinct from those of referenda or
plebiscite - correctly; more so of elections rigged or centrally
influenced, as in Kashmir. On October 30, 1995, a similar proposition
was defeated by 50.58 per cent to 49.42 per cent; 93.52 per cent of
the voters participated. In Canada, what we dub as "secessionists" or
"separatists" are called "sovereignists".

Quebec's Premier Jacques Parizeau resigned and was succeeded by

Lulien Bouchard. In 1990, he had formed a federal party, the Bloc
Quebecois, which won 54 seats in Parliament in 1993. After the
referendum, support for sovereignty declined. In 2003, the P.Q. lost
to Jean Charest's Liberals. Support for "sovereignty-association" is
weak, weaker still for independence alone. Repeated referenda are as
dangerous as Russian roulette. (On March 26, Quebec will go to the
polls and its Liberal Premier Jean Charest will seek a mandate against
separatism.)

The Conservative Party of Canada won the 2006 elections to

Parliament and also in Quebec. Why, then, did Prime Minister Stephen
Harper propose the motion last November? Because the Bloc
Quebecois set a "lobster trap" - table a motion that the Quebecois

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form a nation and argue that the consequence is separation. Harper's

description of the game was telling: "It is to recognise not what the
Quebecois are but what the sovereignists would like them to be." The
Liberal Opposition led by Bill Graham supported him fully. Harper
used the word nation in a "cultural-sociological", rather than a legal,
sense. The Bloc Quebecois first proposed an amendment - "currently
within Canada" - and then decided to support the motion. Its leader
Gilles Duceppe spoke of a "so-called united Canada" only to urge that
"there can be a nation within Canada ... we are what we are".

It was an historic debate. The Minister of the Economic Development

Agency of Canada for the Region of Quebec, Jean-Pierce Blackburn,
recalled that Quebec had its own civil code based on the Code
Napoleon, different from the law in the rest of Canada. There is no
clamour in Canada for "a uniform civil code". It has its own Charter of
Rights and Freedoms; collects its own income-tax; chooses its own
immigrants; participates in the summits of Francophone countries;
and is a member of the national delegation to United Nations
Educational, Scientific and Cultural Organisation. It negotiates directly
with foreign states in certain areas and has its own TV network, Tele-
Quebec.

Dipak Obhrai, Parliamentary Secretary to the Foreign Minister, gave a

stirring speech. Lawrie Hawn said: "Today's Catalonia within Spain,
today's India, all are clear success stories of different nations and
nationalities prospering under unifying political institutions."

Canada was originally founded as a French colony in 1608. It came

under British rule by the Treaty of Paris, 1763. The colonists were
known as "Canadiens". The Quebec Act, 1774, recognised French law
and language and the Catholic faith. The provinces of Ontario and
Quebec were included in "the Province of Quebec". The Canada Act,
1791, divided them as Upper and Lower Canada, respectively.
However the Union Act, 1840, reunited them as East and West
Canada. Both sought dissolution. A move by other provinces led both
to join a convention, which adopted 72 resolutions that led to the
enactment of the British North America Act, 1867. It served as
Canada's federal Constitution until 1982, uniting 10 provinces and
three territories. Quebec is the largest in area.

Since the Act of 1867 could be amended only by the British

Parliament, the Prime Minister and all the premiers of the provinces
agreed in 1968 to seek "patriation" of the Constitution from London to
Ottawa so that its own Parliament could amend the Constitution,
besides renewing its provisions to accord with the times, and adding a
Charter of Rights and Freedoms. Prime Minister Pierre Trudeau set
July 1, 1981, as the target date. He sought affirmation of citizen's
rights, Canada's identity, cooperative federalism, and full respect for
the rights of the aborigines, and so on. Quebec countered Ottawa's
Statement of Policy of June 7, 1978, with a manifesto in late 1979 on
"sovereignty-association" and proposed a referendum on it.

Trudeau's amending formula disturbed the provinces. More so when

he decided to seek patriation without their consent by introducing a
joint address to the Queen in the House of Commons on October 6,
1980. Quebec and two other provinces challenged the move in their
courts. Ottawa referred the matter to the Supreme Court of Canada,
which ruled that while the move was legal, by constitutional
convention a "substantial degree" of provincial consent was necessary

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Quebec & Kashmir Page 5 of 10

before the federal relationship could be altered fundamentally by a

request to London. (Re: Amendment to the Constitution of Canada
(1981) 125 D.L.R (3d.)1. It was cited approvingly by the Supreme
Court of India in its ruling that constitutional conventions could be
enforced by the courts - S.C. Advocates on Record Assn. vs Union of
India (1993) 4 Scc 441 at 656.) Trudeau had no intention of disturbing
the existing division of union-province relationship.

Ottawa convened another first ministers' conference on November 2,

1981. With the exception of Quebec, all agreed on a package of
constitutional reforms, including the patriation of the Constitution; an
amending formula; a charter of rights and freedoms; a commitment to
equalisation; the strengthening of provincial control over natural
resources; and the recognition and affirmation of the existing rights of
Canada's aboriginal peoples. However, Quebec continued to dissent.

Parliament adopted the Resolution on the Address to the Queen. It

was taken to London by the Secretary to the Governor-General.
Meanwhile, the Foreign Affairs Committee of the United Kingdom's
House of Commons inquired into the role of the U.K's Parliament in the
matter. Its proceedings provide a feast for constitutional lawyers.
Jurists of the highest eminence like Prof. H.W.R. Wade, Geoffrey
Marshall and E. Lauterpacht gave evidence. (First Report from the
Foreign Affairs Committee; Session 1980-81; British North America
Acts: The Role of Parliament; Vols. I and II; minutes of December 3
and 10, 1980, contain the jurists' views.) On April 17, 1982, the
Constitution Act, 1982, became law. It contains the Charter of Rights
and Freedoms. The Supreme Court ruled that legally it bound Quebec.

Two unsuccessful attempts at overall accord followed; at Meech Lake

on April 30, 1987, and at Charlettetown on August 28, 1992. Quebec
held its second unsuccessful referendum in 1995. Ottawa participated
in it. Prime Minister of Canada Jean Chretien of the Liberal Party
promised to recognise Quebec as a distinct society and not to make
any constitutional changes without its consent. On November 29,
1995, he said: "We reject the idea that a country must require its
citizens to have a single, uniform identity." On constitutional
amendment, he had "always supported a veto for Quebec". The House
resolved to "recognise that Quebec is a distinct society within Canada"
which "includes its French-speaking majority, unique culture and civil
law tradition". On December 13, 1995, the House passed a Bill
conferring a veto on constitutional amendments without the approval
of a majority of the provinces, which would include Ontario, British
Columbia, Quebec and at least two each of the Atlantic and Prairie
Provinces.

But Quebec was set on confrontation. Its Attorney-General told the

Supreme Court of Quebec on April 16, 1996, that the process of
seeking independence "is sanctioned by international law and the
superior Court has no jurisdiction in this respect". The federal
government intervened in the case to challenge this claim. After the
Court determined that the case could proceed, the Attorney-General
withdrew, whereupon the Governor-General referred the issue to the
Supreme Court of Canada for its advisory opinion.

CHRIS WATTIE/REUTERS

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Stephen Harper, Prime Minister of Canada.

It was given on August 20, 1998, in response to three questions,

which were:

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?"

The Court's judgment is a classic of its kind. It drew a clear distinction

between legality and legitimacy: "Legal continuity, which requires an
orderly transfer of authority, necessitated that the 1982 amendments
be made by the Westminster Parliament, but the legitimacy, as
distinguished from the formal legality of the amendments, derived
from political decisions taken in Canada within a legal framework
which this Court, in the Patriation Reference, had ruled were in
accordance with our Constitution. To be accorded legitimacy,
democratic institutions must rest, ultimately, on a legal foundation.
That is, they must allow for the participation of, and accountability to,
the people, through public institutions created under the Constitution.
Equally, however, a system of government cannot survive through
adherence to the law alone. A political system must also possess
legitimacy, and in our political culture, that requires an interaction
between the rule of law and the democratic principle. The system
must be capable of reflecting the aspirations of the people. But there

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is more. Our law's claim to legitimacy also rests on an appeal to moral

values, many of which are imbedded in our constitutional structure. It
would be a grave mistake to equate legitimacy with the `sovereign
will' or majority rule alone, to the exclusion of other constitutional
values."

There was a "basic constitutional structure", the Court had ruled in

1987. Four foundational principles were relevant - federalism,
democracy, constitutionalism and the rule of law and respect for
minority rights. They "function in symbiosis". Each principle was
applied to the questions before the court. "The principle of federalism
facilitates the pursuit of collective goals by cultural and linguistic
minorities which form the majority within a particular province. This is
the case in Quebec, where the majority of the population is French-
speaking, and which possesses a distinct culture." The relationship
between democracy and federalism means, for instance, that "in
Canada there may be different and equally legitimate majorities in
different provinces and territories and at the federal level". No one
majority is more or less "legitimate" than the others. As an expression
of democratic opinion, though, the consequences will vary with the
subject matter. "A federal system of government enables different
provinces to pursue policies responsive to the particular concerns and
interests of people in that province, a functioning democracy requires
a continuous process of discussion."

The Court added: "Our belief in democracy may be harmonised with

our belief in constitutionalism. Constitutional amendment often
requires some form of substantial consensus precisely because the
content of the underlying principles of our Constitution demand it."

Will of the people

Secession is a legal as well as a political act. It entails amendment to

the Constitution "which perforce requires negotiation". Referenda and
negotiation go together. Unilateralism has no place. "The democratic
principle identified above would demand that considerable weight be
given to a clear expression by the people of Quebec of their will to
secede from Canada, even though a referendum, in itself and without
more, has no direct legal effect, and could not in itself bring about
unilateral secession." A referendum must bring all to the negotiating
table, where all must be guided by those four principles.

"We are equally unable to accept the reverse proposition, that a clear
expression of self-determination by the people of Quebec would
impose no obligations upon the other provinces or the federal
government. The continued existence and operation of the Canadian
constitutional order cannot remain indifferent to the clear expression
of a clear majority of Quebecers that they no longer wish to remain in
Canada. This would amount to the assertion that other constitutionally
recognised principles necessarily trump the clearly expressed
democratic will of the people of Quebec. Such a proposition fails to
give sufficient weight to the underlying constitutional principles that
must inform the amendment process, including the principles of
democracy and federalism. The rights of other provinces and the
federal government cannot deny the right of the government of
Quebec to pursue secession, should clear majority of the people of
Quebec choose that goal, so long as in doing so, Quebec respects the
rights of others. Negotiations would be necessary to address the
interests of the federal government, of Quebec and the other

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Quebec & Kashmir Page 8 of 10

provinces, and other participants, as well as the rights of all Canadians

both within and outside Quebec."

It was a balanced, statesmanlike approach. Both propositions are

reconcilable - the right to seek change and the duty to negotiate as
well as the duty of the rest of the nation to negotiate a solution. It is
not for the Court to decide what should happen if there is an impasse.

THE HINDU PHOTO LIBRARY

C. Rajagopalachari and C.N. Annadurai.

In the result, "the secession of Quebec from Canada cannot be

accomplished by the National Assembly, the legislature or government
of Quebec unilaterally, that is to say, without principled negotiations,
and be considered a lawful act. Any attempt to effect the secession of
a province from Canada must be undertaken pursuant to the
Constitution of Canada, or else violate the Canadian legal order.
However, the continued existence and operation of the Canadian
constitutional order cannot remain unaffected by the unambiguous
expression of a clear majority of Quebecers that they no longer wish
to remain in Canada. The primary means by which that expression is
given effect is the constitutional duty to negotiate in accordance with
the constitutional principles that we have described herein. In the
event secession negotiations are initiated, our Constitution, no less
than our history, would call on the participants to work to reconcile the
rights, obligations and legitimate aspirations of all Canadians within a
framework that emphasises responsibilities as much as it does
constitutional rights."

International law gives no such right of secession either; but nor does
it deny the right. It does recognise, however, a "people's" right to self-
determination. The Court said: "There is no necessary incompatibility
between the maintenance of the territorial integrity of existing states,
including Canada, and the right of a `people' to achieve a full measure
of self-determination. A state whose government represents the whole
of the people or peoples resident within its territory, on a basis of
equality and without discrimination, and respects the principles of self-
determination in its own internal arrangements, is entitled to the
protection under international law of its territorial integrity."

Oppression alone can give the right of self-determination and Quebec

was not oppressed. It had no right "under international law to secede
unilaterally from Canada".

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Indian lawyers must face the harsh reality by asking themselves a

straight question. Could the Supreme Court of India have ruled on a
similar issue in a similar spirit with equal erudition? Judging by its two
main rulings on Article 370, the answer can only be in the negative. A
liberal ruling was overturned by an illiberal one, without any reference
to the earlier case. Justice M. Hidayatullah was a member of both
Benches. The Court's rulings on Terrorist and Disruptive Activities
(Prevention) Act, the Armed Forces Special Powers Act and similar
laws show the triumph of patriotic fervour over commitment to the
rule of law. We get bad law in bad English.

Quebec, which did not participate in the Supreme Court's

proceedings, was embarrassed by the nuances of the ruling. Ottawa
did not leave well alone. It had participated in the referenda and won
the Court's verdict. In 2000, it got enacted the Clarity Act, avowedly
to give effect to the Court's judgment. Its sponsor was Stephane
Dion, Minister for Intergovernmental Affairs and former political
scientist at the University of Montreal. The Act prescribed conditions
for "the clarity of a referendum question" and precluded negotiations
if that was lacking. Also, if there was not "a clear expression of a will
by a clear majority of the population of a province that the province
cease to be part of Canada". This rules out Quebec's pleas of
"sovereignty-association" and a narrow majority in a secession vote.
The Act was greeted with a howl of protest in Quebec. A Bill was
moved in its National Assembly that its people "alone" had the right to
decide "the legal status of Quebec" and to do so by a 51 per cent
vote.

Plebiscite in Kashmir became a dead proposition years ago. But the

alienation of its people can be best removed by accepting diversity
within the Union of India in the liberal spirit that Canada has shown
towards the people of the Province of Quebec all these years.

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