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Home » Content » The law of Clarity: a difficult transplant
It does not make sense to evoke the Canadian law in Spain, where in the light of the Constitution the communities cannot hold unilateral referendums and a self-determination consultation is not possible

Xavier Arbos

9 JUL 2019 – 00:00 CEST

EULOGIA MERLE

In a recurrent manner, a “law of clarity” is used to frame a hypothetical referendum in Catalonia. The obvious reference is the one known as the Canadian Referendum Clarity Act, inspired by the political scientist Stéphan Dion, then Minister of the Government of Ottawa. Any local allusion to that norm seems inappropriate to me, and I would like to explain it in some detail.

The official name of the law is “Law to make effective the demand for clarity formulated by the Supreme Court of Canada in its opinion on the secession of Quebec”. In 1980 and 1995, the provincial government of Quebec had called referendums that, with somewhat confusing questions, in fact posed the separation of the French-speaking province. In both cases it did not win, but in 1995 it did so by a tight 50.58%. The federal government did not then raise any constitutional change to try to accommodate the separatism of Quebec. Rather, it went to propose the setting of limits, and for this it consulted with the Supreme Court, which issued the opinion evoked in the title of the law. That opinion, of 1998, begins by answering the two questions posed by the Canadian Government: does the Canadian Constitution grant the right to unilateral secession of Quebec? Does international law grant Quebec the right to unilateral secession? The Court responded not to both, but did not stop there. It formulated a proposal that can be summarized as follows: if a referendum with a clear question shows a clear majority in favor of secession, a negotiation to reform the Constitution should be opened (paragraphs 87 and 88 of the opinion). It is worth emphasizing that it is not a negotiation on the terms of secession, but rather for the reform of the Constitution that, eventually, could frame it. In fact, paragraph 75 begins by saying: “The idea that it is legitimate to circumvent the Constitution by relying on the majority vote obtained in a provincial referendum is superficially convincing”. And it adds that the constitutional rules, although they can be reformed, are binding.

The opinion, deliberately, avoids elaborating further on what is a “clear” question, and does not tell us what a “clear” majority could be. Calculated and paradoxical ambiguity, which aims to cover the Canadian Clarity Law. In any case, it does so to establish limits to the negotiation the federal government could develop. To do this, it provides that the House of Commons (the federal Senate in Canada does not have a representative character) will have to pronounce itself on both the question and the resulting majority in a future referendum of secession. At this point it must be remembered that the Canadian legal system does not prevent the provinces from formulating referendums, including on secession; they do not need any federal authorization. So, if a referendum is set in motion in a province, the House of Commons does not intervene. But, according to the Law of Clarity, it has to put forward its opinion about the clarity of the question. And if it does not consider it clear, the federal government is prevented from initiating any negotiation after the referendum, whatever the result may be. It is after the result when the House of Commons determines whether the majority has been clear. Note that there is no opinion before the vote, but after it has taken place, and therefore, in my view, a certain legal uncertainty is created. The merit of the opinion of the Supreme Court was to establish some rules to put back a constitutional crisis like the one that would have been opened after a victory of the yes in 1995. That the clarity of the majorities is not determined before the referendum, even if it is unilaterally on the federal part, prevents both the voters of the province as the rest of Canadian citizens from being able to foresee the consequences of the result of a consultation that affects everyone.

In the legal system of that country there is no reference to the holder of sovereignty or indivisibility

Little or nothing of the Clarity Act in Canada can be transplanted to our country. To begin with, it is the exclusive competence of the State to “authorize the calling of popular consultations by referendum” (article 140.1.32 of the Constitution, CE). The Law of the Parliament of Catalonia, of September 6, 2017, of the referendum on self-determination, has no possible comparison with the Quebecois referendums. Those were legal, but the one provided for by the Catalan law was manifestly unconstitutional, as STC 114/2017 of 17 October declared. Not only because the Catalan Parliament lacked competence, but also because it clashed with the principle of national sovereignty. This resides in the Spanish people, according to article 1.2 EC. And, as is known, Article 2 provides for “the indissoluble unity of the Spanish Nation”: it is impossible, in the constitutional framework, any kind of secession. Not only unilateral, but also not even developed by legal means or by simple political agreements.

There is nothing comparable in Canada. In its legal system, unlike what happens in our fundamental norm, there is no reference to the holder of sovereignty, nor a clause of indivisibility. There, the unilateral secession would represent a bankruptcy of the procedures of reform of its constitutional norms. Here, in addition to that, the implementation of a mechanism that opens the door to secession is legally impossible. The Canadian Clarity Act does not reduce provincial powers in terms of referendums, but imposes limits on the legitimacy derived from one that gives victory to secession, which could force a negotiation. Our legal system made it possible that, after a legal referendum that legitimized the Catalan Statute of 2006, the ruling STC 31/2010 could modify it.

In the legal system of that country there is no reference to the holder of sovereignty or indivisibility

Nor is the Supreme Court of Canada comparable to the Spanish Constitutional Court. The first is designated by the federal Executive, while the Spanish Government only appoints two of its members. And the Canadian Court operates as an advisory body, which is not the case of the Constitutional Court. In the case of Canada, the judges were aware that their opinion was going to have serious political repercussions, and they intended to go beyond answering the questions they had received. They outlined a way out of the political conflict by dropping, quite intelligibly, a reproach to the obscurity of referendum questions organized by separatist governments in Quebec. And they seemed to imply that maybe you cannot break a country with half plus one of the votes, since they required a “clear” majority.

From our perspective, things are quite clear in the light of the Constitution: autonomous communities cannot hold unilateral referendums, and a referendum on self-determination is not possible. I do not think it makes much sense to evoke Canadian law. Perhaps it is intended to create a mental framework like those to whom Lakoff refers (Do not think of an elephant). If what we are talking about is that in this nominal way we impregnate ourselves with the Canadian political culture, welcome it. But I think it is a wrong path, because it is not a matter of mental frames or stories. It is something more substantial, which includes respect for the law and diversity, inseparably linked in the search for practical solutions to political problems. It seems clear.

Xavier Arbós Marín is Professor of Constitutional Law at the University of Barcelona.

https://elpais.com/elpais/2019/07/08/opinion/1562581709_647086.html

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