Jack Layton campaigned as a future prime minister, and won a resounding victory over the waffling Liberals and do-nothing Bloc, sweeping into Official Opposition party status.
|Jack Layton - the Outlaw PM?|
Now he is still running for prime minister, courting Quebec with as much relish as Brown Envelope Brian did, and trying hard to be prime ministerial in his media scrums and other meetings.
The latest polls show the NDP cementing their support in Quebec, firming it up elsewhere, moving up while the Tories stay where they are, and the Liberal Party sinks yet lower.
What does this mean?
It means that Canadians have to seriously entertain the idea that it is possible – perhaps more than possible, given the historic ceiling on Harper support – that Layton's NDP might become the government of Canada, either a minority or a majority government.
The applicable laws:
And this brings us to a succinct summary of the NDP policy regarding a referendum for independence in Quebec, the Supreme Court decision, and the Clarity Act, in the Toronto Star:
Tricky as it might be for Layton to ditch this particular policy, which was enshrined on his watch in the party’s “Sherbrooke Declaration” of 2005, he should find a way to do it because it puts him at odds with the Supreme Court of Canada and the law. That can’t be a good place for an aspiring prime minister to be. The Conservative attack ads won’t be pretty...
The Supreme Court ruled in 1998 — unanimously — that Quebec cannot lawfully secede unilaterally, and that a “clear majority on a clear question” is needed to trigger talks on secession, which might or might not go anywhere. A wafer-thin result wouldn’t pass muster.
Then Parliament passed the Clarity Act in 2000, prohibiting Ottawa from entering into secession talks unless Quebecers vote Yes to a straight-up question such as: Do you want Quebec to become an independent country? That rules out vague promises of “sovereignty-association” (as in the 1980 referendum) or “a new economic and political partnership” (1995). The act also requires the Yes side to carry by more than a thin margin.
Unless Layton is prepared to disregard both the Supreme Court and the Clarity Act, he would not be able to wave Quebec goodbye easily. Nor should he. What he should do is reassure voters that he stands with the high court and the law of the land.
The Star summarizes the position in a very clear way. Layton's NDP is between a rock (its Sherbrooke Declaration) and a hard place (the law of the land).
The Sherbrooke Declaration mimics the position of the Bloc, the PQ, the provincial Liberal Party and many Quebeckers: Independence is an issue that rightfully belongs to the people of Quebec to decide, with the provincial legislature settling the question without discussion with the rest of Canada (ROC) and with success in a referendum being 50% plus 1 vote.
But this position is contrary to the law of the land, as interpreted by the Supreme Court. The independence referendum must be clear and the majority in favour must be clear, the SCC ruled. The history of referenda questions in Quebec has been that they are convoluted, confusing, and anything but clear, so the chances are high that the next one will be equally unclear. And a 50% plus 1 majority is obviously not a "clear" majority as the SCC ruled.
Quebec government as an "outlaw":
If the Quebec legislature took steps in accordance with its own laws, and drafted an unclear question and insisted on a 50% plus 1 test of success, it would become an outlaw in Canada, based on the SCC decision. The SCC recognized this in its decision, and said that the acceptance of any action by Quebec contrary to the law of the land would depend on political recognition of the unlawful act. This is what the SCC said about any action by Quebec against the laws of Canada (my underlining):
Although there is no right, under the Constitution or at international law, to unilateral secession, the possibility of an unconstitutional declaration of secession leading to a de facto secession is not ruled out. The ultimate success of such a secession would be dependent on recognition by the international community, which is likely to consider the legality and legitimacy of secession having regard to, amongst other facts, the conduct of Quebec and Canada, in determining whether to grant or withhold recognition. Even if granted, such recognition would not, however, provide any retroactive justification for the act of secession, either under the Constitution of Canada or at international law.
If Layton's NDP becomes a majority Government:
If Jack Layton became Prime Minister of Canada with a majority of seats in the House, and the country was faced with an imminent referendum on Quebec independence, then PM Layton would have to decide whether to allow his NDP Government to become an outlaw government by sticking to the Sherbrooke Declaration and thereby disregarding the law of the land as articulated by the Supreme Court and as set out in the Clarity Act.
In order for any actions by Layton's NDP Government to have any legal validity, he would firstly have to amend the Clarity Act – using his majority – to make it consistent with the Sherbrooke Declaration (majority of 50% plus 1 vote, and all the conditions requiring the House to decide on the clarity of the question to be removed), or he would have to repeal the Clarity Act, once again using his new majority.
What the Clarity Act says:
Just to remind ourselves, the Clarity Act sets out a process to be adopted by the Government of Canada in addressing a purported independence referendum in Quebec. The steps are:
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 has expressed itself in any referendum, 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.
Layton flip-flops on the Clarity Act:
It is interesting to note that Jack Layton has flip-flopped-and-flipped on the Clarity Act in the past:
On December 7, 2005, in the midst of a federal election, NDP leader Jack Layton too announced that he backed the Clarity Act. This was in contrast to comments made in the 2004 election where he said that the Act accentuates divisions in Canada. He attributed his new found support to understanding the constitutionality of the act.
The Supreme Court decision:
If Layton's NDP Government repealed or gutted the Clarity Act through amendments stripping out its provisions, he would still be faced with the decision of the Supreme Court, which clearly flies in the face of any unilateral action by the Quebec legislature. The SCC said it was clear that the Quebec government did not enjoy any right in international law to unilateral secession:
In the circumstances, the "National Assembly, the legislature or the government of Quebec" do not enjoy a right at international law to effect the secession of Quebec from Canada unilaterally.
The SCC also set out a process regarding the independence referendum which required negotiations by BOTH sides. It is worth quoting this part of the SCC decision in detail, because it very clearly sets out the obligations of the Government of Canada in the event of a referendum process, which Jack Layton, as Prime Minister of the government of Canada, would have to comply with or risk losing political legitimacy (my underlining):
Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the constitutional order. A clear majority vote in Quebec on a clear question in favour of secession would confer democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to recognize.
Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority, would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic rights under the Constitution cannot be divorced from constitutional obligations. Nor, however, can the reverse proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The other provinces and the federal government would have no basis to deny the right of the government of Quebec to pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on any issue. Negotiations would need to address the interests of the other provinces, the federal government and Quebec and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.
The negotiation process would require the reconciliation of various rights and obligations by negotiation between two legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole. A political majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.
Very clear obligations on both sides to talk.
Layton, as Prime Minister, would have a leading role on behalf of the federal government to join in the negotiations between the people of Quebec, represented by their government, and the people of Canada, and the other stakeholders the SCC mentions.
The Legitimacy of a Layton Prime Ministership:
How on earth could PM Layton legitimately negotiate for Canada in such discussions if the question put in the referendum was not clear (as the SCC required) and the majority of success was not clear (as required by the SCC)?
If PM Layton chose to overlook these two requirements, what moral or legal right would he have to be at the table to discuss the issue (never mind begin negotiating with Quebec)?
He would clearly have to resign as Prime Minister if he did not wish to enforce the law of the land as set out by the Supreme Court. He would in honour have no other choice but to resign, and any leader of the NDP chosen to become his successor as prime minister would likewise have to resign unless he or she clearly stated that he or she supported the law of the land as set out in the SCC decision, and abided by it.
My conclusion is that the adoption of the Sherbrooke Declaration by the NDP and its continuation as a policy of the NDP would require any future NDP Prime Minister to immediately resign if faced with a possible Quebec referendum on terms which would breach the Supreme Court decision, dissolve Parliament, and fight an election.
Imagine the chaos that would erupt. Quebec holding a referendum on a question that is not in the minds of other Canadians a clear question, and insisting on a majority of 50% plus 1 vote, while the government of Canada quits because it has lost political and probably legal legitimacy (to obey the Sherbrooke Declaration in such circumstances would make the NDO Government an outlaw government) and plunged the country into a federal election.
If the NDP Government is a Minority Government:
Here things get really sticky. Any attempt by Jack Layton's NDP to become a minority government of Canada would require support by MPs of one of more of the other parties (the Greens, the Tories and/or the Liberals).
How on earth could any such MPs support Jack Layton as Prime Minister if he is advocating policies (consistent with the Sherbrooke Declaration) which are against the laws of the land as set out in the Supreme Court decision and the Clarity Act?
What would give such MPs the right to back such an outlaw government?
Clearly, any support of the NDP with the most seats in the House but not a majority, would only be given if the NDP renounced the Sherbrooke Declaration and agreed publicly to abide by the law of the land as set out in the Clarity Act and the Supreme Court decision.
Unless the NDP agreed to such changes, any MP supporting Layton as possible Prime Minister in a confidence vote would be voting to support a possible outlaw government. Would any MP have such a mandate unless he or she had run for office clearly indicating that he or she would if push came to shove vote for an NDP prime minister who might apply such policies?
My conclusions on this matter are:
- The NDP will become an outlaw government unless it renounces the Sherbrooke Declaration and agrees to abide by the laws of the land as set out in the Supreme Court of Canada decision, and the Clarity Act.
- Jack Layton and his NDP party have to publicly state whether they will support the Supreme Court decision on both the majority needed for a successful referendum on Quebec independence, and the need for a clear question. This statement has to be made soon – the NDP cannot avoid it by waffling and hoping nobody notices.
- Jack Layton and his NDP party have to publicly state whether they agree with the Clarity Act, or whether they will amend it to make it consistent with the Sherbrooke Declaration (and what such amendments will be), or repeal it, if they become the government of Canada.
- The other parties have to announce to Canadians what their position would be if the NDP won the most seats in the House but not a majority, so that voters know in advance of the next election whether voting for a candidate for such a party means the vote could be for a minority NDP government which might take steps contrary to the law of the land.
What a mess!