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October 19, 1999
Mr. Joseph Facal
Minister for Canadian Intergovernmental Affairs
Intergovernmental Affairs Secretariat
875, Grande Allée East, Suite 3100
Quebec, Quebec
G1R 4Y8
Dear Minister:
In your address of October 6 in Mont-Tremblant, you criticized the Government of Canada
for adhering to what you characterized as three "sophisms": that the 1995
referendum question was not clear; that a majority of 50% + 1 is insufficient to break up
a country; and that it is normal that it be more difficult to separate than to unite.
These are not sophisms. On the contrary, they are facts established by international
practice. The very examples you cited prove it.
Let us first address the need for clarity in a potential question on secession. Since
the founding of the United Nations, and outside the colonial context, there have been 13
cases of referenda held during processes that have led to secession. Each and every one of
the 13 referendum questions used the word "independent" or
"independence", unlike the ambiguous questions posed in the 1980 and 1995
referenda in Quebec. In light of international practice, Messrs Ryan and Trudeau in 1980
and Messrs Johnson and Chrétien in 1995 were right to criticize the wording of the PQ's
referendum questions.
It would be disrespectful to Quebecers to challenge their belonging to Canada on the
basis of the results of a vote on an ambiguous question.
Now let us turn our attention to the question of the majority needed to break up a
country. I'll spare you the list of all countries which ban secession outright and confine
my remarks to those countries which were represented at the Mont-Tremblant conference. The
majority of these insist in their Constitution on the integrity of their territories
(including France, Italy, Spain and the United States) and only two provide for a formal
secession process. This shows how inappropriate your advocacy of "secession with 50%
+ 1" must have appeared to your audience.
As for referenda that have been held on secession, you found only one where a majority
in excess of 50% plus one was required: the referendum held in Nevis in 1998, which
required a two-thirds majority. Allow me to point out four others. Iceland's dissolution
of its union with Denmark in 1944 required a majority of at least 75% of the votes cast.
Slovenia in 1990, Latvia and Lithuania in 1991, all required that a majority of all
eligible voters support independence in their referenda.
Here in Canada, there is no legal majority threshold for a referendum, regardless of
the issue in question. Under both Quebec law and Canadian federal law, a referendum is a
public consultation, whose result must be assessed by the political authorities. That is
what allowed Quebec's Municipal Affairs Minister, Ms. Louise Harel, to ignore, in complete
legality, the result of a recent referendum held--what a coincidence!--in Mont-Tremblant,
in which a majority of 96% voted against the plan to merge with a neighbouring
municipality.
Thus, when you claim that 50% + 1 is the rule for effecting secession, you are
inventing a right which does not exist. Your position has no basis in law.
In addition to having no basis in law, the determination of your government to attempt
secession on the basis of such a narrow majority is especially irresponsible at the
political level, as is borne out once again by international practice. In each of the 13
cases of secession mentioned above, the majority achieved was over 70% of the votes cast.
On average, the majority obtained exceeded 90%. These referenda did not divide those
populations on such a sensitive issue as secession. On the contrary, they officially
confirmed an obvious consensus in favour of secession. The political authorities could
anticipate that secession would be supported by a clear majority. If your government were
committed not to hold a referendum unless there was an obvious consensus in favour of
secession, it would be less necessary to agree beforehand on a clear majority threshold.
In those cases where the referendum majority was narrower, the attempt at secession
failed. Examples include Western Australia in 1933 (a 66.2% majority in favour of
secession), the Faeroe Islands in 1946 (a 50.7% majority in favour of secession from
Denmark) and as mentioned earlier, Nevis in 1998 (a 61.7% majority).
A number of the referenda you mention took place in a colonial context, a situation
which is certainly not ours. There exists a strong presumption in the international
community, and at the United Nations in particular, against the maintenance of colonial
status, in keeping with international law. Yet, even in cases of decolonization, qualified
majorities have sometimes been required, as was the case in Bermuda, one of the examples
you mention.
Your other examples refer either to referenda that have never taken place, and are thus
completely hypothetical, or to referenda where secession was not at issue, such as the
1998 consultation in Northern Ireland. And yet even that example demonstrates how
difficult it is to make major changes on the basis of a narrow majority. The leading
Protestant supporter and one of the architects of the Good Friday Accord, Mr. David
Trimble, stated that "if the yes vote is below 60% in support of the Agreement I
think we are in difficulty. If we get a yes vote that is over 70% we are fine."
Seventy-one percent of the votes cast favoured the Accord, which, even with this level of
support in a referendum, is proving very difficult to implement.
I now turn to your third argument, that there is no international precedent for
establishing a higher threshold to leave a country than to join it. You are contradicted
by the very example you cite to support your argument: Puerto Rico. You note that a simple
majority of votes was the threshold contemplated by Puerto Rico to become a state of the
United States. But the legislation debated in the US Congress required that any future
referendum ballot make it clear to Puerto Rican voters that a vote to become a state of
the United States would be a vote in favour of a "permanent union" with the
United States. Indeed, the US Supreme Court has ruled that the American federation is
indivisible. Puerto Rico could contemplate becoming a state of the United States with a
50% + 1 majority, but afterwards could not secede.
In short, the statement by Prime Minister Trudeau on May 14, 1980, to the effect that
the referendum question as worded would lead to an "impasse" and would exclude
any possible negotiation, and the one by Prime Minister Chrétien on September 19, 1995,
that "in a country like ours, it would be irresponsible to recognize that a simple
majority at a given time could break up the country" [TRANSLATION] are completely in
conformity with international practice. A review of the very examples you cite should
convince you that the government to which you belong ought not to hold a referendum on
secession unless there is an obvious consensus in favour of such an initiative. Under
those circumstances, both a clear question and a clear majority would follow naturally,
and your government would have no need to resort to smoke and mirrors.
But it is quite clear that those circumstances do not exist. There is no justification
for the current referendum uncertainty, with all the costs and waste of energy it entails,
when Quebecers want to remain Canadian. It would be far preferable for us to be freed from
this uncertainty, so that we could devote all our efforts to improving our quality of life
and to meeting the social and economic challenges that demand all our attention, all our
unity.
The Supreme Court of Canada set out two broad principles in its opinion of August 20,
1998: clarity and legality. This letter has addressed the principle of clarity. But with
reference to the second principle – legality – your statement on October 6, as
reported in the National Post, to the effect that your government is prepared to attempt a
unilateral secession, which has no legal basis, is very worrying to anyone who cares about
Quebec society. I hope that your government will rethink that position, and will guarantee
Quebecers that it will never contemplate plunging them into an attempted secession without
a legal safety net. There are few things more dangerous in a democracy than a government
that places itself outside the law. Quebecers have the right never to find themselves in
such an unacceptable situation.
Yours sincerely,
Original signed by
Stéphane Dion
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