Monday, May 30, 2011

On the Quebec question: (1) Clarity

(After this, I may just go ahead and write that Israel thing I've had kicking around in my head for a few years. While I'm stepping on landmines, I might as well step on them all in one go.)

As newswatchers will know, there's been a lot of chatter about Quebec and nationalism/separatism lately. It's partly driven by the still-flailing Liberal Party, looking to hang an albatross around the neck of the NDP -- because, dontcha know, bringing the NDP down will naturally bring the Liberals up. (More likely, it'll give us a permanent Conservative majority, but don't let that stop you, folks.)

It's also partly driven by the fact that, currently, the Parti Québécois are polling significantly higher than the Quebec Liberals, and are thus poised to grab a stonking great majority in the National Assembly. Of course, Charest doesn't have to dissolve the NA until 2013, and anything can happen during an election campaign, so it's far from certain that we will face a third referendum on Quebec separation.

Still, there seems to have been some confusion on how federalists should approach the question. Mostly because political pundits in this country seem to like to cling to meaningless talismans, rather than advancing serious and principled (or, for that matter, policy-based) arguments.

"What talismans?" Well, how about the Clarity Act. It's a good place to start, since everyone seems to be trying to smack Jack Layton around with it. Here's the full text, in case anyone is wondering: http://laws-lois.justice.gc.ca/eng/acts/C-31.8/FullText.html. I don't see quite what's so wonderful about this Act; it's nice to have a framework, but this doesn't seem to be a particularly good one. (Full disclosure: I didn't care enough about this issue to read the Act until today.)

The Act basically makes three points. First, any referendum question must be clear. Second, the intention to separate or secede must be clearly expressed. And, third, the House of Commons has jurisdiction over most aspects of the process (e.g., is the question clear, which other views need to be considered, etc.).

The first point is obvious. Here's the questions from the previous two referenda. 1995:
Do you agree that Québec should become sovereign after having made a formal offer to Canada for a new economic and political partnership within the scope of the bill respecting the future of Québec and of the agreement signed on June 12, 1995?
Okay, seriously: if I say "yes" to this, what have I agreed to? If I say "no", what have I rejected? One problem is it's a complex question -- akin to "have you stopped beating your dog?" -- which embeds a number of assumptions before asking something. Another is that it makes reference to a bill and an agreement, without giving at least the gist of what such things are. Politics nerds might be aware of those matters, but it's unlikely most voters had a clue. This is a pretty good example of a terrible question to put in a separation referendum.

The 1980 question was better. Here it is:
The Government of Quebec has made public its proposal to negotiate a new agreement with the rest of Canada, based on the equality of nations; this agreement would enable Quebec to acquire the exclusive power to make its laws, levy its taxes and establish relations abroad -- in other words, sovereignty -- and at the same time to maintain with Canada an economic association including a common currency; any change in political status resulting from these negotiations will only be implemented with popular approval through another referendum; on these terms, do you give the Government of Quebec the mandate to negotiate the proposed agreement between Quebec and Canada?
This at least spells out the terms of the "new agreement" referred to. It's not actually a separation question, though. It holds out separation as a future possibility, but only asks for the authority to try to negotiate a better deal for Quebec within Canada -- which, really, any province already has. So, the problem here seems to be one of relevance: what is agreed to, or disagreed to, has very little to do with secession.

Thus, it is obvious that the question needs to be unambiguous, precise, and comprehensible. To that extent, the Clarity Act is going right. The other two points it makes, though, are pretty poor.

The third point is the worst. There is no good reason that I can see for giving the House of Commons exclusive jurisdiction over the matters it is given jurisdiction over, except simply screwing with the National Assembly. First, why the Commons? We have a bicameral Parliament federally; leaving out the Senate is pretty weird. Furthermore, given that the Governor-General is also part of the Government of Canada, shouldn't that office get a mention somewhere? Really, I'd feel better about the third point if it said "Government of Canada" instead of "House of Commons". Not much, but better.

Second, and worse, the Clarity Act takes an expression of majority opinion -- a positive referendum result regarding a question clearly on secession -- and makes its realization conditional on the partisan considerations of the House of Commons. I think it makes more sense to either include the entire Government -- Governor-General and Senate -- or, better yet, defer it to a non-partisan body, like the Supreme Court, which is good at figuring out things like intentions and wrestling with complex legal documents. Otherwise, it has the effect of making a partisan body superior to the express will of the people, which is about as anti-democratic as it gets. (Okay, fine, that's hyperbole; but it is anti-democratic in spirit.)

The second point is pretty bad too, though, because the so-called Clarity Act doesn't define what it is for a will to separate to be clearly expressed. The implication seems to be that more than a strict 50%+1 mathematical majority is needed. But how much more? (Fun philosophy note: Rousseau runs into this problem when he tries to explain what he means by "general will" rather than "majority will". The intuition is probably good, but it's practically unworkable, without something like Rousseau's regime of censors and social monitors.)

One could try to argue for a simple 2/3 majority, but this is an arbitrary threshold. You may as well argue for a 3/4 majority, or 5/8. It's pulling a number out of nowhere.

A better argument would look to the amending formulae in the Constitution, and try to build something off those. The general formula (the "7/50" formula) requires assent from the Commons and the Senate; and approval of 2/3 of the provincial legislatures (i.e., at least 7 provinces) representing at least 50% of the population. The specific formulae are: (a) for matters relating to the Office of the Queen, the use of either official language, the amending formula, or the composition of the Supreme Court: unanimous consent of all provinces; (b) matters related to provincial boundaries or use of an official language within a single province: pass the amendment by all affected legislatures; (c) matters related solely to the federal government do not require provincial approval, nor do matters affecting a provincial government alone.

The specific formula are not going to help for a separation issue. (a) is obviously not relevant; either (b) or (c) could be relevant, but (b) would tell us to consult the Commons, the Senate and the National Assembly (at least), while (c) would tell us to consult either the Commons and the Senate or the National Assembly (again, at least). (The "at leasts" are also problematic; how can we tell if, say, PEI is affected by Quebec separation?) It'd be better, I think, to look to the 7/50 formula: something like at least 2/3 of all ridings in Quebec, representing at least 50% of the population, must vote in favour. Of course, then one would run into the issue of Quebec never endorsing the frigging Constitution, but at least there would be some basis for the supermajority requirement.

So, that's the contrast. Either 50%+1 -- mathematical majority -- counts as a clear expression. (One could also argue that it has to be 50%+1 in all ridings, so that no region is getting railroaded by the others. I'd be okay with that, but it just amounts to a geographical amendment to the 50%+1 threshold -- 50%+1 in each of all 125 ridings is still a notch over 50% support.) Or, a supermajority modelled on the 7/50 formula counts as a clear expression. I know of no other way to determine what a "clear majority" in favour of separation would look like.

Of course, no one's offering anything like the above argument for a supermajority -- at least, no one I've seen. There simply seems to be this magic faith that 50%+1 is just not enough for a majority to be "clear" -- despite the fact that, as Jack Layton correctly pointed out, we routinely let majority governments get elected with way less than that. I suspect this is because there's not really any objection to 50%+1 -- the objection goes to a deeper issue.

Here's my suspects for the issue:
  1. The unimportance or irrelevance of self-determination by provinces. Provinces just don't get to determine whether they can stay in Canada or not; that's up to Canada to decide.
  2. Canada is a nation, too, at least as important -- and maybe more important -- than Quebec. That shouldn't be ignored.
  3. Hard federalism. Powers already delegated to the federal government should stay there; indeed, more power should probably be delegated to it, and the provinces thus reduced.
  4. Changing the Constitution is scary and leads to a big mess. An arbitrarily high threshold makes mucking around so difficult that no one is going to try it.
Some of these claims are childish. Some of them are wrong.

But more on that tomorrow.

2 comments:

ck said...

Oh the hilarity!

For openers. Pretty much, only the Liberal bloggers are commenting on this. And I wasn't aware that any of these bloggers were the official spokespeople for Bob Rae. I haven't read or heard anything from Bob Rae. ONly a sound bite from Domenic Leblanc on Question Period when Jane Taber asked and he only talked about the question.

And, yes, as a lifelong Quebecer who voted in the 95 referendum, I found the question convoluted to say the least. Many in La Belle Province don't have that great reading comprehension. I remembered that shortly after that referendum, a good percentage of those who checked off 'yes' weren't sure what they said 'yes' too.

It should also be noted that the NDP did support the Clarity Act when it first came out, when Alexa McDonough was the leader. The about face is certainly breath taking.

I'm ok with 50%+1, though. Voter turn-out was high in 95, at 94%. However, I would like to see voting mandatory for a referendum this important.

History does repeat itself though. Remember what happened to Brian Mulroney. Mulroney, too, believed he had good intentions in unifying the country. He only succeeded in dividing his own party, thus the collapse.

Something similar happened in the 60s when Social Credit won 24 seats under Albertan RN Thomson with 20 of those seats in Quebec with their defacto leader, Real Caouette. They, too, collapsed.

The NDP, another party, that started out west. Their western base, like the Con western base, don't like us. Never did. Read comment boards at G&M or CBC for the hell of it. Westerners think we're subhuman. No way Layton can hold this together.

Plus, Layton won't find any winning conditions to bring us into the constitution. Simply, because Harper won't allow it. More to the point, Harper's base won't have it. They want us out yesterday.

So far, Harper's not giving us any reason to want to stay, between Josee Verner going all Don Cherry and sticking a finger in Mayor Regis Labeaume's eye and more seriously, Harper refusing to come visit the Richelieu flood victims and along with Toews and MacKay, refusing aid.

We shall see. One of Harper's campaign promises was to finally compensate us that 2.2 billlion in HST. We'll see if it's in the upcoming budget. If it ain't there, well...Pauline Marois will add that to her arsenal. Because harper has a majority with his "my way or the highway" stylings, Jack Layton can do squat. That will become quite apparent soon enough. That would be true of any party in official opposition to a Harper majority, btw.

Then there's that tough on crime morality omnibus bill Harper wants to push quickly that will no doubt go against our values. Again, nothing Jack Layton can do about that.

Oh, and other than the Harpercon cheerleading media, notice that the Harpercons, themselves aren't even talking about this (other than Tom Lukiwksi's sound bite on QP). That, in itself, is quite telling. Either they don't see Layton as a threat to their power, which he isn't. If they did, believe me, Harper's attack ad machine would've started by now. Or, Harper, like his Western base, really wants us out, as it would make future elections and his goals of an Americanized Neo-con utopia that much easier as the rest of Canada has taken that sharp right turn.

If it makes you feel better to call me a Liberal hack, fine. I've been called worse.

ADHR said...

I don't recall saying that Bob Rae had mentioned anything about separation. Are you suggesting that only the (interim) leader's position matters for determining what the party thinks? If so, what's the point of having a party rather than just one guy?

I'm not seeing the historical parallels between Layton, Mulroney and SoCred. That strikes me as a case of wanting the analogy to work, rather than the analogy actually working on its own merits. (And, seriously, newspaper comment boards? That's your source of demographic information? Why not go all the way and base your worldview on YouTube comments threads?)

I also don't buy the defeatist attitude which seems to typify Liberals lately. I think it's insincere, first off -- I've never heard of the "powerlessness" of the Official Opposition until the NDP took on the role -- and, secondly, I think it's false. For example, if 12 MPs get scared enough for their political futures to defy Harper, he's done.

That said, I'd first have to accept the premise that Harper is still so desperate for a right-wing utopia that he'll do anything to get it. My read is that he likes being the boss too much to give it up for the sake of anything -- even ideology. He'll wilt in the face of enough pressure, if there's a chance it affect his ability to keep being Prime Minister.

(Of course, if the Liberals and their supporters just want to roll over and die for the Cons, that seems to admit as true everything Dippers have been saying about the two parties for years.)

I also don't buy the claim that Canada has taken a "sharp right turn". That impression is an effect, I suspect, of spending too much time dwelling amongst politics nerds. Most people don't have a sufficiently coherent -- or systematic -- set of beliefs to be taking a sharp right or left turn. Partly it's because most people ain't that bright; and partly it's because most people just don't care that much. You could just as easily create a sharp left turn in Canada by presenting a progressive message in a way that appealed to voters -- rather than proselytizing from on high.