The Canadian Model of Plurinational Federalism

The Canadian model of plurinational federalism is another dimension of our constitutional regime that has garnered considerable global interest, and is of central importance

to international debates over how constitutional design can and should respond to the relation between constitutionalism and nationalism.The context in which this issue arises is the plurinational state. The constitutional problems of plurinational states arise because modern states necessarily engage in a process of nation-building, which is designed to produce a degree of common identity, shared by all its citizens, across the entire territory of the state. The means to do so include policies centered on language, and culture, and on the centralization of legal and political power. The goals of nation- building are diverse, and include providing the necessary motivational element missing from liberal accounts of political legitimacy to induce individuals to make a particular set of liberal democratic institutions work and accept their demands; providing a mobile work force, literate in a common language that can pursue economic opportunity across an integrated national market; and ensuring that citizens can communicate directly with government officials.

But many states also contain national minorities whose members once formed complete, functioning societies on their territory, endowed with a considerable degree of self-rule, prior to their incorporation into the larger state through conquest and empire or voluntary federation or union. Consequently, many national minorities will resist nation-

building efforts, and respond by conceiving of themselves as nations and making constitutional claims designed to both protect themselves from the majority’s nation- building project and to enable them to engage in a parallel process of nation-building focused on the territory around which they constitute a majority. There are many plurinational states around the world-Canada, the United Kingdom, Belgium, Spain, Russia, Sri Lanka, Iraq, and India-just to name a few. In these states, constitutional design matters a great deal, as constitutions are the principal sites for majority nation- building as well as for national minorities’ resistance to the overarching process of nation-state consolidation. Canada is a conspicuous example of how constitutional design can accommodate competing nation-building agendas within a single state. Put simply, the Canadian exemplar responds by challenging the equation of nation and state that underlies not only majority nation-building but also the defensive response of minority nations, for which the logical response is to resist incorporation into the majority nation and demand states of their own.

Federalism is the feature of the Canadian constitutional model that addresses this issue most directly. Canada is a plurinational federation because the boundaries of the province of Quebec were drawn so that francophones would constitute a majority therein and could not be outvoted by the anglophone majority in Canada as a whole. This remains true today-indeed, the territorialisation of linguistic communities across Canada is greater now than when Quebec was created. Moreover, Quebec was granted a mix of concurrent and exclusive jurisdiction over a wide range of policy areas that gives it the tools to ensure the survival of a francophone society by creating a complete set of

institutions that operate in French across the economy, politics and public administration, and education. Inasmuch as language is the driving force behind Quebec’s claims for political autonomy, the Canadian model blunts its force by implying from jurisdiction over certain institutions or relationships the power to set the language in which those institutions operate or relationships occur. In exercise of this authority, Quebec enacted the Charter of the French Language in 1977 to make French “the language of the Government and the law, as well as the normal and every day language of work, instruction, communication, commerce and business”. The key provisions of the Charter of the French Language are those that establish French as the exclusive language of work within the civil service, flowing from the province’s constitutional authority over provincial public administration. Likewise, the Charter of the French Language promotes French as the internal working language of medium- and large-sized business in the province through Quebec’s power over property and civil rights, which encompasses the authority to regulate commercial transactions and private sector workplaces. Together, these measures vastly increased range and attractiveness of the economic opportunities for francophones in Quebec.

The responsibility for primary, secondary, and postsecondary education also lies within provincial jurisdiction, and impliedly encompasses power over the language of instruction and curriculum. This authority has been crucial for Quebec, because the Constitution has permitted the province to establish and operate a primary and secondary educational system that operates in French and is a prime instance of linguistic nation-building.

Additionally, the control over education has enabled Quebec to create French-language colleges and universities, an indispensable support for the use of French in economic and political life. At the same time, this arrangement has denied the federal government the power to set a standard curriculum in a shared national language, a common instrument of nation-building in many countries.

Although the Canadian model of plurinational federalism continues to evolve, many of its key features have been in place since the mid-nineteenth century. However, there was sharp rise in academic and policy interest in Canada’s plurinational federalism in the mid-1990s. Why? The answer may be found not in Canada, but in Eastern and Central

Europe. The collapse of the communist dictatorships in the latter region were followed by the rise of profound ethnic conflict within these democratizing states. As it turned out, many of these states fulfilled the definition of a plurinational polity, and the political sociology of emergent conflict within plurinational polities-the competing projects of majority and minority nation-building-fit the unfolding pattern of political conflict in those countries. In the search for solutions, plurinational federations such as Canada were an obvious candidate.

But the advocates of plurinational federalism were confronted with the fact that the three former communist dictatorships of Eastern and Central Europe-Czechoslovakia, the Soviet Union, and Yugoslavia-had already been plurinational federations prior to the transition to democracy, and all three began to disintegrate shortly after the transition.

By contrast, unitary states with large national minorities in which nationalism served as the axis of internal political conflict-Hungary, Poland, and Romania-did not fall apart. Indeed, the problem went even deeper. A widely accepted explanation for the disintegration of the communist federations of Eastern and Central Europe is that federalism not only did not prevent their breakup; it may have facilitated it. In these states, federal subunits provided a territorial and institutional power base for national minorities that served as a springboard to statehood. Unitary constitutional structures denied national minorities such a platform.

As plurinational federalism in Eastern and Central Europe may have had the perverse effect of fuelling precisely those political forces it was designed to suppress, the region’s experience posed a fundamental challenge to plurinational federalism as a viable constitutional strategy in that part of the world. Indeed, it posed a more general challenge to the very idea of plurinational federalism. The best way to respond to the negative examples of Yugoslavia, Czechoslovakia, and the Soviet Union was to identify models where plurinational federalism had actually worked. Hence the sudden and sharp increase in interest in Canada’s plurinational federalism. Will Kymlicka and Charles Taylor were the foremost scholarly proponents of the Canadian federal model.Indeed, Canada became one of the central cases in an ever-broadening comparative debate regarding the very possibility of crafting a constitutional accommodation between majority and minority nationalism within a single state.

But although it is true that global interest in Canadian federalism manifiested itself during the disintegration of the plurinational federations of Eastern and Central Europe, it also coincided with Canada’s own constitutional crisis. This arguably began in September 1994, with the resurgence of the Parti Québécois (PQ), which won power on a platform that had as its centrepiece a commitment to hold a referendum on sovereignty within its first mandate, which took place in October 1995. The results were extremely close, with the sovereignty proposal failing by 1 percent. Provincial legislation governing the referendum had set a one-year time limit on those negotiations, after which Quebec would have issued a unilateral declaration of independence. Nor was the near disintegration of the Canadian federation in the mid-1990s completely unexpected. From 1990 onward, the secession of Quebec became a topic of widespread political and academic debate. A sub-literature assumed that Canada was doomed, and that the country should turn to the difficult question of how secession should occur, and examined very specific issues such as the debt, borders, citizenship, the rights of Aboriginal peoples, and the nature of the economic and political partnership between Canada and an independent Quebec, as well as the process for such negotiations.

What was the connection between Canada’s constitutional crisis and rise of global interest in the Canadian model of plurinational federalism? The answer is politics. Arguing for the necessary success of the Canadian model was not just a scholarly endeavour. It was a political intervention in two different but interrelated arenas. It was an intervention in international politics-to offer a practical, viable model to deal

with the issue of minority nationalism, which had become a source of political instability in Eastern and Central Europe and beyond. It was also an intervention in domestic constitutional politics-to argue that Canada had hit upon one of the few workable solutions to the accommodation of minority nationalism within a liberal democratic constitutional order. These agendas were integrally linked. Many proponents of the Canadian model not only recognized the crisis gripping the Canadian constitutional order,but also viewed the international promotion of the Canadian model as an important element in resolving domestic problems. The promotion of the Canadian model abroad should be understood, at least in part, as an attempt to reinforce support for the Canadian model in Canada by installing national pride. As the prestige of the Canadian model is enhanced abroad, so too is its prestige at home. Indeed, the violent collapse of the plurinational federations of Eastern and Central Europe appeared to challenge the viability of plurinational federalism not only in that region but in Canada aswell.

Canadians stared into the constitutional abyss in the 1990s and asked themselves whether the same fate awaited Canada. If the Canadian model could not work in Canada, it could not work in circumstances that are far more difficult. Canada needed to make its constitutional arrangements work not only for the world’s sake, but for its own as well.

What was the precise character of the Canadian constitutional crisis? The conventional wisdom is that the Canadian constitutional crisis was substantive, and arose from competing constitutional logics which are at war with each other: the accommodation of Quebec, the Charter, and the juridical equality of all provinces (including Quebec).These different constitutional logics have come into conflict over two issues:

asymmetrical powers for Quebec and the constitutional recognition of Quebec as a distinct society. Asymmetry is demanded by Quebec as necessary in order to give it the jurisdictional tools to preserve and promote its distinct identity in economic and social circumstances that have changed dramatically since 1867; it is resisted in English Canada, both by those who want to centralize power in Ottawa as part of a nation- building exercise and by those who believe that special arrangements for any one province are a form of discrimination. Constitutional recognition of Quebec as a distinct society, if designed to augment Quebec’s powers alone, raises similar objections. To the extent that such recognition would give greater scope to Quebec to limit Charter rights legitimately-in order to preserve and promote its linguistic identity-it would come into conflict with the concept of the Charter as the essential foundation of equal citizenship, providing for equal enjoyment of constitutional rights throughout Canada.

But there is also a procedural account of the constitutional crisis, in which the near- collapse of the Canadian constitutional system can be traced to a lack of a shared understanding regarding the constitutional procedures within which substantive

constitutional politics could occur.Consider the following argument. In

politics, we frequently disagree about the substance of public policies. A basic ambition of constitutionalism is to channel disagreements into institutions that reach decisions that members of the political community will accept as authoritative. But for institutional decisions to yield political settlement, the decision-making procedures of those institutions must be viewed as constituting and regulating political life without forming part of it-as being indifferent among political positions. Were the mechanisms by which political disagreement is managed themselves to be subject to political contestation in the course of their operation, it would be difficult for institutional settlement to translate into political settlement. The rules for constitutional amendment and their relationship to substantive constitutional politics can be conceptualized in like manner. If the rules of constitutional amendment are to operate effectively, they too must be accepted as constituting and regulating constitutional politics, and not forming part of it. They must be seen as operating indifferently among the competing constitutional positions on the table.

The difficulty with this highly simplified picture is that political procedures-both for normal and constitutional politics-are far from substantively neutral themselves. Rather, as Jeremy Waldron has argued, political procedures reflect competing conceptions of the very sorts of values that are the customary fare of both normal and constitutional politics. For example, by determining which individuals and communities can participate in political decision-making, and what role those individuals and communities may play, decision-rules reflect substantive judgments of political sovereignty, and by extension, the very identity of a political community. So the boundary between substantive political disputes and the procedural frameworks within which those disputes are worked out is highly artificial. Liberal democratic constitutionalism depends on the suspension of

political judgment with regard to institutions and institutional decision-making procedures precisely in order to gain the prospect of political settlements.

The suspension of political judgment with respect to political procedures will become exceedingly difficult to sustain when the substantive dispute challenges the very conception of political community that underlies the decision-making framework within which that debate occurs. With respect to the rules of normal politics, the consequence will be to shift the terrain of disagreement from normal politics to constitutional politics, regulated by the procedural rules governing constitutional amendment. But in plurinational polities, the ease with which political judgment with respect to constitutional amending rules can be suspended depends on the nature of the issue at hand. In plurinational polities, constitutional politics takes place on two levels. On the one hand, there is the sort of constitutional politics that presupposes the existence of a national political community, where the basic question of constitutional design is how this political community should grapple with the task of democratic self-government. This kind of constitutional politics also occurs in political communities that are not plurinational. But in parallel-and simultaneously-plurinational polities also engage in constitutive constitutional politics, which concern questions that go to the very identity, even existence, of a political community as a plurinational political entity. In practice, it is hard to disentangle these two sorts of constitutional politics, because they often touch on similar sorts of issues-the structure of national institutions, federalism, and bills of rights-and often occur at the same time. For example, proposals to entrench the Supreme Court of Canada constitutionally, to recognize its unique responsibility as an independent organ of government and final arbiter charged with enforcing the Charter — were accompanied by demands by Quebec that, given the Court’s role as the final judicial arbiter in federal-provincial disputes, three of its nine seats should be constitutionally guaranteed for justices from that province.

The problem is that it can be very difficult, if not possible, to suspend political judgment regarding the procedures for constitutional amendment at moments of constitutive constitutional politics precisely because these procedures might reflect one of the competing constitutional positions at play. In the absence of agreed-upon procedures for constitutional decision-making, institutional settlement cannot yield political settlement. The result may be that the constitutional system itself comes tumbling down.

This is what happened in Canada in the mid-1990s. For alongside disagreement on the substantive questions of how Quebec’s constitutional claims should be accommodated within the Canadian constitutional order and whether Quebec should remain a part of Canada, there was a procedural disagreement over whether the rules governing constitutional amendment should govern the process of secession. As a strictly legal matter, a change in Quebec’s status from province to independent country could be achieved through constitutional amendments that would require the consent of the federal government and most, if not all, of the provinces. Unilateral secession would be unconstitutional. But Quebec sovereignists challenged the assumption that Quebec’s independence would be governed by the rules governing constitutional amendment, for

the simple reason that those rules beg the question. Those rules presuppose that Quebec is a constituent component of the Canadian federation, functioning as a subnational community with extensive but limited rights of self-government within Canada.

Accordingly, Quebec is a constitutionally recognized actor in the process of constitutional amendment through processes that require a high degree of federal and provincial consensus. Quebec cannot act alone. But it is precisely that constitutional vision that the Quebec sovereignty movement challenges, in raising the substantive question of whether Quebec should remain a part of Canada or become an independent state. Not surprisingly, the sovereignists rejected the amending rules as a neutral framework within which the question of Quebec’s independence could be resolved. As sovereignists wished to make a radical and total break from the Canadian constitutional order, it is hard to imagine that they would have subscribed to a process governed by it.

The broader point is that the Canadian problem is a common one. The constitutional politics of rules for constitutional amendment are frequently a point of conflict in plurinational polities.The reason is that these rules are where the most fundamental clashes in nation-building occur. By assigning the power of constitutional amendment to certain populations and/or institutions, in various combinations, the rules governing constitutional amendment stipulate the ultimate locus of political sovereignty and are the most basic statement of a community’s political identity. The ability to reconfigure the most basic terms of political life must lie with the fundamental agents of political life. By looking at amending rules, we can see who those agents are. In plurinational polities, assigning roles to national minorities as part of the procedure for constitutional change accordingly acknowledges the fundamental plurinational character of the political community. The refusal to acknowledge this fact translates into a preference for constitutional amending rules that do not recognize and empower the constituent nations of a plurinational polity. And in either situation, secession is a limiting case that would challenge the application of the existing constitutional order to part of the state’s territory. So it is far from surprising that in a broad variety of recent cases, such as Iraq, Spain, Sri Lanka, and the United Kingdom, as in Canada, a principal arena of constitutional conflict has concerned the design of constitutional amending rules.

The true lesson for multinational polities of the Canadian model of plurinational federalism may be this. Canada is indeed a success story-it is one of the world’s oldest countries, has wrestled with and responded imaginatively to forces that have torn other countries apart, and has achieved a remarkable degree of prosperity and freedom. In large part, the Canadian model operates under the law. But as the Canadian constitutional crisis shows us, a legal approach to the accommodation of minority nationalism has both its strengths and weaknesses. The main problem lies in meeting demands for constitutional change from minority nations. Rules for constitutional amendment face genuine difficulty in constituting and regulating moments of constitutive constitutional politics, because at those moments, the very concept of political community those rules reflect is placed in contention by the minority nation.

And what Canada may teach us is that secession may be a limiting case where constitutionalism and the rule of law run out.

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