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|Other Titles:||An Analysis of Reference re Secession of Quebec by the Supreme Court of Canada|
Quebec;Reference;Unilateral Secession;Self-Determination;Fundamental Principles of the Constitution;Negotiations Underlying Constitutional Principles
|Issue Date:||2016-05-06 16:55:49 (UTC+8)|
Quebec held a referendum for secession in 1980 and 1995 respectively. Both time, it turned out in disfavor of sovereign Quebecers. In 1996 Governor in Council, in pursuant to section 53 of the Supreme Court Act, referred to the Supreme Court of Canada for advisory opinion on three questions concerning the secession of Quebec from Canada: (1) Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally? (2) Does International law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? (3) In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which one takes precedent? Based on the four fundamental principles of the Constitution, including the principles of federalism, democracy, constitutionalism and the rule of law, and respect for minorities, the Supreme Court of Canada held that the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession by the population of a province would give rise to a reciprocal obligation on all parties to the Confederation to negotiate constitutional changes to respond to that desire. The reconciliation of the various legitimate constitutional interests is necessarily confined to the political rather than the judicial realm, precisely because the reconciliation can only be achieved through the give and take of the negotiating process. Having established the legal framework, it would be for the democratically elected leadership of the various participants to resolve their difference.
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|Appears in Collections:||[問題與研究 TSSCI] 期刊論文|
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