Constitutional Politics in Multinational Democracies 9780228007456

Citation preview

constitutional politics in multinational democracies

democracy, diversity, and citizen engagement series Series editor: Alain-G. Gagnon With the twenty-first-century world struggling to address various forms of conflict and new types of political and cultural claims, the Democracy, Diversity, and Citizen Engagement Series revitalizes research in the fields of nationalism, federalism, and cosmopolitanism, and examines the interactions between ethnicity, identity, and politics. Works published in this series are concerned with the theme of representation – of citizens and of interests – and how these ideas are defended at local and global levels that are increasingly converging. Further, the series advances and advocates new public policies and social projects with a view to creating change and accommodating diversity in its many expressions. In doing so, the series instills democratic practices in meaningful new ways by studying key subjects such as the mobilization of citizens, groups, communities, and nations, and the advancement of social justice and political stability. Under the leadership of the Interdisciplinary Research Centre on Diversity and Democracy, this series creates a forum where current research on democracy, diversity, and citizen engagement can be examined within the context of the study of nations as well as of nations divided by state frontiers. 1 The Parliaments of Autonomous Nations Edited by Guy Laforest and André Lecours 2 A Liberal Theory of Collective Rights Michel Seymour 3 The National Question and Electoral Politics in Quebec and Scotland Éric Bélanger, Richard Nadeau, Ailsa Henderson, and Eve Hepburn 4 Trust, Distrust, and Mistrust in Multinational Democracies Comparative Perspectives Edited by Dimitrios Karmis and François Rocher 5 Constitutional Politics in Multinational Democracies Edited by André Lecours, Nikola Brassard-Dion, and Guy Laforest

Constitutional Politics in Multinational Democracies Edited by André Lecours, Nikola Brassard-Dion, and Guy Laforest

McGill-Queen’s University Press Montreal & Kingston • London • Chicago

© McGill-Queen’s University Press 2021 ISB N ISB N ISB N ISB N

978-0-2280-0614-5 978-0-2280-0660-2 978-0-2280-0745-6 978-0-2280-0746-3

(cloth) (paper) (eP DF) (eP UB)

Legal deposit third quarter 2021 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free

We acknowledge the support of the Canada Council for the Arts. Nous remercions le Conseil des arts du Canada de son soutien.

Library and Archives Canada Cataloguing in Publication Title: Constitutional politics in multinational democracies / edited by André Lecours, Nikola Brassard-Dion, and Guy Laforest. Names: Lecours, André, 1972– editor. | Brassard-Dion, Nikola, 1988– editor. | Laforest, Guy, 1955– editor. Series: Democracy, diversity, and citizen engagement series ; 5. Description: Series statement: Democracy, diversity, and citizen engagement series ; 5 | Includes bibliographical references and index. Identifiers: Canadiana (print) 20210140623 | Canadiana (ebook) 20210140755 | ISB N 9780228006602 (paper) | IS BN 9780228006145 (cloth) | I SB N 9780228007456 (eP DF ) | IS BN 9780228007463 (eP U B ) Subjects: l cs h: Constitutional history—Case studies. | l c sh : Democracy— Case studies. | l cs h: Comparative government—Case studies. | l c g f t: Case studies. Classification: l cc j f 51.c6354 2021 | ddc 320.3—dc23

This book was typeset in 10.5/13 Sabon.

Contents

Figures and Tables | vii introduction

Constitutional Politics in Multinational Democracies | 3 1 What’s the Deal? Canada’s Constitutional Relationship with the Métis Nation | 23 Janique Dubois 2 Responding to Secession Referenda: Constitutional and Quasi-Constitutional Change in Quebec and Scotland | 44 François Rocher and Elisenda Casanas Adam 3 Embedded Independence: Self-Government and Interdependence in the Scottish National Movement | 75 Coree Brown Swan and Nicola McEwen 4 Flemish Nationalism and the Left-Right Divide: Consequences for Constitutional Politics in Belgium | 101 Dave Sinardet

vi

Contents

5 The Legitimacy-Legality Constitutional Paradox in Multinational Democracies and the Constitutional Origins of Sub-State Party System Realignments | 125 Jaime Lluch 6. Bosnia and Herzegovina: Constitutional Politics in a “State of Minorities” | 162 Soeren Keil and Paul Anderson conclusion

The Nature, Actors, and Process of Constitutional Politics | 188 Contributors | 199 Index | 203

Figures and Tables

figure 6.1 Territorial Organization of Bosnia and Herzegovina after 1995 | 169 tables 4.1 Importance of different issues in making an electoral choice | 115 4.2 Belgian MPs’ positions on constitutional reform | 116 4.3 Belgian voters’ positions on constitutional reform | 117 4.4 Average position on constitutional reform per party electorate in 2014 | 119 5.1 Constitutional preferences on the relationships between Catalonia and Spain according to Centre d’Estudis d’Opinió surveys (2006–2013) | 138 5.2 Subjective National Identity in Catalonia (1979–2013) | 140 5.3 Evolution of the options about the independence of Catalonia | 141

constitutional politics in multinational democracies

in tro du cti on

Constitutional Politics in Multinational Democracies André Lecours, Nikola Brassard-Dion, and Guy Laforest

Multinational democracies are by nature political communities permeated by a great deal of friction (Gagnon and Tully 2001). The minority nations in these democracies typically seek to enhance, or at least preserve, their territorial autonomy (Laforest and Lecours 2016), or to re-structure their relationship with the other communities and the state, or both. Central governments, for their part, are ultimately concerned with (state-wide) national unity and territorial integrity. The conditions of diversity in multinational democracies (Gagnon, Guibernau and Rocher 2003) tend to be all-encompassing. Party competition, political representation, political participation, legislative processes, executive decisions, public policy-making, and intergovernmental relations are all instances of normal politics that are typically coloured by the deep diversity of multinational democracies. From time to time, normal politics in multinational states is upstaged by periods of exceptional politics where debates, deliberation, and negotiations pertain to the wider constitutional order. These periods of constitutional politics are often akin to existential crises for states as their structures, sometimes their very existences, are questioned. Constitutional politics has been part of the political landscape of several multinational democracies in recent years. The self-determination process in Catalonia, which has featured a consultation on its political future (considered illegal by the Spanish state) in 2014, a plebiscitary election in 2015 (Marti and Certà 2016), and a referendum in 2017 (also considered illegal by

4

André Lecours, Nikola Brassard-Dion, and Guy Laforest

Madrid), has involved an intense debate about its political future that has forced the Spanish state to respond. This response has come primarily through a law and order approach as exemplified by the trials of secessionist leaders held in 2019. In the United Kingdom, Westminster had to deliver on “The Vow” made by all main British political parties to proceed with constitutional reforms in the aftermath of the 2014 Scottish referendum on independence. Despite the victory of the Better Together side at the referendum, secessionist forces were bolstered by the strong result in favour of independence (45%) and continue to challenge the British state, which also has to manage its exit from the European Union. In the context of Brexit, Scotland’s first minister, Nicola Sturgeon has indicated that she wants to give Scots another chance to choose independence. In Puerto Rico, a fifth referendum on the status of the island took place in 2017, but its result, an overwhelming majority in favour of statehood, was not all that meaningful considering it was boycotted by most opponents of that option, resulting in a participation rate of only 23%. Still, debates over the future of Puerto Rico, more specifically about its relationship with the United States, remain strongly constitutive of politics on the island. In Belgium, constitutional politics is a regular occurrence and is enmeshed in normal politics since the different views of the Flemish and French-speaking communities on the future of the Belgian state have made government formation a difficult process. With ongoing Flemish pressures for further state reform spurred by the popularity of Nieuw-Vlaamse Alliantie (N-VA), a future round of constitutional negotiations (a 7th reform of the state) appears unavoidable. In Bosnia and Herzegovina, constitutional politics is a continuous, ongoing process as the three main communities all challenge the constitutional status quo, although prospects of constitutional reform are complicated by their different preferences about the organization of the state. In Canada, when it comes to specifying the place of Quebec in the federation, constitutional politics has been put on the back burner, primarily because the failed efforts to accommodate Québécois nationalism through constitutional reform in the past caused a surge in secessionist support in the province (Gibbins and Laforest 1998). This being said, the Justin Trudeau Liberal government has promised to develop a new nation-to-nation relationship with the country’s Aboriginal peoples, suggesting some kind of conversation

Introduction

5

about the definition and operationalization of the constitutional and treaty rights of First Nations and Métis. This book offers an original analytical framework for constitutional politics in multinational democracies. It suggests that gaining comprehensive knowledge about such politics involves understanding three dimensions: its nature (what is constitutional politics?); its actors (who does constitutional politics?); and its process (how is constitutional politics conducted?). For this book, we asked the authors to shed light on at least one of these dimensions of constitutional politics in their chosen case(s). The contribution of this book is therefore to sketch out an original way to study constitutional politics and to provide an understanding of the nature, actors, and processes of constitutional politics in different contexts. Beyond working within this framework, the editors did not impose a specific approach to the authors for studying constitutional politics in their case(s). Rather, the basic idea is to look, through single or comparative case studies, at how political institutions, ideas, rules, and structures adjust (or not) to changing political communities that are themselves structured by an existing institutional environment. The sample of cases explored in the coming chapters was chosen for cross-national divergence in the nature, actors, and processes of constitutional politics amongst mostly similar systems. The methodology used by the authors is process-tracing (Beach and Pederson 2013) since the chapters trace the development of constitutional politics in specific contexts and time periods. In the larger perspective of the whole book, the comparative analysis is case-oriented (Della Porta 2008) insofar as the emphasis is on understanding constitutional politics in particular countries rather than putting forth general propositions.

Constitutional Politics in Multinational Democracies: What, How, and Who? Constitutional politics, whether it sits on the front or back burner of contemporary multinational democracies, typically represents or has represented important periods in the development of multinational states and minority nations. In the next section, we discuss the nature, actors, and process of constitutional politics in multinational democracies or, in other words, its what, who and how.

6

André Lecours, Nikola Brassard-Dion, and Guy Laforest

What is Constitutional Politics in Multinational Democracies?

The deep diversity of multinational democracies shapes constitutional politics. These circumstances of exceptional politics are linked to claims towards, and efforts at, bringing about change to the constitutional order. Constitutional politics is, of course, not limited to multinational democracies. The constitutional order of mononational democracies also comes under pressure for change, particularly during times of significant social, economic, and political transitions (Elster, Offe and Preuss 1998). After all, a constitution is a “living, reflexive instrument” (Luch 2014: 4), and debates about fundamental social and political questions may involve claims for constitutional reform. For example, Australia had a constitutional crisis in 1975 over the relationship between some of its key institutions, including the head of state as represented by the governor general, and a referendum on the monarchy in 1999. Sometimes court decisions force, or shape, periods of constitutional politics. In federal systems, adjusting fiscal arrangements and the distribution of powers often require constitutional politics (Benz 2016). Constitutional politics in mononational states typically focuses “on the creation of and allocation of power to governmental institutions in order to enable democratic decision making. Such politics would also address whether and to what extent the constitution should disable those institutions through the design of decisional rules (such as veto powers, or supermajority requirements), as well as through outright substantive limits on government conduct (for example, constitutional bills of rights)” (Choudhry 2007, 635). These concerns are also present in the constitutional politics of multinational states, but “additionally, there is the existential question of whether a multinational polity should exist at all as a unified, national political community comprising the various nations (majority and minority) and, if so, on what terms” (Choudhry 2007, 635). Constitutional politics in multinational states is qualitatively different from constitutional politics in mononational states because it involves negotiating claims for self-determination. In the context of such negotiations, concerns about the relative political power the various communities will exercise are foremost. As Horowitz explained in his classic treatise on ethnic conflict (Horowitz 1985), fear of domination by other groups is a central dynamic of deeply diverse countries. As such, delicate and, indeed, emotional issues

Introduction

7

relating to the place and status of minority nations are typically at the forefront of constitutional politics in multinational democracies. Such issues often have a large symbolic value, for example, when it comes to qualifying the minority nation: will it be formally recognized as a nation? As some other type of distinct group? How will this recognition be phrased? The recognition question, which is typically at the centre of constitutional politics in multinational democracies, is a difficult one to negotiate. Very often, the recognition of a nation other than the one projected by the state is unthinkable for many, if not most, citizens and politicians in a multinational state. This is the case in Spain and, to a slightly lesser extent, in Canada, yet recognition is a key claim of minority nations in both cases. The institutional accommodation of these communities is another question that often proves particularly difficult during constitutional negotiations. Indeed, there tends to be a greater desire for decentralization in minority nations than elsewhere in the country. As a result, increasing decentralization for a minority nation often requires introducing, or deepening, asymmetry in the territorial structuring of a state. However, asymmetry is often resisted in the rest of the country where it tends to be equated with unfair treatment and favouritism (Hombrado 2011). Negotiations over recognition and decentralization are embedded in differentiated power relationships whereby minority nations typically do not have the upper hand. In these contexts, states tend to emphasize the rule of law whereas minority nations speak of legitimacy and democracy. Of course, these nations are not monolithic. Their citizenry is typically split on self-determination issues, which means that constitutional politics in multinational democracies also involves conflict within minority nations. Self-rule through the territorial decentralization of political power represents the most important dimension of constitutional politics in multinational democracies. Nationalist movements seek territorial autonomy for their community, which means that negotiations over the degree and form of self-rule that should exist within a state is almost always part of constitutional politics in multinational contexts. Federalism, both as an institutional device or a philosophy of governance for the management of deep diversity, or both, is often at the heart of constitutional discussions (Hueglin and Fenna 2015, 3). This being said, shared-rule, that is, the principles, arrangements, and institutions through which all

8

André Lecours, Nikola Brassard-Dion, and Guy Laforest

the communities of a multinational state exercise political power within central institutions, can also be an important component of constitutional politics. Indeed, minority nations, in addition to seeking autonomy, may also want some rules that guarantee their participation in the governance of the central state. The practice of consociational democracy, or power sharing (Lijphart 1977; 2012; McRae 1997), is often at the centre of sharedrule discussions in the context of constitutional politic. This was the case in Northern Ireland, where power sharing between the Unionist and Republican communities was a sine qua non condition for the Good Friday Agreement (McGarry and O’Leary 2004), which put a halt to political violence. Of course, the implementation of consociational democracy requires the acceptance of majority communities not to behave like majorities (i.e. not using their demographic weight to wield political power), which means that consociational arrangements are often discussed, but sometimes not implemented (for example, in Cyprus; Loizides 2017). Consociational practices also shape constitutional politics once they have been implemented (Deschouwer 2006; 2009), as the chapter on Belgium in this book clearly shows. Who are the Actors of Constitutional Politics in Multinational Democracies?

Constitutions have often been described as bargains (Holmes 1988, 37), which means that constitutional politics is an actor-centred process. Agency in the constitutional politics of multinational states can be viewed in many different ways. From the strict perspective of multinationalism, one could see various nations involved in a definition, or re-definition, of their relationship with the state and with one another. Indeed, in multinational settings, there is typically an “internal ideational polarization over the nature of the state” (Lerner 2011, 5), which is at the heart of constitutional politics. From an institutional point of view, constitutional politics in multinational states that are federal in nature features central and constituent unit governments (Burgess and Pinder 2011), each representing a political community. The institutional and multinational perspectives can be combined in the view that the central government represents and promotes its state-wide nation while constituent unit governments that oversee a minority nation will speak in the name of that community.

Introduction

9

Thus, nationalism, including state nationalism (which may or may not correspond to the nationalism of the dominant group; Lecours, Nootens and Gagnon 2011) as well as nationalist movements are central actors in the constitutional politics of multinational democracies. A multinational state is a community of communities. In other words, while the state projects a specific nation, other institutions or political actors, or both, promote and express the existence of one or more nations within the state. Therefore, nationalism is a central and enduring political force of multinational democracies. Nationalist movements within a multinational state seek, in the name of a special sense of solidarity amongst the members of the community they claim to represent, a distinct political future for this community (Derriennic 1995). In particular, while nationalist movements may sometimes seek collective rights, gain recognition for their community, or secure access to political power within central institutions (claims that often lead to constitutional politics), these types of accommodation are typically not sufficient. As mentioned before, the nationalist process of self-determination most often aims at acquiring, enhancing, or sometimes preserving autonomy (especially when it is threatened to be reduced) within the state. The desired autonomy can involve the ability to develop a distinct political system and political class, the formulation and implementation of public policies applying only to the minority nation as well as specific forms and forums of political representation and participation, or it may be about seceding from the state altogether. Whatever the specific ambit of autonomy, self-determination claims are often at the heart of constitutional politics in multinational states. Nationalism is a multifaceted phenomenon that comprises identity and interest dimensions (Lecours 2000). Moreover, as a form of politics (Brass 1991), nationalism involves mobilization in support of some type of institutional change in the relation between the minority nation and the state, most often towards increased territorial autonomy. Each of these dimensions of nationalism structures constitutional politics in multinational states. Nationalism is perhaps first and foremost a type of identity politics (Smith 1991). Symbols and narratives that flesh out the national identity of their community are a significant part of the politics of any nationalist movement. As previously stated, this focus on identity, and more specifically, on its national character, typically leads nationalist movements to seek an acknowledgment or recognition

10

André Lecours, Nikola Brassard-Dion, and Guy Laforest

by the state of their community as a nation, or some type of distinct community from the rest of the country (Seymour 2003). Recognition can be informal, taking place through political discourse, as has been the case in the United Kingdom (McEwen and Lecours 2008), but nationalist movements may also seek a formal, even constitutional, acknowledgment of the existence of their national community. In this context, the recognition question can become a central focus of constitutional politics as was the case in Canada during the 1980s and 1990s. For states that do not see themselves as multinational, despite the presence of one or more minority nations, claims for recognition are difficult to accommodate, as we have seen in Spain in the last few years. Indeed, state nationalism, especially when it takes the form of a nationalism of the majority (Loizides 2015), is often intolerant of the very notion of internal national diversity, which means that political actors outside the minority nation often resist the use of the term nation for anything else than the political community projected by the state. Hence, constitutional politics dealing with the identity question can be particularly difficult and sensitive since compromise on identity is most likely harder than on material interests or even institutional accommodation. Indeed, in some states, including post-conflict democratizing states, the notion of recognition of national diversity is often viewed as a first step towards disintegration. Of course, there are other ways to attempt to meet the recognition claims of nationalist movements than by formal acknowledgment of nationhood. For example, asymmetrical institutional or policy arrangements can be understood to represent an implicit acknowledgment of difference, which may prove sufficient for some nationalist movements. Nationalism is also about the definition of collective interests (Tyriakian and Rogowski 1984; Rudolph and Thompson 1989). Nationalist movements conceptualize national interests that are specific to their community and not necessarily coherent with how the rest of the country, or the state, defines its own interests. These divergent interest definitions can lead to, and complicate, constitutional politics. In post-conflict democratizing states, security and access to resources often constitute the basic interests minority nations look to fulfill. In these states as well as in established democracies, the notion of national interests can involve securing access to the exercise of political power at the centre. In this context, constitutional

Introduction

11

politics can be about structuring power-sharing arrangements or transforming lower or upper houses. In multinational democracies, interests are often linked to public policies or fiscal arrangements. For example, minority nations tend to be resentful of being net contributors to the state. Indeed, when such an outcome occurs, there is an overlap of identity and territorial economic cleavages, which spurs nationalist movements to engage into constitutional politics to bring about some type of change. The Catalan government, for example, looked, in 2010–2011, for a fiscal pact with the Spanish state, which would have allowed more of its financial resources to stay in Catalonia. Flanders has looked for the decentralization of some components of the Social Security program, which it says transfers large sums of “Flemish” money to Wallonia (Poirier, and Vansteenkiste 2000; Béland and Lecours 2008). Sometimes, the public policies implemented by the central state (whether on economic and industrial development, the environment, language, education, health, etc.) are viewed as antithetical to the minority nation’s interests, which prompts them to seek their decentralization. Institutional change towards decentralization tends to be the central objective of most nationalist movements and, as a consequence, a major issue of constitutional politics in multinational democracies. Multinational democracies are often federations (for example, Canada, Belgium, and Bosnia-Herzegovina), or at least are federal in nature (for example, Spain). Post-conflict democratizing multinational states typically have to find forms of institutional accommodation that take the state down the road of federalization (on the case of Nepal, see Lecours 2014). Whether in an established democracy or a democratizing state, the level of autonomy sought by minority nations may not be desired elsewhere in the country and can be opposed by the central state on many different grounds: national unity, equality, coherence, rationalization, etc. Constitutional politics may, therefore, be about governments within a state finding an agreement on a distribution of powers and on basic rules for public-policy making in the context of different preferences stemming from distinct political, socio-cultural, and economic realities. Even in a federal system comprising multiple constituent units, the option of adjusting only the level and nature of autonomy of the minority nations exists, but, as mentioned before, the asymmetry that such arrangements introduce tends to prove contentious elsewhere in the country.

12

André Lecours, Nikola Brassard-Dion, and Guy Laforest

At a micro level, constitutional politics in multinational democracies features politicians, most of them elected officials, and, in some cases, negotiations can be confined to a small number of people. Political parties can be extremely influential in shaping the dynamics of constitutional politics, as the larger objective of constitutional change can never be divorced from the power dimension of party politics. In some political systems, like Belgium’s with its consociational arrangements, political parties are the primary actors of constitutional politics. In some instances, civil society actors are strongly involved in constitutional politics. This may be especially the case if the process of constitutional politics features a referendum. In the context of constitutional politics within liberal democracies, referendums are often “difference-managing” (Qvortrup 2014), that is, they ask citizens about accommodation measures such as autonomy or power-sharing. Civil society then organizes and mobilizes in favour or against the reform proposal put to them. Secession referendums also typically occur in the context of constitutional politics insofar as they tend to involve discussions of the constitutional order in one way or another. For example, the Scottish and Québécois referendums on independence have exhibited strong involvement of all kinds of civil society organizations, particularly on the pro-independence side. In the case of democratizing multinational states, where constitutional politics is often a sine qua non condition for achieving civil peace in post-conflict situations, outside states and international organizations can strongly shape the constitutional process. How Does Constitutional Politics in Multinational Democracies Take Place?

From time to time, the quest for self-determination of minority nations brings to the top of the political agenda constitutional questions, that is, questions relating to the fundamental structure of the state, the rights of citizens and communities, and the rules for normal politics in multinational democracies. Indeed, periods of constitutional politics in multinational democracies can be brought on by a surge in popularity of a nationalist movement or party, or a radicalization of self-determination claims within a minority nation. These periods of constitutional politics can be fairly short and discrete, and they can include crucial “constitutional moments” (Lluch 2014) that represent transformative events for multinational democracies. Or,

Introduction

13

they can also be protracted, and therefore actively colour the politics of multinational democracies for an extended period of time. Constitutional politics in multinational democracies involves discussions about a re-definition of the structure, workings, and sometimes even the nature of the state. As such, periods of constitutional politics are typically of special importance in the political development of multinational democracies. Therefore, constitutional politics can be seen as critical junctures. The notion of critical junctures refers to a crucial point in time for understanding political outcomes. Critical junctures are turning points in political development (Mahoney, Mohamedali, and Nguyen 2016: 77). They often have at their centre a specific moment or event that gives the period of time its potential for transformation. Therefore, critical junctures represent specific time periods where the process of political development can be thrown onto various paths (whether a path of change or of continuity). The impact of these periods may be felt many years or decades later. Indeed, scholars working with the concept of critical junctures hold that the causes for a political outcome are not always to be found in a time-proximate event, decision, or process (see, for example, Lipset and Rokkan 1967; Berins, Collier and Collier 1991). Critical junctures are “moments of structural indeterminacy and fluidity” (Capoccia 2016, 101). Because of their relative open-endedness, critical junctures can be seen as moments of considerable agency, albeit where actors are embedded in a specific political context. At the same time, their later consequences can be unintended and therefore cannot be reduced by the analyst to the strategic motivations of the time (Capoccia 2016; 1992). The idea of critical junctures involves the notion that potential path-departing change appears rather infrequently and in short bursts. From this perspective, periods of time between critical junctures are characterized by much stability; the choices made during the critical juncture become locked-in. Historical institutionalists call this phenomenon “path dependency” or “path dependence” (Mahoney 2000). “With path dependence, each step in a particular direction makes it more likely that a unit will continue to follow the same direction. Over time, it becomes harder and harder to reverse course” (Mahoney 2016, 82). Thus, critical junctures launch societies into specific paths from which significant deviation is unlikely. The likelihood of significant deviation diminishes as time goes by

14

André Lecours, Nikola Brassard-Dion, and Guy Laforest

after the critical juncture because the self-reinforcing effects (Pierson 2000) of the new order narrow the developmental pathway. As in a critical juncture, stretches of constitutional politics in multinational democracies represent potential periods of change where there is considerable agency. Political actors bring in the identities and interests of their communities (as they define them) into negotiations about collective political and institutional futures. These actors are mindful of the balance of power between the communities they represent as well as their own personal power and the repercussion that the outcome of constitutional negotiations can have on it. Thus, periods of constitutional politics are typically intense stretches of time where the topics of state design, individual and collective rights, distribution of powers and the like predominate over socio-economic questions. The intensity and focus explain why there is usually a window for constitutional politics. That window can shut for a long period of time, either after a constitutional agreement, after the failure of reaching, or implementing, such agreement, or after the conditions that spurred constitutional discussions have passed. As constitutional politics subsides, or comes to an abrupt stop, normal politics returns, but the outcome of constitutional discussions becomes locked-in whether there was actual constitutional change or not. Indeed, what happens during a stretch of time when minority nations make claims for constitutional change shapes the political development of that community and of the multinational state at large. Evidently, a constitutional agreement leading to constitutional change represents a clear fork in the road for a multinational democracy. Claims for constitutional change that are not met, or are only partially met, can also have tremendous importance since they represent precedents and structure subsequent constitutional claims. Failed constitutional negotiations can be as significant as successful, or partially successful, ones, because they can trigger within the minority nation a backlash against the state or its dominant group. In some countries, like Belgium, constitutional politics is a regular occurrence insofar as agreements on constitutional change are explicitly declared by actors to be incomplete and require a subsequent follow up. In these contexts, constitutional politics appears as a long-term process punctuated by pauses rather than discrete, direction-changing events. In short, constitutional politics in multinational democracies often (though not always) represents critical junctures in the political

Introduction

15

development of minority nations and of the state at large. Whether a specific period of constitutional politics results in constitutional reform or not, it is likely to alter future constitutional discussions as well as normal politics thereafter. Indeed, some political actors benefit from periods of constitutional politics while others are hurt by them; the support enjoyed by various self-determination options is likely to be affected by the dynamics of constitutional politics; and the state’s nationalist management strategies can be adjusted or radically transformed following a period of constitutional negotiations. In multinational democracies, the stakes of constitutional politics are particularly high since the possibility of secession often looms. In multinational democratizing or post-conflict states, or both, the process of constitutional politics is particularly important since civil peace is often at stake (Widner 2008). Outline of Constitutional Politics in Multinational Democracies

The book brings together a series of case studies exploring the who, what and how of constitutional politics in multinational democracies. It opens with Janique Dubois’ incursion into the constitutional relationship between Canada and the Métis Nation. As Manitoba entered the Canadian federation in 1870, its Métis people were promised control over the lands they held. But as Dubois demonstrates, the distinct identity of the Métis people, which did not fit into the neat dichotomy of Indian or white that prevailed in government policies, has long served to sideline or deny their rights. The author shows how Canada’s repeated denial of the Métis as a distinct people and failure to uphold and define the scope of their rights have undermined their constitutional relationship. Dubois’ contribution is timely. In its Speech from the Throne opening the 42nd Parliament of Canada, the Justin Trudeau government pledged to “renew, nation-to-nation, the relationship between Canada and Indigenous peoples,” and it suggested that this relationship begins with the recognition of rights and partnership (Canada 2015, 6). In order to understand the impetus for this renewal process, it is necessary to examine who makes up this unique people with aspirations for self-government and what has so far defined the constitutional relationship. In the end, these considerations lead us to think about how the relationship between the Métis and the Canadian state could be redefined.

16

André Lecours, Nikola Brassard-Dion, and Guy Laforest

The question of accommodating self-government within Canada’s federation has long animated debate over Quebec’s constitutional status and political aspirations. To this end, François Rocher and Elisenda Casanas Adam identify crucial similarities between Quebec’s two referenda on secession (1980 and 1995) and Scotland’s more recent (2014) consultation on independence from the United Kingdom. The authors find that in all three cases the constitutional changes promised by the central authorities were reduced in scope following the defeat of the Yes side in the referenda on secession. Their chapter invites us to explore the impact of secession referenda on constitutional politics, whatever the result, and also to think about what type of avenue for constitutional, institutional, and political change they represent. Their case studies lead Rocher and Casanas Adam to suggest that constitutional politics in the context of a secession referendum is constrained by a threat-hope dyad, where the hope of change promoted by supporters of independence is set against the threat of various dire outcomes issued by its opponents. The Scottish National Party (SNP) has been the main driver of Scotland’s self-government claims and its recent quest for independence through a referendum. Yet, from the world’s largest Empire to a (reluctant) member of the European Union (EU), the SNP has had to adapt, over most of the last century, to the evolution of the United Kingdom within global politics. In their chapter, Coree Brown Swan and Nicola McEwen examine how the changing nature of the United Kingdom state has affected the self-government objectives of the SNP . What they find is a form of embedded independence, whereby the SNP’s self-government ambitions are shaped by the developing political context of Britain from the British Empire, to leader of the Commonwealth, and later to the EU. Like the previous chapters, we see that historical context matters a great deal for the terms and conditions that lie at the centre of constitutional politics. The chapter ends on a brief discussion of the implications of Brexit on the nationalist movement in Scotland. If past events surrounding the changing United Kingdom state have taught us anything about the nature of Scottish constitutional politics, it is certainly that Scotland’s view of its relationship with the rest of the United Kingdom is strongly shaped by the United Kingdom’s own place in Europe and the world. In this context, we can expect the SNP to redefine its conception of independence in the wake of Brexit.

Introduction

17

In his chapter, Jaime Lluch compares the paradox between the Spanish Constitution’s statement about the “indissoluble unity of the Spanish Nation” and its multinational sociological reality to a similar situation involving Puerto Rico and the United States. Statements and decisions by the United States Supreme Court and the United States Congress have recently reaffirmed the colonial subordination of Puerto Rico, in spite of the 2012 referendum where Puerto Ricans expressed for the first time their opposition towards the island’s existing constitutional status. The incongruity between constitutional form and constituent powers is what Lluch refers to as the “legitimacy-legality constitutional paradox” where democracy and the rule of law seem to be on a collision course. In his chapter, the author explores the effects of constitutional moments, these relatively rare higher order political events that have been ongoing in Catalonia and Puerto Rico and which embody a “legitimacy-legality constitutional paradox.” Lluch argues that these constitutional moments are transformative events that can alter the balance of power between central and regional authorities, namely by causing realignment in the party system. Realignments in the party system can have, in turn, important effects on constitutional politics in multinational democracies. This is what has been happening in Belgium where political parties are undoubtedly the main actors of constitutional politics, as shown by Dave Sinardet in his chapter. Constitutional antagonism in Belgium is less a matter of the usual confrontation between the central government and autonomous regions. Rather, it manifests itself in the opposition between political parties that favour more decentralization and those defending the status quo. Belgium’s party system is split along linguistic lines between Flemings and Francophones. In the last decade or so, the nationalist New Flemish Alliance (N-VA) has emerged as the frontrunner in Flanders, to the point of winning the most seats in the country at federal elections. Sinardet argues that the N-VA’s rise to prominence does not reflect a surge in Flemish nationalism per se. Rather, it is the result of the nationalist party’s choice to emphasize its right of centre socio-economic agenda and to frame increased autonomy as a way to better achieve these policy objectives. Sinardet’s chapter examines the factors that explain this recasting of autonomy as a means rather than an end. The author also explores the implications of this transformation for party competition, government formation, and ultimately, constitutional

18

André Lecours, Nikola Brassard-Dion, and Guy Laforest

politics. Indeed, as Sinardet explains, the N-VA positioning itself as a legitimate option to be included in a federal coalition shapes the whole of Belgian politics, normal and constitutional. Soeren Keil and Paul Anderson’s chapter on Bosnia and Herzegovina provides the final case study of the book. Their contribution singles out the unique challenges of constitutional politics in a context of post-war peacebuilding and conflict resolution processes. In coming to terms with the violent confrontations that split the country along ethnocultural lines, a federal constitution was adopted in 1995 in the context of the intervention of a powerful international actor, the United States. The new constitution established clear power-sharing mechanisms between the three groups in the hope of stabilizing this deeply divided society. Yet, constitutional politics has not really come to an end since each of the groups is dissatisfied with the status quo and seeks to change it. This has the authors questioning the efficacy of federalism as a way to mitigate and reduce grievances, as they wonder if it has not instead reified differences and precluded further constitutional change. Drawing from the specific provisions of the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP) and the experience of politics in Bosnia thereafter, Keil and Anderson make a set of observations on political institutions in post-conflict scenarios. They stress the importance of indigenously developed, rather than externally imposed, political solutions; the need for flexible power-sharing arrangements and compromise among political elites; and, finally, the central importance of mutually agreed upon democratic norms and the respect of territorial autonomy. With Keil and Anderson’s underlying argument about the need for indigenously-developed arrangements to accommodate national diversity, the book comes full circle with regards to Canada’s quest for a renewed partnership with its Indigenous peoples. Through a variety of case studies, the chapters of this book explore how extraordinary political events, from critical junctures to constitutional moments by way of secession referenda, shake the normal political order and, at times, transform the identity of, and the relationships between, all of its political communities. These chapters also analyze what these events represent in the context of constitutional politics and who its main actors are. As such, this book speaks particularly to researchers interested in constitutionalism,

Introduction

19

nationalism, democracy, and federalism. It does so by using insights from both political science and constitutional law. Constitutions are legal documents subject to legal interpretation, but they also embody power relationships and identities. They set the rules for political action, but also open up possibilities for subsequent grievances, contestation, and negotiations. Constitutions can therefore be the object of change, but political actors ultimately drive the quest for change. As such, to capture the complexity of constitutional politics, researchers need to understand what constitutional politics is in different contexts, who are the actors seeking and resisting change, and how the process of constitutional politics unfolds. r e f e r e n ce s Beach, Derek and Rasmus Brun Pedersen. 2013. Process-Tracing Methods. Foundations and Guidelines. Ann Arbor: University of Michigan Press. Benz, Arthur. 2016. “Gradual Constitutional Change and Federal Dynamics-German Federal Reform in Historical Perspective.” Regional and Federalism Studies 26 (5): 707–28. Béland, Daniel and André Lecours. 2008. Nationalism and Social Policy. The Politics of Territorial Solidarity. Oxford: Oxford University Press. Berins Collier, Ruth and David Collier. 1991. Shaping the Political Arena. Critical Junctures, the Labor Movement, and Regime Dynamics Latin America. Princeton: Princeton University Press. Brass, Paul. 1991. Nationalism and Ethnicity: Theory and Comparison. London: Sage. Burgess, Michael and John Pinder, eds. 2011. Multinational Federations. London: Routledge. Canada. 2015. “Making Real Change Happen: Speech from the Throne to Open the First Session of the Forty-Second Parliament of Canada.” Library and Archives Canada. Cataloguing in Publication. Capoccia, Giovanni. 2016. “Critical Junctures.” Orfeo Fioretos, Tulia G. Faletti and Adam Sheingate, eds, 89–106. The Oxford Hanbook of Historical Institutionalism. Oxford: Oxford University Press. Choudhry, Sujit, 2007. “Does the World Need More Canada? The Politics of the Canadian Model in Constitutional Politics and Political Theory.” International Journal of Constitutional Law 5, no. 4: 606–38. Della Porta, Donatella. 2008. “Comparative Analysis: Case-oriented versus Variable-oriented Research.” In Approaches and Methodologies in the Social Sciences. A Pluralist Perspective, edited by Donatella Della

20

André Lecours, Nikola Brassard-Dion, and Guy Laforest

Porta and Michael Keating, 198–222. Cambridge: Cambridge University Press. Derriennic, Jean-Pierre. 1995. Nationalisme et démocratie. Réflexions sur les illusions des indépendantistes québécois. Montréal: Boréal. Deschouwer, Kris. 2006. “And the Peace Goes On? Consociational Democracy and Belgian Politics in the Twenty-First Century.” West European Politics 29 (5): 895–911. – 2009. The Politics of Belgium. Governing a Divided Society. Houndmills, Basingstoke: Palgrave Macmillan. Elster, Jon, Claus Offe and Ulrich K. Preuss (with Frank Boenker, Ulrike Goetting and Friedbert W. Rueb). 1999. Institutional Design in PostCommunist Societies: Rebuilding the Ship at Sea. Cambridge: Cambridge University Press. Gagnon, Alain-G. and James Tully, eds. 2001. Multinational Democracies. Cambridge: Cambridge University Press. Gagnon, Alain-G., Montserrat Guibernau and François Rocher, eds. 2003. The Conditions of Diversity in Multinational Democracies. Montreal: McGill-Queen’s University Press. Gibbins, Roger and Guy Laforest. 1998. Beyond the Impasse: Toward Reconciliation. Montreal and Kingston: IRPP. Holmes, Stephen. 1988. “Gag Rules or the Politics of Omission.” In Constitutionalism and Democracy, edited by Jon Elster and Rune Slagstad, 19–58. New York: Cambridge. Hombrado, Angustias. 2011. “Learning to Catch the Wave? Regional Demands for Constitutional Change in Contexts of Asymmetrical Arrangements.” Regional and Federal Studies. 21 (4–5): 479–501. Horowitz, Donald. 2005. Ethnic Groups in Conflict. Oakland: University of California Press. Hueglin, Thomas O. and Alan Fenna. 2015. Comparative Federalism. A Systematic Inquiry. Toronto: University of Toronto Press. Laforest, Guy and André Lecours. 2016. The Parliaments of Minority Nations. Montreal and Kingston: Queen’s University Press. Lecours, André. 2000. “Ethnonationalism in the West: A Theoretical Exploration.” Nationalism and Ethnic Politics 6 (1): 103–24. – 2014 “The Question of Federalism in Nepal.” Publius: The Journal of Federalism 44 (4): 609–32. Lecours, André, Geneviève Nootens and Alain-G.Gagnon (eds). 2011. Contemporary Majority Nationalism. Montreal and Kingston: McGillQueen’s University Press.

Introduction

21

Lerner, Hanna. 2011. Making Constitutions in Deeply Divided Societies. Cambridge: Cambridge University Press. Lijphart, Arendt. 1977. Democracy in Plural Societies. A Comparative Exploration. New Haven: Yale University Press. – 2012. Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries. New Haven: Yale University Press. Lipset, Seymour M. and Stein Rokkan. 1967. “Cleavage Structures, Party Systems, and Voter Alignments.” In Party Systems and Voter Alignments: Cross-National Perspectives, edited by Seymour M. Lipset and Stein Rokkanm, 1–64. New York: Free Press. Lluch, Jaime. 2014. “Introduction: The Multiple Dimensions of the Politics of Accommodation in Multinational Democracies.” In Constitutionalism and the Politics of Accommodation in Multinational Democracies, edited by Jaime Lluch, 1–18. Houndmills Basingstoke: Palgrave Macmillan. Loizides, Neophytos. 2015. The Politics of Majority Nationalism. Framing Peace, Stalemates, and Crisis. Redwood City: Stanford University Press. – 2017. “Arendt Lijphart and Consociationalism in Cyprus.” In Consociationalism and Power-Sharing in Europe. Arendt Lijphart’s Theory of Accommodation, edited by Michaelina Jakala, Durukan Kuzu and Matt Qvortrup, 155–77. London: Palgrave Macmillan. Mahoney, James. 2000. “Path Dependence in Historical Sociology.” Theory and Society. 29 (4): 507–48. Mahoney, James, Khairunnisa Mohamedali and Christoph Nguyen. 2016. “Causality and Time in Historical Institutionalism.” In The Oxford Handbook of Historical Institutionalism, edited by Orfeo Fioretos, Tulia G. Faletti and Adam Sheingate, 71–88. Oxford: Oxford University Press. Martí, David and Daniel Cetrà. 2016. “The 2015 Catalan election: a de facto referendum on independence?” Regional and Federal Studies 26 (1): 107–19. McEwen, Nicola and André Lecours. 2008. “Voice or Recognition? Comparing Strategies for Accommodating Territorial Minorities in Multinational States.” Journal of Commonwealth and Comparative Politics 46 (2): 220–43. McGarry, John and Brendan O’Leary. 2004. The Northern Ireland Conflict.Consociational Engagements. Oxford: Oxford University Press. McRae, Kenneth D. 1997. “Contrasting Styles of Democratic DecisionMaking: Adversarial versus Consensual Politics.” International Political Science Review 18 (3): 279–95.

22

André Lecours, Nikola Brassard-Dion, and Guy Laforest

Pierson, Paul. 2000. “Increasing Returns, Path Dependence, and the Study of Politics.” American Political Science Review 94 (2): 251–67. Poirier, Johanne and Steven Vansteenkiste. 2000. “Le débat sur la fédéralisation de la sécurité sociale en Belgique: miroir du vouloir-vivre ensemble? ” Revue belge de sécurité sociale 2: 331–79. Qvortrup, Matt. 2014. Referendums and Ethnic Conflict. Philadelphia: University of Pennsilvania Press. Rudolph, Joseph R. and James Thompson, eds. 1989. Ethnoterritorial Politics, Policy and the Western World. Boulder: Lynne Rienner. Seymour, Michel. 2003. “Rethinking Political Recognition.” In The Conditions of Diversity in Multinational Democracies, edited by Gagnon, Alain-G., Montserrat Guibernau and François Rocher, 59–84. Montreal: McGill-Queen’s University Press. Smith, Anthony D. 1991. National Identity. Reno: University of Nevada Press. Tyriakian, E. A. and Ronald Rogowski, eds. 1984. New Nationalisms of the Developed West. Boston: Allen and Unwin. Widner, Jennifer. 2008. “Constitution Writing in Post-Conflict Settings: An Overview.” William and Mary Law Review 49 (4): 1513–41.

1

What’s the Deal? Canada’s Constitutional Relationship with the Métis Nation Janique Dubois

Canada was born of a compromise between political elites. The principles at the heart of this compromise are outlined in the country’s constitution. As the Supreme Court of Canada held in Manitoba Language Rights Reference “[t]he Constitution of a country is a statement of the will of the people to be governed in accordance with certain principles held as fundamental” (Lijphart 1985, 745). These principles represent what Arend Lijphart (Lijphart 1968, 103) refers to as the “minimal consensus” required to accommodate diverse parties in a single union. As part of the objective of creating a country united from coast to coast, Canada negotiated a deal for its westward expansion in 1870. This deal is founded on a political compromise reached between representatives of Canada and of the provisional government democratically established by the people of the North-West. Under the leadership of Louis Riel, this Métisled provisional government negotiated land and political rights in exchange for the peaceful entry of Manitoba into Confederation. Focusing on this turning point in Canada’s constitutional history, this chapter asks three related questions: What is the constitutional relationship between Canada and the Métis? How did this constitutional relationship come about? Who shaped this constitutional relationship? I address these questions through a critical examination of two distinct constitutional periods – 1870 and 1982 – that represent critical junctures in Canada’s relationship with the Métis. It is at these critical junctures that Métis and Canadian political elites engaged in the negotiation of a political compromise to ensure their

24

Janique Dubois

mutual adherence in a common political community. Drawing on Lijphart’s theory of elite accommodation, I contend that the constitutional relationship between Canada and the Métis is grounded in the promise of rights concluded between Métis and Canadian leaders during key moments of political upheaval – a promise that remains unfulfilled. This argument unfolds in four parts. In a first section, I situate the Métis within Canada’s constitutional landscape through a historical contextualization of the evolution of this Indigenous nation’s relationship with the Canadian state. The second section considers the minimal consensus at the heart of the 1870 constitutional deal between Canada and the Métis. I discuss what happed to this constitutional deal in the third section and analyze its renegotiation in 1982 in the fourth section. In the conclusion, I consider the implications of the promise of rights at the heart of the constitutional relationship between Canada and the Métis in the country’s contemporary legal and political context. Evoking the concept of reconciliation, I conclude that this promise will remain unfulfilled in the absence of action by Canada’s political elites.

Situating the Métis in Canada’s Constitutional Landscape The Métis are a distinct Indigenous nation that emerged in the North American prairies or what was historically called the North-West. The Métis Nation was born of children that emerged from the union of First Nation women and European men and developed a unique way of life as buffalo hunters and organized politically as a people in the North-West during the late eighteenth and early nineteenth centuries. Key players in the fur trade economy, the Métis Nation held economic and political power in the historic North-West. As Canada set its ambitions on asserting its sovereignty from east to west, the people of the North-West sought to maintain power over this territory. The unique character of the Métis as a dual-heritage people and their stated ambition to maintain self-determination in a united Canada set the stage for interesting, albeit seldomly examined, constitutional politics. In 1870, Canada reached a deal with the people of the NorthWest to protect land and political rights in return for the peaceful entry of their territory as a new province, Manitoba, into

Canada’s Constitutional Relationship with the Métis Nation

25

Confederation. Despite this deal, Canada sent troops to take over the territory through military force. Métis soldiers were eventually defeated by Canadian troops in 1885. Following the military defeat of his people, Riel surrendered to face trial for high treason against the Canadian state – a crime for which he was found guilty and sentenced to hang. With the death of their leader and the military takeover of their lands, the Métis were politically and economically marginalized and became largely invisible in Canada’s constitutional landscape. Considered a “people in between” (Peterson 1981), the Métis did not fit comfortably in the Indian or white dichotomy that informed federal programs and policies in the years that followed Confederation.1 Intent on maintaining this dichotomy, successive federal governments have argued that the Métis are not Indian as understood in section 91(24) of the Constitution Act, 1867 and thus do not fall under their constitutional jurisdiction (see Daniels 1979). The Métis were therefore officially excluded from federal programs and policies enacted for First Nations. At the same time, Canada considered Métis as Indians for the purposes of legislation in circumstances that suited the government.2 This explains in part why many Métis were sent to residential schools, which were created under the Indian Act, despite the fact that they were not Indians and thus not subject to the Indian Act. While the Métis are not subject to the Indian Act, they have nevertheless fallen victim to Canada’s colonial policies when deemed convenient by the federal government.3 Inconsistency in Canada’s approach in dealing with the Métis has been a lasting trend since Confederation. The Métis differ from First Nations and Inuit who interact directly with the federal government to negotiate their title to land and jurisdictional standing. For their part, the Métis are largely excluded from federal programs and are further sidelined by provincial governments that also deny constitutional responsibility towards them (Dubois and Saunders 2017). With the exception of the 1990 Alberta Settlement Act, no provincial or federal government has adopted legislation to address the land or political rights of the Métis. The longstanding refusal of federal and provincial governments to engage with the Métis as a distinct Indigenous nation, according to Jean Teillet (Teillet 2004, 299), rests on dubious and self-perpetuated claims meant to undermine the legitimacy of their rights. Teillet writes that,

26

Janique Dubois

the Crown’s complaint is that it does not know who the Métis are; that the Métis are merely individuals with some Aboriginal ancestry; that their rights are derivative or dependent on Indian rights; that while Indians may have Aboriginal rights, Métis have none; that while Indians may have Aboriginal title, Métis have none; that Métis organizations are not legally capable of representing them; that they are not collectives; that the government has no obligations to Métis; that they are a provincial responsibility (from the federal government); that they are a federal responsibility (from the provincial governments); that there may be Métis in that province, but not in this province; that wherever and whoever those people might be they are not rights holders; they are not really Aboriginal or at least not Aboriginal enough; and anyway they all disappeared when Louis Riel was hanged in 1885. (Teillet 2004, 294) Teillet argues that the logic of these claims is grounded in the denial of the Métis as a distinct people. It is this logic which denies the distinctiveness of Indigenous nations that underpins nationalism in Canada from Confederation until 1982. The Métis remained largely invisible in the eyes of successive state governments following 1885. Despite their exclusion by the state, the Métis maintained a strong sense of identity and pride as a nation. Grassroots, political mobilization provided a means through which the Métis not only cultivated their commitment to self-determination, but also fostered a sense of pride in their culture. In the years and decades that followed Riel’s death, Métis women also played a key role in nurturing the political consciousness of the nation through storytelling, beading, and care (Saunders and Dubois 2019). To this day, the Métis remain committed to the vision of a self-governing Métis Nation in Canada as outlined by Riel and his followers in 1869 (Saunders and Dubois 2019). Yet, it was not until 1982, after intense mobilization by Indigenous leaders, that the Métis received constitutional recognition as a distinct rights-bearing Aboriginal people in the wake of the patriation of Canada’s constitution (Dubois and Saunders 2017). Listed alongside First Nations and Inuit in section 35 of the Constitution Act, 1982, the Métis are recognized as one of Canada’s three rights-bearing Aboriginal people. More than 100 years after reneging on constitutional promises of land and political rights, Canada

Canada’s Constitutional Relationship with the Métis Nation

27

invited Métis leaders to sit at the table alongside other Indigenous nations to renegotiate their constitutional standing within the federation. During the negotiations surrounding this constitutional crisis, Canada committed to recognize and negotiate rights to land and to self-government with the Métis Nation (Dubois and Saunders 2017). While they continue to face challenges in advancing their rights, the Métis are no longer invisible in Canada’s constitutional landscape. Recent Supreme Court of Canada rulings have forced the federal government to reverse its longstanding position that denied Métis rights to land and sidelined the Métis from policies. Helping to clarify the Métis’ constitutional status, the Supreme Court of Canada confirmed in 2003 that the Métis hold constitutional Aboriginal rights in R. v. Powley. This ruling was followed in 2013 by a declaration from the country’s highest court that Canada failed to live up to the constitutional promises of land made to the Métis in 1870 (Manitoba Metis Federation v. Canada 2013) as well as by a confirmation in 2016 that the Métis are in fact Indians for the purposes of section 91(24) of the Constitution Act, 1867 and therefore fall under federal jurisdiction (Daniels v. Canada 2016). To better understand the evolution of the Métis’ constitutional relationship with Canada, we turn our attention to the Red River Valley in present-day Winnipeg, Manitoba, where the constitutional story of Canada-Métis relations began.

Striking a Deal: The Promise of Métis Rights in 1870 The creation of Manitoba was ultimately the result of a deal between Métis and Canadian leaders (MMF at para 4). This deal is reflected in the Manitoba Act of 1870, which confirmed the addition of a fifth province to the Canadian Confederation. Paul Chartrand (1991, 463) explains that the negotiation of Métis rights in the Manitoba Act is consistent with other practices at the time of Confederation that sought to reconcile local and state interests through the guarantee of local protections against the federal government’s encroachment. It is also consistent with the Métis practice of diplomacy founded on myeu waahkootoohk, a Michif phrase that refers to the development of good relations (Gaudry 2016). Focusing on the formative period of constitutional politics at the time of Canada’s Confederation, the discussion below draws attention to the process as well as the actors that shaped the relationship between Canada and the Métis Nation.

28

Janique Dubois

Upon hearing of Canada’s Confederation, the Métis were keen to safeguard their economic and political power in the North-West. In addition to occupying key roles as intermediaries between Europeans and First Nations in the fur trade, the Métis had developed hunting practices that contributed to their economic prominence. The use of horses, which allowed them to drive large herds of buffalo and enabled them to transport goods to trade posts with horse-drawn two-wheeled carts had helped the Métis to establish themselves as key economic and political actors in the North-West. Connected through kinship networks that spanned trade routes from the Great Lakes to the Rocky Mountains, the Métis’ seat of economic and political power was located at the heart of trading activities in present-day Winnipeg, Manitoba (see Sprague and Frye, 1983). It was at the confluence of the Red and Assiniboine rivers that the first permanent community of Métis and settlers was established. Housing the principal trading post in the North-West, the Red River Settlement was the only community with a significant European population in the first half of the nineteenth century (Gaudry 2016, 53). The presence of Europeans in the Red River Settlement increased in 1811 when Lord Selkirk, one of the Hudson’s Bay Company’s major investors, received a grant of 116,000 square miles of land from the Hudson’s Bay Company to establish a colony at the forks of the Red and Assiniboine rivers. As Adam Gaudry (2016) argues, Lord Selkirk’s purported authority to govern these lands was contested by local Indigenous peoples with whom he would enter into treaty in 1817 to protect his colony. By the late 1860s, the Red River Settlement was made up of approximately 12,000 people, 85 percent of whom were Métis (MMF at para 4). It was in this settlement that the first clash in constitutional politics would take place between Canada and the Métis. Preparing to expand its boundaries west of Ontario after Confederation, Canada struck a deal to purchase lands that included the Red River Settlement from the Hudson’s Bay Company with the blessing of the British crown (MMF at para. 1; Shore and Barkwell 1997, 224–5; Sprague 1988, 26–7). The purported claim to the land by the Hudson’s Bay Company – a claim founded on the legal Doctrine of Discovery – was contested by Métis and other Indigenous leaders (Gaudry 2016, 50).4 In particular, competing conceptions of sovereignty between Indigenous and British leaders was evident in their interpretations of the 1817 Selkirk treaty. Described as a land cession agreement

Canada’s Constitutional Relationship with the Métis Nation

29

by the British, the treaty was viewed by Indigenous leaders as an agreement of friendship for the use of the land. By extension, the territory that Lord Selkirk had purportedly been granted by the Hudson’s Bay Company and which Canada sought to acquire was not the Hudson’s Bay Company’s to sell (Gaudry 2016; Ens 1994, 115). For the Métis, treaty relationships – like all relationships – were strategic considerations guided by their desire to protect their way of life, ka ishi pimaatishiyaahk. Their participation, alongside other Indigenous leaders, in the conclusion of the Selkirk treaty is consistent with the Métis commitment to developing good relations, myeu waahkootoohk, to further their collective aspirations. Ignoring existing treaty relationships and Indigenous claims to sovereignty, Ottawa sent William McDougall to take his place as Lieutenant Governor of the territory it had supposedly acquired from the Hudson’s Bay Company. However, as McDougall neared arrival to the Red River Settlement, he received the following dispatch: “The National Committee of the Métis of Red River orders William McDougall not to enter the Territory of the North West without special permission of the above-mentioned committee” (cited in Stanley 1963, 62). McDougall was confident the insurrection would not last and, like Prime Minister Macdonald, believed this minor opposition would not derail Canada’s plans for westward expansion (Sprague 1988, 41). To Canada’s surprise, armed Métis troops took control of Fort Garry, the main trading post and the strategic centre of the North-West in a show of force. Under the leadership of Louis Riel, they proclaimed a provisional government in November 1869 (Sprague 1988, 33–52).5 When elites from Ontario, Quebec, Nova Scotia and NewBrunswick agreed to establish a political union in 1867, they were largely unaware of the political organization amongst the local population in the North-West (Aunger 2014, 69). This would change as the Métis-led provisional government organized to negotiate the conditions under which the local population would agree to enter into Confederation. Presented in the form of a List of Rights, the provisional government demanded full provincehood; guarantees for the French language and for Roman Catholic schools; the protection of settled and related common lands; the distribution of land to Métis children; and amnesty for those who had participated in the resistance efforts against Canada.6 In the face of mounting local opposition, Canada’s founding prime minister sent a special commissioner, Donald Smith, to the Red River Settlement.

30

Janique Dubois

Officially sent to appease local leaders regarding Canada’s intentions, Smith’s secret mandate was to feed anti-Riel sentiments and engineer the overthrow of the provisional government through covert means (Morton 1956, 89). However, upon arriving in Red River, Smith discovered that the resistance movement could almost certainly withstand Canada’s plan to defeat it. At a mass meeting that lasted two days, he spoke of Canada’s good intentions in the hope that these assurances would lead the local population to accept the return of Hudson’s Bay Company’s rule (Sprague 1988, 47). Riel instead seized the opportunity to fortify the provisional government, calling for the election of a larger representative body, a convention of forty delegates, to represent the local population. This body was tasked with preparing a second List of Rights that contained many of the same demands that were first made by the provisional government. Smith, who did not have the authority to grant these demands as special commissioner, invited delegates to argue their case before the Canadian government in Ottawa (Sprague 1988, 47–78). A delegation selected by the provisional government travelled to Ottawa to discuss the List of Rights with Canadian representatives (Morton 1956, 300). The delegates stood firm on their demands. Significant amongst these was the entry of their territory as an independent province and the control over land. As one of the delegates writes in his journal, “[w]e could by no means let go control of the lands at least unless we had compensation or conditions which for the populations actually there would be the equivalent of the control of the lands of their province” (Morton 1965, 140). Wanting to ensure the country’s peaceful expansion, Canada agreed to many of the provisional government’s demand. Notably, Canadian representatives promised 1.4 million acres of land to Métis families and control over the lands they held. The terms of this agreement were enshrined in the Manitoba Act of 1870, which was adopted by the Canadian Parliament and ratified by the provisional government’s legislative assembly.

Breaking the Deal: The Denial of Métis Rights Although they were not in perfect agreement, Métis and Canadian leaders had approved the process and the deal laid out in the Manitoba Act. Two core elements of the constitutional deal would

Canada’s Constitutional Relationship with the Métis Nation

31

become a source of contention: amnesty and land. Subsequent and successive federal governments would renege on these constitutional safeguards as the Métis lost effective political power in Manitoba. As Paul Chartrand observes, the unfolding of events “reveals much about the value of constitutional authority in the face of unwilling and uneven political power” (Chartrand 1991, 466). In the moments that followed the adoption of the Manitoba Act, Canada broke the constitutional deal reach in 1870. While constitutions are bargains between political actors, their durability is subject to forces that extend beyond actors. Changes in political attitude and divergences in political objectives contributed to the breakdown of the constitutional deal between Canada and the Métis. Dispatched to assert Canadian authority in Manitoba, an expedition of 2,000 men was sent to Red River in 1870. Despite the assurances of peace, Riel learned that elements of the Canadian militia in the expedition meant to take his life. The arrival of Canadian troops that threatened the rights and the life of Métis in Red River was an affront to the promise of amnesty that had been discussed during the negotiation of the Manitoba Act. As repeated by Father Ritchot, one of the delegates from Red River during negotiations, “a general amnesty is a condition sina qua non of any settlement” (in Morton 1965, 138). This sentiment was echoed by Canada’s messenger, Bishop Alexandre Taché, who conveyed that “a complete and entire amnesty” had been granted to those who participated in the resistance upon returning to Red River from negotiations in Ottawa (Huel 2003, 114). The question of amnesty has been the source of much controversy (Mailhot 1986; Huel 2003). Pointing to the impact of the larger political context, scholars have noted that the condition of amnesty was revoked in the face of public outcry over the execution of Thomas Scott, an Orangemen found guilty of treason by the provisional government, which led the Ontario government to put a bounty on Riel’s head.7 Relaying the message given by Macdonald and Cartier in Ottawa, Father Ritchot notes that the outcry over the death of Scott would not prevent Canada from making “suitable arrangements and settling all the question” (cited in Mailhot 1986, 105). This conviction was shared by Canada’s messenger, Bishop Alexandre Taché who published evidence of the amnesty that was dismissed by opponents (Huel 2003, 140). The unfolding of events confirms Canada’s willingness to take whatever

32

Janique Dubois

measures necessary to ensure its westward expansion – including making empty promises of amnesty. This conclusion is supported by the fact that Canada was still in the process of negotiating the terms of Manitoba’s entry into Confederation when Macdonald sanctioned a military expedition to march to Red River.8 Canada’s refusal to honour promises of amnesty forced Riel and many Métis into exile (Sprague 1988, 67–9). Those who stayed behind in Red River were unable to get the government to fulfill the rights and protections that had been promised (Chartrand 1991, 470–1; Friesen 1979). Contrary to the deal outlined in the Manitoba Act, the Métis who stayed in Red River were alienated from their lands as Canada delayed, cancelled and, in some cases, denied the distribution of land promised to Métis children. Allegedly fulfilling its obligations with respect to land, the Canadian government eventually adopted scrip – a certificate redeemable for land or money. The scrip process was part of Macdonald’s plan to eliminate the problems posed by what he described as the “wild people” of Red River (Sprague 1988, 30, 49). Macdonald’s primary concern was to affirm Canada’s sovereignty and assert control over the North-West as part of his quest to unite the country from east to west (Sprague 1988, 176–7). Contemporary historical records – many of which were brought to light through legal proceedings9 – confirm that colonial ambitions took priority over the respect of Indigenous rights. Described by the Supreme Court of Canada as “fundamentally flawed,” the scrip process allowed unscrupulous land agents and government officials to defraud the Métis. It ultimately contributed to Canada’s failure to carry out the promises made with respect to Métis lands in the Manitoba Act of 1870 (MMF at para 14; RCAP 1996, vol. 4, 208). Despite Canada’s assertion of sovereignty over the North-West, the Métis continued to demand the respect of their rights to land after 1870. The arrival of large numbers of settlers forced the Métis to move further west where they once again petitioned Canada to recognize their land and political rights along the South Saskatchewan River. Métis calls for a political solution to their place within an expanded Canadian state went unanswered as the Canadian government once again sent troops to dismantle Métis resistance efforts. Military confrontations eventually led to the defeat of Métis soldiers by Canadian forces and to the subsequent hanging of their political and spiritual leader, Louis Riel, in 1885. Denied the rights they had

Canada’s Constitutional Relationship with the Métis Nation

33

been promised, the Métis were forced underground and came to be known as what Antoine Lussier and Bruce Sealy (Lussier and Sealy 1975) describe as “Canada’s forgotten people.” The state’s denial of the Métis as a distinct rights-bearing Indigenous nation has had pervasive and lasting consequences on the Métis, especially with respect to land (Chartrand 1991, 459). Research conducted by D.N. Sprague (Sprague 1980, 421), a historian retained by the Manitoba Métis Federation to undertake research into Métis land claims, reveals that virtually all claims to land had been allotted with less than twenty percent leading to Métis ownership of land by the mid-1880s. In addition to being defrauded of their land, the Métis were excluded from “Indian” reserves and were also marginalized from “white” settlements. As the Royal Commission on Aboriginal Peoples acknowledged in its 1996 report, the Métis were forced to squat on the fringes of Indian reserves and white settlements and on road allowances where they were deprived of basic services such as public schooling and medical care insofar as they did not hold title to the land and paid no taxes (vol. 4, 212). Métis claims to address these injustices were dealt with in an arbitrary and partisan manner by the Canadian government (see discussion in Payment 2009, 143, 226–37, Campbell 2012; Shore 2001, 77). It was not until 1982 that a window of opportunity would emerge to revisit the question of the constitutional position of the Métis in Canada.

Striking a New Deal: The Promise of Métis Rights in 1982 The constitutional crisis for national unity in the 1980s marked a critical juncture that allowed the Métis to negotiate a new constitutional deal with Canada. Triggered by the rise of nationalism in Quebec in the late 1960s, the country’s elites embarked in several rounds of macro-constitutional politics to negotiate a new deal that would secure national unity (Russell 1991, 701–2). To this end, the Métis created a national organization, the Native Council of Canada, to advocate for their rights and represent their interests.10 Created on the 85th anniversary of Riel’s death in 1970, the Council called on the government of Canada to address two key issues: the right to self-government and the right to land (Belcourt 2013, 129). Far from new, these demands were similar to those made by

34

Janique Dubois

provisional governments in 1869 and again in 1885. Empowered by the Supreme Court of Canada’s 1973 Calder decision, Indigenous peoples “would now at long last have an opportunity in the widening constitutional debate to insist that they too had a right to be subject to a constitution based on consent” (Russell 1991, 702). As Métis leaders embarked in mega-constitutional politics, there was no master plan as to how to advance their agenda, but there was clarity on the commitment to have their land and political rights recognized in the new constitutional deal (Dubois and Saunders 2017). The continuity of this commitment is captured in an article published in the Métis magazine New Breed in 1978: Riel, Dumont and hundreds of other Métis and Indian people fought at Batoche for the same things we are fighting for today. They wanted recognition as a Nation… Our leaders then, as the ones today, knew that the key to their independence was a land settlement and recognition of the Métis Nation. We must not lose sight of their struggle.11 With this objective in sight, Métis leaders mobilized to ensure the inclusion of their rights under a new constitutional deal. Alongside other Indigenous leaders, the Métis adopted pressure tactics that led to a resolution guaranteeing the inclusion of Aboriginal peoples at all levels of the constitutional reform discussions (Weinstein 2007, 41; Dubois and Saunders 2017). With the support of key federal politicians, they succeeded in having Aboriginal and treaty rights recognized in the January 1981 draft of the constitution (see discussion in Dubois and Saunders 2017). The “Aboriginal rights clause” of the draft constitution listed the Métis as one of Canada’s Aboriginal peoples alongside First Nations and Inuit (see discussion in Belcourt 2013). After more than a century of denial of the Métis as a distinct Indigenous people by the Canadian state, their inclusion in the text of the proposed constitution was a watershed moment (Weinstein 2007, 45; Pulla 2013, 419). Expectations that Métis rights would be recognized in the final draft of the constitution were however put in doubt in April 1981. A letter addressed to the Native Council of Canada by then Minister of Indian Affairs and Northern Development, Jean Chrétien, advised that Métis rights had been extinguished by the scrip process (Chartier 1994, 203; Weinstein 2007, 50). The letter

Canada’s Constitutional Relationship with the Métis Nation

35

suggested that there simply was no political or legal space for a category of Métis rights. This position was taken a step further when the Aboriginal rights clause was dropped from the draft constitution during a secret bargaining session (Hawkes 1985, 154). Alberta Premier Peter Lougheed, leading the opposition to this clause, claimed that he could not support Aboriginal rights since the latter were “undefined” (Weinstein 2007, 52). In subsequent negotiations, Métis leaders engaged with the logic of provincial and federal governments to further their demands (Dubois and Saunders 2017). During a meeting between Premier Lougheed and the Métis Association of Alberta in November 1981, Métis constitutional lawyer, Clément Chartier, argued that there was no risk that this clause would create anything “new” or “undefined” since Aboriginal rights – specifically Aboriginal title – already exist in case law, common law, and statute law (Chartier 2011). The accord that ensued between the government of Alberta and the Métis Association of Alberta restricted Aboriginal and treaty rights to those rights existing prior to the coming into force of the new constitution (Weinstein 2007, 53). This accord provided the basis for the text eventually agreed to in the final draft of the Constitution Act, 1982: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed” (section 35, emphasis added). While the parties agreed to include existing Aboriginal rights into the Constitution Act, 1982, there was no agreement concerning the content of these rights (Hawkes 1985, 154; Pulla 2013, 419; Chartier 1994, 204). For the Métis, existing rights encompassed the inherent rights to govern themselves and their land that had been recognized in 1870; however, as the political adviser to Métis leaders John Weinstein argues, some provinces intended to “use the new wording to restrict the courts’ interpretation of Aboriginal and treaty rights” (2007, 53). The recognition of Aboriginal rights came with a constitutional guarantee of future conferences to define the scope of section 35 rights. Despite promises by Prime Minister Pierre Trudeau to discuss a Métis land base, these issues were never resolved (Chartrand 1991, 458). Described by Métis leader Tony Belcourt (2013, 131) as a “monumental turning point in Métis history,” the constitutional recognition of the Métis was the outcome of a long struggle by Indigenous leaders. As Jean Teillet reminds us, the recognition that the Métis are an

36

Janique Dubois

Aboriginal people should not be interpreted as a new political compromise; instead, it is part of a continuum affirmed by existing statutes, treaties and constitutional documents that have been ignored by successive Canadian governments (2004, 308–9). In 1982, like in 1870, the promise of Métis rights was a part of the minimal consensus required to conclude a constitutional deal. In continuity with the past, the promise of Métis rights in the Constitution Act, 1982 did little to reverse Canada’s legacy of denial towards the Métis. Following the constitutional deal of 1982, the federal government made modest changes to engage with the Métis. A first step in this direction was the creation of the Office of the Federal Interlocutor for Métis and Non-Status Indians in 1985 to provide limited services, most notably to support in enumerating and identifying their constitution rights (see OF I, 2008). Over the last decade, the federal government has also signed a number of agreements with the Métis Nation on areas of mutual interest that have led to a modest expansion in Canada-Métis relations (Dubois 2015). While the negotiation of the constitutional relationship between Canada and the Métis was initially the domain of political elites, conversations about the place of the Métis within Canada’s constitutional landscape have largely been driven by the courts. Over the last 35 years, legal decisions have helped to clarify the constitutional relationship between Canada and the Métis through rulings on the nature and scope of Métis rights. Notable in this regard was the 2016 Daniels decision in which the Supreme Court of Canada confirmed that the Métis do indeed fall within section 91(24) of the Constitution Act, 1867 and are therefore under federal jurisdiction. In so doing, the court recognized that the Métis can turn to the federal government for “policy redress” (Daniels at para 15). This ruling comes in the wake of the 2013 MMF decision that acknowledged Canada’s failure to implement the land grant provisions promised in the Manitoba Act, 1870 in accordance with the honour of the Crown. Read alongside other jurisprudence, such as R. v. Powley that recognizes Métis rights, MMF reaffirms the (unfulfilled) promise of rights at the heart of the constitutional relationship between Canada and the Métis. Despite these developments, Métis rights to land and to selfgovernment remain unfulfilled. In a 2016 report commissioned by the federal government, the Ministerial Special Representative on Reconciliation with Métis, Thomas Isaac, notes a gap in knowledge

Canada’s Constitutional Relationship with the Métis Nation

37

about the status of the Métis and their rights across provincial and state governments. He adds that misconceptions about the Métis are used as justifications in the non-compliance of Métis rights despite the fact that they are unsupported in law (2016, 12). Calling on Métis, provincial and federal governments to work together to implement Métis rights, Isaac argues the contemporary legal and political climate in Canada provides federal and provincial governments with an opportunity to “reconcile” and “re-calibrate” their relationship with the Métis (2016, 5). For Isaac, the promise of Métis rights is not merely a matter of jurisprudence; Métis rights are promises that depend on the actions of political elites.

Reconciliation: Moving from Deal to Deed Reflecting on the 150th anniversary of Confederation, Prime Minister Justin Trudeau stated, “[w]e need to recognize that ours was a nation forged without the meaningful participation of Aboriginal Peoples.” (Trudeau 2015). While Indigenous leaders were noticeably absent from the constitutional conferences that led to the adoption of the Constitution Act, 1867, they were active participants in negotiating the political compromise through which Canada was constituted on the ground. The constitutional relationship between Canada and the Métis that was formed in 1870 and that was renegotiated in 1982 rests of the promise of rights. As Paul Chartrand (1991, 466–7) reminds us: [the story of Métis-Canada relations] is a story that replicates the general subjugation of the Aboriginal peoples by law and policy that occurred everywhere in Canada. Sadly, it is a story that has been ignored or only incidentally snickered at by this country’s traditional storytellers, the historians of our universities. It is also a story that not only depicts the role of the law in the dispossession of a people but also challenges it to play a role in righting a great historical wrong. As part of his electoral platform for “real change,” Prime Minister Trudeau has advanced a discourse that tells a familiar story – a story of a relationship between Canada and the Métis based on the recognition of rights.12

38

Janique Dubois

Prime Minister Trudeau’s words resonate with past the promises made in 1870 and 1982 to build a rights-based constitutional relationship with the Métis. Those periods of constitutional politics resulted in constitutional deals. As the editors remind us in the introduction, some political actors benefit from periods of constitutional politics while others are hurt by them. The Métis sit in both categories. They benefitted from the protection of their rights in the constitutional deal negotiated with Canadian political elites in 1870 and again in 1982, but have been hurt by the ongoing unwillingness of Canadian elites to follow through on this deal. Commenting on Canada’s failure to make good on promises made to the Métis, the Supreme Court of Canada declared in 2013 that “[t]he unfinished business of reconciliation of the Métis people with Canadian sovereignty is a matter of national and constitutional import” (MMF at 140). Since the negotiation of a constitutional deal almost 150 years ago, Canada has repeatedly made empty promises to build a rights-based relationship with the Métis. As Isaac reminds us, “[r]econciliation is more than platitudes and recognition. Reconciliation flows from the constitutionally protected rights of Métis…and must be grounded in practical action” (2016, 3). In 2015, the Truth and Reconciliation Commission outlined 94 Calls to Action to advance the process of Canadian reconciliation with Indigenous peoples. Today, Métis leaders continue to wait for Canadian political elites to take action to give meaning to the promise of Métis rights. In the absence of such action, the constitutional deal made between Canadian and Métis political elites in 1870 and again in 1982 will remained unfulfilled. no t e s 1 “If they are Indians, they go with the tribe; if they are half-breeds they are whites, and they stand in exactly the same relation to the Hudson Bay Company and Canada as if they were altogether white.” Macdonald in Speech before the House of Commons, 6 July 1885, 3113. Accessed 17 July 2017. http://www.collectionscanada.gc.ca/premiersministres/ h4-4090-e.html. 2 See the survey of legislation adopted in the years following Confederation cited in Appellant’s Factum, Court File No. 39545, at para. 20. Accessed 17 July 2017. http://www.scc-csc.ca/WebDocuments-DocumentsWeb/ 35945/FM010_Appellants_Harry-Daniels-et-al.pdf.

Canada’s Constitutional Relationship with the Métis Nation

39

3 Further muddying the waters, some federal policies were specifically aimed at the Métis. For example, Métis land grants outlined in section 31 of the Manitoba Act, 1870 and the scrip system put in place to manage land grants were specific to the Métis as an “Aboriginal group.” See MMF at para 91–5. 4 For a discussion of the Royal Charter, see Gaudry (2016) and O’Toole (2010). 5 A number of scholars have helped to illuminate the internal diversity that existed in Red River and the internal diversity of the Métis Nation (Dickason 1985; Pannekoek 1991; Spry 1985; Chartrand 2004; Foster 2007; Peterson and Brown 1985; O’Toole 2013; Andersen 2014). For the purposes of our discussion here, I refer to the Métis as the distinct people that developed a political consciousness through their political struggles against colonial rule. 6 There were various versions of the List of Rights, see discussion in Begg (1971, 110, 255, 325). 7 Interestingly, this perspective is conveyed in the Canadian Opera Company’s recent adaptation of Louis Riel. Taché explicitly asked Macdonald whether the amnesty would hold in the face of acts committed by the provisional governments to which Macdonald responded in the affirmative. See Select Committee, 1874 cited in Mailhot (1986, 67). 8 For a discussion of the evolution of the troops’ mandate, see Morton (1965, 143). 9 Interestingly, a number of recent court cases, including MMF, Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511, have produced a more in depth body of knowledge on the nature of exchanges made during Confederation and the administration of promises in the years that followed. 10 The Métis joined forces with non-status Indians who stood in a similar position: landless and without federal recognition (Belcourt 2013, 129). The Council’s founding members were the Métis Association of Alberta, the Métis Society of Saskatchewan, the Manitoba Métis Federation, and the BC Association of Non-Status Indians. The Métis would later create a Métis-specific organization, the Métis National Council in 1983. 11 See “Batoche is Significant of Present Situation.” New Breed Magazine (August 1978, 11), Virtual Museum of Métis History website. Accessed 17 July 2017. http://www.metismuseum.ca/resource.php/05162. 12 See “Minister of Indigenous and Northern Affairs Mandate Letter.” Accessed 17 July 2017. http://pm.gc.ca/eng/minister-indigenous-andnorthern-affairs-mandate-letter.

40

Janique Dubois

r e f e r en ce s Andersen, Chris. 2014. “Métis” Race, Recognition, and the Struggle for Indigenous Peoplehood. Vancouver: UBC Press. Aunger, Edmund. 2014. “Pourvoir à ce que les droits acquis soient respectés : la cause Caron et la protection constitutionnelle du bilinguisme officiel dans l’Ouest canadien.” In Le statut du français dans l’Ouest canadien: la cause Caron, edited by Sophie Bouffard and Peter Dorrington, 59–91. Montreal: Éditions Yvon Blais. Begg, Alexander. 1971. The Creation of Manitoba. Toronto: Hunter, Rose and Co. Belcourt, Tony. 2013. “For the Record… On Métis Identity and Citizenship within the Métis Nation.” aboriginal policy studies 2 (2): 128–41. Campbell, Maria. 2012. “Forward.” In Contours of a People: Métis Family, Mobility, and History, edited by N. St-Onge, C. Podruchny, and B. Macdougall, xiii-xxvi. Norman: University of Oklahoma Press. Chartier, Clément. 1994. “Self-Government and the Métis Nation.” In Aboriginal Self Government in Canada: Current Trends and Issues, edited by J. Hylton, 199–214. Saskatoon: Purich Publishing Inc. Chartrand, Larry. 2004. “The Definition of Métis Peoples in Section 35(2) of the Constitution Act, 1982.” Saskatchewan Law Review. 67 (1): 209–33. Chartrand, Paul L.A.H. 1991. “Aboriginal Rights: The Dispossession of the Métis.” Osgoode Hall Law Journal 29 (3): 457–82. Daniels, Harry W. 1979. We are the New Nation: The Métis and National Native Policy. Ottawa: Native Council of Canada. Dickason, Olive Patricia. 1985. “From ‘One Nation’ in the Northeast to ‘New Nation’ in the Northwest: A Look at the Emergence of the Métis.” In The New Peoples: Being and Becoming Métis in North America, edited by Jacqueline Peterson and Jennifer Brown, 19–36. Winnipeg: University of Manitoba Press. Dubois, Janique. 2015. “Federal-Provincial-Métis Relations: Building Multilevel Governance from the Bottom Up.” In Canada: State of the Federation 2013. Aboriginal Multilevel Governance, edited by Martin Papillon and André Juneau, 189–214. Montreal: McGill-Queen’s University Press. Ens, Gerhard J. 1994. “Prologue to the Red River Resistance: Pre-liminal Politics and the Triumph of Riel.” Journal of the Canadian Historical Association 5 (1): 111–23. Friesen, Gerald. 1979. “Homeland to Hinterland: Political Transition in Manitoba, 1870 to 1879.” Historical Papers 14 (1): 33–47.

Canada’s Constitutional Relationship with the Métis Nation

41

Foster, John E. 2007. “The Métis: The People and the Term.” In Western Métis: Profile of a People, edited by P. C. Douaud, 21–30. Regina: Canadian Plains Research Centre. Gaudry, Adam. 2016. “Fantasies of Sovereignty: Deconstructing British and Canadian Claims to Ownership of the Historic North-West.” NAIS. 3 (1): 46–74. Hawkes, David. 1985. “Negotiating Aboriginal Self-Government.” In Canada: The State of the Federation, edited by Peter M. Leslie, 151–72. Kingston: Institute on Intergovernmental Relations. Huel, Raymond. 2003. Archbishop A.-A. Taché of St. Boniface: the ‘good fight’ and the illusive vision. Edmonton: University of Alberta Press. Isaac, Thomas. 2016. “A Matter of National and Constitutional Import: Report of the Minister’s Special Representative on Reconciliation with Métis: Section 35 Métis Rights and the Manitoba Métis Federation Decision.” 14 June 2016. Accessed 17 July 2017. http://www. aadnc-aandc.gc.ca/eng/1467641790303/1467641835266. Lijphart, Arend. 1968. The Politics of Accommodation. Berkeley: University of California Press. Mailhot, Philippe R. 1986. “Ritchot’s Resistance Abbé Noël Joseph Ritchot and the Creation and Transformation of Manitoba.” PhD Thesis, University of Manitoba. Morton, W.L. 1956. Alexander Begg’s Red River journal and other papers relative to the Red River resistance of 1869–1870. Toronto: Champlain Society. – 1965. Manitoba: A Birth of a Province. Altona, Man.: D.W. Friesen for The Manitoba Record Society. Office of the Federal Interlocutor (OFI). 2008. “Evaluation of the Federal Interlocutor’s Contribution Program and Powley: Management of Métis Aboriginal Rights.” Final report, 25 February. Accessed 17 July 2017. http://www.aadncaandc.gc.ca/DAM/DAMINTERHQ/STAGING/ textetext/pwl_110010011946_eng.pdf. – 2010. “The Red River Resistance of 1869–1870: The Machiavellian Moment of the Métis of Manitoba.” PhD Thesis, University of Ottawa. O’Toole, Darren. 2013. “From Entity to Identity to Nation.” In Métis in Canada: History, Identity, Law and Politics, edited by Christopher Adams, Gregg Dahl and Ian Peach, 143–203. Edmonton: University of Alberta Press. Pannekoek, Frits. 1991. A Snug Little Flock: The Social Origins of the Riel Resistance of 1869–70. Winnipeg: Watson and Dwyer.

42

Janique Dubois

Payment, Diane. 2009. The Free People, Li Gens Libres: A History of the Métis Community of Batoche, Saskatchewan. Calgary: University of Calgary Press. Peterson, Jacqueline. 1981. “The People in Between: Indian-White Marriage and the Genesis of a Métis Society and Culture in the Great Lakes Region, 1630–1830.” PhD Thesis, University of Illinois. Peterson, Jacqueline and Jennifer Brown. 1985. The New Peoples: Being and Becoming Métis in North America. Winnipeg: University of Manitoba Press. Pulla, Siomonn P. 2013. “Regional Nationalism or National Mobilization? A Brief Social History of Métis Political Organization in Canada, 1815–2011.” In Métis in Canada:History, Identity, Law and Politics, edited by Christopher Adams, Gregg Dahl and Ian Peach, 397–431. Edmonton: University of Alberta Press. Royal Commission on Aboriginal Peoples. 1996. “Perspectives and Realities.” Volume 4. Accessed 17 July 2017. http://data2.archives.ca/e/ e448/e011188230-04.pdf. Russell, Peter H. 1991. “Can the Canadians Be a Sovereign People?” Canadian Journal of Political Science 24 (4): 691–709. Saunders, Kelly. 2017. “Explaining the Resurgence of Métis Rights: Making the Most of ‘Windows of Opportunity.’” Canadian Public Administration. 60 (1): 48–67. Sealey, Bruce and Antoine Lussier. 1975. The Métis: Canada’s Forgotten People. Winnipeg: Manitoba Métis Federation Press. Shore, Fred. 2001. “The Emergence of the Métis Nation in Manitoba.” In Métis Legacy: A Métis Historiography and Annotated References, edited by L. Barkwell, L. Dorion and D. Préfontaine, 71–8. Winnipeg: Pemmican Publications Inc. Shore, Fred and Lawrence Barkwell. 1997. Past Reflects the Present: The Métis Elders’ Conference. Winnipeg: Manitoba Métis Federation. Sprague, D.N. 1988. Canada and the Métis, 1869–1885. Waterloo: Wilfrid Laurier University Press. – 1980. “Government Lawlessness in the Administration of Manitoba Land Claims, 1870–1887” Manitoba Law Journal 10 (4): 415–41. Sprague, D.N. and R. P. Frye. 1983. The Genealogy of the First Métis Nation: The Development and Dispersal of the Red River Settlement, 1820–1900. Winnipeg: Pemmican Publications. Spry, Irene. 1985. “The Métis and Mixed-Bloods of Rupert’s Land before 1870.” In The New Peoples: Being and Becoming Métis in North

Canada’s Constitutional Relationship with the Métis Nation

43

America, edited by Jacqueline Peterson and Jennifer Brown. Winnipeg: University of Manitoba Press. Stanley, George F. G. 1963. Louis Riel. Toronto: The Ryerson Press. Teillet, Jean. 2004. “Old and Difficult Grievances: Examining the Relationship between the Métis and the Crown.” The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference. 24 (12): 291–323. Trudeau, Justin. 2015. “Real Change: Restoring Fairness to Canada’s Relationship with Aboriginal Peoples,” remarks at the Assembly of First Nations 36th Annual General Assembly, Tuesday, 7 July 2015. Accessed 17 July 2017. https://liberal.ca/justin-trudeau-at-assembly-of-firstnations-36th-annual-general-assembly/ Weinstein, John. 2007. Quiet Revolution West: The Rebirth of Métis Nationalism. Calgary: Fifth House Ltd.

2

Responding to Secession Referenda: Constitutional and Quasi-constitutional Change in Quebec and Scotland François Rocher and Elisenda Casanas Adam

Examples of referenda on secession in advanced liberal multinational democracies, held with the implicit or explicit approval of the central state, are not numerous. In 2014, there was an online referendum in Venice, but the process took place outside the realm of the state. The same year, a non-binding and mostly civil society organized referendum on self-determination was held in Catalonia. On 1 October 2017, a new attempt to hold a referendum on the independence of Catalonia was declared unconstitutional by the Spanish Constitutional Court. The Venetian and Catalan recent cases have in common that their very legitimacy was questioned due to the fact that they did not comply with well recognized and accepted institutional and constitutional designs. On the other hand, Quebec (1980 and 1995) and Scotland (2014) are two cases that deserve particular attention. In both instances, the referenda were organized within accepted institutional frameworks. Moreover, when faced with the secessionist challenge the central government did not attempt to block or question the legality of the referendum before the corresponding supreme court, but instead engaged with the debate on the constitutional future of the sub-state national unit and made promises of constitutional change if citizens decided to stay in the union. Finally, in both cases the No side to secession finally won, albeit by a relatively small margin.

Responding to Secession Referenda: Quebec and Scotland

45

The aim of this chapter is to compare the reforms proposed by the governments of the United Kingdom and Canada both during and following the Quebec and Scottish referenda, how these were carried out, and more specifically to show and explain the differences and similarities between them. Thus, to use the typology presented in the introduction to this book, this chapter focuses on “how” the political dynamic is profoundly transformed by a secession referendum simply because the issue is about both the constitutional future of the constituted state and that of national minorities seeking to free themselves from the tutelage exercised by the political regime in place. In this context, the political discourse mobilizes arguments that appeal both to reason and emotions and that alternately invoke threats and hope, opening up new opportunities for amending the position of the sub-state national unit within the constitutional framework. The analysis of these proposed reforms and of their implementation will allow us to reflect more generally on the role of unsuccessful referenda on secession in providing for constitutional change in multinational democracies, thus contributing to the already rich literature in this area (Qvortrup 2014; Laponce 2012, among others). The chapter is structured in three parts. The first section briefly presents some general theoretical considerations dealing with constitutional challenges posed by autonomist or secessionist initiatives seeking significant constitutional change. These defining moments seek to profoundly transform the power relationship between central authorities and sub-state national units. They represent turning points which give rise to discourses and rhetoric that citizens are not usually exposed to in daily politics, or even during ordinary electoral campaigns. What is at stake is the future of the existing political institutions. In these intense debates, political actors mobilize to an unprecedented level the threat-hope dyad in very different ways. The second and third sections analyze the referenda that were held respectively in Scotland (2014) and Quebec (1980 and 1995). They focus on the specific contexts in which these referenda campaigns took place, shedding light on the political use of threats and hope. Furthermore, they discuss the promises of constitutional reforms that were made and the extent to which they were put in place in the aftermath of these referenda.

46

François Rocher and Elisenda Casanas Adam

1. Secession Referenda, Power Asymmetries and Constitutional Change in Plurinational Systems: The Significance of the Hope-Threat Dyad Among the most important factors affecting the success and survival of federal states is their capacity to respond to change and to the challenges associated with it (Burgess and Tarr 2012). This becomes even more fundamental in the case of plurinational federations or quasi-federations, where change may often come from the ongoing development of the political objectives of the minority nations in their desire to improve their position within the host state. In general terms, the main constitutional aspirations of sub-state national societies in plurinational states can be characterized as autonomy, representation, and recognition (Tierney 2004 and 2005). In other words, sub-state national units want the state constitutional framework to further adapt to and better recognise its minority nations, and to cede more power internally to adjust the position between those nations that have a state and those who do not. The constitutional change desired by the sub-state national units is significantly difficult to achieve (Qvortrup 2014). The constitutional architecture in federal and quasi-federal systems varies substantially, as do their different procedures for constitutional or quasi-constitutional change (Burgess and Tarr 2012; Tierney 2004). However, a common requirement for constitutional change in all systems is that it must respect the framework of the rule of law (Burgess and Tarr 2012; Tierney 2004). This means that any constitutional or quasi-constitutional reform must respect and follow both the procedural and substantive requirements and limits included in the constitution itself. From the procedural perspective, processes for reform of the model tend to include the participation of the sub-state national unit, but any significant reform of the system will tend to require the approval of the central authorities or the rest of the substate units, or both. This means it is very difficult for a single substate national unit to initiate and attain substantial constitutional change without the agreement or at least acquiescence of the rest of the federation. A dispute on how far the federal or quasi-federal model may be reformed to better accommodate the requests of the sub-state national unit may reflect a more general disagreement on the foundations of the state (Tierney 2005; Lerner 2011). As the recent example of Catalonia highlights, these processes may end

Responding to Secession Referenda: Quebec and Scotland

47

up before the relevant constitutional or supreme courts, which are unsuited to provide, unilaterally, a solution to longstanding conflicts between sub-state national minorities and their host state regarding the future of the constitutional framework (Casanas Adam 2017). The obstacles faced by sub-state national minorities when trying to obtain constitutional change may lead to a rise in support for more radical independent state-like options and, as a result, to the request of a secession referendum (Keating 2015a and Tierney 2015b). In this paper we highlight that if such a referendum goes ahead, it temporarily alters the existing context and the power asymmetries between groups and can open up possibilities for reform of the system that would not have been possible before the referendum. As we will explain below, this is due to the significance of the threat-hope dyad used by both sides in the debates and negotiations during the referendum process. This way of perceiving this political issue differs from the traditional cost-benefit approach, which places greater emphasis on the analysis of past experiences to assess the benefits and drawbacks associated with the decision-making process. Here, the notion of risk plays a more important role, helping to give much greater weight to the potential consequences of threats (Radnitzky 1987; Dubé 2012; Tirole 2013). However, as we will also illustrate, when the final outcome of the referendum is a vote against secession, this again alters the power asymmetries between the different groups involved and will condition the constitutional negotiations and reforms that will follow. As a result, an unsuccessful secession referendum can lead to significant constitutional or quasi-constitutional change in a plurinational system, but this may go further than simply affecting the constitutional position of the national minority and may actually consolidate and strengthen the position of the central state in some aspects. It is important, therefore, to distinguish between the analysis of the debates during the referendum process and the negotiations and reforms enacted after the vote. It is possible to argue that the threat-hope dyad is omnipresent in political life. Political debates are also generally marked by the use of threat arguments, emphasizing the risks associated with change, or highlighting improvements that may result from a transformation in policies. This dynamic is exacerbated when the survival of the state is at stake. Political dynamics call for contradictory and irreconcilable arguments. They are invoked in a number of circumstances, be it in relation to the threat posed by a forthcoming referendum, an increase in electoral support for pro-independence political parties, the election

48

François Rocher and Elisenda Casanas Adam

of an autonomist government, a significant increase in support for secession, etc. The constitutional referenda considered in this chapter have characteristics that make the use of the threat-hope dynamic qualitatively different: if the referendum is won by the separatists, then turning back is almost impossible; the promises acquire a solemn status; political actors federate into two clearly defined camps, which makes it possible to put forward credible and respected spokespersons; the interest of voters is increased because the stakes are infinitely greater than those found in ordinary elections, etc. In simple terms, a political process leading to secession poses a clear threat to the security and the stability of the established state, if not the international order. On the other hand, for those members of the minority nation who feel dissatisfied with the options for change within the existing constitutional framework, it offers the hope of a better future as an independent state, and this will be the focus of their campaign. In response, the central state will most likely adopt a strategy of highlighting the risks of secession (economic instability, internal social division, impoverishment, etc.) and threatening the minority nation of a series of retaliation measures. These can take several forms ranging from non-adherence to international organizations, the withdrawal from or non-adherence to international trade agreements, to territorial partition. The central idea is to let minority nation’s citizens know that in case of rupture, the consequences will be unpleasant and hard to bear (Brauch 2011, 62). The goal is to feed the feelings of uncertainty surrounding a potential breakup of the existing constitutional order. The aim is obviously to mobilize voters who are likely to be shaken by the series of unpleasant consequences that can affect them individually, but also collectively (Thórisdóttir and Jost 2011, 786; Miller 2004, 509–10; Carney 2008, 814; Shook and Fazio 2009, 995–6; Jarymowicz 2006, 371–2). From the perspective of social psychology, the emotional dimension – fear, threat, anger, anxiety, loss – outweighs the cognitive dimension based on the ability to assess potential gains deriving either from secession or constitutional change (Capelos 2010, 25–6). In this sense, the status quo has an advantage over change: it offers more familiarity and certainty about the future. The defence of the status quo using fear will more easily gain the support of citizens who display conservative tendencies and are generally more deferential to authority. According to Jost et al.: “stability and hierarchy generally provide reassurance and structure, whereas change and equality imply

Responding to Secession Referenda: Quebec and Scotland

49

greater chaos and unpredictability” (2007, 990). In addition, fear of change promotes mobilization since being involved in a public debate and, more importantly, voting in a referendum can help reduce the threat associated with the change and its unpredictable consequences. The central state will therefore use threats and fear in the referendum debates as a strategy to secure a vote against secession. But uttering threats is often not enough to convince citizens to reject the proposed change (Witte and Allen 2000; Tannenbaum et al. 2015.); an alternative must also be offered that appears preferable to rupture. Hence, threats and fear have to be outbalanced by hope. In the context of a referendum, and in particular in response to a rise in support for secession in the sub-state national unit, the central authorities may then promise further constitutional reforms which they would previously have not accepted in order to avoid the breakup of the state. We saw this in both the cases of Quebec and Scotland. A secession referendum then potentially opens up possibilities for a substantive reform of the model and for improving the position of the sub-sate national unit within the wider state even in the case of a No vote. Here, the cognitive dimension – abstract projection into the future, understanding the issues, evaluation of options – outweighs the emotional dimension – the level of personal or group comfort compared to the old situation. According to Jarymowicz, “hope consists of the cognitive elements of visualizing and expecting, as well as of the affective element of feeling good about the expected events or outcomes” (2006, 372). Thus, in contrast to fear that gives precedence to the affective dimension, hope “is based on higher cognitive processing, requiring mental representations of positively valued abstract future situations and more specifically, it requires setting goals, planning how to achieve them, use of imagery, creativity, cognitive flexibility, mental exploration of novel situations, and even risk taking” (ibid., 373). This promise, however, must appear to be honourable and just in order to be accepted. In other words, it must adequately address the main factors fuelling discontent within the minority nation (Stein 2013, 21–2). Furthermore, the sharing of values and, to some extent, a common identity has the effect of mitigating the threat perception. As emphasized by Rousseau and Garcia-Retamero, “a sense of shared identity decreases threat perception and increases the probability of support for interstate cooperation” (2007, 766). This process plays both ways. Identity proximity between minority and majority nations decreases the likelihood that the realization

50

François Rocher and Elisenda Casanas Adam

of threats leads to a catastrophic situation for both parties. Some restraint is needed. Thus, secessionists and unionists resort to the threat-hope dyad very differently and this will have a significant impact on subsequent constitutional negotiations and change. For the former, the aim is to show that the future of the political community is threatened or that its choices (political, economic, cultural, social, etc.) cannot be met within the political framework of the union. Although a simplification, we can say that the fundamental issue is one of preserving its existence as a political community. Membership within the union is presented either as an impediment to its full development or, in and by itself, as a threat to its identity. Hope lies in the promise of a better future arising from the fact that minority nation citizens will fully control their political institutions and policy instruments. By contrast, for those seeking to maintain the link with the majority nation, the use of threats takes a different form. This is to emphasize the negative consequences resulting from the secession. These consequences are both individual and collective. For individuals, it raises the dangers associated with job losses, potential impoverishment and decrease of income, but also the emotional costs of breaking ties with the nation with which many continue to identify. For example, secession would result in Quebeckers losing their their Canadian identity or Scots turning their backs on a long history of peaceful integration within the uk . At the collective level, it raises issues relating to the transition costs that will affect the new state for a foreseeable future, emphasizing the real likelihood of investment losses, economic instability, negotiating the division of the debt, difficulties relating to the financing of social programs and public policies, security issues, or international recognition. During a referendum campaign, the two dimensions – threats and reform proposals – will be salient in the debate.

2. Constitutional Promises and Changes in Scotland – The 2014 Referendum: Full of Threats and a Final Promise As is well known, the Scottish government held a referendum on Scottish independence in September 2014. The referendum campaign resulted in political discourses by both the Yes and No sides that mobilized the threat-hope dyad. It was also hailed as an example of democratic citizen engagement and participation both during

Responding to Secession Referenda: Quebec and Scotland

51

the process and on the day of the vote, where independence was rejected by a majority of the Scottish people (Tierney 2015). The outcome of the referendum has then given way to a variety of constitutional and quasi-constitutional reforms designed to strengthen the position of the Scottish Parliament and have also affected other nations across the UK. At the same time, however, there have been calls for a new approach to devolution and referenda that better safeguards the integrity of the Union. The developments that have followed the 2016 Brexit vote have also added further uncertainty to the position of the devolved nations in the wider UK Constitutional framework.1 The Scottish National Party first won the elections to the Scottish Parliament in 2007, when it formed a minority government. This victory came as a surprise to many, as polls had consistently shown that the Scottish people’s preference was spread more or less evenly across maintaining the constitutional status quo, an intermediate option of further devolution, and independence (ScotCen 2013). The unionist parties (Labour, Conservatives, and Liberal Democrats) responded by establishing the Calman Commission (Commission on Scottish Devolution) to review the provisions of the Scotland Act 1998 and to recommend any changes to the existing constitutional arrangements that would enable the Scottish Parliament to serve the people of Scotland better. The Commission’s reports (2008 and 2009) made a series of quite limited recommendations, some of which were included in what became the Scotland Act 2012. The understanding was that the development of the model should go no further. The drafting of the 2012 Act by the UK Parliament was largely superseded by the landslide victory of the SNP in the 2011 Scottish Parliament elections, which put independence at the centre of the debates again. The United Kingdom and Scottish governments then signed the “Edinburgh Agreement” on the 15 October 2012, where they agreed to work together so that a referendum on independence could take place. The referendum question was agreed as: “Should Scotland be an independent country? Yes/No.” The two governments involved provided much of the detailed arguments for the organizations recognized to campaign for independence (“Yes, Scotland”), and against it (“Better together”). On the one side, the Scottish government published a white paper (Scotland’s Future. Your Guide to an Independent Scotland) which set out its case for independence (Scottish Government 2013). This

52

François Rocher and Elisenda Casanas Adam

was presented as a means, not an end: “The Scottish Government wants us to have the powers of independence so that the people who live here can build a different and better Scotland (…) and advance our nation as a whole” (Scottish Government 2013, 3). It was also an attenuated form of independence, or also known as “independence-light,” which proposed maintaining significant ties with the rest of the UK in the form of monarchical, monetary (keeping the pound), defence, European, and social unions. In this way, they presented it not as a break from the rest of the UK, but rather a restructuring of their relationship. Much of the focus of the debate was on issues relating to the economy and finance, welfare, defence, and Scotland’s future in the EU (Keating 2015). The Yes side put a strong emphasis on welfare measures, in reaction to the UK Government’s radical austerity reforms of the UK welfare system. The use of the threat-hope dyad can be clearly seen. On the one hand, remaining a part of the UK would mean that many of the negative consequences of this radical austerity would be unavoidable. On the other, the Scottish Government argued that if Scotland became independent it could join the “arc of prosperity” of the small states of North-Western Europe and put forward some of their welfare models as examples. It also argued that with the North Sea oil revenues Scotland would not lose out from the money they get from the UK, and they had specific proposals for military forces and remaining within the European Union. The No side, and in particular the UK Government’s Scotland Analysis Papers (UK Government 2013), were very much focused on stressing the various risks of independence for Scotland. It was therefore a strategy based predominantly on the use of “threats.” On the economic consequences of independence, they argued that an independent Scotland would not be able to pay for its own public services or bail out its banks and that a monetary union with an independent Scotland would not be in the interests of the rest of the UK. In a similar vein, they highlighted the security and defence risks that would result from Scotland becoming independent and the uncertainty of the EU’s position which could leave Scotland at least temporarily outside the Union. Because of their emphasis on the potential negative consequences of independence, the No campaign became known as “project fear.” At the same time the three unionist parties also all developed and presented separate proposals for transferring more powers to

Responding to Secession Referenda: Quebec and Scotland

53

Scotland in the case of a No vote (Scottish Liberal Democrats 2014; Scottish Conservatives 2014; Scottish Labour 2014), offering also some “hope” to the citizens of Scotland who wanted to see some form of constitutional change (McHarg 2014). The boldest was that of the Liberal Democrats, who proposed devolving all income tax and various other specific taxes, and a future federal relationship with the rest of the UK, but significantly, all of them went notably further than the limited reforms that had been agreed after the Calman Commission in 2012. The change in context and power asymmetries generated by the referendum can be clearly observed. Furthermore, in response to a last-minute rise in support for the Yes campaign in the polls, former Prime Minister Gordon Brown intervened to persuade the three parties to adopt a joint position on the reforms that would follow a No vote. In a speech on 8 September, he announced this agreement which he promised would lead to an outcome for Scotland “as close to federalism as possible” in the context of the UK (BBC News 2014). The actual agreement, or “The Vow,” was published on the cover of a well-known Scottish newspaper on 15 September, declaring that “The Scottish Parliament is permanent and extensive new powers will be delivered by the process and to the timetable agreed and announced by our three parties (…). A NO vote will deliver faster, safer and better change than separatism” (Daily Record 2014). The timing of “The Vow,” published four days before the referendum and when the postal votes had already been cast, was notably controversial. The final result gave the victory to the No side by 55% to the 45% of people that voted Yes with the highest for any UK electoral event (84.5%). The change in tone in David Cameron’s speech after the referendum results were made public is clearly perceptible. Here again, the change in context and power asymmetries once the threat of independence is gone becomes evident. After announcing how delighted he was, Cameron declared that “it is time for our United Kingdom to come together, and to move forward. A vital part of that will be a balanced settlement – fair to people in Scotland and importantly to everyone in England, Wales and Northern Ireland as well” (Prime Minister’s Office 2014). While he stated clearly that the promises made to Scotland would be fulfilled, he also seemed to tie this process to the enactment of wider reforms across the UK: “It is absolutely right that a new and fair settlement for Scotland should be accompanied by a new and fair settlement that applies to all parts

54

François Rocher and Elisenda Casanas Adam

of our United Kingdom” (Prime Minister’s Office 2014). His speech paid special attention to England, which is generally considered to be the key concern in relation to the wider devolution framework. This can be seen as a response to a hardening in public opinion in England in relation to Scotland, sparked by the referendum, and in particular to the belief of some English members of the Conservative Party that too many concessions had been made to Scotland (Keating 2015). There were also similar reactions from the representatives of the other devolved nations, stating that any change could not be a matter simply of the prime minister or the cabinet to determine with some interaction from the Scottish government, but was a matter for the UK as a whole (Owen 2014, Wright and Saul 2014). A series of constitutional and quasi-constitutional reforms followed the referendum. In relation to Scotland, the establishment of the Smith Commission led to the initiation of a cross-party process directed at rapidly reaching an agreement and enacting draft legislation, which became the Scotland Act 2016 (Boyle and Tierney 2014; Curtice 2015). Most notably, the new Act provided that the Scottish Parliament and the Scottish Government are a permanent part of the United Kingdom’s constitutional arrangements and that they are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum (Sec 1). It also gave a statutory basis to the Sewel Convention, which provides that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament (Sec 2). Together with providing stronger legal guarantees for the devolved institutions, it devolved new powers in relation to important areas such as taxation and welfare. However, when scrutinized in detail, these provisions included numerous legal and practical restrictions and qualifications which would limit the potential for bold action by the devolved institutions (McHarg 2016). For example, the argument remains that under UK constitutional law the UK Parliament could still legally abolish its Scottish counterpart in exercise of its parliamentary sovereignty (Himsworth 2016; McHarg 2020). Concerns were also raised about the uncertain legal consequences of recognising the Sewel Convention in the statute as such (Himsworth 2016). These were confirmed shortly after by the Supreme Court of the United Kingdom in the Miller case, where it ruled that this did not make the convention into law and therefore legally enforceable (2017 UKSC 5; McHarg 2018). These reforms

Responding to Secession Referenda: Quebec and Scotland

55

were thus less significant than those that had been originally promised in “The Vow.” In relation to the rest of the UK, the Conservative government brought forward proposals for English votes for English laws (EVEL), which resulted in changes to the Standing Orders of the House of Commons, allowing some consideration of legislation to be conducted and voted separately by English (or English and Welsh) MPs. In addition, as an alternative to an English parliament or regional English parliaments, the Cities and Local Government Devolution Act 2016 provided for “devolution deals” to be made between the UK government and local authorities. A new Wales Bill was also presented, which became the Wales Act 2017. This Act brought the structure of devolution in Wales closer to that in Scotland and transferred important new powers to the Welsh Assembly and Government. As had been promised by David Cameron, the reforms that followed the 2014 independence referendum went further than simply amending the devolution settlement for Scotland. More generally, the referendum and developments that followed sparked concerns about the overall development of the model of territorial organization and the need for stronger safeguards for the Union. A report prepared by the House of Lords Select Committee on the Constitution on “The Union and Devolution” argued that the “haphazard approach to the UK’s constitution in which power has been devolved without any counterbalancing steps to protect the Union, recently culminated in an existential threat in the form of a referendum on Scottish independence. (…) Should any proposals for further devolution arise in the future, they should be considered within the appropriate framework of the constitutional principles that safeguard the integrity of the Union” (HLSCC 2015, 3). The report also called for the regulation or further limitation of the possibility of Scotland (or another nation) holding another independence referendum, highlighting that “provision for any future referendum on an issue as fundamental to the Union as the secession of one of its four nations should be set out in primary legislation by the UK Parliament.” (HLSCC 2015, 4). Similar calls also came from the academic sphere (Barber 2014; Cowie 2016). As a result, it seems that another consequence of the 2014 independence referendum is that it may be more difficult for Scotland or one of the other devolved nations to hold another referendum or to secure further constitutional reforms in the future.

56

François Rocher and Elisenda Casanas Adam

As the Scottish referendum is still quite recent, its full constitutional impact remains to be seen. Moreover, as of 23 June 2016 the focus of constitutional debates has shifted very much to the outcome of the EU membership referendum vote and to the internal and external dimensions of negotiating and implementing Brexit (as examples, Public Law 2017; Young 2017). The UK government’s lack of consideration for, and involvement of, the devolved governments in this process has also put into question whether the reforms that followed the 2014 referendum actually strengthened the constitutional position of Scotland and the other devolved units (McHarg 2019; Tierney 2019). In relation to Scotland, where a majority of citizens voted to remain, the UK government refused to consider proposals for a “differentiated Brexit” and for a second independence referendum which could allow Scotland to remain in the EU (Lock 2018; McCafferty 2018). It was also in this context where the Supreme Court of the United Kingdom ruled that the Sewel Convention as recognised in the Scotland Act 2016 was not legally enforceable in the Miller case. The United Kingdom Parliament then, for the first time, enacted the European Union (Withdrawal) Act 2018 without Holyrood’s legislative consent, reflecting an ongoing conflict over how the competences that the UK will be regaining from the EU will be exercised. The Scottish Parliament also passed its own EU Continuity Bill, to regulate the impact of Brexit on Scots Law, which was referred by the UK government to the Supreme Court of the United Kingdom which ruled that the Bill had been largely within devolved competence at the time of the referral, but declared it mostly ultra vires when the decision was reached, as it was then inconsistent with the UK Parliament’s own recently enacted Withdrawal Act (McHarg and McCorkindale 2019). Overall, the process leading up to the 2014 referendum highlighted that a majority of Scottish citizens were dissatisfied with the existing devolution framework, even after the 2012 Act. Of these, a significant number were persuaded by the Scottish Government’s vision of an independent Scotland, bringing support for the Yes side up to unprecedented levels. Finally, a combination of factors persuaded a majority to vote No: the hope that an improved form of self-government could be articulated within the United Kingdom; a degree of fear at the risks of independence; and the desire to maintain the wider ties with the rest of the United Kingdom. As a direct consequence of Brexit,” there is still a strong possibility that the

Responding to Secession Referenda: Quebec and Scotland

57

Scottish Government will attempt to hold a second independence referendum once the terms in which the UK will be leaving the EU are clear. How the reforms and reactions that followed the 2014 referendum will affect this second process remains to be seen.

3. Constitutional Promises and Changes in Quebec – the 1980 and 1995 referenda The Quebec government has held two referenda in order to achieve sovereignty, the first in 1980 and the second in 1995. On both occasions, the referendum campaigns gave way to political discourses which mobilized the threat-hope dyad. Nevertheless, in both cases, the Quebec population rejected the sovereignty proposal. The two referenda were democratic and fed by lively public debates involving all political parties, provincial and federal. After each of the referenda, significant changes were made to the Canadian institutional setting. The patriation of the Constitution in 1982 cut the colonial ties with London that had previously defined Canada and was accompanied by significant constitutional amendments. The 1995 federalist victory helped to create a new legislative and judicial framework which would limit Quebec’s ability to hold a third public consultation on the sovereignty issue. The Canadian political system was profoundly transformed and strengthened its control over the dissident state (Laforest 2004: 334). The 1980 Referendum: Full of Promises and Threats

The Parti Québécois (PQ) was, for the first time in its history, elected into government in 1976. It surprised all observers given the fact that independence was not a popular option among Quebeckers (Croisat, Petiteville and Tournon 1992, 43). At the same time, the governing federal Liberal Party of Canada (LPC) was also proposing to patriate the Constitution and to entrench a domestic amendment formula. To the PQ, this presented a threat to Quebec’s political autonomy within the Canadian federation. The government, then led by the Liberal Party of Canada (LPC), reacted to the unexpected election results by creating a working group comprised of senior officials dedicated to promoting national unity (Marsolais 1995, 63–4). It published a report in 1979, which

58

François Rocher and Elisenda Casanas Adam

concluded that Canadian federalism needed to be restructured to accommodate both regional differences and Canadian duality. The report’s proposed solutions included the decentralization of central government by reducing its spending power, and the adoption of an asymmetric approach towards the different provinces to preserve Quebec’s distinct character. Other proposals touched on reforming institutions like the voting system, the Senate and the supreme court. In short, the group was in favour of a conciliatory approach towards the provinces, particularly Quebec (Burelle 2002). This report provided hope for a possible reconciliation between Quebec’s aspirations and Canada’s need for political renewal. At the end of 1979, the Quebec government published its intentions in a white paper entitled Québec-Canada: A New Deal. The Québec Government Proposal for a New Partnership Between Equals: Sovereignty-Association (Québec 1979). As its title suggests, the government proposed a revised relationship between Quebec and Canada. Interestingly, the approach presented the current situation as one in which one order of government dominates the other and put forward an alternative that would not radically break with the well-established economic, social, and cultural relations (Québec 1979, 47). In short, “sovereignty-association” would increase the autonomy of the Quebec state, but abdicate part of sovereignty in order to maintain economic ties with Canada. The new association would involve the free flow of goods and people and a shared transport system, labour market, and monetary union. The government proposed the creation of new joint institutions such as a community council, a commission of experts, a court of justice, and a monetary authority. In 1980, the government of Quebec proposed an advisory instead of a ratification referendum.2 This step would come later, after the negotiations. In this new context, the unionist provincial party, the Quebec Liberal Party (QLP) had to propose an alternative and it unveiled its position on constitutional reform in February 1980 (Quebec Liberal Party 1980). It asserted the Quebeckers’ right to control their future. It favoured patriating the Constitution and introducing an amendment formula that would grant veto power to each region of Canada, including Quebec. It was also in favour of entrenching a Charter of Rights and Freedoms in the new Constitution. The Paper proposed substantial changes to the division of legislative powers, controls over federal spending power and replacement of the Senate by a

Responding to Secession Referenda: Quebec and Scotland

59

Council of the Provinces comprised of province-appointed members. QLP referendum campaigners prepared a platform based on reforming Canadian federalism (Ryan 1995, 127) that rejected both the status quo and sovereignty. It emphasized the need for a fundamental constitutional reform (hope) while insisting on the costs associated with breaking the union between Quebec and Canada (fear and threats). The referendum campaign was officially launched on 15 April 1980, and the vote was to take place on 20 May. But the debates began well before. In the course of the campaign, the PQ emphasized the negative effects of federalism and the advantages of sovereignty. QLP was opposed to the question’s wording, calling it ambiguous, unclear, hypocritical, vicious, dishonest and therefore unacceptable. They disagreed with the wording because it failed to mention that a positive vote would break ties with the central government. They were also opposed to how the concept of economic association was presented, labelling it fraudulent (Bélanger, Jones and Vallières 1994, 37). For the most part, the campaign focused on the issue of sovereignty, despite the fact that the referendum question was to decide whether or not to grant Quebec the mandate to negotiate the terms of sovereignty-association. Sovereignty was to be decided after negotiations in a second referendum. Opponents of sovereignty acted as if a Yes vote would allow the government of Quebec to achieve its objective immediately. The Yes strategies focused on general positive themes such as continuity, solidarity and the equality of the two founding peoples. Themes associated with the collective identity of Quebeckers featured prominently and included reminders of the struggles for autonomy waged by previous governments and of the need to guarantee the future through sovereignty-association. Partisan speeches were made almost directly from the White Paper, and emphasized Quebec’s continued political affirmation. The Yes camp criticized federalism (presented as a structure of inequality and injustice for Quebeckers) and explained the advantages and the details of the sovereignty-association project while maintaining that Quebec had all the resources and skills necessary to take charge of its future (Monière 1980, 101–7). The No forces sought to remove the secessionist monopoly over the Quebec identity by emphasizing that a person can identify as both a Quebecer and a Canadian. Moreover, the many constitutional

60

François Rocher and Elisenda Casanas Adam

reforms proposed by both the federal Commission on National Unity and the QLP constitutional platform emphasized that a No vote was to be interpreted in favour of constitutional reform. Six days before the vote, the prime minister of Canada delivered a major address along the same lines: The Government of Canada and all the provincial governments have made themselves perfectly clear. If the answer to the referendum question is NO, we have all said that this NO will be interpreted as a mandate to change the Constitution, to renew federalism. (…) I know that I can make a most solemn commitment that following a NO vote, we will immediately take action to renew the Constitution and we will not stop until we have done that. And I make a solemn declaration to all Canadians in the other provinces, we, the Québec MPs, are laying ourselves on the line, because we are telling Quebecers to vote NO and telling you in the other provinces that we will not agree to your interpreting a NO vote as an indication that everything is fine and can remain as it was before. We want change and we are willing to lay our seats in the House on the line to have change. (Trudeau 1980) With a promise of change, the No forces, supported by the Canadian prime minister and other provincial premiers, reiterated their refusal to negotiate the terms of the association and the dismantling of Canada if the Yes forces won. Backed by employer associations, the No forces also waged a fear campaign, suggesting that Quebec would not be able to afford its social security responsibilities, that it would have to raise taxes, that the elderly would lose their old age pensions, that the unemployed would lose their benefits, etc. Thus, political actors supporting the No invoked both arguments calling for hope (constitutional renewal) and threats (refusal to negotiate in the event of a Yes victory, economic instability, social division, loss of power). On 20 May 1980, nearly 60% of electors voted No. The defeat of the PQ’s position in the May 1980 referendum allowed the central government to interpret the results of the public consultation in the ways it wanted. It tried to come to an agreement with the provinces, but did not succeed. After trying to patriate the Constitution unilaterally, the Supreme Court of Canada told central government that

Responding to Secession Referenda: Quebec and Scotland

61

“the agreement of the provinces of Canada, no views being expressed as to its quantification, is constitutionally required (…) and that the passing of this Resolution without such agreement would be unconstitutional in the conventional sense” (Supreme Court of Canada 1981). As a result, the Canadian prime minister was forced to convene a round of negotiations with the provinces in November 1981; the negotiations ultimately led to an agreement between the central government and all provinces, except Quebec (for a multifaceted analysis of the patriation, see Rocher and Pelletier 2013). The Constitution was patriated with the consent of all provinces except Quebec. After years of effort, the Canadian prime minister had achieved his goal. The Constitution Act, 1982, included a Charter of Rights and Freedoms, a constitutional amendment procedure (five different formulas related to different subjects), and requirements with respect to the rights of aboriginal peoples and equalization. The general amendment formula, which required the support of seven provinces (representing at least 50% of the population), ensured that Quebec would not have veto power, particularly on any future constitutional amendment regarding the division of powers. The section on minority language education rights helped improve access to the Quebec network of English public schools and reduced the impact of several provisions of the Charter of the French Language, adopted by the government of Quebec in 1977. In addition, the Canadian Charter changed the organization of authority between levels of government by establishing mobility rights to the extent that it would be more difficult for provinces to defend interprovincial non-tariff barriers to protect their local workforce (Woehrling 1985; Jackman 1985). Section 92A of the BNA Act, which deals with non-renewable natural resources, forest resources, and hydroelectric energy, was also amended. The provinces would still own these resources, and be in charge of their exploitation, conservation, management, and export, but they would no longer be allowed to sell them at different prices to different provinces. In short, the constitutional reform of 1982 altered the balance of power in favour of the central government despite the promises made in the debates surrounding the referendum. This would affect the possibility of promoting constitutional changes in response to a new secessionist threat. In an analysis published shortly after the patriation, Canadian political scientist Donald V. Smiley stated that the 1982 constitutional reform was part of a much larger project of the Liberal Party

62

François Rocher and Elisenda Casanas Adam

of Canada (LPC), returning to power in 1980, to promote the country’s unity and the central government’s ascendancy as a legitimate voice for all Canadians. He concluded as follows in relation to the 1982 constitutional reform: “an exercise in constitutional review and reform whose alleged objectives were to create more harmonious relations between Quebec and the wider Canadian community has involved a betrayal of the Quebec electorate, a breach of fundamental constitutional convention, a recrudescence of Quebec nationalism, and an even more serious Quebec challenge than before to the legitimacy of the Canadian constitutional order” (ibid., 78). The defeat of the 1980 Quebec Referendum was credited to a misrepresentation brought forth in Pierre Elliott Trudeau’s speech and federalism reform proposals made during the referendum campaign. This partially explains the subsequent breach of trust between the Quebec electorate and the federal Liberals. Quebec was weakened politically – the idea of renewed federalism, originally presented as a step in the direction of decentralization, morphed into a more centralized Constitution (Rocher 2012). The 1995 Referendum: Full of Threats, Few Promises

Quebec’s second referendum took place in a very different political context from that of 1980. Not only had Canada adopted a new constitution, but it had gone through two rounds of constitutional negotiations in an effort to bring Quebec into the constitutional fold. Both attempts failed. In addition, in the 1993 federal election, the Bloc Québécois (BQ), a separatist party, was able to elect enough members to claim the title of “Her Majesty’s Loyal Opposition.” The introduction of two bills preceded the 1995 referendum campaign. The first, entitled Draft Bill on the Sovereignty of Quebec, described the attributes of sovereignty. Article 1 is short and clear: “Quebec is a sovereign country” (Québec 1994). Unlike the approach used in 1980, the rest of Canada would be offered economic association, but it was no longer a condition for sovereignty. Article 2 states that the Quebec government would be authorized to conclude an agreement to maintain economic association with Canada. The question was stated (Article 17) as follows: “Are you in favour of the Act passed by the National Assembly declaring the sovereignty of Quebec?.” Tensions between sovereignists forced a major readjustment. Thus the idea of making a partnership offer

Responding to Secession Referenda: Quebec and Scotland

63

with content known prior to the referendum was put forth in the second bill introduced by the government: Bill 1, An Act Respecting the Future of Québec (Quebec 1995). Three parties, the PQ, the federal Bloc Québécois (BQ), and the Action démocratique du Québec (ADQ – an autonomist party represented by a single member of the National Assembly), signed an agreement that lead to the referendum. On 20 September, the National Assembly finally drafted the following question: “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 12 June 1995?” The referendum was scheduled for 30 October. The arguments put forth during the 1980 campaign were raised for a second time in 1995. The Yes campaign revolved around the Quebeckers’ right to decide their future, and the claim that remaining within Canada would result in a withering of Quebec identity. After witnessing the central government’s broken promises, the 1982 patriation and Canada’s refusal to recognize Quebec as a distinct society, Quebeckers felt that the alternative to sovereignty was to do nothing and maintain the constitutional status quo. Moreover, the sovereignist forces favoured the maintenance of the welfare state and supported the need to humanize capitalist initiatives through state initiatives and regulations contrary to the neoliberal turn which was said to have been favoured by the central government (Gagnon and Lachapelle 1996, 181). The federalists concentrated on the economic costs of sovereignty and attacked the credibility of the economic association. According to a document released by Ottawa’s Privy Council, an independent Quebec would be one of the most indebted countries in the world, its deficit would explode, and it would be in a weakened position among its trading partners (Cardinal 2005, chap. 10). For the No side, and after the failure of two constitutional rounds to accommodate Quebec, it was impossible to centre the campaign theme on renewed federalism. Consequently, the QLP refrained from taking a constitutional standpoint (Monière 1995, 72–3). Several opinion polls began to show the Yes in the lead, provoking the prime minister of Canada, who remained on the sidelines during the campaign, to intervene. Six days before the vote, the prime minister gave a speech in Montreal (Verdun) before 12,500 people, where he explained that a Yes victory would have disastrous consequences for Quebec and the

64

François Rocher and Elisenda Casanas Adam

central government was ready, contrary to anything that had been said thus far, to reject the constitutional status quo. After recalling Canada’s grandeur and Quebeckers’ role in its creation, he stated: Through the course of this campaign, I have listened to my fellow Quebeckers, and I have heard them say how deeply attached they are to Canada. However, they also indicated they would like to see this country change and evolve to meet their aspirations. They want to see Quebec recognized in Canada as a distinct society by its language, culture and institutions. I said and I repeat: I agree. [...] Voting NO means rejecting separation. It does not mean that we give up anything regarding the Canadian Constitution. (our translation) (Chrétien 2010, 405–6) The next day, 25 October, in a televised speech to the nation, he further specified: And I repeat tonight what I said yesterday in Verdun. We must recognize that Quebec’s language, its culture and institutions make it a distinct society. And no constitutional change that affects the powers of Quebec should ever be made without the consent of Quebeckers. And that all governments – federal and provincial – must respond to the desire of Canadians – everywhere – for greater decentralization (quoted in Young 1999, 36). While polls conducted towards the end of the referendum campaign indicated a Yes victory (53%), sovereignty for Quebec was rejected by a very small majority (1.16%), with 50.58% voting No, with an impressive turnout level – 93.52% of Quebeckers voted in the referendum. Like in 1980, those who voted No were still not in support of the constitutional status quo. More than three quarters of them (77%) claimed they wanted to first express their support for constitutional changes. After the failure of the Meech Lake and Charlottetown accords, only 20% supported the status quo (Pinard 1997, 281). The narrow victory of the No side was a shock to Canadians, who only barely missed seeing their country dismembered. The federal Liberals were blamed for their weak strategy. In Canada, observers

Responding to Secession Referenda: Quebec and Scotland

65

noted that the Quebec federalists’ victory should not result in opening constitutional talks benefiting Quebec. Many demanded stronger regulations on the holding of another referendum and the conditions of sovereignty. New rules were called for concerning the legality of declaring unilateral independence: the amendment formula to be used; the requirement to obtain majority support from First Nations to separate, border delimitation; the validity of the question; and the calculation of a super majority (excludes a vote of 50% plus one). In short, many Canadians felt that the rules governing the secession of Quebec should no longer be defined exclusively by Quebeckers (Monahan, Bryant and Côté 1999). Several called for stronger control by the Canadian state over the Quebec referendum process. The central government adopted a number of initiatives that would fulfill its campaign promises. These changes were, however, not constitutional. On 27 November 1995, the prime minister of Canada announced he would: table a motion in the House of Commons that would recognize Quebec as a distinct society within Canada that includes its French-speaking majority, unique culture, and its tradition of civil law; introduce a bill that would require Quebec’s consent before the government of Canada can propose any constitutional amendment in parliament and guarantees Quebec a veto; and withdraw the government of Canada from labour market training. These initiatives were part of an effort to appease Quebec (Dunsmuir and O’Neil 2000). In addition, funds would be allocated to promoting the central government’s image in Quebec through a “sponsorship program” for sporting and cultural events (Gagnon and Hérivault 2008). This was part of a strategy to present a positive image of Canada and its government. In late August 1998, the Supreme Court of Canada went public with its Reference re Secession of Quebec. The court argued that Quebec could not unilaterally secede according to the constitutional amending procedure. Nonetheless, it added that the democratic legitimacy on the secession initiative also reflects Canada’s constitutional duty to negotiate to the point where “the continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada” (par. 92, also see par. 104). Finally, the court stated that Quebec could make a unilateral declaration of independence, leading de facto to secession. The success of such an approach would depend on the international

66

François Rocher and Elisenda Casanas Adam

community’s reaction, for it would be the judge of the parties’ good faith during negotiations. The central government, pleased with the Reference, tabled the Clarity Act, which received Royal Assent on 29 June 2000. The law had only three articles. The first states that the Canadian government would decide whether the question was clear before holding a referendum, specifically disqualifying the questions asked in 1980 and 1995, and would refuse to negotiate if the question was found to be ambiguous. The second focuses on the central government’s power to determine, after the referendum, if a clear majority was obtained before beginning negotiations (depending on the size of the majority, participation rates, and “any other matters or circumstances it considers to be relevant”). Furthermore, if negotiations needed to take place, they should cover “the terms of secession that are relevant in the circumstances, including the division of assets and liabilities, any changes to the borders of the province, the rights, interests and territorial claims of the Aboriginal peoples of Canada, and the protection of minority rights” (Canada 2000). The third prohibits the use of a unilateral declaration of independence and serves as a reminder that the secession of a Canadian province would require a constitutional amendment. Both Quebec referendums showed that a strong majority of Quebeckers were very unhappy and frustrated with how Canadian federalism was operating, Quebec’s place within Canada, and the limited opportunities for reform, but nevertheless they continued to feel a strong attachment to Canada as a country, and the values and identity that shape it. Protagonists in favour of breaking away from the status quo needed to demonstrate that their project was not only legitimate, but it also met the requirements for a new viable state, from which all citizens would benefit. On the other hand, those opposing independence had to demonstrate that the Canadian constitution was not a straightjacket and could be changed in order to accommodate Quebec. While a majority of Quebeckers wanted to see changes made without separating from Canada, many of them believed these promises. Despite these promises and as a direct result of these referenda, changes have rather consolidated and strengthened the Canadian central institutions. The failure of 1980 was followed by the repatriation and amendment of the Canadian Constitution, which significantly limited a Quebec government’s authority over cultural

Responding to Secession Referenda: Quebec and Scotland

67

identity, namely its language policy. In addition, the new Constitution has shown no openness to recognizing Quebec as a distinct society. In fact, it is quite the opposite. The failure of 1995 led to the government of Canada’s legislative, and judicial, regulation of the referendum process. Finally, both Quebec referendums have significantly limited the Quebec government’s room to manoeuver on constitutional change. The use of administrative measures is preferred to address challenges related to the management of Canada’s current federal affairs. As such, through the 1996 Act Respecting Constitutional Amendments, adopted by Parliament of Canada, Quebec was granted a veto. Ten years later in November 2006, a highly symbolic and non-binding resolution in the House of Commons recognized that “the Québécois form a nation within a united Canada.” Out of respect for provincial jurisdiction, Quebec’s political elites relied on the good faith of the central government. In its absence, the courts are called upon to make a decision (a process that is accompanied by invariable uncertainties). The two referendum defeats created more losers than expected: hopes were also dashed for Quebec federalists who were seeking changes to Canadian political institutions. It would be incorrect to pretend that threat won over hope strategies. Nevertheless, threat played a significant role in both referenda while hope had been easily dismissed in the name of political stability, the complexity associated with change, and the difficulties associated with agreeing on divergent, if not incompatible, political interest between majority and minority nationalisms.

Conclusion The cases of the secession referendum held in Scotland in 2014 and those held in Quebec in 1980 and 1995 present notable similarities from the perspective of the aspects considered and confirm the argument put forward in this paper. In each of these cases, there was a generalized discontent in the minority nation with the wider constitutional framework, but they could not unilaterally initiate a process of constitutional change with real chances of success. The holding of a secession referendum then altered the context and power asymmetries between the minority nations and the majority nation and opened up possibilities for reform that would not have been possible

68

François Rocher and Elisenda Casanas Adam

before in the case of a No vote. Again, in each of these cases, this was the result of the mobilization of the threat-hope dyad by both sides in the debates and negotiations during the referendum process. In all three referendums analyzed, the citizens of the minority nation posed with the option of secession voted against it, albeit by a small margin. But it cannot be said that the threats or fear won over hope, as in each case the central authorities had made promises for further reforms to improve the position of the minority nation within the wider constitutional framework if they voted to remain in the union. However, in all three cases, it is also clear that the context and power asymmetries between groups changed again after the victory of the No vote, and after the significant weakening (although circumstantial and temporary) of the secessionist threat. This in turn affected the implementation of the reforms promised and opened up the possibility for further reforms that would strengthen the position of the central authorities and limit the possibilities for further secession referendums in the future. As highlighted in the introduction, examples of secession referenda in advanced liberal multinational democracies held with the explicit or implicit approval of the central state are not numerous. The cases analyzed in this article then provide us with valuable insight into the wider constitutional impact of secession referendums in the case of a negative vote. While the Scottish referendum is still quite recent and therefore its full constitutional impact remains to be seen, some initial conclusions can be drawn from the above analysis. Firstly, even if the minority nation loses it, the holding of a secession referendum can serve to alter (positively or negatively) its constitutional position within the wider constitutional framework. At the same time, and because of the serious threat such a referendum poses to the constitutional order, it  will also tend to  lead to wider constitutional reforms or approaches directed at strengthening the position of the central authorities and therefore reinforcing the already existing power asymmetries within the system. As a result, the constitutional reforms that follow a secession referendum can be a double-edged sword for the minority nation involved. What is evident overall is that a secession referendum will have a significant impact on the existing constitutional order, sparking different and sometimes conflicting processes of constitutional change, which should not be underestimated.

Responding to Secession Referenda: Quebec and Scotland

69

no t e s 1 The citizens of the United Kingdom voted by a majority of 52% in favour of the UK withdrawing from the European Union (informally known as Brexit) in a referendum held on the 23 June 2016 by the UK Government. 2 The referendum question, including its long preamble, reads as follows: “The Government of Québec 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 Québec 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; no change in political status resulting from these negotiations will be effected without approval by the people through another referendum; on these terms, do you give the Government of Québec the mandate to negotiate the proposed agreement between Québec and Canada?”

r e f e r e n ce s Barber, N. 2014. After the Vote: Regulating Future Independence Referendums. UK: Constitutional Law Association Blog. BBC News. 2014. Scottish Independence: Brown Sets Out More Powers Timetable. Bélanger R., R. Jones and M. Vallières. 2002. Les grands débats parlementaires, 1792–1992. Sainte-Foy, QC: Presses de l’Université Laval. Burelle, A. 2002. “Un prophétisme à découvrir, celui de la Commission Pepin-Roberts.» In Le débat qui n’a pas eu lieu : la Commission Pepin-Robarts, quelque vingt ans après, edited by J.P. Wallot, 13–27. Ottawa, Presses de l’Université d’Ottawa. Burgess, M. and A. Tarr. 2012. Constitutional Dynamics in Federal Systems. Sub-national Perspectives. Montreal: McGill-Queens University Press. Canada. 2000. Clarity Act S.C. 2000 c. 26. Campbell, Sir Menzies. 2014. Campbell II. The Second Report of the Home Rule and Community Rule Commission. Edinburgh: Scottish Liberal Democrats Capelos, T. 2010. “Feeling the Issue: How Citizens’ Affective Reactions and Leadership Perceptions Shape Policy Evaluations.” Journal of Political Marketing 9, (1): 9–33.

70

François Rocher and Elisenda Casanas Adam

Cardinal, M. 2005. Point de rupture. Québec/Canada. Le référendum de 1995. Montréal: Société Radio-Canada-Bayard. Carney, D.R., J.T. Jost, S.D. Gosling, and J. Potter. 2008. “The Secret Lives of Liberals and Conservatives: Personality Profiles, Interaction Styles, and the Things They Leave Behind.” Political Psychology 29 (6):807–40. Chrétien, J. 2010. “Jean Chrétien.” In Les grands discours de l’histoire du Québec, edited by P. Terrien, 401–7. Québec: Presses de l’Université du Québec. Commission on Scottish Devolution. 2008. The Future of Scottish Devolution Within the Union: A First Report. – 2009. Serving Scotland Better: Scotland and the United Kingdom in the 21st Century. Croisat, M., F. Petiteville and J. Tournon. 1992. Le Canada, d’un référendum à l’autre. Les relations politiques entre le Canada et le Québec (1980–1992). Grenoble: Association française d’études canadiennes. Cowie, G. 2016. ‘‘Scotland and a Second Independence Referendum – The Obstacles and Challenges and the Comparative Solutions.’’ UK Constitutional Law Association Blog. Curtice, J. 2015. Scotland ‘One year On’: The Legacy of the Independence Referendum. Discussion Paper. International Public Policy Institute. University of Strathclyde. Daily Record. 2014. The Vow. Date accessed: Accessed 9 June 2020. https://www.dailyrecord.co.uk/news/politics/david-cameron-edmiliband-nick-4265992  Dunsmuir, M. and B. O’Neil. 2000. Analyse du contexte dans lequel a eu lieu le dépôt du projet de loi C-20, Loi sur la clarté. Ottawa: Bibliothèque du Parlement, Service de recherche. Gagnon, A.-G. and G. Lachapelle. 1996. “Québec Confronts Canada: Two Competing Societal Projects Searching for Legitimacy.” Publius 26 (3) : 177–91. Gagnon, A.-G. and J. Hérivault. 2008. “La reconnaissance irrésolue du Québec.” In D’un referendum à l’autre. Le Québec face à son destin, edited by A-G. Gagnon, 169–90. Québec: Presses de l’Université Laval. House of Lords. Select Committee on the Constitution. 2015. The Union and Devolution. 10th Report of the Session 2015–16. Jarymowicz, M. and D. Bar-Tal. 2006. “The Dominance of Fear over Hope in the Life of Individuals and Collectives.” European Journal of Social Psychology 36: 367–92. Keating, M. 2015a. ‘‘Nationalism after the State?” In Nationalism and Globalisation edited by S. Tierney. Oxford: Hart Publishing.

Responding to Secession Referenda: Quebec and Scotland

71

– 2015b. ‘‘The Scottish Independence Referendum and After.’’ Revista d’Estudis Autonomics i Federals. 21: 73–98. Laforest, G. 2004. Pour la liberté d’une société distincte. Parcours d’un intellectuel engagé. Sainte-Foy, QC: Presses de l’Université Laval. Lock, T. 2018. ‘‘Taking Stock: Scotland and Brexit’’ Centre for Constitutional Change Blog. McHarg, A. 2014. ‘‘Further Devolution and the Unionists’ Credibility Gap.’’ Scottish Constitutional Futures Forum Blog. – ‘A Powerhouse Parliament? An Enduring Settlement? The Scotland Act 2016.” Edinburgh Law Review 20 (3): 360–1. McHarg, A. 2018. Constitutional Change and Territorial Consent: Miller and the Sewel Convention. In The UK Constitution after Miller. Brexit and Beyond, edited by M. Elliot, J. Williams and A. Young. Oxford: Hart Publishing. Marsolais, C.V. 1992. Le référendum confisqué : histoire du référendum québécois du 20 mai 1980. Montréal, VLB Éditeur. McCafferty, R. 2018. “Ruth Davidson: Second independence referendum will be blocked until 2027.” The Scotsman. https://www.scotsman.com/ news/politics/ruth-davidson-second-independence-referendum-will-beblocked-until-2017-570356 Miller, J.M., and J.A. Korsnick. 2004. “Threat as a Motivator of Political Activism: A Field Experiment.” Political Psychology. 25 (4): 507–23. Monahan, P.J., M.J. Bryant and N.C. Côté. 1999. “Coming to Terms with Plan B: Ten Principles Governing Secession.” In The Referendum Papers. Essays on Secession and National Unity, edited by D.R. Cameron, 244–321. Toronto: University of Toronto Press. Monière, D. 1980. “Deux discours pour le choix d’un pays : les propagandes.” Québec : Un pays incertain. Réflexions sur le Québec postréférendaire, Montréal: Québec/Amérique, 87–109. – 1995. “Le Québec face à son destin.” In Québec 1996, edited by D. Monière et R. Côté, 59–74. Montréal: Fides. Murphy, M.C. 2018. ‘‘Transition and Ireland/Northern Ireland’’ Centre on Constitutional Change Blog. Owen, C. 2014. “Scottish Independence Referendum: Carwyn Jones says ‘Wales will not play second fiddle’ in new UK.” Accessed 9 June 2020. https://walesonline.co.uk/news/wales-news/scottish-independencereferendum-carwyn-jones-7799158 Pinard, M. and R. Hamilton. 1984. “Les Québécois votent NON : le sens et la portée du vote.” In Le comportement électoral au Québec, edited by J. Crète, 335–85. Montréal: Québec/Amérique.

72

François Rocher and Elisenda Casanas Adam

Pinard, M. 1997. “Les déterminants psychosociaux.” In Un combat inachevé, edited by M. Pinard, R. Bernier and V. Lemieux, 317–53. Sainte-Foy, Québec: Presses de l’Université Laval. Prime Minister’s Office. 2014. Scottish Independence Referendum: Statement by the Prime Minister. Public Law. 2017. Brexit Extra Special 2017. Québec. 1979. Québec-Canada: A New Deal. The Québec Government Proposal for a New Partnership Between Equals: SovereigntyAssociation. Québec: Éditeur official Québec. 1994. Draft Bill on the Sovereignty of Quebec. Accessed 21 October 2016. http://www.solon. org/misc/referendum-bill.html. Québec. 1995. Bill 1. An Act Respecting the Future of Québec. Accessed 21 October 2016. http://www.sfu.ca/~aheard/bill1.html. Quebec Liberal Party. 1980. A New Canadian Federalism. Montreal: Quebec Liberal Party. Rocher, F. and B. Pelletier. 2014. Le nouvel ordre constitutionnel canadien. Du rapatriement de 1982 à nos jours. Montréal: Presses de l’Université du Québec. Rousseau, D.L. and R. Garcia-Retamero. 2007. “Identity, Power, and Threat Perception. A Cross-National Experimental Study.” Journal of Conflict Resolution 51 (5): 744–71. Ryan, C. 1995. Regards sur le fédéralisme canadien. Montréal: Boréal. ScotCen. 2013. The option not on the table: Attitudes to more devolution. Date accessed: 9 June 2020 https://www.centreonconstitutionalchange. ac.uk/sites/default/files/migrated/papers/option_notontable.pdf  Scotland Office. 2013. Scotland Analysis: Devolution and the Implications of Scottish Independence. Date accessed: Accessed 9 June 2020. https://www.gov.uk/government/publications/scotlandanalysis-devolution-and-the-implications-of-scottish-independence  Scottish Conservatives. 2014. Commission on the Future Governance of Scotland. Date accessed: Accessed 9 June 2020. https://www. webarchive.org.uk/wayback/archive/20170401092121/http://www.gov. scot/Publications/2007/08/13103747/0  Scottish Government. 2007. Choosing Scotland’s Future. A National Conversation. Date accessed: Accessed 9 June 2020. https://www. webarchive.org.uk/wayback/archive/20170401092121/http://www.gov. scot/Publications/2007/08/13103747/0  – 2013. Scotland’s Future. Your Guide to an Independent Scotland. Date accessed: Accessed 9 June 2020. https://www.webarchive.org.uk/

Responding to Secession Referenda: Quebec and Scotland

73

wayback/archive/20170104102702/https://www2.gov.scot/ resource/0043/00439021.pdf  Scottish Labour. 2014. Powers for a purpose – Strengthening Accountability and Empowering People. Accessed 9 June 2020.https://s. bsd.net/scotlab/default/page/file/26e0eb4bdf4c775d14_ram6b81bk.pdf  Shook, N.J., and R.H. Fazio. 2009. “Political ideology, exploration of novel stimuli, and attitude formation.” Journal of Experimental Social Psychology 45: 995–998. Smiley, D.V. 1983. “A Dangerous Deed: The Constitution Act, 1982.” In And No One Cheered: Federalism, Democracy and The Constitution Act, edited by K. Banting and R. Simeon, 74–95. Agincourt, Ont: Methuen Publication. Stein, J.G. 2013, “Threat Perception in International Relations.” In The Oxford Handbook of Political Psychology, edited by Leonie Huddy, David O. Sears, and Jack S. Levy. Second Edition. DOI: 10.1093/ oxfordhb/9780199760107.013.0012. Supreme Court of Canada. 1981. Resolution to amend the Constitution, [1981] 1 S.C.R. 753. Tierney, S. 2004. Constitutional Law and National Pluralism. Oxford: OUP. – 2006. “Reframing Sovereignty: Sub-State National Societies and Contemporary Challenges to the Nation-State.” In Relocating Sovereignty, edited by N. Walker. Aldershot:Ashgate. – 2014. “And the Winner is….the Referendum’: Scottish Independence and The Deliberative Participation of Citizens.” Int’l J. Const. L. Blog. – 2015a. “Direct Democracy in the United Kingdom: reflections from the Scottish independence referendum.” Public Law. Oct.: 633–51. – 2015b. “Nationalism and Globalisation: New Settings, New Challenges.” In Nationalism and Globalisation, edited by S. Tierney. Oxford: Hart Publishing. Tannenbaum, M.B., J. Hepler, R.S. Zimmerman, L. Saul, S. Jacobs, K. Wilson and D. Albarracín. 2015. “Appealing to Fear: A Meta-Analysis of Fear Appeal Effectiveness and Theories.” Psychological Bulletin 141 (6): 1178–1204. Thórisdóttir, H. and J.T. Jost. 2011. “Motivated Closed-Mindedness Mediates the Effect of Threat on Political Conservatism.” Political Psychology. 32 (5): 785–810. Trudeau, P.E. 1980. Speech at the Paul Sauvé Arena, Montréal, Québec, 14 May 1980. Accessed 21 October 2016. http://www.collectionscanada.gc.ca/2/4/h4-4083-e.html.

74

François Rocher and Elisenda Casanas Adam

Witte, K. and M. Allen. 2000. “A Meta-Analysis of Fear Appeals: Implications for Effective Public Health Campaigns.” Health Education and Behavior 27 (5): 591–615. Wright, O. and Saul, H. 2014. “Scottish independence: Peter Robinson contacting Welsh counterpart as politicians and celebrities react.” Belfast Telegraph. Accessed 9 June 2020. https://www.belfasttelegraph. co.uk/news/scotland-independence-vote/scottish-independence-peterrobinson-contacting-welsh-counterpart-after-referendum-results-aspoliticians-and-celebrities-react-30599773.html  Young, A. 2017. “The Constitutional Implications of Brexit.” European Public Law 4: 757–86. Young, R.A. 1999. The Struggle for Quebec. From Referendum to Referendum? Montreal-Kingston: McGill-Queen’s University Press.

3

Embedded Independence: Self-Government and Interdependence in the Scottish National Movement Coree Brown Swan and Nicola McEwen

Introduction As the introduction to this volume noted, in multinational states, normal politics is often disrupted by constitutional politics in which nationalist movements and parties challenge and sometimes provoke change in the constitutional order. The United Kingdom has had more than its fair share of constitutional politics in recent years, from the Scottish independence referendum in 2014 to the Brexit referendum in 2016 leading to its departure from the EU. But for much of the 20th century, departing from the violence that foreshadowed and accompanied the birth of the Irish Free State in 1922 (Smith 2000; Lerner 2011) when the current boundaries of the UK were set, normal politics largely prevailed. Of course, major political episodes – economic depression, world war, and imperial decline to name but a few – brought their own challenges. But, notwithstanding the Troubles that would come to divide and dominate Northern Ireland in the latter decades of the 20th century, the political unity of the UK was not seriously threatened. Outside of Northern Ireland, the normal politics of left and right dominated party competition. It was into this context that the Scottish National Party (SNP) was born. It would take over three decades for the SNP to make an electoral breakthrough when, in the late 1960s, it began to mount a serious

76

Coree Brown Swan and Nicola McEwen

challenge to the British political parties’ dominance of Scottish politics. The fortunes of the SNP have been associated with the rise and fall of constitutional politics in the UK, as SNP successes prompted policy responses from UK parties, especially Labour, and heightened debates on changing the constitutional order. The Labour Party eventually adopted devolution as part of its policy platform in 1974, but it took two referendums, sandwiched by 18 long years of Conservative rule, and a UK election victory, for Labour to honour its commitment to Scottish devolution (Cameron 2010, 281; Harvie 1998, 178–9; Mitchell 2014). The Labour government had tried to redefine the establishment of a Scottish parliament, not as a constitutional moment of Scottish self-determination, but part of a UK-wide process of constitutional modernisation, although much of its wider reform agenda was stalled. The Scottish Parliament, meanwhile, provided a new platform upon which the SNP could compete. In contrast to the Westminster Parliament, the elections to the Scottish Parliament created a realistic prospect of forming a government, and the opportunity to use the resources and platform of office to advance its self-government goals. Like all successful nationalist parties, the SNP has a broad policy platform beyond its commitment to Scottish self-government. When the party secured office for the first time in 2007 as a minority government, and then was re-elected in 2011 with an overall majority, it was not on the back of a rising tide in support for its core objective of independence (Johns et al. 2013). Nor was there any evidence of a significant grievance with regard to the way Scotland was governed; indeed, support for devolution over independence was higher than it had ever been since the Scottish Parliament was established (Curtice and Ormstrom 2013). However, the SNP used its position as a party of government to instigate the debate on Scotland’s constitutional future which led to the independence referendum, and thereafter to a further expansion of Scottish self-government (Keating and McEwen 2017). As the introduction to this volume noted, constitutional politics can represent critical junctures which disrupt the constitutional status quo and lead to a reconfiguration of the constitutional structures of the state. In this chapter, we explore the “what” of constitutional politics – the goal of self-government – but we do so by examining the ways in which the changing nature of the state shapes self-government objectives. Our interest is less in issues

Interdependence in the Scottish National Movement

77

of constitutional design than in the broader geo-political context within which self-government claims emerge. The constitutional goals of sub-state nationalist parties are not put forth in a vacuum. They reflect both the opportunity structures present within the existing state, and the external conditions which may enable or inhibit the pursuit of these goals. Their meaning is shaped by these contextual features. Meaning is, of course, relative and contingent upon geographic, cultural, linguistic and temporal contexts. Exploring the meaning of independence within a single case helps us to control for the effects of geographic, linguistic and (to a lesser extent) cultural contexts, and focus on the significance of time, and the changing national and international order. In taking an historical perspective, we must of course acknowledge that the SNP has itself transformed dramatically. For the first 35 years of its history, the SNP lived in the electoral wilderness, when constitutional politics were marginalized in the face of big issues of statecraft from waging war to building the welfare state. There was nothing inevitable about the SNP’s electoral breakthrough when it finally came. Mitchell contends that the party’s early pioneers “would not recognize the Scottish National Party of today, and would probably struggle to understand its core beliefs” (Mitchell 2014, 88). That may be the case with positions the SNP took on some socio-economic issues and global outlook, but examining the evolution of the SNP’s self-government goals in historical perspective suggests more consistency, at least in one important respect. The goal of self-government, or independence, for Scotland has almost always coincided with an acknowledgment of interdependence with the rest of the UK, Europe, or the wider world. The ways in which independence goals have been embedded within these broader geo-political contexts has been shaped by the development of the UK state, from the Mother of the Empire to a middle-ranking global player and EU member-state, as well as a growing transnational inter-dependence which has shaped the opportunities and constraints faced by all small nations and states. This chapter explores the SNP’s articulation of its self-government goal during three phases, each of which is characterised by a distinct geo-political position for the UK. The first section explores how self-government was defined and articulated during the party’s early years, within the context of the British Empire, and the onset of imperial decline. We find here an ambiguity in the party’s framing

78

Coree Brown Swan and Nicola McEwen

of its self-government goals as well as careful attention to domestic and international considerations. Second, we examine how the SNP defined and sought independence as the UK debated its relationship with its European neighbours during its protracted entry into both the European Community and Union. In this period, self-government was defined more explicitly as independence and the party’s objections to European integration were articulated with reference to concerns about sovereignty. In the third section, we examine the prospectus for independence developed during the 2014 referendum campaign, which represented the first time when the SNP was forced to define clearly what it meant by independence, and how it envisaged an independent Scotland’s relationship with the rest of the UK. As we make clear, the British Isles context was to the fore in 2014, but this was predicated on the UK being itself embedded within the European Union. In the conclusion, we consider the challenges Brexit poses to the SNP’s independence goal, including consideration of how the meaning of independence may be challenged by the UK’s withdrawal from the EU. Premised on an idea of British independence from the European Union which is a rejection of shared sovereignty, Brexit may compel Scottish nationalists to choose between alternative transnational frameworks. As a result, we suggest that independence embedded within the EU may no longer be compatible with independence embedded within the British Isles. This is a fluid situation and at time of writing it is not yet clear what form the UK’s relationship with the EU will take, but whatever it turns out to mean it will alter the context in which the SNP’s constitutional goals are defined and pursued. The empirical basis of this chapter is drawn principally from content analysis of documents produced by the SNP. These include election manifestos, which were published intermittently from the party’s origins and then regularly from the 1970s onwards, other party documents, statements, and speeches. Notable sources include the 1945 statement of policy, The Policy of the Scottish National Party: What home rule will mean (SNP 1945), The Scotland We Seek (SNP 1967); The SNP and You: Aims and Policy of the Scottish National Party (SNP 1977); Building a Nation: Post Devolution Nationalism in Scotland (MacAskill 2004) and the SNP government’s publications in preparation for the referendum. In particular, we examined the Scottish government White Paper, Scotland’s Future (2013) as well as speeches made by then First Minister Alex Salmond and Deputy

Interdependence in the Scottish National Movement

79

First Minister Nicola Sturgeon, who led the Yes campaign in 2014. Each text was analysed for two key components: the articulation of the self-government goal and the references to the context in which that goal would be realised.

Conceptualizing Independence and Self-Government Sub-state nationalist parties advance a variety of goals, not all of which are constitutional. Their transition from “niche parties” to serious contenders for government office coincided with the development of a broad policy platform, occupying positions across the political spectrum (Müller-Rommel 1998, 186–7; Meguid 2008; Elias and Tronconi 2011; Massetti 2009). But their “core business” remains the desire to defend territorial interests and advance constitutional change towards some form of self-government, enabling them to determine and manage their own political, economic, and social affairs (Brancati 2006; Hepburn 2009). They share in the belief that they represent a distinctive nation with a right to self-determination. Recognition of that right need not imply independent statehood. Rather, it concerns the right to decide the nation’s constitutional future, whatever that may be (MacCormick 1999; Keating 2001; 2012; Requejo 2010). There are several typologies within the literature on independence and self-government which demonstrate varying degrees of self-government to which nationalist movements and nationalist parties aspire. For example, Rudolph and Thompson (1985) suggested that demands may be limited to territorially-focused policy outputs, enhanced representation, and influence within the existing state. Others may focus on changing the constitutional structure of the existing state though decentralisation or federalisation, which produce a corresponding increase in self-rule or shared rule, or both (Hooghe et al. 2016). Only the most radical seek dissolution of, or secession from, the existing state and the establishment of a new independent state (Rudolph and Thompson 1985, 293–4; 1989, 224–5). Müller-Rommel developed a four-point classification applied specifically to nationalist and regionalist parties, according to the degree of self-government they seek. “Protectionist” parties seek recognition of their nation’s distinctive character within the political community. “Autonomists” demand more constitutional competences

80

Coree Brown Swan and Nicola McEwen

to enhance self-government. “Left-libertarian federalists” demand more radical constitutional reform, implying an overhaul of the state structure and considerable decentralisation or federalisation. “Separatist” parties, the most radical category he identified, demand full sovereignty and reject the prospect of ceding autonomy to the European Union (Müller-Rommel 1994: 186–7). Others have used similar classifications to distinguish between those with cultural, federalist, autonomist, and independentist ambitions (Sorens 2008; Massetti, 2009; Lluch, 2014). Lluch provided further elaboration of autonomist and federalist orientations, based upon whether parties regarded autonomy as a stepping stone to a more radical independence outcome, or as an end in itself (2014, 13–14). What these typologies share is a sense of gradation – from moderate to more radical demands. Independence – often used synonymously with separatism – is presented as “the peak manifestation of nationalism” (Hale 2008). There is no inevitability about the destination – some movements are content with measures short of independence. Most movements and political parties include among their ranks those with contrasting views of the end goal. Such classifications also typically share a further commonality; when it comes to the most radical goal of independence, there is little explanation of what it means, or the various manifestations it might assume, other than attachment or resistance to the EU. This lack of clarity is exacerbated by the absence of precedent: the most radical outcome for sub-state nationalist parties has yet to be achieved in any well-established democratic state. Yet, there is a need to problematize what independence may mean and recognise its diverse conceptions. For those radical movements and parties seeking independent statehood, what exactly is it they desire? And does the same label mean the same thing over time and place, or is it shaped by the geo-political context in which it is articulated? What Müller-Rommel (1994) began to capture, with a particular focus on the European context, was the idea that self-government goals found their meaning within the context in which they were pursued. In his classification, sub-state nationalists who sought self-government within Europe were more moderate than those who sought self-government tout court. We see evidence of these choices in the discourse of political parties seeking independence, both in the statement of self-government goals and in their justification of these goals, with parties acknowledging the realities of an increasingly interdependent world

Interdependence in the Scottish National Movement

81

while making the case that independence is required. But it is not only with respect to EU membership that this becomes apparent. Many want recognition internationally as sovereign states, while simultaneously maintaining strong ties from the state from which they wish to secede. As a result, the independence sought by many sub-state nationalist parties is one characterised by continued integration and cooperation. In classifying forms of independence, we may draw two ideal types. The first, independence as separation, is focused on secession from, or disintegration of, the existing state, such that sovereign rule is established and confined to a new nation-state. This “pure” form of independence involves the severing of any remaining ties with the larger state, and foregoing participation in supranational structures where this would imply sharing or trading sovereignty as a condition of membership. The second is what we refer to as “embedded independence,” that is, a form of self-government which aspires to statehood, but sees that state embedded in transnational economic, political, and institutional networks, including with the state from which independence is sought. These are ideal types, identified for their conceptual utility. In practice, all independence movements are shaped by the national and international environments in which they operate. Sub-state nationalist parties acknowledge and engage with these limitations in formulating their self-government goals. As a result, these ideal types may thus be better conceptualised as a continuum. Some degree of embeddedness is inevitable, especially in the context of globalisation, but the extent to which nationalist parties seek institutional independence and interdependence will vary, from the minimum necessary for acceptance into the international community to far-reaching cooperation both with the international community and the state from which secession is sought. The acceptance of limitations to the sovereignty of a state, through integration in international structures, is not inconsistent with a desire for independent statehood (Keating 2001). National economies are now deeply interdependent, while in politics and law, the decision-making authority of international and supranational bodies, most notably the EU, but also other legal, human rights and security forums, can have an effect on all states, irrespective of whether they are members. Such developments condition and sometimes constrain the decision-making autonomy of individual states, especially small ones (Neumann and Gstöhl 2004; Falkner

82

Coree Brown Swan and Nicola McEwen

and Laffan 2005; Thorhallsson and Wivel 2006). MacCormick argued that the phenomenon of post-sovereignty emerged as a result of internal and external constraints on state sovereignty. He drew a distinction between legal sovereignty, the law-making power unrestrained by a higher law-making power and political sovereignty, as the “ability to take effective decisions on whatever concerns the common well-being of the members” (MacCormick 1999). However, there remains some features which distinguish even an embedded form of independence from a radical form of autonomy within the existing state structure. We identify four features characteristic of embedded independence. The first situates independence within transnational networks and – for those European cases – the European Union, in the recognition of the influence of international organisations, networks and the interdependence and integration fostered by the EU. The second is the emphasis upon securing international recognition of nation-statehood, and with it, the opportunity to articulate a distinctive voice, presence, and influence within the international community, including direct representation in bodies such as the European Council, NATO or the United Nations. Third is the recognition of an equality of status that independent statehood is deemed to confer. This is quite different from equality per se, which is shaped by the variable distribution of power and resources between nations and states. Rather, it is the national equivalent of the equality of status that T.H. Marshall assumed was conferred on citizens by virtue of their citizenship status, irrespective of their position within the labour market (Marshall 1950). Finally, those nationalist movements whose goal is an embedded form of independence also accept the inevitability and desirability of partnerships with other nations, but with the (partial) right to determine the form and depth of those partnerships, and with whom they can be negotiated. In effect, this usually means a partnership with the state from which they aim to secede and, like all partnerships, it would depend on a willing partner. The language used by the SNP in articulating its constitutional goals has evolved over time, and the state-wide and international context has evolved markedly since the party’s formation. However, as the analysis below reveals, its self-government ambitions have never conformed to the model of pure self-government or unfettered sovereignty, but have been embedded within contemporary transnational frameworks.

Interdependence in the Scottish National Movement

83

Independence in the Empire In the early part of the twentieth century, the United Kingdom state remained at the heart of the British Empire. In 1922, when the establishment of the Irish Free State set Ireland on the road to independence, the British Empire still spanned around a quarter of the globe, incorporating around 20% of the world’s population (Ferguson 2004; Louis et al. 1998). The Empire also played an important role in the development of Scotland and Scottish national identity, with Scots seeking economic, religious, and military opportunities in the overseas colonies and dominions1 (Paterson 1994, 13). It helped ensure that a continued (and reinvented) articulation of Scottish national distinctiveness could coexist with a commitment to the Anglo-Scottish political union, and to the imperial project in which the Scottish elite regarded themselves as equal partners (Finlay 1994; Morton 1999; Kidd 2008). In the decades that followed, the protracted decline of the Empire, marked by a series of exogenous shocks, from the loss of Ireland and the Indian subcontinent, to the Suez Canal debacle, reduced the status of the UK from mother nation of the Empire to a middle-ranking power in a changing world. The narratives and realities of Empire influenced the selfgovernment aspirations of the SNP and its predecessors. In the early 20th century, the Scottish national movement was somewhat fragmented, with a diversity of constitutional goals. At the radical end of the spectrum, the Scots National League (SNL) was hostile to both England and to the British Empire, arguing that independent statehood was necessary to address social and economic ills at home (Mitchell 1996, 83; Finlay 1992, 187). The SNL also supported independence movements in Britain’s colonial territories as well as Republicans during the Irish War of Independence (Finlay 1992, 186–8). These views remained after its incorporation into the National Party of Scotland (NPS) (Mitchell 2014, 92–6), but a transnational commitment remained in its pursuit of “independence within the British Commonwealth of Nations.” In the face of some internal opposition, the NPS set out a vision of independence which sat alongside a commitment to sharing control of defence and foreign policy with England, the maintenance of a free trade area, and the joint administration of the British Crown Colonies (Finlay 1992, 194–5). It did not advocate secession for Scotland from the British Commonwealth, but instead sought “to have her occupy her

84

Coree Brown Swan and Nicola McEwen

proper place within the Commonwealth as a free member” (Black 1930). This would include representation in the League of Nations and participation in the Imperial Conference, with a similar status to the dominions of Canada and New Zealand. The more conservative Scottish Party, meanwhile, advocated a form of self-government which explicitly embraced the British Empire and would ensure Scotland’s recognition as an equal partner in the Imperial administration (Finlay 1992, 185; Cameron 2010, 170). As expressed by Andrew Dewar Gibb, then one of the leading figures of the Scottish Party who would go on to serve as leader of the SNP: “True it is that the hegemony of Britain in the Empire is steadily becoming more and more formal and ornamental, but so long as that hegemony endures in the British Empire, it must reside in England and Scotland, never in England alone” (1930, 187). Thus, when the Scottish National Party was formed in 1934 as a result of the merger between the NPS and the Scottish Party, from the outset its membership expressed a variety of constitutional goals and ideological orientations. The degree of commitment to “King and Empire” remained a source of tension (Mitchell 2014, 96). Nonetheless, self-government was generally regarded as being achievable within the context of Empire, a position influenced by its continued, albeit diminishing, significance and widespread public acceptance of its value (Robertson 2006; Kennedy 2006). The SNP ’s Constitution adopted at the merger outlined its constitutional goal as “Self-government for Scotland on a basis which will enable Scotland, as a partner in the British Empire with the same status as England, to develop its national life to the fullest advantage” (SNP 1934). The model of imperial administration was described by Sir Alexander MacEwan, the first leader of the SNP, as one in which “Scotland shall share with England the rights and responsibilities they, as mother nations, have jointly created and incurred within the British Empire” (Aberdeen Journal 1934, cited in Finlay 1994a, 153). In a public address at Derby in December 1934, John MacCormick, then one of the SNP’s leading lights, reassured voters that while the party sought self-government, there was “no question of the Scottish National Party ever aiming at, or dreaming of secession from the Empire” (Derby Daily Telegraph 1934). The rapid dismantling of the British Empire after the Second World War forced a re-examination within the SNP of Scotland’s place in the world, as well as undermining the rationale for maintaining

Interdependence in the Scottish National Movement

85

what for many had been “a Union for Empire” (Robertson 2006). Prior to leaving the party, a former leader, Douglas Young, argued that English imperialism should give way to “the more fruitful principle of a freely associated community of self-governing states.” The model adopted by Sri Lanka, India, and Pakistan could be applied “in the heart of Empire, the British Isles, with equal sovereign status for Scotland, and also for Wales” (Young 1947, 16). The SNP rapidly adopted the Commonwealth in place of the Empire as the transnational network within which its self-government goals were espoused, enabling the party to articulate anti-imperialism without appearing isolationist. In a book entitled 100 Questions on Home Rule, authored by supporter Sandy McIntosh and endorsed by the party, Scotland was portrayed as “England’s last important profitable colony” (McIntosh 1964). McIntosh refuted imperialist claims, saying, “We have never regarded British Colonies as the property of the peoples of the United Kingdom and in 1948 it was stated that the Scottish National Party considered all colonies as a trust to be liquidated as soon as the native people were able to govern themselves” (ibid.). Self-government was thus articulated within the context of continued close cooperation within the Commonwealth and the British Isles. A speech by party president Tom H. Gibson in 1951 stressed “[a] particularly intimate relationship with the other countries of the British Isles,” motivated by geographic and economic considerations. Gibson also proposed the creation of a coordinating mechanism to discuss and act upon maters of mutual concern (Gibson 1951). Relationships were also envisioned with Canada, New Zealand, and Australia, as “[t]ies of kinship and influence of history require the closest direct political and economic relations with the self-governing Dominions” (Gibson 1951). The party was, at this time, a marginal actor, with little influence beyond its own membership, and constitutional politics was notably subdued within the context of post-war expansion of the British state (McEwen 2006). Despite this, the SNP continued to develop its goal of a self-government embedded within the British Isles and the wider Commonwealth. In the decades that followed, the SNP became more assertive in its articulation of self-government as independent statehood. This coincided with important electoral breakthroughs for the party, with the by-election victory of Winnie Ewing in 1967 and success

86

Coree Brown Swan and Nicola McEwen

in the General Elections of February and October 1974. In Scotland Lives, Billy Wolfe, SNP Chairman (leader) from 1969–79, described an intense period of research and policy development, motivated by a sense that independence was within its grasp, with the party discussing not just how independence should be achieved, but what an independent Scotland might look like economically, politically, and socially (Wolfe 1973). This included its relationship within the rest of the United Kingdom. This was, after all, the heyday of the nation-state within the international community. Even then, though, normal nationhood (which, in effect, meant nation-statehood) was envisioned as a form of statehood with economic and institutional ties to the rest of the UK and the wider world: “SNP democrats favour the maximum possible agreement and trade with England, but the promotion of such things does not mean that Scotland must be a subservient and second rate region of England” (SNP 1967). The 1979 manifesto Return to Nationhood contests the notion that the party advocated the “break-up of the UK,” but instead promoted a “new relationship under the crown,” one founded in partnership and equality rather than subordination (SNP 1979, 29). This took the form, according to the 1983 election manifesto, of a special relationship between an independent Scotland and the rest of the United Kingdom, an Association of States of the British Isles in which cooperation between the governments and free movement could occur, drawing inspiration from the Nordic Council (SNP 1983, 10).

Independence in Europe As Hugo Young eloquently observed, for the UK, “entry into Europe was a kind of defeat: a fate she had resisted, a necessity reluctantly accepted, the last resort of a once great power, never for one moment a climactic or triumphant engagement with the construction of Europe” (Young 1998, 2). The project of European integration has also been widely acknowledged to have facilitated the growth of regionalism and nationalism at the sub-state level and, by the 1980s at least, many sub-state nationalist and regionalist parties had come to regard the European Community as a mechanism through which their constitutional goals might be realised (Elias 2009). For regionalists, it held out the promise, albeit largely unfulfilled, of a post-sovereign political community in which Europe’s regions could

Interdependence in the Scottish National Movement

87

have a genuine voice. For nationalists, it provided a secure external framework facilitating a transition to independence, and which would embed a level of political and economic co-operation that could minimise the economic and security risks hitherto associated with independence (Guibernau 1999; Keating 2001; Tierney 2005; Jolly 2007). Like others in this party family (Nagel 2004), the SNP’s position on Europe has shifted over time: it was cautiously supportive of European integration in the 1940s and 1950s, deeply skeptical in the 1960s and 1970s, and embraced a pro-European platform in the late 1980s and 1990s (Ichijo 2004, 47). In the early post-war period, the SNP was supportive of the European project in theory, but it seemed to have little resonance to the cause of Scottish self-government. As the UK approached membership, the position of the SNP became more explicitly opposed. When the UK first applied for membership in 1961, the SNP formally protested that, under the terms of Union, Westminster lacked the authority to cede sovereignty to the EU (Wright 2005, 11). The UK ’s eventual accession in 1973 was characterised as an “act of political desperation” which would render Scotland “powerless and without a voice or vote” (SNP 1974). There were three main facets to the party’s opposition to membership. First, the European project was perceived as a threat to Scotland’s interests. For example, the 1970 general election manifesto warned of competition from foreign workers, soaring food prices, political instability, and undue German influence (SNP 1970). Second, the European Community was dismissed as isolationist. A 1974 pamphlet arguing against membership of the Common Market claimed that “Scotland looks to the whole world – not to a narrow, closed community” (SNP 1974). Third, the EC was viewed as overly centralist. Following an SNP delegation to Brussels, party chairman Billy Wolfe described the EC as an organisation which sought to “establish political domination of the whole of western Europe and to tolerate no deviations from this line. The Common Marketeers of today are as much doctrinaire centralists as their opposite numbers in the Kremlin in Moscow” (Wolfe 1973, 139). It also served a strategic purpose, allowing the party to distinguish itself from statewide parties who promoted membership. The party’s hostility to the European project was evident in the speeches of MPs at Westminster and continued into the 1975 referendum, where it campaigned for UK withdrawal. Its position,

88

Coree Brown Swan and Nicola McEwen

however, was ambiguous, perhaps reflecting divisions within the party (Macartney 1990). The campaign was conducted under the banner, “No voice, No entry,” with the assertion that membership conflicted with the terms of the 1707 Treaty of Union (Lynch 1996, 31). Central to the SNP’s referendum campaign message was a rejection of participation without direct representation, summed up by Winnie Ewing MP: “no voice, no votes, no seat at the table and no one specifically bargaining for Scotland” (HC Deb 1970, vol. 794, col. 249–53). Posters proclaimed: “No On Anyone Else’s Terms,” a statement which implies that the party was more amenable to membership if Scotland had appropriate input and influence (Harvie 1998, 190). The SNP remained somewhat skeptical towards the European Community for much of the decade which followed the 1975 referendum, perceiving it as a centralising body “damaging to many of Scotland’s interests” (SNP 1983, 11). In the place of European integration, the party envisioned trade agreements, pointing to those negotiated by Norway and Austria as positive examples (SNP 1977). The party’s electoral defeat in 1979 was followed by difficult years for the party, electorally and internally. The 1980s were characterised by a process of modernisation and internal debate. In 1988, this culminated in the adoption of an explicitly pro-EC position, reorientating its central constitutional objective to one of “independence in Europe” (Mitchell 1996, 233). This shift was in part a response to the process of European integration and increasing relevance of the European Community and the opportunities it offered (ibid., 120). The integration process further exposed Scotland’s limited influence in Brussels, and revealed the constraints on state sovereignty (Ichijo 2009, 163). The rebranding of the EU as a social project under Delors’ Commission presidency also made it a more attractive option for Scots, and for the SNP which was itself becoming increasingly social democratic (Newell 1998, 112; Harvie 1998, 200; Cameron 2010, 316). Jim Sillars, then an MP and who became deputy leader in 1990, championed the conversion to “independence in Europe.” He asserted that Scotland in the UK was subordinated to Europe and has “no means of asserting its national interest” in Brussels. He urged Scots to “move ourselves from the outer fringe of European politics to the centres of decision making” (Sillars 1989). Domestic considerations also played a role. Delors’ “social Europe” provided a contrast to the neo-liberalism of the Thatcher

Interdependence in the Scottish National Movement

89

governments, while the increasingly vocal Euroskepticism of the Thatcher and Major governments, coupled with the embrace of the European Community by the UK Labour Party and the trade union movement, also heightened its appeal for the SNP (Keating 2001, 58). In its text Scotland’s Future: Independence in Europe, the party framed the decision facing Scots as one of “integration into Thatcher’s England or independence in Europe for Scotland,” participating in the “mainstream of Europe” or relegation to the “backwater of Britain” (SNP 1992, 6). In a 1989 debate, Salmond contrasted the failures of the union with the opportunities available to Scotland in Europe: “The economic and political union with England has served its purpose… It offers nothing which can stand comparison with the challenge and opportunity of independence within the wider Community of Europe,” adding that an independent Scotland “would have real power in Europe to match real power in Scotland” (HC Deb, 1989, vol. 155 col. 993; col. 991). While supportive of EU regionalism and the Committee of the Regions, the SNP maintained an intergovernmentalist vision of the EU , in which the European Council would remain the dominant pillar with space “at the top table” for an independent Scotland (Hepburn 2009, 194). The EU was envisioned as “a confederation of states” and the party stressed its commitment to the sovereignty of constituent nations (SNP 2004). The party advanced a “rigorously critical view of excessive Euro-enthusiasm, and creeping integrationism,” adding: “We have a robust view of the need to set clear limits to what can properly be done at the all-Europe level and what must be retained by the states and their regions in accordance with subsidiarity” (SNP 2001, 1–2). The party described itself as a critical friend, expressing reservations about the role of the EU in some areas, most notably the Common Fisheries Policy, and distancing itself from the single currency, a stance which pre-dated, but was exacerbated by the Eurozone crisis. As will be discussed below, the SNP adopted an unambiguously pro-EU position in the independence referendum and the Brexit referendum. In the former, it was taken for granted that an independent Scotland would be a member-state of the EU (an assumption challenged within the context of the referendum campaign). The SNP’s commitment to EU membership was underlined in the Brexit referendum, and has been reinforced in its aftermath, as the UK negotiates its exit from the EU despite considerable majority support for Remain within Scotland.

90

Coree Brown Swan and Nicola McEwen

Independence in the British Isles The SNP’s most significant opportunity to achieve its self-government goals came in 2014 when the government it led held an independence referendum. The referendum followed the SNP’s re-election in 2011 with an overall majority, with a manifesto commitment to hold a vote on independence. The legal authority of the Scottish Parliament to legislate for such a vote was in doubt, but the SNP’s political mandate was recognised by the UK’s prime minister, and an intergovernmental agreement and temporary transfer of power ensured the legality of the process (Qvortrup 2014; Keating and McEwen 2017). The SNP’s ambition of transforming Scotland into an “independent country” – the subject of the 2014 referendum – retained a vision of independence in which sovereignty is pooled within the European Union, marking continuity with the commitment embraced in 1988. However, the 2014 referendum compelled the SNP and the government it led to spell out in more detail than it ever had before what it would mean for Scotland to be an independent country. What emerged was a detailed vision of independent statehood embedded within a series of transnational frameworks. Sovereignty was not only to be pooled within the context of membership of the European Union, but an independent Scotland would maintain a range of economic, institutional, and political ties with the rest of the UK, including, most controversially in the context of the debate, a shared sterling currency union. For the SNP, the independence it advocated in 2014 offered the route to a new partnership with the other states of the British Isles, especially with the rest of the UK. As Nicola Sturgeon, then deputy first minister, noted, “far from marking a separation from our friends and relations across these islands, independence opens the door to a renewed partnership between us” (Sturgeon 2013). The first minister, Alex Salmond, spoke of Scotland being part of six unions, only one of which, the political union, needed “to change fundamentally.” The remaining five – the European Union, the defence union (NATO), the union of Crowns, the currency union, and the social union – would remain in place, in recognition of a world “characterised by unions and agreements into which independent sovereign states can enter freely” (Salmond 2013). This position was reiterated in Scotland’s Future, the Scottish government’s independence White Paper: “Scotland will continue to have

Interdependence in the Scottish National Movement

91

a close and special relationship with the other nations of these isles” despite independence bringing an end to “the parliamentary union” (Scottish Government 2013: 29). As well as making a case for independence founded upon democracy, economic advancement, and social justice, the White Paper set out a variety of proposals for continued co-operation with the rest of the UK after Scottish independence. For example, it included a proposal to set up a formal currency union with the rest of the UK after independence, which would see Scotland’s government effectively becoming a shareholder in the ownership and governance of the Bank of England. The White Paper also underlined a commitment to maintaining the British Isles Common Travel Area (currently operational between the UK and the Republic of Ireland and formally recognised in the EU Amsterdam Treaty) to facilitate cross-border travel and avoid the need for internal border posts. In broadcasting, a Scottish Broadcasting Corporation was proposed, but with participation in a joint venture with the British Broadcasting Corporation, ensuring access to existing BBC services and programs. There were many more institutions where the Scottish government wanted continuity and shared service delivery. Many of these were functional, low profile institutions, like the Office of Rail Regulation, the Civil Aviation Authority, the UK Research Councils and the Green Investment Bank. In higher profile policy fields such as defence and security, the emphasis was on new institutions in an independent Scotland working in partnership with the rest of the UK. Independence, then, was presented by its protagonists, not as separation or even secession, but as a new form of partnership. The proposals upon which the 2014 referendum were based offered a “soft” vision of what it means to be an independent country – leading many observers to refer to it as “independence lite.” What was presented as independence may look more like a radical combination of strong self-rule coupled with strong shared rule within a loose confederal structure, but for the fact that it went hand in hand with a desire to secure recognition in the international community as an independent sovereign state, as well as independent membership of the EU. The changing international order is a relevant backdrop, with speeches by prominent SNP figures making frequent references to global interdependence. Quoting Andrew Fletcher of Saltoun’s expression on the eve of the 1707 Act of Union that “all nations are dependent, the one on the many, this we know,” then First Minister

92

Coree Brown Swan and Nicola McEwen

Alex Salmond said (Salmond 2013): “Saltoun was emphasising a truth which is especially relevant in the modern world. All nations are interdependent. And an independent Scotland will achieve its goals through partnership. But as an independent nation, we would be able to choose our aims, our partnerships and our priorities.” The then finance secretary, John Swinney (himself a former SNP Leader), nodded towards global economic interdependence, suggesting that: “In an increasingly interconnected world, being independent offers an opportunity to put forward a distinct voice in the global economic community and to market Scotland’s strengths” (Swinney 2012b). Yet, the independence promoted by the SNP, and its embeddedness within the British Isles, seemed to point towards a degree of sovereignty which is even more constrained than that exercised by existing European states of a similar geographic and economic size. This may be influenced by the SNP’s experience of government and the knowledge acquired from its first thorough examination of what becoming independent and dismantling a 300-year-old political union could entail. Transport and other communications infrastructures operate across borders, and many fairly mundane functions remain centralised. Where services currently operating on a cross-border or centralised basis are non-contentious politically, the party may have judged that it made more sense to have continuity, freeing up space to focus on disentangling the more politically potent areas such as oil resources, the national debt, or the armed forces. On interviewing senior members of the party, Mitchell et al. (2011) found that the vast majority appeared comfortable with sharing services and institutions with the rest of the UK after independence. One senior member – later Justice secretary – noted in a book exploring nationalism in Scotland: Is there a need for a separate DVLA or even Ordnance Survey?... Does a bureaucracy need to be created in Saltcoats as well as Swansea? Can we not simply pay our share as well as our respects? Do we need to reinvent the Civil Aviation Authority or other such Institutions as opposed to exercising control from north of the border even if the Institution remains located in the south of it? There are numerous other organisations and Departments where separation is not necessary, but the right to direct and instruct is. (MacAskill 2004, 29–30; cited in Mitchell et al. 2011, 121)

Interdependence in the Scottish National Movement

93

In the context of the 2014 referendum, the prospectus of shared services, from pensions delivery to the currency, goes beyond these apparently non-contentious issues. It is far from certain that the new offer of partnership would have been accepted by the UK government, and less likely still that it would represent a “partnership of equals,” given the resource disparities – economic, bureaucratic, political, and reputational between an independent Scotland and the rest of the UK. Nonetheless, it signalled that the SNP envisioned and seemed comfortable with the prospect of a form of interdependent independence, embedded within the British Isles as well as the European Union. Less than two years after that referendum, the Brexit referendum brought the issue of Scottish independence back to the top of the political agenda. While the UK as a whole narrowly voted to leave the EU , 62% of Scots voted for the UK – and by implication Scotland – to remain. As well as kick-starting the process of the UK’s exit from the EU , and the negotiation of a new UK -EU relationship, the result generated many questions and uncertainties about Scotland’s place in the UK . In October 2016, the SNP government introduced a referendum bill to the Scottish Parliament to pave the way for a second independence referendum “to protect Scotland’s interests in light of the UK vote to leave the EU and the overwhelming vote across Scotland to remain.” The bill, introduced just two years after independence was defeated by referendum, was presented as an insurance policy, in case independence is the only option left “to protect Scotland’s continuing relationship with Europe” (Scottish Government 2016). But the new geo-political context being created by Brexit raises difficult questions for the nationalist movement in Scotland about the nature of the independence they seek, and the geography and scope of the transnational context in which they seek it.

Independence in a Changing World From the above analysis, we can see that the external political environment and the historical and political development of the existing UK state has had a significant effect on the nature of self-government being sought by the SNP, with the party adapting its goals in response to the changes taking shape. Sub-state nationalist parties elsewhere are faced with similar decisions and their goals are informed by the structure of the embedding state and the international dynamics.

94

Coree Brown Swan and Nicola McEwen

In the latter years of the British Empire, when the SNP was born, the goal of self-government was situated within an imperial and then a post-imperial setting, drawing inspiration from those other nations of the Empire which had already achieved dominion status, maintaining ties in the form of the Commonwealth. The decline of Empire and the growing significance of the European Community and the European Union altered the rules of the game, diminishing the authority of the UK state and opening up new economic and political opportunities to nations like Scotland. Although initially skeptical, in due course, the EU came to offer to the SNP an alternative institutional environment in which sovereignty could be exercised and shared, shaping the party’s behaviour and positioning as well as its independence objective. Likewise, the changing nature of the nation-state in the context of global interdependence, and the extent to which states cooperate across borders, has shaped the way in which the SNP set out its independence goals in the 2014 referendum, with significant institutional ties to the rest of the UK. Yet, notwithstanding the enormous changes which have taken place in the external political environment since the SNP’s foundation, and in the SNP’s own fortunes, there remains a degree of continuity at the heart of the vision of Scottish self-government. There may have been a hardening of the language over time – when “self-government” gave way to “independence” – but it has mostly always been set within a broader political environment beyond Scotland, from Empire, to Commonwealth, to the European Union. A new relationship with the rest of the UK, founded on an equality of status, has also been a common, if more contested, feature. This could be seen in the party’s formal support for membership of the Commonwealth and the sharing of a monarchy, as well as in institutional relationships that would facilitate intergovernmental cooperation and the free movement of people. Thus, if the recent articulation of the vision of independence presented in the context of the 2014 referendum is a form of “independence-lite,” this is not so new when one takes an historical perspective. Indeed, it is the late 1980s and 1990s, when the EU came to supplant the UK in the party’s independence vision, which stands out as somewhat distinctive from both earlier periods and more recent pronouncements of what it means for Scotland to be an independent country. What was new was that the referendum forced the party and the government it led to set out in detail what independence would mean in practice.

Interdependence in the Scottish National Movement

95

Doubtless the SNP’s constitutional goals are shaped by strategic considerations about what is electorally palatable, as well as judgments made about how best to pool sovereignty in an interdependent world. And herein lies the problem that the party now faces. Brexit has brought the issue of a second independence referendum back to the top of the political agenda. Claims that Scotland has been taken out of the EU against its will (as expressed in the Brexit referendum) have been used to justify a new referendum so soon after the 2014 vote. But Brexit also challenges that very notion of embedded independence as articulated clearly in 2014. Scotland’s potential re-entry into the EU as an independent member state, while the rest of the UK is outside of the EU , renders the institutional interdependencies envisaged in 2014 deeply problematic. Of course, some of these – most notably currency union – may have been unlikely even in 2014 had Scotland voted yes to independence. But some, at least, seem inconceivable, especially if the post-transition period leads to a loose relationship which sees the UK far removed from the regulatory ambit of the EU internal market and the customs union. If Scotland were to become independent and accede to the EU, this would entail membership of both the internal market and customs union, with a commitment to upholding the four freedoms. That introduces the prospect of a “hard” Anglo-Scottish border – unpalatable to the Scottish electorate and the antithesis to the SNP’s vision of an independence embedded within both British and European frameworks. Brexit, then, may have reignited the drive towards Scottish independence and opened up the prospect of a new referendum. But it also poses new challenges to the SNP to redefine the “what” of its constitutional politics: what does independence mean in this new, uncertain, external environment? The UK’s withdrawal from the EU alongside a continued process of European integration among the remaining EU member states may force the SNP to choose between two transnational frameworks within which to embed its independence goal. no t e 1 Dominions were defined in the 1926 Imperial Conference as “autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations” (Marshall, 2001).

96

Coree Brown Swan and Nicola McEwen

r e f e r e nce s Black, C.S. 1930. The Case for Scotland. Edinburgh: National Party of Scotland. Brancati, D. 2006. “Decentralization: Fuelling the fire or dampening the flames of ethnic conflict and secessionism?” International Organization, 60 (3): 651–85. Cameron, E. 2010. Impaled Upon a Thistle: Scotland Since 1880. Edinburgh: Edinburgh University Press. Curtice, J. and R. Ormston. 2013. “Attitudes Towards Scotland’s Constitutional Future: Initial Findings from Scottish Social Attitudes Survey 2012.” In British Social Attitudes: the 30th Report, edited by Park, A., Bryson, C., Clery, E., Curtice, J. and Phillips, M. London: NatCen Social Research. www.bsa-30.natcen.ac.uk Cronin, M. and J. Reagan, eds. 2000. Ireland: The Politics of Independence, 1922–49 New York: St Martin’s Press. Elias, A. 2009. Minority Nationalist Parties and European Integration. New York: Routledge. Elias, A. and F. Tronconi. 2011. “From Protest to Power: Autonomist Parties in Government.” Party Politics 17 (4): 505–24. Falkner, G. and B. Laffan. 2005. “The Europeanization of Austria and Ireland: Small Is Difficult?” In Member States and the European Union, edited by S. Bulmer and C. Lequesne. Oxford: Oxford University Press. Ferguson, N. 2004. Empire: The Rise and Demise of the British World Order and the Lessons for Global Power. New York: Basic Books. Finlay, R. 1992. “‘For or Against?’ Scottish Nationalists and the British Empire, 1919–39.” The Scottish Historical Review 71, 191/192: 184–206. – 1994. Independent and Free: Scottish Politics and the Origins of the Scottish National Party, 1918–45. Edinburgh: Donald. Gibb, A.D. 1930. Scotland in Eclipse. H. Toulmin. Gibson, T.H. 1951. The Scottish National Party. What It Is and What It Stands For. Scottish National Party. Guibernau, M. 1999. Nations without States: Political Communities in a Global Age. London: Wiley. Hale, H. 2008. The Foundations of Ethnic Politics: Separatism of States and Nations in Eurasia and the World. Cambridge: Cambridge University Press. Harvie, C. 1998. No Gods and Precious Few Heroes: Twentieth Century Scotland. Edinburgh: Edinburgh University Press.

Interdependence in the Scottish National Movement

97

Deb. 20 January 1970 vol. 794 cc249-53. Deb. 28 June 1989 vol. 155 cc984-1030. Hepburn, E. 2009. New Challenges for Stateless Nationalist and Regionalist Parties. London: Routledge. Hooghe, L. Marks, G., Schakel, A., Chapman Osterkatz, S., Niedzwiecki, S., and Shair Rosenfield, S. 2016. Measuring Regional Authority: A Postfunctionalist Theory of Governance: Volume I. Oxford: Oxford University Press. Hyslop, F. 2013. “Scotland’s Place in Europe.” Delivered at Lund University. Sweden. 9 December 2013. – 2016. Protecting Scotland’s Interests, News Release. Available at: http://news.scotland.gov.uk/News/Protecting-Scotland-s-interests-2d69. aspx Johns, R., Mitchell, J. and Carman, C.J., 2013. “Constitution or Competence? The SNP’s Re-election in 2011.” Political Studies 61(S1): 158–78. Ichijo, A. 2004. Scottish Nationalism and the Idea of Europe: Concepts of Europe and the Nation. London: Routledge. – 2009. “The Place of Scotland’s European Past.” Litteraria Pragensia 19 (38): 60–74. Keating, M. 2001. Plurinational Democracy: Stateless Nations in a PostSovereignty Era. Oxford: Oxford University Press. – 2012. “Rethinking Territorial Autonomy.” In Political Autonomy and Divided Societies, edited by A. Gagnon and M. Keating. London: Palgrave. Keating, M. and N. McEwen. 2017. “The Scottish Independence Debate.” In Debating Scotland, edited by M. Keating. Oxford: Oxford University Press. Kennedy, J. 2006. “Responding to Empire: Liberal Nationalism and Imperial Decline in Scotland and Québec.” Journal of Historical Sociology 19 (3): 284–307. Kidd, C. 2008. Union and Unionisms: Political Thought in Scotland, 1500–2000. Cambridge: Cambridge University Press. Lerner, H. 2011. Making Constitutions in Deeply Divided Societies. Cambridge: Cambridge University Press. Lluch, J. 2014. Visions of Sovereignty: Nationalism and Accommodation in Multinational Democracies. Pennsylvania: University of Pennsylvania Press. Louis, W.R., J.M. Brown, and A.M. Low. 2001. The Twentieth Century. Oxford: Oxford University Press. HC HC

98

Coree Brown Swan and Nicola McEwen

Lynch, P. 1996. Minority Nationalism and European Integration. Cardiff: University of Wales Press. Macartney, A. 1990. Independence in Europe. Scottish Government Yearbook. MacAskill, K. 2004. Building a Nation: Post Devolution Nationalism in Scotland. Edinburgh: Luath Press. MacCormick, N. 1999. “Does a Nation Need a State? Reflections on Liberal Nationalism.” In People, Nation and State: The Meaning of Ethnicity and Nationalism, edited by E. Mortimer. London: I.B. Tauris. Marshall, P. 2001. “The Balfour Formula and the Evolution of the Commonwealth.” The Round Table. 90 (361): 541–53. Marshall, TH. 1950. Citizenship and Social Class. Cambridge: University Press. Massetti, E. 2009. “Explaining Regionalist Party Positioning in a Multidimensional Ideological Space: A Framework for Analysis.” Regional and Federal Studies 19 (4–5): 501–31. McIntosh, S. 1966. 100 Home Rule Questions. Scottish National Party. Meguid, B. 2008. Party Competition between Unequals. Strategies and Electoral Fortunes in Western Europe. Cambridge: Cambridge University Press. Mitchell, J. 1996. Strategies for Self-government: The Campaigns for a Scottish Parliament. Edinburgh: Polygon. – 2014. The Scottish Question. Oxford: Oxford University Press. Mitchell, J., Lynn, B. and Johns, R. 2011. The Scottish National Party: Transition to Power. Oxford: Oxford University Press. Morton, G. 1999. Unionist Nationalism: Governing Urban Scotland, 1830–1860. East Linton, Scotland: Tuckwell Press. Müller-Rommel, F. 1998. Ethnoregionalist Parties in Western Europe: Theoretical Considerations and Framework of Analysis. London: Routledge. Nagel, K-J. 2004. “Transcending the National / Asserting the National: How Stateless Nations Like Scotland, Wales and Catalonia React to European Integration.” Australian Journal of Politics and History 50 (1): 57–74. Newell, J.L. 1998. “The Scottish National Party: Development and Change.” In Regionalist Parties in Western Europe, edited by L. De Winter and H. Türsan. London: Routledge. Neumann, I. B, and Gstohl, S. 2004. Lilliputians in Gulliver’s World?: Small States in International Relations. Centre for Small State Studies, Institute for International Affairs, University of Iceland.

Interdependence in the Scottish National Movement

99

Paterson, L. 1994. The Autonomy of Modern Scotland. Edinburgh: Edinburgh University Press. Qvortrup, M. 2014. Referendums and Ethnic Conflict. University of Pennsylvania Press. Requejo, F. 2010. “Revealing the Dark Side of Traditional Democracies in Plurinational Societies: The Case of Catalonia and the Spanish ‘Estado de las Autonomías’.” Nations and Nationalism 16: 148–68. Robertson, J. 2006. A Union for Empire: Political Thought and the British Union of 1707. Cambridge University Press. Rudolph, J. and R. Thompson. 1985. “Ethnoterritorial Movements and the Policy Process: Accommodating Nationalist Demands in the Developed World.” Comparative Politics 17: 291–311. Salmond, A. 2013. Scotland as a Good Global Citizen. Speech delivered to the Brookings Institute, Washington DC. 9 April 2013. Scottish Government. 2013. Scotland’s Future: Your Guide to an Independent Scotland. Edinburgh: Scottish Government. Scottish National Party. 1934. SNP Constitution. Scottish National Party. Glasgow. – Ca 1945. The Policy of the Scottish National Party. What Home Rule Will Mean. Scottish National Party. Glasgow. – 1967. The Scotland We Seek. Scottish National Party. Glasgow. – 1970. Macaroni for your Sunday Joint. Political poster, Scottish Political Archive. Scottish National Party. Edinburgh. – 1974. The New Scotland. Scottish National Party. Edinburgh. – 1977. SNP and You: Aims and Policy of the Scottish National Party. Scottish National Party. Edinburgh. – 1979. Return to Nationhood. Edinburgh: Scottish National Party. Scottish National Party. Edinburgh. – 1983. Choose Scotland: The Challenge of Independence. Scottish National Party. Edinburgh. – 1992. Independence In Europe – Make It Happen Now! Scottish National Party. Edinburgh. – 2001. Heart of the Manifesto. Scottish National Party. Edinburgh. – 2004. Vote for Scotland: European Manifesto. Scottish National Party. Edinburgh. Sillars, J. 1989. Independence in Europe. Scottish National Party. Edinburgh. Sorens, J. 2008. “Regionalists against Secession: The Political Economy of Territory in Advanced Democracies.” Nationalism and Ethnic Politics 14 (3): 325–60.

100

Coree Brown Swan and Nicola McEwen

Sturgeon, N. MSP, Deputy First Minister. 2013. “Independence – A Renewed Partnership of the Isles.” Speech delivered at the University of Edinburgh. 6 June 2008. Sturgeon, N, MSP, First Minister. 2016a. “EU Referendum Result.” 24 June 2016. Bute House, Edinburgh, Scotland. – 2016b. “Official Opening of Scottish Parliament.” Transcript, Scottish Government. 2 July 2016. Viewed 20 March 2017. https://news.gov. scot/speeches-and-briefings/official-opening-of-scottish-parliament Swinney, J. MSP. 2012. Cabinet Secretary for Finance, Employment and Sustainable Growth. 2012b. “A Question of Independence – The Economics of Independence,” Scotsman Conference. 19 June 2012. Thorhallsson, B. and A. Wivel. 2006. “Small States in the European Union: What Do We Know and What Would We Like to Know?” Cambridge Review of International Affairs. 19 (4): 651–68. Tierney, S. 2005. “Reframing Sovereignty? Sub-State National Societies and Contemporary Challenges to the Nation-State.” International and Comparative Law Quarterly 54 (1): 161–83. Wolfe, B. 1973. Scotland Lives. Edinburgh: Reprographia. Wright, A. 2004. Who Governs Scotland? London: Routledge. Young, D. 1947. The International Importance of Scottish Nationalism. Scottish Secretariat. Glasgow. Young, H. 1998. This Blessed Plot: Britain and Europe from Churchill to Blair. New York: Overlook Press.

4

Flemish Nationalism and the Left-Right Divide: Consequences for Constitutional Politics in Belgium Dave Sinardet

Introduction The main actors of constitutional politics in Belgium are without doubt political parties. This can come as no surprise given their dominance in Belgium’s political system as a whole (De Winter & Dumont, 2006). More specifically, constitutional reforms – state reforms as they are commonly referred to in Belgium – are essentially confined to the presidents of political parties and their entourage, generally made up of a limited number of other top politicians and institutional experts of the party (the latter are often referred to as “sherpas”). The political parties that negotiate a state reform generally dispose of the required majorities in parliament. For constitutional reform in the strict sense of the word a two thirds majority is needed in the Chamber and the Senate, which can only revise those articles of the Constitution that have been opened for revision by a common declaration of a parliamentary majority and the federal government in the previous legislature. However, for a reform of Belgian federalism, the revision of so-called “special laws” is at least as important, as they detail most of the distribution of competences and the organisation of financial flows between the different government levels in the Belgian federal system. They require a double majority to be revised:

102

Dave Sinardet

a two thirds majority in both houses of parliament, as well as a simple majority in both language groups in both Chambers. Delivering this type of majority to vote the sixth, most recent state reform, in the end required eight political parties. Parliaments or governments in their own right do not play, generally, an important role in the negotiation of change to the constitutional order. In a preliminary stage, discussion and negotiation on constitutional reform in Belgium may sometimes be attributed to some form of commission or working group which will include politicians with different functions and from different levels. However, again, the members of these bodies are appointed by the political parties and should in the first place be considered as party representatives. In any case, it is not in this type of body that the actual constitutional reform is decided, it is at the most prepared there. A good example is the COSTA/COREE (Commission for State Reform) that was created in 1999 to prepare the fifth reform of the Belgian state. It was composed of 31 MPs and government ministers who were appointed by the political parties, but did not reach any major agreement (see Sinardet 2012 for more details). The division on constitutional politics in Belgium is also not so much a centre-periphery one, since the conflicts on constitutional reform do not really oppose a central government to regional governments. Rather it opposes political parties in favour of more decentralization to parties in favour of a constitutional status quo or, in recent years, also increasingly favouring forms of recentralization, or both. This is because the federal level has largely been devised as a consociational system based on the two main language groups, the Dutch-speaking and French-speaking one representing respectively about 60% and 40% of the Belgian population (Sinardet, 2010). Due to this it is impossible to speak of “majority nations” and “minority nations” in the way this is the case in many other “multinational” democracies. Another element that hampers a centre-periphery division is that Belgium’s party system is largely split on a language basis. With the exception of the radical left PVDA /PTB , a unitary party that has entered federal parliament in 2014, all other parties are either Flemish or Francophone parties. This is of course different to the situation in most other federal countries where more parties are organized at the federal level with regional branches or sometimes different regional parties organized at the regional levels.

Flemish Nationalism and the Left-Right Divide

103

Political parties are thus the main actors, but also the main forces driving constitutional reform in Belgium. This is particularly the case for sub-state nationalist parties, as Belgium is no exception to the rule that “nationalism is a central and enduring political force of multinational democracies,” bringing demands for self-determination and decentralization at the heart of constitutional politics (see introduction of this book). Therefore, in the past, sub-state nationalist parties have been one of the main driving forces behind constitutional politics, if not as one of the main actors at the negotiating table, at least as actors that put constitutional reform high on the political agenda. Constitutional politics have always been the main priority for these parties, who entertained a strenuous relationship with the Belgian state. Flemish-nationalist parties in particular would only contemplate participating in a Belgian government if they had sufficient guarantees that it would execute a major constitutional reform strongly reinforcing Flemish autonomy. This was the ideological and strategic line followed by the main Flemish-nationalist party Volksunie during its entire existence, spanning decades, as well as initially by its successful successor N-VA. In 2011, the N-VA even considered that a detailed agreement on a sixth reform of the Belgian state was a prerequisite to start negotiations on the formation of a federal government. This resulted in Belgium breaking the world record of government formation longevity with 541 days, while actually 485 of these were almost entirely dedicated to constitutional reform negotiations, with the actual government formation only starting after a definitive agreement on this had been found. At that point, the N-VA had left the negotiation table, mostly because it considered that the constitutional reform proposals did not reinforce Flemish autonomy strongly enough. Without this, a federal government participation could not be considered for a second. Given this context, it is at first sight totally startling that only three years later, after its most important electoral success to date, the same party decided to participate in a Belgian federal government without a semblance of constitutional reform being envisaged. The federal government agreement that was signed by N-VA in 2014 was even the first in three decades that did not contain a single reference to constitutional reform. Moreover, a Belgian government participation of the N-VA could endanger further constitutional reform in the future, since the party “risked” to have to defend the federal policies

104

Dave Sinardet

it contributed to, thus showing that it was possible to conduct policies at the Belgian federal level which are beneficial to the Flemish community. Why did the N-VA totally depart from the strategy followed by Flemish nationalism for decades, which had seen pushing for constitutional politics as its main goal? Part of the answer lies in the connection that the N-VA (and other parties before) have made between constitutional politics and the quest for more Flemish autonomy on the one hand and the socio-economic left-right divide on the other. Therefore, I will first discuss in more detail the historical relation between the ethno-linguistic and the socio-economic cleavage in Belgium, before I will focus on how this plays out in the more recent shift in discourse and strategy of Flemish nationalism, also aided by data from a large-scale electoral survey and MP survey that contribute to explain this shift.

The Linguistic and Socio-Economic Cleavage in Belgium: Cross-Cutting and Partially Overlapping Belgian society and politics have traditionally been characterised by three so-called fault lines, that structured political cleavages and conflicts (Huyse 1981; Witte 2009; Mabille 1993): The philosophical fault line divided Catholics and freethinkers; the socio-economic one separated labour and capital (or left and right); and an ethno-linguistic or regional fault line divided Dutch-speakers and French-speakers. While the philosophical cleavage was for a long time crucial in Belgian history, this gradually disappeared to the background in the second half of the 20th century, particularly after some fundamental compromises were reached on the question of schools in the 1950s which pacified one of the main ongoing conflicts between Catholics and freethinkers. The socio-economic cleavage was also in part pacified through a Social Pact installing an institutionalised system of social dialogue between trade unions and employers’ organisations in Belgium from the end of the Second World War onwards. Nevertheless, the left-right divide continued to be central to Belgian politics, similarly to most other Western-European states. The linguistic cleavage has developed gradually since the second half of the 19th century. It became central to Belgian politics in the second half of the 20th century and lead to a gradual federalisation of Belgium

Flemish Nationalism and the Left-Right Divide

105

from 1970 onwards, through six constitutional reforms or “state reforms” in some four decades. To a large extent these different cleavages were cross-cutting. However, they have also to some extent overlapped. While the Flemish (nationalist) movement was dominantly Catholic and right wing, the Walloon (regionalist) movement was mostly secular and when it developed more into a kind of mass movement in the 1960s – left wing. This coincided with a more general voting pattern in both regions which led the Catholic and socialist parties to be the leading political forces respectively in the north and the south of the country, contributing to their stances sometimes being associated with those of the Flemish and Walloon region as a whole. According to sociologist Luc Huyse (Huyse 1981: 124), the gain in importance of the ethno-linguistic cleavage from the 1960s onwards, can in part be explained by how pacification of the other two main divisions in Belgian political life was not as complete as it might have seemed. Strong factions within both majority groups (Catholics in Flanders, socialists in Wallonia) opposed the status quo, that had taken form in pacts and found in regional and cultural ideas “new, more compelling instruments for the diffusion of their clerical/anticlerical or socioeconomic blueprints,” leading Huyse to conclude that “the federalist idea became more attractive to more people in the 1970s not strictly for linguistic or cultural or ethnic reasons, but because it bears the promise of the ultimate achievement of socialism in Wallonia and of a sort of Catholic model of societal harmony in Flanders.” It can therefore not come as a surprise that in recent decades, those parties in the north of the country that have most strongly adopted positions in favour of regional autonomy, prompting phases of constitutional politics, next to the Flemish-nationalists that were obviously most radical in their demands, were the Flemish-Christian democrats, while the Flemish socialists and greens were more reluctant. The south shows a mirror image, with constitutional reform mostly being advocated by the Francophone socialists – from the 1970s until the early 1990s – and the French-speaking Catholics being the most reluctant. The connection between the Walloon movement and the labour movement developed together with the industrial decline hitting the Walloon region, especially the old industrial areas in the provinces of Hainaut and Liège. The trade unions there felt frustrated in

106

Dave Sinardet

their attempts to address the developing economic crisis with left wing, Marxist recipes which they felt they could not apply within the Belgian framework dominated by Flemish, right wing Catholics, sometimes referred to as “l’État CVP.” This resulted in demands for socio-economic autonomy, which, combined with Flemish demands mostly focused on cultural autonomy, brought about the historic compromise of the first constitutional reform of 1970 which created two types of federated entities in Belgium: regions and communities. From the 1970s this regionalist position was increasingly adopted by the French-speaking Socialist Party, coming to a peak when the party was in opposition in the 1980s. However, since the state reform of 1993 the Parti Socialiste (PS) became much more hesitant in advocating federal reform and later downright hostile to further large-scale decentralization, followed in this stance by virtually all French-speaking parties. This can be attributed to the fact that the socio-economical and financial situation of the Walloon region was such that it was not perceived in its interest to regionalize many more competences. At the same time, however, right wing circles in Flanders continued to advocate more autonomy. Clearly, partisan interests also came into play. It is not a coincidence that Flemish Christian-democrats and French-speaking socialists became strong defenders of regionalization when their hopes to gain an overall majority became quite unrealistic, and they realized they would always have to share power in a Belgian government. Decentralization in those days created a largely Christiandemocratic Flemish state and a Walloon socialist state. The latter is still largely the case today (given that the PS remains the strongest party in the south of the country) and can explain why, during negotiations on constitutional reform, the party is not always reluctant to regionalize more competences as long as they do not touch on social security and do not have too detrimental financial consequences for the Walloon region. Given their strong electoral decline, Flemish Christian-democrats saw their power diminish. However, still today, their demands to further defederalize health care can be linked to the fact that the social welfare and health care sector in Flanders remains largely in the hands of the Catholic pillar and that the Christian-Democratic Party (CDandV) has held the regional ministry of health care since its partial defederalization in 1980, with the exception of its five years in opposition. Also, the consociational mold, in which federalization in Belgium was carried through,

Flemish Nationalism and the Left-Right Divide

107

strengthened the logic that the regional balance of power would generally also be respected in national coalition-making, turning a coalition of Christian-democrats and socialists into the most evident formula for a very long time (Swenden 2002). This short historical overview shows that when cleavages and their underlying interests tended to (partially) overlap, or when one cleavage was instrumentalized for interests connected to another cleavage, this became a motor for constitutional politics. This was especially the case for the linguistic and socio-economic divide. Indeed, the first four constitutional reforms (1970, 1980, 1988, 1993) were at least partially driven by socio-economic positioning, certainly in the south of the country.

Today’s Flemish Nationalist Discourse: Overlapping Cleavages The socio-economic and ethno-linguistic cleavages have probably never overlapped so much as in the discourse of the N-VA (New Flemish Alliance). Initially this was, however, not that clearly the case. The N-VA is a spin-off of the Volksunie, which disappeared as a party in 2001 because of irreconcilable differences between a more moderate and progressive wing on the one hand and a more radical nationalist and conservative wing on the other, the latter going on to form N-VA (Noppe and Wauters 2002). The actual reason for the split was a disagreement on whether to support a state reform agreement, the so-called “Lambermont reform” (Sinardet 2012). At the national elections of 2003 the N-VA was able to pass the electoral threshold of five per cent in only one constituency and thus obtained only one MP. Given its uncertain survival, the party decided to form an electoral alliance with the CDandV. This performed well and enabled the N-VA to hold executive positions in the Flemish government since 2004. At the national elections of 2007 CDandV/N-VA also obtained a good result, but tensions on the strategy to obtain a new constitutional reform and form a federal government led to the end of the cartel in 2008 (Deschouwer 2009). However, on its own again, the N-VA became more successful than its Flemish-nationalist predecessors had ever been: from 2010 onwards it was the largest party in Belgium, while in 2014 it attracted almost one third (32.6 %) of Flemish voters. In 2019 it dropped to a quarter of the Flemish vote, but remained the largest party in the country.

108

Dave Sinardet

From its creation in 2002, the first article of the N-VA statutes stipulates that the party strives towards an “independent republic of Flanders, member state of a democratic European Union.” Contrary to the extreme right Vlaams Belang, generally it has not pleaded for immediate unilateral secession, but rather for a gradual disappearance of the Belgian state through a process of constitutional politics. However, even though independence clearly remains in the statutes of N-VA and was initially publicly advocated, in its public discourse the party has gradually moved away from this position. During the electoral campaign of 2010, other Flemish parties were regularly pointing out that the N-VA was in fact separatist, knowing this might frighten voters, while the party itself tried to avoid the subject. Instead of outright separatism, the N-VA started to defend the concept of confederalism, which however remained quite vague for a long time. In January 2014 the party organised a conference to elaborate what it actually meant with this concept. Analysis of the resolutions show that the N-VA ’s model is not an actual confederation in line with the internationally accepted definition (which supposes independent states signing a treaty), but still comes quite close to it (Popelier and Sinardet, 2012). Even though new states would not actually be created, a treaty between Flanders and Wallonia would replace the Belgian constitution, delegates of the Flemish and Walloon parliaments would constitute a “confederal” parliament and the Flemish and Walloon governments would appoint a “confederal” government with a rotating prime minister that would only have very limited competences left. But while this comes close to a confederation and thus to a far-reaching dismantling of Belgium, the media discourse conveyed by the N-VA’s hugely popular president, Bart De Wever, which accompanied the proposals, sounded quite different. Actually, typical Belgian unionist arguments were used to communicate on a proposal which entailed a quasi-split of Belgium: the proposals were framed as a Belgium 2.0; it was said that the Belgian level would still have important powers and that this solution would pacify relations between the language groups once and for all. This is connected to a broader shift in discourse by the N-VA , which brings us to its discourse on the relation between the ethno-linguistic and socio-economic fault line. In the past Flemish nationalists generally used a traditional nationalist discourse, stating that nation and state should be congruent (Gellner 1983). The demand for Flemish independence – or at least for increased autonomy – was presented as the logical and legitimate

Flemish Nationalism and the Left-Right Divide

109

consequence of the existence of a Flemish identity, people, and nation. However, nationalist parties did not have the monopoly on these types of classic nationalist arguments. They were for instance also used by Christian-democrat leaders of the Flemish government, especially in the 1990s, who strongly relied on the existence of a Flemish identity, reinforced by nation-building policies of their government, to advocate further transfer of competences from Belgium to Flanders. Party political, Flemish nationalism gradually abandoned these traditional nationalist arguments, as these did not appear to be a guarantee for electoral success. Rather, under its president, Bart De Wever, N-VA shifted its emphasis to a more conservative, right-wing, liberal, socio-economic platform. Flemish autonomy was no longer presented as being an end in itself, but as a means to be able to conduct a more right-wing policy in tune with electoral results in the Flemish part of the country, mostly on socio-economic issues as well as migration. The argument became that the Flemish electorate had voted for liberal economic reforms, a decrease in taxation, stricter immigration etc., but that, because of opposite choices made by Francophone voters and the subsequent dominance of the Frenchspeaking socialists in the federal government, Flemish voters did not get the policies they vote for. The N-VA discourse speaks of “two democracies” within Belgium, a more right-wing Flemish democracy and a more left-wing Francophone democracy, thus effectively linking the socio-economic and the linguistic cleavage. By contrast to the increasingly right-wing politics of Flemish nationalism, in the 2014 referendum campaign, a Yes to Scottish independence was presented as opening the way to a more progressive, left-wing future, freed from the Conservative-dominated British Parliament. Of course, Scots form a 10% minority in the UK while Flemish are a majority in Belgium, having delivered Belgium’s prime minister for decades in a row. But that did not stop N-VA from presenting previous federal governments as dominated by the PS. The president of N-VA, Bart De Wever, has acknowledged this strategy, saying the work of Miroslav Hroch inspired him: “What an insight! Nationalism that wants to be successful must not have the nation as its end. It must see the nation as a means to tackle issues that are important for large groups of people: lower taxes, stronger migration control, et cetera. If you can spread this message as a politician: bingo! That is what I have always aimed for with the N-VA: Flanders as a means, not an end” (cited in De Wever et al. 2019).

110

Dave Sinardet

This can explain why in 2014 the N-VA went one step further and decided to take part in a centre-right federal government lead by the French-speaking liberal Charles Michel without any demand for a new constitutional reform, thus marking a historical break with the strategy of Flemish nationalist parties who would only participate in Belgian governments if a large step towards Flemish autonomy was made. Given that autonomy as a means for a right-wing policy became the central argument in the N-VA’s discourse, when this goal could be attained by joining a federal government this became a quite unavoidable step to take. After attracting support from Flemish employer’s organisations and being able to attract many right-wing voters from the Flemish liberal and Christian-democratic parties as well as radical right voters mostly focused on migration and security, the time came for N-VA to deliver to these new followers. The fact that this was the first federal government since 1988 in which the French-speaking socialists were not present was presented by the N-VA as a “state reform” in itself which would finally make it possible to implement a right-wing economic “recovery” policy after decades of “socialist domination.” It also helped that the government contained three Flemish parties and only one Francophone party and thus was only supported by less than one-third of the French-speaking seats in the Parliament, breaking with the tradition of striving towards something close to a majority in both language groups to form a federal government. Also, since the other Flemish and Frenchspeaking parties were not in favour of a new constitutional reform, demanding this would probably have meant that N-VA would have to stay in opposition at the federal level. Still, it remains a break with Flemish-nationalist predecessors that N-VA chose to participate in a Belgian government, nevertheless, permitting the party to transform into a (federal) governing party and to try and secure a stable place at the heart of the Flemish (and Belgian) political landscape. This created speculation and discussion on whether the N-VA was still in the first place the (radical) Flemish-nationalist party of its creation in 2002 or whether it should rather be considered primarily as a Conservative-Liberal party. The N-VA party’s switch in the European Parliament from the EFA (European Free Alliance) group, mostly composed of (often progressive) nationalists and regionalists, to the Euroskeptic and right-wing ECR (European Conservatives and Reformists) contributed to this questioning. Was the left-right divide

Flemish Nationalism and the Left-Right Divide

111

simply being instrumentalized to secure electoral success or had the party been fundamentally transformed? At first, it seemed unlikely that a Belgian government participation without any step towards more Flemish autonomy would easily pass a Flemish-nationalist Congress. However, in the end maybe it is easier to make the Flemish-nationalist rank and file agree to a constitutional status quo than to a constitutional reform that is always unavoidably a compromise with other (Francophone) parties and thus contains uneasy concessions for Flemish nationalists. Historically the latter always proved difficult and often impossible. For instance, the Volksunie broke up over the lack of agreement on the fifth state reform and in 2011 the N-VA also refused to support the sixth state reform. In any case, the main political leaders of N-VA reassured their members that a form of separatism remains the longterm goal of the party and that even though the broadening of its discourse has attracted new voters as well as new political personnel, the N-VA remains in the first place a Flemish-nationalist party. De Wever also argued that conducting right-wing policies on the federal level and putting the French-speaking socialists in opposition would lead the latter to be on the demanding side for a new round of constitutional politics, granting more autonomy to the regions (and thus to them). Indeed, as explained, a past drive for economic autonomy in Wallonia came from the left and was also to a large extent motivated by similar socio-economic concerns. De Wever seemed to hope or at least gave that impression to convince his party members for a return to this situation or for a Scottish scenario. This argument went hand in hand with a rejection by De Wever of the typical constitutional reform process, that has brought Belgium six constitutional reforms between 1970 and 2012. He argued that these only made the federal system more complicated and contained too many compromises to the Flemish position, mostly because the Flemish were always the ones on the demanding side. The new N-VA strategy would thus be supposed to make the Francophones – and particularly the PS – demandeurs. In reality, chances of Walloon socialists demanding a radical split of competences was quite unsure. Indeed, one of the main competences still left at the federal level is the interpersonal system of social security and all studies show that splitting this system would lead to impoverishment of the Walloon region. In the meantime, the discursive shifts of N-VA and more importantly its transformation into a Belgian governing party from 2014

112

Dave Sinardet

onwards seemed to transform it from a party focused primarily on the ethno-linguistic cleavage to one predominantly occupied by the socio-economic cleavage. The situation also impacted N-VA’s relation to the Belgian state. While the N-VA can ideologically be considered as an ‘anti-Belgian’ party, its focus on right wing themes such as law and order and security made it claim the federal departments of Interior Affairs and Defence, two competencies symbolically linked to the Belgian nation-state. After years of budgetary cuts, the N-VA Minister of Defence (also under international pressure) reinvested in the Belgian army. The Minister of Interior Affairs reinforced Belgian police forces after the Brussels terrorist attacks of 21 March. Another example of N-VA’s increasingly ambiguous relation to Belgium was its agenda for a stricter legislation on nationality and naturalization adding integration requirements, traditionally also considered a tool for nation building. Emblematic for this was the newcomers’ declaration launched by N-VA’s federal secretary of state for asylum and immigration who wanted newcomers to subscribe to some of the common values of their host country (such as freedom of expression, gender equality, etc.). However, the Council of State ruled that the division of competences in Belgium had not been respected, as the newcomers’ declaration was also related to integration for which the communities are competent. Ironically, a Flemish nationalist politician did not respect Flemish autonomy so as to implement a policy that at least implicitly contributes to a form of Belgian nation building. Another example was the party’s proposal to make newcomers pay more for their naturalization process, which was supported by the argument that the Belgian nationality is too valuable to not ask a reasonable price for it (for more details see Loobuyck and Sinardet 2017). The migration issue, on which the party had increasingly profiled itself during its time in government, also lead to N-VA finally leaving the federal coalition in December 2018 after it refused to sign the UN Migration Pact to which the Belgian government had previously committed. This seemed to mark a break with the strategy of profiling itself as a Belgian governing party. However, the exit of N-VA was not over an issue on the linguistic divide linked to constitutional politics, signaling that the party did not necessarily want to go back to its traditional positioning, but rather wanted to profile itself even stronger on migration. The Party’s losses to its radical right competitor Vlaams Belang at the local election in October 2018 most

Flemish Nationalism and the Left-Right Divide

113

probably played a role in this. The move did not prevent N-VA from losing more than one fifth of their votes in the 2019 federal election. Many N-VA voters had returned to Vlaams Belang, which more than tripled its electoral share, becoming the second largest group in the federal parliament. Its exit liberated the N-VA from its federal government position, allowing it to advocate confederalism again and thus to call for a fundamental new round of constitutional politics. However, during the campaign for the federal and regional elections of 2019 this was not the Party’s only message: simultaneously it continued to profile itself as a Belgian governing party, even launching its former federal vice prime minister Jan Jambon as a candidate to the office of Belgian prime minister, again a novel stand for a leading Flemish-nationalist politician. This was accompanied by interviews of Jambon in the French-speaking press assuring Francophones that he would be “the prime minister of all Belgians, from Arlon to Ostend,” probably the most Belgian-leaning campaign of a Flemish candidate prime minister. The N-VA made it clear that it would not mind reconducting the centre-right federal government, even if this meant putting constitutional reform in the freezer for another five years. However, if this would not be possible and the N-VA would be forced to negotiate with the French-speaking socialists or greens, or both, it would put confederalism on the table. The election results, in which the federal coalition lost 22 seats and did no longer reach a majority, only made the second scenario possible. This put the N-VA in a difficult position concerning its ambitions as a Belgian governing party: the only way to enter a federal government again was a coalition with the PS. Given that the latter’s absence was the main reason put forward by the N-VA for its previous government participation this was not an easy situation. Different views existed in the party on the desirability of governing with the PS, but there was also skepticism on whether being in the opposition next to a strongly reinforced Vlaams Belang was a more attractive scenario. The Covid-19 crisis contributed to a stronger realisation within N-VA that having federal ministerial portfolios could be an important asset. However, given that the willingness of the PS to govern with N-VA was even more limited (even non-existent), the dilemma never had to be definitively faced. It is clear though that the only way for N-VA to envisage a coalition with the PS was to put constitutional reform back on the agenda. Because only a very limited number of

114

Dave Sinardet

articles of the constitution had been declared open for revision and because the coalition formulas that were possible did not provide a majority to revise special majority laws, creative propositions were devised to allow more regional autonomy on aspects of health care and labour market within the framework of federal laws, the idea being that an actual fundamental new constitutional reform would be prepared for 2024. The PS showed some openness for this, in line with its more regionalist past and the logic that regionalization would reinforce its power in, the south. Partly for the same reasons, the French-speaking liberals were much more reluctant. The precise impact of the N-VA’s repositioning and federal government participation of 2014–2018 on the perspective of constitutional politics in the coming years thus remains unclear at the moment. In any case, the increasing shift in the party’s positioning from the linguistic divide to the left right divide explains why the N-VA joined a federal government without pushing for constitutional politics. However, this raises the question of why the party operated this shift. In the next section I will try to gain insight in this, based on a large scale electoral survey, organized by the interuniversity consortium Partirep, as well as on a survey conducted among all regional and federal MPs in Belgium (for more detailed results relating to the questions of federal reform and identities based on these surveys, see Sinardet et al. 2018; Reuchamps et al. 2017).

Voters’ and mp’s Positions on Constitutional Reform A first hypothesis to explain the N-VA’s shift away from its core business of constitutional politics is that it is not salient enough among the Flemish electorate. Table 4.1 shows which issue voters in the Flemish region found most important to determine their vote for the federal election in 2014, based on a limited list of the most important competences. This clearly shows that state reform is one of the least salient themes for Flemish voters with only 3.1% of them saying it is their most important vote-determining issue, a percentage very similar to voters in the Walloon region. This is not only true for the 2014 election, as it confirms most previous research on the salience of state reform and linguistic conflicts (Swyngedouw and Beerten 1996; Swyngedouw and Rink 1998; De Winter & Frognier, 1999;

Flemish Nationalism and the Left-Right Divide

115

Table 4.1 | Importance of different issues in making an electoral choice (%) Issues

Flemish region

Walloon region

Employment

38.9

51.7

Economy

25.2

17.9

Fiscal issues

9.7

7.0

Environment

9.1

7.3

Crime

7.8

6.0

Immigration

6.2

6.9

State reform

3.1

2.6

Defence

0.0

0.6

Source: Partirep

Frognier et al. 2007; Deschouwer and Sinardet 2010; Sinardet et al, 2018). The priority for Flemish (and Walloon) voters clearly lies with socio-economic themes: economy and employment together score 64% among Flemish voters. The very low saliency of constitutional politics among Flemish voters and the high saliency of socio-economic questions can clearly be an incentive for a party that has constitutional politics at the core of its political agenda, to at least reframe the question in socio-economic terms. The N-VA did this by saying autonomy was only a means to conduct more liberal socio-economic policies, or to temporarily drop the issue altogether, which was the consequence of their reframing in 2014, as they could not refuse to join a federal government in which they would be able to conduct these policies. However, is the gap between the N-VA and the Flemish electorate limited to the saliency attached to the question of constitutional politics, or does it also concern the positions on these issues? A second hypothesis for the N-VA’s shift is that it is also a response to this position gap. Before looking at the positions of voters, I will look at those of MPs, and, most particularly, those of N-VA MPs. Table 2 shows their positions on the question of the distribution of competences in Belgium and thus also on the question of Flemish autonomy. More specifically, MPs were asked to indicate their position on a scale between

116

Dave Sinardet

Table 4.2 | Belgian mps’ positions on constitutional reform 2011 Party

2014–15

Average

Stand dev

Average

Stand dev

Vlaams Belang

0.0

0.0

0.4

1.1

n-va

0.4

0.8

0.6

0.9

cd&v

3.0

1.0

4.5

1.2

fdf / Défi

4.6

1.8

5.0

2.3

ps

4.8

1.9

5.2

1.4

Open vld

3.9

2.3

5.2

1.7

Écolo

4.2

1.4

5.3

1.4

cdh

4.3

1.4

5.5

1.3

mr

3.9

1.4

5.7

1.9

sp.a Groen

4.4

1.5

5.8

1.6

Groen

4.9

1.5

5.8

1.7

–

–

8.5

1.0

pvda/ptb

Source: mp survey – Sinardet, Reuchamps, Dodeigne

0 and 10, where 0 stands for all the competences to the regions and communities, 10 stands for all the competences to the federal state, and 5 is explicitly presented as the current distribution of competences, or, more simply, the status quo. Table 2 compares between 2011 and 2014–2015 and ranks the parties based on their latter score, from most regionalist (or separatist) to most federalist. First of all, Table 4.2 shows that the N-VA can still be considered as a radical Flemish-nationalist party. The average score of the N-VA MP s may not be 0 which corresponds to a separatist scenario, but it remains very close. Also, the standard deviation in 2014 for N-VA is the lowest of all parties, signaling a large consensus among the MPs of the party on the preferred distribution of competences. In 2014 the N-VA score clearly diverges from that of all other parties, with the exception of the extreme right party, Vlaams Belang, which, in contrast with N-VA, is still overtly separatist in its public discourse

Flemish Nationalism and the Left-Right Divide

117

Table 4.3 | Belgian voters’ positions on constitutional reform Flemish region

Walloon region

2009

2014

2009

2014

All competences for regions and communities

4.9

4.0

5.5

1.1

More competences for regions and communities

47.0

34.5

33.5

24.7

It is good as it is

24.2

38.0

22.5

31.6

More competences for the federal state

20.3

19.6

29.6

31.8

All competences for the federal state

3.5

4.0

8.9

10.8

Source: Partirep

(although even the average of the Vlaams Belang MPs has shifted from 0 to 0.4 between 2011 and 2014). The difference with the other parties increased between 2011 and 2015, because all of them have a higher average score in 2014, after the implementation of the sixth Belgian state reform. The score of all parties with the exception of Vlaams Belang, N-VA, CDandV, and Défi has even switched to the other side of the continuum, towards a scenario of transferring competences back to the federal level. This refederalization of competences has, in recent years, entered the political and public debate on constitutional reform in Belgium (see Sinardet et al. 2016). How do Flemish voters position themselves on the same continuum? In Table 4.3 the 11-point scale is reduced to five categories: the two extreme positions (0 and 10), the middle position (5), the more regionalist position (1 to 4), and the more federalist position (6 to 9). While the MPs of N-VA had an average of 0.6, the most corresponding position in Table 4.3 only convinces a limited amount of Flemish voters: in 2014 only 4% wants to attribute all competences to the regions and communities, the same percentage that wants all

118

Dave Sinardet

competences returned to the federal state. Some previous studies showed a slightly higher percentage of support for separatist solutions, but, generally, it was not higher than 10%. This can clearly explain why the N-VA traded a separatist position for a confederalist position. If we add up all the Flemish voters that want to increase the competences for the regions and communities, we arrive at a total of 38.5 % who are at least in favour of reinforcing regional autonomy. However, this also means that more than 6 out of 10 Flemish voters does not favour more Flemish autonomy, with almost 1 in 4 wanting to reinforce the federal level. We must, of course, also keep in mind that the position on this issue is not the one most determinant of a voter’s choice, but still it could be problematic for a party that wants to stay the strongest Flemish party to focus too much on a position in which an important part of the Flemish electorate does not follow. It made more sense for the N-VA to try and also attract voters with a more Belgian-leaning profile that could be convinced by their positioning on the socio-economic left-right cleavage. Table 4.3 also suggests that the gap between the N-VA and a part of the Flemish electorate has also become larger in recent years, as in 2009 a little over half of the voters still favoured more regional competences. By 2014, support for a status quo grew which is probably a consequence of the agreement on the sixth state reform, voted in 2012. Due to this state reform, the status quo position on the continuum changed back to the situation after the sixth state reform. So voters previous preferences for more decentralization might have been satisfied or they might experience a fatigue after years where constitutional politics was high on the agenda, leading to years of political crisis and stalemate and Belgium breaking the world record of government formation longevity. This suggests that the choice of the N-VA to not demand further constitutional reform in 2014 was in phase with the preferences of a growing part of Flemish public opinion. However, the question is to what extent the electorate of the N-VA has effectively become very diverse on the constitutional reform question? To what extent is the party indeed able to attract voters that are less radical on the constitutional politics question? And to what extent may their less strong focus on Flemish nationalism have made voters turn away from the party to embrace the more radical alternative? Table 4.4 shows the average position on the 11-point scale for the electorate of each party. First of all, differences on distribution

Flemish Nationalism and the Left-Right Divide

119

Table 4.4 | Average position on constitutional reform per party electorate in 2014 Party

Average

N

n-va

3.7

271

Vlaams Belang

4.5

19

cd&v

4.5

133

Groen

5.0

72

Open vld

5.2

109

ptb

5.2

43

sp.a

5.3

104

ps

5.5

213

pvda

5.5

21

Écolo

5.7

57

mr

6.0

135

cdh

6.6

104

Source: Partirep

of competences between the voters of the parties are more limited than between MPs. The different electorates find themselves between 3.7 and 6.6 on the scale from 0 to 10, or, in other words, between a fairly limited regionalization and a fairly limited federalization. N-VA -voters are on average most in favour of increased regionalization, even though they are still very far away from the MPs of N-VA . The lack of congruence between voters and MP s is the second largest of all parties, with a difference of 3.1 points. Again, it seems a logical choice for the N-VA to focus less on Flemish autonomy and to adopt less radical positions on it. However, the less radical Flemish nationalist position taken by the N-VA in recent years did not seem to make voters chose a more radical alternative since the average score of the Vlaams Belang voters is less ‘regionalist’ than that of N-VA , making the gap between voters and MP s the largest for the extreme party. However, we have to be very cautious because of the low N for the Vlaams Belang, due to its important electoral defeat in 2014. Still, in the past, research showed that its voters differentiated

120

Dave Sinardet

themselves more by their positions on migration and crime than on constitutional reform (Swyngedouw et al. 2000). These results again suggest that the N-VA was able to convince an important number of voters who do not agree with their quite radical regionalization plans. However, this could be simply related to the fact that the N-VA became a large party and that voters of other parties do not take a radical position in the other, Belgian direction: in this context it was difficult for the N-VA electorate to differ strongly from the other parties, especially on an issue that is not particularly salient for an important number of them. Both of these explanations are supported when we can compare with a similar electoral survey, carried out in 2009. At that time, when the N-VA did not yet focus as strongly on socio-economic issues and had not yet moved to the right on these issues, the average position of its voters on the scale was 3.1 (the Flemish average then being 4.3 while it was 4.5 in 2014). Even though already in 2009 this position was not really congruent with the Party’s program, between 2009 and 2014 the N-VA attracted voters with more moderate positions on state reform (from 3.1 to 3.7).

Conclusion It can be considered quite paradoxical that at a moment when a mainstream Flemish nationalist party achieved its highest score in a federal election ever – the N-VA in 2014 – it co-signed a federal government agreement without any official reference to constitutional politics. This had always been the main priority and a requirement for Flemish-nationalist parties to join any Belgian government for the past three decades. But the N-VA decided to prioritize its position on the socio-economic left-right divide over its position on the linguistic and constitutional reform question. Historically, there had always been interaction between the different cleavages in Belgian society. They were cross-cutting, but tended to overlap at times. A certain degree of instrumentalization between the linguistic and left-right divide has occurred at different times in Belgian history. The dominant Catholic and Christian-democrats, or both, in the north and the dominant socialists in the south tended to push for more autonomy at least in part to further their partisan, pillar, and ideological interests, a dynamic that is still partially at

Flemish Nationalism and the Left-Right Divide

121

play today. To a lesser degree, sub state nationalists in turn tended to instrumentalize the left-right divide to advance autonomist agendas, with Flemish nationalists increasingly criticizing a Belgian state dominated by Walloon socialists while Walloon regionalists lampooned L’État CVP often a synonym for L’État belgo-flamand. This strategic repositioning of the N-VA does have consequences though. For the party itself, it leads to a temporary transformation into a Belgian governing party, which for four years was running and trying to reinforce the “regal” departments, such as interior affairs and defense, closely linked to the Belgian state identity. The decision of N-VA to leave the federal government in December 2018, which as a consequence lost its parliamentary majority, seemed to mark a break with this strategy. However, the exit of N-VA was over the signing of the UN Migration Pact, signaling that the party did not necessarily want to go back to its position on the linguistic divide, but rather wanted to profile itself on migration, which it had increasingly done during its time in the government. That the N-VA strongly lost to Vlaams Belang in the local elections of 2018 undoubtedly played a part in this. This liberated the N-VA from its federal government position, allowing it to advocate “confederalism” again and thus to call for a fundamental new round of constitutional politics. However, during the campaign for the federal and regional elections of 2019 this was not the only message of N-VA. At the same time the party continued to profile itself as a Belgian governing party, even presenting their former federal vice prime minister Jan Jambon as candidate prime minister. This was amongst other things accompanied by interviews of Jambon in the French-speaking press assuring francophones that he would be “the prime minister of all Belgians, from Arlon to Ostend,” probably the most “Belgian” campaign of a Flemish candidate prime minister. The N-VA sent the message that it would not mind a return of the center-right federal government to power, even without constitutional reform. However, if this would not be possible and N-VA would be forced to negotiate with the French-speaking socialists and/or greens, it would put “confederalism” on the table. The results of the federal election only made this second scenario possible. They marked a return to electoral success for the Vlaams Belang. The federal coalition lost 22 seats and did not have a majority anymore, making the PS as good as unavoidable to form a federal coalition. Since negotiating with the PS became the only way for N-VA

122

Dave Sinardet

to pursue its federal government participation, some form of state reform deal was necessary for the Flemish nationalists to take this step. Thus, we gradually saw N-VA shifting back to a position where they declare constitutional politics as one of their main priorities, especially after a deal with the PS was concluded in the summer of 2020. Even though this deal did not permit an actual constitutional reform because only a limited number of articles in the constitution were open for revision and more importantly because the necessary majorities in parliament were not available, it did implement “provisional defederalization”: different regional policies would be conducted, co-decided with regional governments, for competences that would officially still remain federal. This foreshadowed an actual split of these competences through a new state reform to be prepared by 2024. The deal suggested that the French-speaking socialists were open to further regionalization in a number of domains. However, N-VA and PS were not able to assemble even a simple majority necessary to form a federal government around this project and therefore relegated N-VA to the opposition. This of course also meant the loss of its identity as a Belgian governing party, which contributed to the return of its discourse on how Belgium is structurally ungovernable and only radical constitutional reform is the way out. The N-VA’s federal government participation of 2014–2018, and its temporary repositioning in connection to this, therefore does not seem to have lastingly and fundamentally impacted the central position of constitutional reform in Belgian politics. r e f e r e nc e s Anderson, B. 1983. Imagined Communities: Reflections on the Origin and Spread of Nationalism, London: Verso. Deschouwer, K. 2009. “The Rise and Fall of the Belgian Regionalist Parties.” Regional and Federal Studies, 19 (4): 559–77. Deschouwer, K. and D. Sinardet. 2010. “Identiteiten, communautaire standpunten en stemgedrag.” In De stemmen van het volk. Een analyse van het stemgedrag in Vlaanderen en Wallonië op 7 juni 2009 edited bu K. Deschouwer, P. Delwit, M. Hooghe and S. Walgrave, 75–98. Brussel: VUB Press. De Winter, L. & Dumont, P. 2006. “Do Belgian parties undermine the democratic chain of delegation?” West-European Politics, 29(5): 957–76.

Flemish Nationalism and the Left-Right Divide

123

De Winter, L. and A-P. Frognier. 1999. “Les identités politiques territoriales: explorations dans un champ de mines politique et méthodologique.” In Des Elections en Trompe-l’œil. Enquête sur le comportement électoral des Wallons et des Francophones, edited by A.-P. Frognier and A.-M. Aish. Bruxelles: De Boeck. De Wever B., F. Verdoodt, and A. Vrints. 2019. Flemish Patriots and the Construction of the Nation: How the Flemish Nation Ceased to Be ‘Small’. Antwerp: Peristyle. Frognier, A., L. De Winter, and P. Baudewyns. 2008. Les Wallons et la réforme de l’Etat. Une analyse sur la base de l’enquête post-électorale de 2007, Pôle Interuniversitaire sur l’Opinion publique et la Politique. In PIOP , 23. Louvain-la-Neuve: Pôle Interuniversitaire sur l’Opinion publique et la Politique. Université catholique de Louvain. Gellner, E. 1983. Nations and Nationalism. Oxford: Blackwell. Huyse. 1981. “Political Conflict in Bicultural Belgium.” Arend Lijphart (ed.), Conflict and Coexistence in Belgium. The Dynamics of a Culturally Divided Society. Berkeley: University of California, Institute of International Studies. Loobuyck P. and D. Sinardet. 2017. “Belgium: A Hard Case for Liberal Nationalism.” Mabille, Xavier. 2011. Nouvelle histoire politique de la Belgique, Brussels : CRISP . Noppe, J. and B. Wauters. 2002. “Het uiteenvallen van de Volksunie en het ontstaan van de N-VA en Spirit: een chronologisch en morfologisch overzicht.” Res Publica: Tijdschrift voor Politieke wetenschappen. 30 (2): 397–471. Popelier Patricia and Dave Sinardet. 2012. “Stabiliteit en instabiliteit in de Belgische federale staatsstructuur.” In België, Quo Vadis? Waarheen na de zesde staatshervorming?, edited by Popelier Patricia, Dave Sinardet, Jan Velaers and Bea Cantillon, 1–29. Antwerpen-Cambridge: Intersentia. Reuchamps, Min, Dave Sinardet, Jérémy Dodeigne and Didier Caluwaerts. 2017. “Reforming Belgium’s federalism: Comparing the views of MPs and voters.” Government and Opposition, 52 (3), p. 460–82. Sinardet D. 2010. “From Consociational Consciousness to Majoritarian Myth. Consociational Democracy, Multi-level Politics and the Belgian Case of Brussels-Halle-Vilvoorde.” Acta Politica. International Journal of Political Science. 45 (3): 346–69. – 2012. “Federal Reform and Party Politics. The Case of the Fifth Belgian State Reform.” In Changing Federal Constitutions: Lessons from International Comparison edited by Arthur Benz and Felix

124

Dave Sinardet

Knuepling, 135–60. Opladen/Farmington Hills, MI: Barbara Budrich Publishers. Sinardet D., M. Reuchamps, and J. Dodeigne. 2016. “Een Belgiëbocht? Parlementsleden over de bevoegdheidsverdeling.” Samenleving en Politiek. 23 (2): 74–86. Sinardet D., L. De Winter, J. Dodeigne, and M. Reuchamps. 2018. “Language Identity and Voting.” In Mind the Gap. Political Participation and Representation in Belgium edited by Kris Deschouwer, 113–32. London: Rowman and Littlefield/ECPR Press. Swenden, W. 2002. “Asymmetric Federalism and Coalition-making in Belgium.” Publius: The Journal of Federalism. 32 (3): 67–87. Swyngedouw, M. and R. Beerten. 1996. “Cognitieve en affectieve motieven van partijkeuze.” De nationale verkiezingen van 21 mei 1995, Res Publica, 36 (4): 555–74. Swyngedouw, M. and N. Rink. 2008. “Hoe Vlaams-Belgischgezind zijn de Vlamingen? Een analyse op basis van het postelectorale verkiezingsonderzoek 2007.” Centrum voor Sociologisch Onderzoek, Instituut voor Sociaal en Politiek Opinieonderzoek (ISPO). In Political History of Belgium. From 1830 Onwards edited by Witte, E. and J. Craeybeck. 2009. Brussels: ASP Editions.

5

The Legitimacy-Legality Constitutional Paradox in Multinational Democracies and the Constitutional Origins of Sub-State Party System Realignments Jaime Lluch

The Legitimacy-Legality Constitutional Paradox and Multinational Democracies In contemporary multinational democracies such as Spain, Canada, Belgium, Italy, and the United Kingdom, the political aspirations of sub-state national societies for accommodation by the state, for a special status autonomy, for asymmetric federalism, or for a more satisfactory representational scheme in the administrative organs of the central state have been formulated as demands for constitutional reform in the last 30 or 40 years (Tierney 2004, 17). Such demands, in the context of the social and political peculiarities of multinational democracies, add an additional level of intricacy to the contemporary debates concerning the relationship between constituent power and constitutional form. The dominant constitutional and political view in sub-state national societies such as Scotland, Quebec, the Basque Country, Catalonia, Puerto Rico, Corsica, South Tyrol, etc. challenges contemporary assumptions about the nation-state, namely, the monistic demos thesis. Sub-state nationalists present “particular challenges to constitutional form which do not generally arise in uninational states” (Tierney 2007, 236).

126

Jaime Lluch

The trend towards accommodation within the state has led to the rethinking and reformulation of increasingly complex constitutional models of accommodation within existing states. The search for these sophisticated institutional designs of mutual accommodation may as a matter of fact pose a more radical challenge to the state and its constitutional self-understanding than secession itself. “Such demands, if taken seriously by the state, can call into question many of the constitution’s most profound self-understandings including even the conception of unitary citizenship which has been an article of faith for state-building processes” (Tierney 2004, 96). Autonomist and pro-federation sub-state nationalisms may question central tenets of the constitutional ideology of the central state, and may lead to the development of a “metaconstitutional” discourse – using Neil Walker’s term – that challenges the state’s traditional constitutional discourse. All of this leads to a rethinking of the possibilities for evolution and development of new models of constitutional accommodation in multinational polities. To encourage such accommodation, it would be best to minimize the tension between constituent power and constitutional form, especially in constitutional disputes between the central state and the governments of sub-state national societies. In this chapter, I seek to go beyond the interesting observation by constitutional theorists that the paradox of constitutionalism is one of the great paradoxes of contemporary constitution-making and to show how politics and law actually interact in a number of concrete situations in multinational polities. I will show that the clash between constituent power and constitutional form can have an important effect on politics, and thus that constitutionalism can have an effect on the development and evolution of sub-state nationalism, and conversely, sub-state nationalism can mobilize itself with the aim of impacting constitutionalism. There is a mutual interaction between law and politics, and the best method we can use to account for this interaction is to integrate comparative politics and comparative constitutional law. My research design in this chapter uses a Most Different Systems Design (MDSD) approach to compare the effect of constitutional moments that embody the legitimacy-legality paradox on sub-state politics in Catalonia and Puerto Rico in the recent period (2010– 2020). In a MDSD, researchers choose cases that are different for all variables that are not central to the study, but similar for those

The Legitimacy-Legality Constitutional Paradox

127

that are. “Doing so emphasizes the significance of the independent variables that are similar in both cases to the similar readings on the dependent variable” (Hirschl 2014, 253). Puerto Rico and Catalonia are different in almost every conceivable sense: different historical trajectories, demographics, patterns of socioeconomic development, length of liberal democratic experience, size, location, type of central state, etc. Yet, they share the following outcome variable: they are both sub-state national societies and they are part of a much larger state with different national characteristics, and recently both of their party systems have undergone major changes, which are in fact still ongoing. The thesis of this chapter is that they also share the same independent variable that explains this outcome variable: these profound changes were caused by constitutional moments that reflect the legitimacy-legality paradox. Puerto Rico during 2012–2020 has experienced a dramatic constitutional moment in two phases, still being felt today. First, in November 2012 the people expressed themselves in a referendum and clearly expressed their dissatisfaction with the present status quo, thus delegitimizing the Estado Libre Asociado. Then, in 2016 a second phase occurred, involving the momentous US Supreme Court decision in Sánchez Valle and Congress’ decision to establish an all-powerful Fiscal Control Board over Puerto Rico; both reaffirmed the nature of the present subordinate constitutional form, which had already been rejected by the Puerto Rican electorate in 2012. Hence, the clash between legitimacy (2012) and legality (2016) in the constitutional moment of 2012–2020 (Lluch 2018). Similarly, Spain during 2005–2020 has become a laboratory for observing this interaction between politics and law, and a virtual natural experiment to understand how the clash of legitimacies between constituent power and constitutional form can have a substantial impact on nationalist politics, both at the state level and the sub-state level. Spain is also interesting because in the constitutional standoff between Catalonia and the Spanish state in the period 2006–2020 when the tension between constituent power and constitutional form has been clearly expressed: first, in the clash between an organic statute of autonomy and a constitution (the Catalan Statute of Autonomy of 2006 versus the interpretation of the Spanish Constitution expressed in the Spanish Constitutional Court decision of June 2010). This political drama has been playing itself out during 2005–2020. Second, in the case of constitutive referendums,1

128

Jaime Lluch

as the ongoing constitutional standoff between the Catalan government (which has been proposing a self-determination referendum and finally held one) and the Spanish government (which insists that this is not constitutionally permissible). The pro-independence coalition that won the elections of 21 December 2017 and subsequently formed the government in Catalonia, held a referendum on independence on 1 October 2017.2

Constitutional Moments and Sub-State and State Nationalisms A “constitutional moment” is a higher order constitutional event, which impacts the relationship between the central state – largely controlled by the majority nation – and the minority nation embedded within the same state (Ackerman 1991). It is of a higher order than ordinary legislative activity. Such constitutional moments are relatively rare, and they represent a critical event that crystallizes the nature of the relationship between the central state and the embedded minority nations. These critical constitutional transformative events include: the adoption of a new constitution; the adoption or proposal of significant constitutional amendments; the adoption or proposal of a new organic statute for the government of the embedded minority nation; the proposal, organization, or holding of a self-determination referendum for a sub-state territorial unit, etc. (Lluch 2014). The very process of debating and negotiating a constitutional moment is critical because such moments “help to create the political community on whose existence the constitutional order which results from that process depends” (Choudhry 2008, 6). Note that these critical constitutional transformative events may be either positive or negative in their final outcome. That is, the event could have led to the actual enactment of a constitutional amendment, organic statute, etc., or the event could have been the proposal of such an amendment, etc., even if it was later rejected. What matters is that the event set in motion the public policy discussion and critical reevaluation of the relationship between majority and minority nations, both coexisting in a dialogical relationship within the same state. Some constitutional moments are often interpreted by the minority nationalists as an instance of majority nation nationalism, and, thus, these constitutional events impact the intersubjective

The Legitimacy-Legality Constitutional Paradox

129

relations of reciprocity between minority nationalists and majority nation nationalism. Importantly, such constitutional moments often dramatize and encapsulate the tension between constituent power and constitutional form, or the tension between democracy and law, in multi-demoi polities. They may also lead to a clash of legitimacies between an established constitutional form and the constituent power represented by the democratic will of the people in a well-defined territorial sub-state unit (Lluch 2014). Sub-state nationalists inhabit an imagined community that is a “moral polity” where reciprocities are expected and notions of collective dignity, the common weal, and mutual accommodation are essential (Lluch 2014). The perception by these sub-state nationalists that their expectations of reciprocity have been violated is a factor that contributes to radical changes in sub-state nationalists’ political preferences. Recent developments in Spain, especially during 2006–2020, have given us another opportunity to further understand how the clash of legitimacies between constituent power and constitutional form can have a substantial impact on nationalist politics, both at the state level and the sub-state level. I will first examine how the tension between constituent power and constitutional form is expressed in the clash between an organic statute of autonomy and a constitution (the Catalan Statute of Autonomy of 2006 versus the interpretation of the Spanish Constitution expressed in the Spanish Constitutional Court decision of June 2010). Second, I will refer to the current constitutional standoff between the Catalan government and the Spanish government on the issue of holding a self-determination referendum. I will then examine developments arising from constitutional moments between Puerto Rico and the US during 2012–2020.

Constitutional Moments, The Paradox of Constitutionalism, and Constitutional Politics Consistent with the argument in the Introduction to this book, this chapter is an extended reflection on the nature of constitutional politics. In the context of multinational democracies with significant substate national parties, constitutional politics is centred on the legitimacy-legality paradox. How the constitution is viewed by national minorities and national majorities in such complex multinational

130

Jaime Lluch

democracies is at the centre of constitutional politics. As discussed above, the tension between constituent power and constitutional form, or between democracy and law, or between politics and law, or between legitimacy and legality, embodies the central political dilemma of constitutional politics in plurinational democracies with civic sub-state national movements. Regarding the actors of constitutional politics, there are two levels at which we can answer this question. I will first discuss objective institutions. In this category, the first actor is obviously the highest court of the land that has the power of judicial review, that is, the power to interpret the constitution and to declare statutes unconstitutional. In addition, the second set of actors are the political parties at the state and sub-state levels. But there is another level at which this can be analyzed: constitutional politics in multinational democracies is less about concrete political institutions and more about subtle perceptions between national minorities and national majorities, about legitimacy, identity, recognition, and reciprocity, and about accommodation and pluralism. The difference between constitutional politics and what lawyers refer to as constitutional law is treated implicitly and explicitly throughout this chapter. Constitutional law is about the text of the constitution, relevant statutes, and the relevant constitutional case law. This chapter considers how constitutional politics works: constitutional politics is about the political effects of constitutional moments, which often crystallize such intersubjective perceptions between minorities and majorities about legitimacy, recognition, and reciprocity.

The Paradox of Constitutionalism and the Constitutional Moment in Spain (2005–2020): The Catalan Statute of Autonomy of 2006 and the Spanish Constitution of 1978 The Spanish territorial model established in the 1978 constitution, the State of Autonomies, and the Catalan Statute of Autonomy of 1979, had been unsatisfactory for several years in the eyes of the main political parties in Catalonia, culminating in the effort to reform the Catalan Statute of Autonomy in 2004–2006. In Catalonia, the major parties during this time period were: Esquerra Republicana de Catalunya (ERC), the federation of Convergència i

The Legitimacy-Legality Constitutional Paradox

131

Unió (CiU) – consisting of Convergència Democràtica de Catalunya (CDC) and Unió Democràtica de Catalunya (UDC) – the Partit dels Socialistes de Catalunya (PSC), and Iniciativa per Catalunya-Verds (ICV).3 “The autonomy achieved at the foundational moment of the Spanish constitutional state was closer to the administrative decentralization than to a model of national minorities accommodation…National pluralism was not implemented by the State central authorities” (López Bofill 2014). Moreover, autonomy did not ensure the protection of the Catalan language and culture, given the overwhelming presence of Spanish in the public sphere. In the financial and fiscal sphere, the system established has been perceived as inadequate. There has been a “persistent transfer of resources to the Spanish central government as a ‘solidarity’ contribution with the outcome of a fiscal imbalance with the centre of almost 17 billion euro, or 9.8% of the Catalan GDP. As an average, during more than 30 years of autonomy, for every euro that Catalans paid in taxes only 57 cents were spent in the region” (López Bofill 2014). During a number of years, the major Catalan parties had been putting forward proposals for reform of the 1979 Statute of Autonomy. By September 2005, the parties were able to come to an agreement and in September 2005, a major proposal for the reform of the Catalan Statute of Autonomy was passed by the Catalan Parliament. A total of 120 out of 135 members of Parliament voted for the September 2005 Catalan Statute of Autonomy (CSA), including the representatives of practically all the Catalan parties, except the Partido Popular (Popular Party-PP). The new CSA was a complex document containing a preamble, a preliminary title, and the following seven titles, in its final version (2006): Title I. Rights, obligations and governing principles (Articles 15–54) Title II. Institutions (Articles 55–94) Title III. Judicial power in Catalonia (Articles 95–109) Title IV. Powers (Articles 110–73) Title V. Institutional relations of the Generalitat (Articles 174–200) Title VI. Funding of the Generalitat (Articles 201–21) Title VII. Reform of the Estatut (Articles 222–3) The new CSA proposal sought: (1) the recognition of Catalonia as a “nation” and to increase the symbolic, linguistic and identity elements of Catalonia within the Spanish State; (2) the protection of the

132

Jaime Lluch

Catalan self-government powers vis-à-vis the central government’s constitutional powers; and (3) the improvement of the finance system in order to limit the “solidarity” contribution. In the quasi-federal system that is the State of Autonomies, the amendment of an Autonomous Community’s statute of autonomy must be enacted by the Spanish Parliament (Cortes Generales) as a Spanish State law (Ley Orgánica). The new CSA of 2005 was amended extensively by both Houses of Parliament (the Congress of Deputies, whose Members must approve the Autonomy Statute’s amendment by overall majority, and the Senate). According to one study, 64.7% of the articles in the proposal that came out of the Catalan Parliament in September 2005 were amended by the Spanish Congress of Deputies (ERC 2006). The approval by the Spanish Parliament was possible since the Spanish prime minister, the socialist José Luis Rodríguez Zapatero, arrived at an agreement with the Catalan leader of the opposition, Artur Mas – who would become Catalan prime minister or president from 2010 until 2015, when he was succeeded by Carles Puigdemont – about the definition of the nation, the Catalan language regulation, and the allocation of powers and financing. This agreement, however, represented the step back from the principles that had inspired the new CSA of September 2005 (the national recognition, the protection against the central state’s infringement against Catalan self-government’s exclusive competences, the measures adopted in order to strengthen the Catalan language’s social use, and the effort to limit “solidarity” revenue transfers from Catalonia to the central state). The so-called Mas-Zapatero agreement on the amendment of the Catalan Statute of Autonomy engaged the socialist parliamentarian groups in Congress and Senate, which at that time were the majority of both Houses. Other minority political groups represented in the Spanish Parliament gave support to the Catalan Statute’s amendment as well (the leftwing political groups and those that represented national minorities such as the Basque and the Galician, besides the support of the Catalan nationalist group of CiU in the Congress and the Senate). But the main opposition party in the Spanish Parliament, the conservative People’s Party (Partido Popular, PP) strongly contested the new CSA’s amendment process. The People’s Party fostered a fierce campaign against the Statute’s approval in the course of the winter

The Legitimacy-Legality Constitutional Paradox

133

and the spring 2006, which sometimes included vitriolic language, and a campaign to boycott Catalan products, such as the Cava (López Bofill 2014). The final form of the new CSA of 2006 was enacted by the Spanish Parliament and ratified by the Catalan people in a referendum that was held on 18 July 2006 in Catalonia, in which 73.9% of the votes were in favour, 20.8% against, and 5.3% blank votes, with 48.85% participation (Argelaguet 2014). The new CSA of 2006 was therefore the quintessential example of the invocation of constituent power to express the democratic will of a people in a territory with a sub-state national society. The text was approved by 120 out of 135 members of the Catalan Parliament in 2005, was then subsequently approved by the Spanish Parliament in 2006, and by the Catalan people in a referendum on 18 June 2006. The People’s Party voted against the Statute’s amendment project in the Spanish Parliament and, after its enactment by the Spanish Parliament and the ratification by the Catalan people, the PP parliamentarian groups in Congress and Senate challenged the constitutionality of the new Catalan Statute before the Spanish Constitutional Court in Madrid. After four years of deliberation, the Spanish Constitutional Court (SCC) finally issued the decision on the Statue of Catalonia in June 2010.4 In this momentous decision, the court nullified 14 key provisions of this Statute and interpreted another 27 key provisions in accordance with the 1978 Spanish Constitution. The decision undermined the aims and the basic structure of the CSA of 2006. The SSC decision of June 2010, and its interpretation of the constitutional form embodied in the Spanish Constitution of 1978, dramatized the clash between constituent power and constitutional form in contemporary Spanish constitutionalism. According to the interpretation given by Professor Hèctor López Bofill, a constitutionalist at Universitat Pompeu Fabra, the recognition of Catalonia as a “nation” was curtailed since the judgment repeatedly stressed that the term “nation” used in the Statute’s preamble had no legal standing. The court insisted that according to the Spanish constitutional framework there is only one nation, Spain, which is the unique holder of sovereign power through the will of the Spanish people represented in the Spanish Parliament. The term “nation” mentioned in the Catalan Statute’s preamble was therefore

134

Jaime Lluch

rejected by the Spanish Constitutional Court to the extent it contained any attribute of sovereign power. Nevertheless, it was considered compatible with constitutional provisions insofar as it referred to what the Spanish Constitution defines as a “nationality”: a community that can exercise a right to autonomy following the procedures set by the Spanish Constitution. The interpretation held by the court of the term “nation” as a “nationality” was extended to any aspect of the Statute in which the national character of Catalonia was mentioned such as the reference to the “national situation” or the regulation of the “national symbols.” The effort towards a political recognition of Catalonia within a plurinational conception of Spain was therefore rejected by the Spanish Constitutional Court ruling (López Bofill 2014; Spanish Constitutional Court Decision 31/2010 of 28 June 2010; Revista d’Estudis Autonòmics i Federals: 2011). With regard to “historical rights” referred to in Article 5 of the Catalan Statute, the court’s decision deliberately excluded this provision from the recognition that the Spanish Constitution makes of historical rights in Navarra and the three Basque provinces, on which the independent financing system of these territories is based. Avoiding any possible correspondence between the Catalan “historical rights” and the constitutionally enshrined historical rights of the above-mentioned territories, the court rebuffed the Catalan Statute’s aims not just in the field concerning the recognition of identity elements within the Spanish State, but also in the improvement of the Catalan’s financing system (López Bofill 2014; Spanish Constitutional Court Decision 31/2010 of 28 June 2010). Concerning linguistic rights, the ruling abolished the preferential status for Catalan in the Catalan public administration and media. Even though the decision maintained the regulation of Catalan language in the area of education and its vehicular character, the court subjected the Statute’s provisions to the recognition of the Castillian language as vehicular in education at the same level of Catalan. The Spanish Constitutional Court’s decision on the Statute regarding language policy was the beginning of a sequence of judgments issued by Spanish ordinary courts that have threatened the policy established from 1983 by the Catalan government of making Catalan the main language of communication and learning in Catalonia’s public schools. This policy was considered a key tool in order to preserve the Catalan language

The Legitimacy-Legality Constitutional Paradox

135

after 40 years of prohibition during General Franco’s dictatorship. However, according to the Spanish Constitutional Court ruling, Spanish should increase its presence as a language of learning, menacing the social use of Catalan among students and thus in the future (López Bofill 2014; Spanish Constitutional Court Decision 31/2010 of 28 June 2010). As far as the allocation of powers, the Constitutional Court’s ruling on the Catalan Statute closed the door to the Statute’s intention of modulating the competences framework between the State and the Autonomous Community of Catalonia. The ruling deactivated practically all the new aspects that the Statute had sought to introduce, by explicitly specifying an inferior position of the Statutes of Autonomy within the block of constitutionality and promoting the role of the Constitutional Court in the interpretation of the system of the allocation of powers. Therefore, it rejected all of the Statute’s attempts to broaden the material content of the autonomous community’s exclusive powers and to ensure that, as far as possible, the central government would not use its own powers to intervene in these areas. The ruling stated that the Constitutional Court enhanced its interpretative monopoly on the general categories regarding the functional definition of competences, watering down the range of exclusivity applied to the competences recognized under the new CSA of 2006 (López Bofill 2014; Spanish Constitutional Court Decision 31/2010 of 28 June 2010; Revista Catalana de Dret Públic: 2010). Regarding institutions, the ruling questioned the articles related to the Judicial Power altogether and declared them unconstitutional. Finally, the financing system was also heavily modified by the Spanish Constitutional Court’s decision since it reduced the legal effect of the Statute’s provisions in this area. The Statute’s norms are not enforceable against the Spanish Parliament, which is sovereign to regulate the contribution of every Autonomous Community to the “solidarity” fund, and the financial transfers. In practice, the Constitutional Court’s decision on the financing system was contrary to one of the central purposes of the new CSA of 2006: to make a structural reform of Catalonia’s financing system and to avoid the burden of fiscal transfers and the enormous fiscal imbalance with the centre that has a deleterious effect on the sub-state territory’s economy (López Bofill 2014; Spanish Constitutional Court Decision 31/2010 of 28 June 2010).

136

Jaime Lluch

The Political Effect of the Paradox of Constitutionalism in Spain, 2006–2020 The Spanish Constitutional Court ruling on Catalonia’s Statute was contested by a huge demonstration that filled Barcelona’s centre on 10 July 2010 with an estimated attendance of more than one million people. Even though the call for independence began to be present in the demonstration, the march’s slogan, “We decide. We are a nation” still sought to defend the will of the Catalan people expressed in the new CSA of 2006. Even Catalonia’s prime minister at that time, a member of the PSC opposed to Catalan independence, José Montilla, expressed his “disappointment and indignation” with the Spanish Constitutional Court’s ruling and supported the march summoning the Catalan people (López Bofill 2016). The constitutional moment of 2006–2010 was interpreted by many in Catalonia as an instance of majority nation nationalism, and, thus, it impacted the intersubjective relations of reciprocity between minority nationalists and majority nation nationalism. Importantly, it embodied the tension between constituent power and constitutional form. Many scholars and political analysts would concur that the constitutional moment of 2006–2010 has served as the “trigger” event that was the immediate catalyst for the dramatic growth of independentism in the parliamentary sphere in Catalonia between 2010–2020. In late November 2010, elections were held in the Parliament of Catalonia, and there emerged a new political plurality. CiU, the moderate Catalan nationalist coalition, won 62 seats out of 135. However, it had to govern in minority, hoping to receive some support from other parties. The political commitment of the new president, Artur Mas, was to get a new fiscal pact and try to cope successfully with the economic crisis that was having two important effects: it was eroding the living conditions of many families and it was jeopardizing the finances of the government that allowed implementing welfare policies (Argelaguet 2014). On 11 September 2012, during Catalonia’s National Day celebrations, hundreds of thousands of people took to the streets of Barcelona calling for Catalonia’s independence from Spain. After this massive demonstration, Artur Mas, Catalonia’s prime minister, dissolved the regional Parliament and called for elections. The prime minister’s coalition, Convergència i Unió (CiU) included for the very

The Legitimacy-Legality Constitutional Paradox

137

first time in 2012 the demand for statehood in its electoral manifesto (López Bofill 2014). On 25 November 2012, in the elections to the Parliament of Catalonia (Government of Catalonia 2012), CiU received 30.7% of the votes and 50 seats (out of 135); ERC, 13.7% and 21 seats; PSC, 14.4% and 20 seats; PP, 13.0% and 19 seats; ICV-EUiA, 9.9% and 13 seats; C’s, 7.6% and 9 seats; and, finally, CUP, 3.5% and 3 seats.5 These results showed that in Catalonia there was a clear majority of the parties that were defending the so-called “right to decide” (CiU, ERC, ICV and CUP), that is, they believe that the people of Catalonia have the right to choose its political future (including independence) and, moreover, they are committed to holding a referendum in which the Catalans will be able to express their preferences (Argelaguet 2014). One of the first decisions of the new Parliament was to approve, on 22 January 2013, the Resolution 5/X, whose title was “the Declaration of sovereignty and right to decide of the people of Catalonia.”6 Its centrepiece states that “The people of Catalonia has, for reasons of democratic legitimacy, the nature of a sovereign political and legal subject.” This resolution – adopted by 85 votes in favour (CiU, ERC, ICV-EUiA and a member of CUP), 41 against (PSC PPC and C ’s) and 2 abstentions (CUP )7 – came into collision with the Spanish Constitution, which establishes that the Spanish people are sovereign (Argelaguet 2014). The new Parliament of Catalonia of 2012 was reflecting the growth of the secessionist option occurred in the Catalan society in recent years, especially since the Constitutional Court ruling of June 2010. Data from the Centre d’Estudis d’Opinió (CEO) of the Catalan government show the dramatic growth of Catalanist sentiment and independentism. The CEO is a well-respected instrumentality in charge of measuring public opinion. While non-partisan, it is a branch of the Catalan government, it should be noted. It is the counterpart of the Centro de Investigaciones Sociológicas (CIS) in Madrid. Table 5.1 shows the dramatic upswing in the citizenry’s political orientation. Pro-independence alternative has grown from 13.9% to 46.4% in 2013. Correspondingly, the pro-autonomism orientation (which represents the status quo – the State of Autonomies) has suffered a drop from 38.2% in 2006 to 20.7% in 2013. The pro-federalism orientation has also suffered a dramatic descent from 33.4% to 22.4%.

138

Jaime Lluch

Table 5.1 | Constitutional preferences on the relationships between Catalonia and Spain according to Centre d’Estudis d’Opinió surveys (2006–2013)

Region

Autonomous Community

A State within a Federal Spain

An Independent State

DK/ NA

(n)

Source

2006 (1)

8.1

38.2

33.4

13.9

6.3

2.000

reo,

2006

6.8

346

40.0

32.8

15.9

4.5

2.000

reo, 367

2007

5.1

37.8

33.8

17.3

6.0

2.000

2008

7.1

38.3

31.8

17.4

5.4

2.000

reo, 404

reo, 466

2009

5.9

37.0

29.9

21.6

5.6

2.000

reo, 544

2010

5.9

34.7

30.9

25.2

3.4

2.500

2011

5.7

30.3

30.4

28.2

5.4

2.500

reo, 612

reo, 651

2012

4.0

19.1

25.5

44.3

7.1

2.500

reo, 705

2013

4.4

20.7

22.4

46.4

6.1

2.000

reo, 712

Note: This is the first survey of the ceo’s Barometer Series, in March 2006. The other surveys are the last wave of the Barometer in each year. In 2013, it is the first wave of the Barometer. Source: Argelaguet, 2014

This data indicates that the pro-independence orientation is at its best moment in history, and its upward turning point can be located in 2011, which is right after the constitutional moment of 2006– 2010. This provides support for my thesis that the latter was the “trigger” event and the immediate catalyst for the dramatic growth of independentism in Catalonia between 2010–2017.

The Legitimacy-Legality Constitutional Paradox

139

Table 5.2 shows subjective national identity in Catalonia, based on the “Linz-Moreno” question, which allows us to examine an indicator on the identification of individuals with two political communities that claim to be nations, as in this case, Spain and Catalonia. There have been some changes: after 2006, the Catalan identity has grown while the Spanish one has declined significantly. Table 5.3 shows the growth in the pro-independence orientation in Catalan politics. As I have noted previously, in 1989 for the first time in contemporary Catalan history, a fully pro-independence political party (Esquerra Republicana de Catalunya) made its appearance in the parliamentary sphere (Lluch 2014). This political orientation has been gaining support in the electorate: in the 1990s it was about one-third, and in 2013, it has been measured at 54.7%. Since 2013, political events have been moving at a fast pace in Catalonia. By 2015, the constitutional moment of 2006–2010 had provoked a major realignment in the political party system in Catalonia. The first momentous effect is the fundamental and historic transformation of the Catalan national movement that we have examined above: historically since the late 19th century it has maintained a majoritarian orientation that was federalist or autonomist. This was also the case right after the transition to democracy, and since 1980 the parties that dominated the Catalan national movement were either federalist or autonomist. This situation changed dramatically in the period right after 2010. CDC, the party of Jordi Pujol that had been autonomist since 1980, passed through a quick transformation in the years after 2010 and became an independentist formation. Correspondingly, ERC after 2010 experienced a growth in electoral support. The second momentous effect on this sub-state party system is that the coalition of CiU (composed of CDC and UDC) that ruled the Catalan government from 1980 to 2003, and again from 2010 to 2015, dissolved itself on 17 June 2015. UDC was a historic party founded in 1931. There was the perception that CDC had become an independentist party during the years after 2010, but UDC and its president Josep Antoni Duran i Lleida, had remained ambiguous and vaguely pro-autonomism in their political orientation. At the 2015 elections, UDC failed to gain parliamentary representation, Duran i Lleida retired from politics, and the party dissolved itself on 24 March 2017. Part of UDC, led by Antoni Castellà, Núria de Gispert and others, separated itself from UDC and became Demòcrates de Catalunya, a pro-independence formation. On the

140

Jaime Lluch

Table 5.2 | Subjective National Identity in Catalonia (1979–2013)

Only Catalan

Cat > Spa

Cat= Spa

Spa> Cat

Only Spanish

1979

14.9

11.7

35.4

6.7

1982

9.3

11.7

41.2

DK/ NA

(N)

Source and study number

31.3

1.079

data

8.7

23.1

1.176

data

1984

7.1

22.4

46.2

8.8

12.5

3.0

4.872

cis, 1413

1988

11.1

28.2

40.4

8.4

9.1

2.7

2.896

cis, 1750

1992

15.6

23.4

35.7

8.3

14.9

2.0

2.489

cis, 1998

1995

13.4

23.1

41.0

7.0

13.8

1.7

1.593

cis, 2199

1999

14.0

21.8

43.1

6.1

11.5

3.3

1.368

cis, 2374

2001

15.4

25.8

35.9

6.2

14.7

2.0

2.778

cis, 2410

2003

13.9

24.7

43.2

6.7

9.8

1.8

3.571

cis, 2543

2006

13.8

24.7

41.6

7.6

8.8

4.5

1.965

cis, 2660

2006

14.2

27.7

42.5

5.2

6.6

3.9

2.000

reo, 346

2006

14.5

27.2

44.3

4.7

6.1

3.2

2.000

reo, 367

2007

17.1

29.4

41.2

5.1

3.9

3.4

2.000

reo, 404

2008

16.4

25.7

45.3

5.4

4.7

2.5

2.000

reo, 466

2009

19.1

25.6

42.7

4.5

5.7

2.4

2.000

reo, 544

2010

20.3

25.5

42.5

3.9

5.5

2.3

2.500

reo, 612

2011

20.5

29.5

39.3

3.3

5.0

2.4

2.500

reo, 651

2012

29.6

28.7

35.0

2.5

2.0

2.3

2.500

reo, 705

2013

29.1

27.9

35.1

2.7

2.9

3.2

2.000

reo, 712

Sources: data. Quoted by Shabad and Gunther (1982); cis, Centro de Investigaciones Sociológicas, available at www.cis.es; ceo, Centre d’Estudis d’Opinió, available at www.ceo.gencat.cat Note: data and cis surveys are based on personal interview; ceo, catl. Source: Argelaguet, 2014

The Legitimacy-Legality Constitutional Paradox

141

Table 5.3 | Evolution of the options about the independence of Catalonia

2001

2011 (June)

2011 (Oct.)

2012 (Jan.)

2012 (June)

2012 (Nov.)

2013 (Feb.)

Yes, in favour

35.9

42.9

45.4

44.6

51.1

57.0

54.7

No, against

48.1

28.2

24.7

24.7

21.1

20.5

20.7

Non-voting

–

23.3

23.8

24.2

21.1

14.3

17.0

Other answers

–

0.5

0.6

1.0

1.0

0.6

1.4

dk

13.3

4.4

4.6

4.6

4.7

6.2

5.2

na

2.8

0.8

1.0

0.9

1.1

1.5

1.0

(n )

2.777

2.500

2.500

2.500

2.500

2.500

2.000

cis

ceo

ceo

ceo

ceo

ceo

ceo

2410

652

661

677

694

705

712

Source

Study number

Note: Centro de Investigaciones Sociológicas (cis) survey is an interview face to face. Centre d’Estudis d’Opinió (ceo) survey is a cati one. Source: Argelaguet, 2014

142

Jaime Lluch

other hand, during the summer of 2016, the leaders and militants of CDC decided to dissolve that entity and transformed it into a new party known as the Partit Demòcrata Europeu Català (PDeCAT), effective on 8 July 2016. A non-binding self-determination “citizen participation process” was held on 9 November 2014. In light of the impossibility of holding a normal self-determination referendum such as the one held in Scotland in 2014, the government of Artur Mas decided to call normal autonomic elections, but turned it into a “plebiscitary election” on 27 September 2015. The parties in this plebiscitary election did not present themselves as in a regular election. Instead, there was a bloc of parties that favoured the alternative of independence for Catalonia, and another bloc that opposed it. In between, there were two entities that were ambiguous in their positioning and were not clearly in either camp. “Junts pel Sí” represented the Yes option, and it was composed of CDC (now PDeCAT) and ERC. Also on the Yes camp was the radical left formation CUP. Representing the No option were Ciutadans (Cs), PSC, and PP. In between, there was UDC (formerly in coalition with CDC since 1980) and the coalition of Catalunya Si Que Es pot (CSQP). These last two formations were not clearly in either the Yes or the No camps. The result was that the pro-independence coalition of forces (CDC-ERC-CUP) won a majority of seats in the Catalan parliament (72 out of 135), thus forming a strongly independentist government. However, the coalition received only about 48% of the popular vote on that occasion. The No camp received 39.17% of the vote. UDC and CSQP received 11.45% of the vote. Since 2015, the government of the Generalitat has continued with its secessionist ambitions, and the clash with the central state has continued unabated. The latest developments are moving at a riveting pace. On 1 October 2017, the Generalitat organized a referendum on independence. The ballot question was a direct one: “Do you want Catalonia to become an independent state in the form of a republic?” The Spanish government responded with a tough and unrelenting repressive strategy. Weeks before the event, the authorities in Madrid were using the police to harass the organizations that were organizing the referendum, attempting to confiscate all ballot materials, closing down the websites being used to organize the referendum, and using the criminal law to threaten serious penalties against its organizers. Meanwhile, some of the parties opposed to

The Legitimacy-Legality Constitutional Paradox

143

holding the referendum boycotted the event. On the day of the referendum, 1 October, Madrid sent over 10,000 policemen to stop people from voting. That day, hundreds of electoral colleges were attacked by the police, and ballot boxes, ballots, registration lists, etc. were forcibly removed by the police. The international media covered the event and there were scenes of bloodied faces, police brutality, and women and elderly people being mistreated by huge men dressed for battle. There were about 800 people hurt that day. The result was that the participation rate stood only at 43% and the Independence option unsurprisingly won by a huge landslide (92%). On 10 October 2017, President Carles Puigdemont declared in a speech he was ready to implement that mandate for secession, but suspended it to allow for dialogue with the Spanish state. No dialogue ensued and on 21 October, the Spanish government initiated the implementation of Article 155 of the Spanish Constitution, suspending the Catalan government and dissolving the Catalan Parliament. After a protracted, unspirited, and almost reluctant declaration of independence by the Catalan Parliament on 27 October, the response by the Spanish authorities was to jail half the Catalan government, including Vice President Oriol Junqueras, and two prominent Catalanist leaders from civil society. The rest of the government, including President Puigdemont, fled to Brussels as a strategy for internationalizing the conflict. Spanish Prime Minister Rajoy dissolved the Catalan Parliament and called for autonomic elections on 21 December 2017. Similar to the previous election of 2015, there was a clear block of pro-independence parties and a clear block of parties for remaining in Spain, and in the middle there was Catalunya en Comú-Podem, which was a bit ambiguous and elusive on this momentous question. Basically, the results were comparable to the results of the last autonomic elections. This time the coalition of pro-independence forces won 47.49% of the vote and they were the only coalition of parties that could form a government. ERC, JxCAT, and CUP together have 70 members of Parliament, which is an absolute majority. Since 21 December 2017, the winning coalition put forward several candidates for the president of Catalonia, but the response of the Spanish government, and its judicial branch especially, made it difficult to choose a president. Finally, Quim Torra was elected as the current president of the Generalitat and the Spanish government reinstituted the Catalan government. The Catalan government is still insisting that

144

Jaime Lluch

its preferred solution to the quagmire is a legal and mutually accorded self-determination referendum. Meanwhile, politics in Spain has been evolving rapidly, with the PSOE and its premier, Pedro Sánchez, now in power, supported by Podemos, ERC, PNV, et al.

Puerto Rico Since 1898: Colonialism, Autonomism, and Federalism In this section, I turn my attention to a society which is very different when compared to Catalonia. What sort of autonomy is Puerto Rico? From the standpoint of comparative federalism and autonomism, Puerto Rico is a “non-federalist autonomy” (Lluch 2011). There are four ways in which an autonomy such as Puerto Rico’s is non-federalist. First, in autonomies such as Puerto Rico the formal distribution of legislative and executive authority between the two levels of government is not constitutionally entrenched. A review of the origins of the current political status of Puerto Rico as an “unincorporated territory” of the US demonstrates that it is a judicial and statutory creation, not a constitutionally entrenched level of government (Ramírez Lavandero 1988). Second, autonomies such as Puerto Rico are non-federalist because they are constitutionally subordinate to the centre. The “shared rule” component between the central state and the autonomous unit is weak or practically inexistent. The power to terminate or modify the Puerto Rico-US relationship rests squarely on the US Congress, contrary to what Elazar asserts (Elazar 1987, 1991). Third, autonomies such as Puerto Rico are non-federalist if their influence over the policy-making institutions of the centre is weak or negligible. Under the ELA, Puerto Rico has a degree of self-government, with local government institutions that are similar to the ones in the US states. Puerto Rico enjoys fiscal autonomy, and income received from sources in Puerto Rico is not subject to federal personal income taxation. However, most federal laws apply, but Puerto Rico has no effective representation in Congress, except for a token representative that has no right to vote there. Nor do the residents of Puerto Rico vote for the US federal executive (Lluch 2011). Fourth, autonomies are also non-federalist if the two orders of government that have been set up are so unequal that the element of “self-rule” in the relationship gives the autonomy a special status arrangement that is not part of the core institutional apparatus of the central state.

The Legitimacy-Legality Constitutional Paradox

145

Watts’ typology of federal systems is highly regarded (Watts 2008: 8). “Federal political systems” is a broad genus encompassing a whole spectrum of specific non-unitary forms, i.e., species ranging from “quasi-federations” and “federations” to “confederations” and beyond. Following Watts, if we see the United States as a federal political system composed of 50 constituent units of the core federation, one federal district, two federacies, three associated states, three unincorporated territories, Native American domestic dependent nations, etc. (Watts 2008: 12), then it is clear that Puerto Rico is part of this broad federal political system that we call the United States, although it is not a constitutive unit of the federation, nor is it seen by Congress as part of the majority “nation.” Nor does it have significant elements of federalism in its constitutional contours, in view of its current constitutional status, as we have seen above.

The Clash Between Legitimacy and Legality and the Constitutional Moment in Puerto Rico (2012–2020): The Rigidity of the United States Constitution Puerto Rico is an unincorporated territory of the US (Rivera Ramos 2001; Lluch 2014), and it is subject to the plenary powers of the US Congress under the Territory Clause of the US Constitution (Aleinikoff 2002: 76). Article IV, Section 3 of the latter gives Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” It gives Congress “general and plenary” power with respect to federal territory (Lawson and Sloane 2009), which relates specifically to “full and complete legislative authority over the people of the Territories and all the departments of the territorial governments.” In addition, “[c]ase law from more than a century ago gives Congress freedom to legislate for at least some territories in a fashion that would violate the Constitution in other contexts” (Lawson and Sloane 2009: 1146). A series of decisions by the US Supreme Court, dating from the period 1901–1922 and known as the Insular Cases, created the category of “unincorporated territories” and it held that the inhabitants of these areas only enjoyed the protection of those provisions of the Constitution deemed as “fundamental” by the court, in the absence of congressional action making other provisions applicable.8 The Insular Cases are still good law,

146

Jaime Lluch

although no contemporary scholar, of any methodological or political inclination, defends them (Lawson and Sloane 2009: 1146).9 The US Constitution of 1789 is a rather inflexible constitutional form, and Puerto Rico’s challenge is how to seek a non-colonial form of accommodation within the US federal system, in spite of its characteristics as a symmetrical national federation.10 Could US constitutionalism accommodate Puerto Rico under a form of autonomism that is non-subordinate and non-colonial? The challenge posed by the rigid US constitutional form is implicitly analyzed in two reports by the President’s Task Force on Puerto Rico’s Status (of 2005 and 2011). I find that the analysis in the 2005 Report is more authoritative and scholarly, and more explicit in laying bare the rigidity of the US constitutional form (Lluch 2014). The US Constitution allows unambiguously for three options: independence, becoming a unit of the federation, or the current “unincorporated territory” status. However, autonomists in Puerto Rico have for decades put forward proposals for greater autonomy (R.L. Nieves 2009) that have been labeled as “culminated or enhanced ELA,” or “New ELA or Commonwealth.” Are “New ELA or Commonwealth” proposals feasible under the US Constitution? The White House Task Force of 2005 has signaled that some of these proposals for more autonomy would not be constitutionally feasible, largely relying on a Memorandum of Law by the Office of Legislative Affairs of the US Department of Justice (“DOJ”), dated 18 January 2001 (Lluch 2014). The DOJ recognizes that the creation of the ELA during 1948–52 did not take Puerto Rico outside the ambit of the Territory Clause (President’s Task Force 2005: Appendix E). Thus, “Congress [pursuant to the Territory Clause]…may treat Puerto Rico differently from States so long as there is a rational basis for its actions.” Harris v. Rosario, 446 U.S. 651 (1980). See also Califano v. Torres, 435 US 1, 3 n. 4 (1978), a per curiam decision: “Congress has the power to treat Puerto Rico differently….” Furthermore, “The Department of Justice has long taken the same view, and the weight of appellate case law provides further support for it” (President’s Task Force 2005: Appendix E, at 6). Under “New Commonwealth,” the island would “become an autonomous, non-territorial [and non-colonial], non-State entity in permanent union with the United States under a covenant that could not be altered without the mutual consent of Puerto Rico and

The Legitimacy-Legality Constitutional Paradox

147

the federal Government” (President’s Task Force 2005: 6). The US Constitution “does not allow for such an arrangement. For entities under the sovereignty of the United States, the only constitutional options are to be a State or territory. As the US Supreme Court stated in 1879, “All territory within the jurisdiction of the United States not included in any State must necessarily be governed by or under the authority of Congress. First Nat. Bank v. Yankton County, 101 US 129, 133 (1879)” (President’s Task Force 2005, 6). Furthermore, “it is a general rule that one legislature cannot bind a subsequent one…Thus, one Congress cannot irrevocably legislate with regard to a territory…and, therefore, cannot restrict a future Congress from revising a delegation to a territory of powers of self-government…It therefore is not possible, absent a constitutional amendment, to bind future Congresses to any particular arrangement for Puerto Rico as a Commonwealth” (President’s Task Force 2005, 6). As the DOJ argues, “as a matter of domestic constitutional law, the United States cannot irrevocably surrender an essential attribute of its sovereignty.” (See United States v. Winstar Corp., 518 US 839, 888 (1996), the United States “may not contract away ‘an essential attribute of its sovereignty…’.”) Thus, the extent to which the United States is party to a covenant stands on no stronger footing than an Act of Congress, which is, for purposes of federal constitutional law, subject to unilateral alteration or revocation by subsequent Acts of Congress. Marbury v. Madison, 5 US (1 Cranch) 137, 177 (1803); Fletcher v. Peck, 10 US (6 Cranch) 87, 135 (1810). Thus, any New Commonwealth proposal with a mutual consent provision would be constitutionally unenforceable (President’s Task Force 2005: Appendix E, at 8). Under the present constitutional form, it seems unlikely that the US Congress could accommodate Puerto Rico under a form of autonomism that is non-subordinate and non-colonial.

Constituent Power: The Criollo Referendums on Self-Determination in Puerto Rico Since 1898, when Spain ceded Puerto Rico to the US in the aftermath of the Spanish-Cuba-US War, the constitutional status of Puerto Rico has undergone only three modifications. In 1917, Congress passed the Jones Act, which provided for US citizenship for all the residents of

148

Jaime Lluch

the island (Organic Act 1917, 8 USCA Sec. 731). In 1947, the Elective Governor Act (48 USCA Sec 737) provided for the election of the Governor of the island by Puerto Rico’s citizens. In 1950, the Puerto Rico Federal Relations Act (48 USCA Sec. 745) led to the enactment of a Constitution and the establishment of the newly minted Estado Libre Asociado (Comisión de Derechos Civiles: 2015). The government of Puerto Rico has on four different occasions organized criollo self-determination referendums, none of which were legally binding on the federal government nor counted with its support. There have been 13 different efforts to have a federally-sponsored referendum in Puerto Rico, but none of these have prospered (Comisión de Derechos Civiles 2015). Nevertheless, one might consider these criollo self-determination referendums as instances of the expression of constituent power. I will not discuss the previous referenda of 1967, 1993, and 1998, but will focus on the most recent one, in 2012. My thesis is that the referendum of 2012 initiated a constitutional moment that has lasted until 2020, which dramatizes the tension between legitimacy and legality, between constituent power and constitutional form (Lluch 2018). I will now explore the expression of constituent power exercised by the people of the island in 2012. On 2 November 2012 the people were asked whether they “agreed if Puerto Rico should continue to have its present territorial status.” Irrespective of their response to this question, the people were also asked to choose their preferred status among three non-territorial (i.e., not subordinated to the US Congress) options. The result was a clear vote (54%) against the status quo, the current Estado Libre Asociado; 61% voted in favour of becoming a state of the US federation; 33% voted for a sovereign (not subject to the Territorial Clause) Estado Libre Asociado; 5.5% voted for independence. But, there were also 480,918 blank votes. These have been interpreted as votes for the current status quo (the ELA as it is now), so the 61% vote in favour of becoming a state would have to be revised downwards (to 45%). Nevertheless, what is most notable and most historic about this constituent moment is that a clear majority (54%) of Puerto Ricans repudiated the current status quo. The current ELA is no longer a legitimate political status, as a clear majority think it is inadequate. Yet, there has been no constructive response from the federal government, aside from the usual pleasantries about how “Puerto Ricans should decide their own future.”

The Legitimacy-Legality Constitutional Paradox

149

The Constitutional Moment of 2012–2019: Reaffirmation of the Constitutional Form; The Supreme Court Decision Re: Commonwealth of Puerto Rico v. Sánchez Valle (2016) There are other important components to the constitutional moment of 2012–2020, two of which occurred in 2016. The first is the recent US Supreme Court case of Commonwealth of Puerto Rico v. Sánchez Valle (No. 15-108-decided 9 June 2016); 579 U.S. (2016); 136 S.Ct. 1863 (2016). This is the most important Supreme Court decision on Puerto Rico’s political status since Boumediene et al. v. Bush, 553 U.S. 723 (2008). Prior to Boumediene, a number of cases seemed to distance themselves (even if timidly) from the traditional doctrine of the Insular Cases. For example, in his dissent in Harris v. Rosario 446 US 651 (1980), Justice Marshall expressed that the holding of the Insular Cases was questionable, and Justice Brennan in his concurrence in Torres v. Puerto Rico, 442 US 465, 475–6 (1979) also questioned the validity of these “old cases” such as Downes and Balzac. However, in the 2008 case of Boumediene the majority opinion stated that the “Court designed in the Insular Cases a doctrine that permitted us to use power frugally and where most needed. This doctrine of more than a century informs our analysis in the current case.” That brings us to Sánchez Valle (2016). Ostensibly a case about criminal procedure, it is the most definitive and authoritative statement on the nature of the ELA as interpreted by the US Supreme Court. The court held that the Double Jeopardy Clause bars Puerto Rico and the United States from successively prosecuting a single person for the same conduct under equivalent criminal laws. Ordinarily, a person cannot be prosecuted twice for the same offence. But, under the dual-sovereignty doctrine, the Double Jeopardy Clause does not bar successive prosecutions if they are brought by separate sovereigns. United States v. Lanza, 260 U.S. 377, 382. Yet the “sovereignty” in this context does not have its common meaning. Rather, the test hinges on a single criterion: the “ultimate source” of the power undergirding the respective prosecutions. United States v. Wheeler, 435 US 313, 320. If the two entities derive their power to punish from independent sources, then they may bring successive prosecutions. Conversely, if those entities derive their power from the same ultimate source, then they may not. Under that approach, the States are separate sovereigns from the Federal Government and from one another. Because States rely on

150

Jaime Lluch

“authority originally belonging to them before admission to the Union and preserved to them by the Tenth Amendment,” state prosecutions have their roots in an “inherent sovereignty” unconnected to the US Congress: Heath v. Alabama, 474 U.S. 82, 89. For similar reasons, Indian tribes also count as separate sovereigns. A tribe’s power to punish pre-existed the Union, and so a tribal prosecution, like a State’s, is “attributable in no way to any delegation…of federal authority”: Wheeler, 435 US, at 328. Conversely, a municipality cannot count as a sovereign distinct from a State, because it receives its power, in the first instance, from the State: Waller v. Florida, 397 US 387, 395. With respect to the US territories, the court concluded in the early 20th century that they are not sovereigns distinct from the United States: Grafton v. United States, 206 US 333. The court reasoned that the “territorial and federal laws were creations emanating from the same sovereignty,” Puerto Rico v. Shell Co., 302 US 253, 264, and so federal and territorial prosecutors do not derive their powers from independent sources of authority. The court recognized that when the ELA was born in 1950–1952 by virtue of Public Law 600, Congress “relinquished its control over the Commonwealth’s local affairs, granting Puerto Rico a measure of autonomy comparable to that possessed by the States”: Examining Bd. Of Engineers, Architects, Surveyors v. Flores de Otero, 426 US 572, 597 (1976). Also, “Puerto Rico, like a state is an autonomous political entity, sovereign over matters not ruled by the Federal Constitution”: Rodriguez v. Popular Democratic Party, 457 US 1, 8 (1982). The court emphasized the purely local nature of the self-rule powers accorded to Puerto Rico in 1950–52. The Puerto Ricans drew up their own Constitution in 1950–52, but the “back of the Puerto Rican people and their Constitution, the ‘ultimate’ source of prosecutorial power remains the US government, just as [at the] back of a city’s charter lies a state government”: Wheeler, 435 US at 320. That makes Congress the original source of power for Puerto Rico’s prosecutors – as it is for the federal government. In sum, the Puerto Rico government and the United States’ federal government are not separate sovereigns. Puerto Rico is a subordinated autonomy that enjoys a sphere of self-government only for purely local matters, and is not a separate sovereign, as are the constituent units of the US federation. US states have an “inherent sovereignty” unconnected to, and indeed pre-existing, the US Congress. They are separate sovereigns from the federal government and from

The Legitimacy-Legality Constitutional Paradox

151

each other. However, Puerto Rico’s authority to govern itself is ultimately derived from the federal government. This holding, therefore, is a veritable reassertion of the subordinate nature of the ELA, under the Territorial Clause of the US Constitution. Importantly, the Obama Administration, through its Solicitor General Donald Verrilli, filed an amicus brief in this case in December 2015 that supported the positions taken in the majority opinion in Sanchez Valle. In that brief, the Solicitor General argued that “Congress may treat Puerto Rico differently from States by virtue of Congress’ power under the Territory Clause” (Brief for Respondents, at 28). Puerto Rico has some control over its purely local affairs as a US territory, but is not a sovereign under the US Constitution. In fact, it does not have an independent and separate existence from the US federal government (ibid., 26).

The Puerto Rico Oversight, Management, and Economic Stability Act (promesa-h.r. 5278, S.2328) Puerto Rico’s current economic and fiscal crisis has deep historicalstructural causes. The federal government has responded with a statute known as PROMESA (after its acronym), the Puerto Rico Oversight, Management, and Economic Stability Act, 48 U.S.C.A. sections 2121–2241, which became law on 30 June 2016. The second component to the constitutional moment of 2012–2020 was the enactment of this federal statute. This statute establishes a Fiscal Control Board with broad powers of budgetary and financial control over Puerto Rico. It creates procedures for adjusting debts accumulated by the Puerto Rico government and its instrumentalities. It would expedite approvals of key energy projects and other “critical projects” in Puerto Rico. Section 101 of the statute specifies that the Fiscal Control Board has been established pursuant to the Territorial Clause granting Congress plenary authority over its territories. Section 104 specifies that the Board can hold hearings, issue subpoenas, obtain information, make contracts, enforce Puerto Rico labour laws, initiate civil actions to carry out its responsibilities, etc. Title II specifies the enormous powers of the Board to set fiscal plans and budgets. Essentially, under promesa the Puerto Rico government no longer has any authority

152

Jaime Lluch

over economic and fiscal plans, or the government’s budget. That will all be set by the Fiscal Control Board. The Board’s seven members were designated (none of which represent the interests of the Puerto Rican people nor were elected by them), and the Board has been fully operational since early 2017. I think there is a consensus in Puerto Rico that its people are no longer in charge of their own affairs through their institutions of government. Instead, the major decisions affecting the people’s welfare in the next few years will be taken by an unelected and unaccountable Fiscal Control Board. Public opinion data indicates there has been a serious erosion in the public’s confidence in the Board. In November 2016, polls showed that 69% of the Puerto Rican people approved of the Board,11 but that positive perception has eroded substantially. A subsequent poll indicated that only 43% favoured the Board, whereas 40% were against it.12 More recent polls show that in November 2018, 52% were against the Board, in May 2019, 58% were against it, and in the most recent poll of 9 November 2019, 63% of respondents were against the Board.13

The Clash Between Legitimacy and Legality and the Evolution of Sub-State Politics in Puerto Rico (2012–2020) During the period 2012–2020 a momentous constitutional moment has configured itself in the relation between Puerto Rico and the United States in two phases, and its effects are still being felt today. As in the case of Catalonia, it encapsulates the clash between legitimacy and legality. With respect to legitimacy, during its first phase in 2012, a clear majority of Puerto Ricans expressed their disapproval of the status quo since 1952. In 2012, Puerto Ricans invoked their constituent power and rejected their present constitutional status. In 2016, during its second phase, all three branches of the federal government have reasserted and reaffirmed the quasi-colonial nature of the constitutional form over Puerto Rico: the Supreme Court through Sánchez Valle, the Obama Administration through its Amicus Curiae brief prepared by its Solicitor General in that case, and the US Congress by enacting PROMESA on 30 June 2016. Hence, the clash between legitimacy and legality during and from 2012 to the present (2020).

The Legitimacy-Legality Constitutional Paradox

153

This has provoked profound changes in the political party system of Puerto Rico. In Puerto Rico, public opinion polling is deficient. There are no scientific, serious polling institutions such as the CIS in Madrid, the CEO in Barcelona, or the Eurobarometer. The first major change in the party system14 is the growth of a pro-sovereignty tendency within the autonomist party, the PPD. In fact, already in the referendum held last 6 November 2012, 48% of PPD votes were for the Estado Libre Asociado Soberano whereas 52% was for the ELA as it is now (Comisión Estatal de Elecciones: 2012). The internal balance of forces within the PPD has been changing. Reminiscent to some extent of the transformation of CDC (and the breakup of CiU and the recent disappearance of UDC ) in Catalonia, the PPD has been the historic party of autonomism, but it now has an important internal faction that defines itself as pro-sovereignty.15 They have a new generation of leaders that are militantly pro-sovereignty, such as the mayor of San Juan, Carmen Yulín Cruz, a candidate for governor in the next election to be held in November 2020. Whether this will result in a definitive and dramatic transformation of the PPD, as happened in the case of CDC in Catalonia, remains to be seen. The second effect of the constitutional moment of 2010–2020 is that there has been a significant growth in those favouring the option of becoming the 51st unit of the US federation. In a poll held last 18 August 2016, in a “Federalism Yes or No” referendum, 65% of respondents said they would vote to become a state of the US federation.16 The current government of Puerto Rico, formed after the last election of November 2016 by the PNP, is strongly in favour of becoming the next state of the US federation. A very controversial referendum on the political status of Puerto Rico was held on 11 June 2017. Originally, the plan was to hold a referendum with a question posing two options: one was going to be “federalism” and the other “sovereignty” (including pro-sovereigntists in the PPD and independentists), given that in 2012 the people already determined that the status quo is unacceptable. Last 13 April 2017, Dana Boente, and Acting Deputy Attorney General at the US Department of Justice, however, sent a letter to the PNP government stating that a third option (the status quo) had to be included in the question. The PNP government agreed, and in light of that imposition, the pro-sovereignty parties announced their decision to boycott the referendum, and the autonomist PPD did so as well. The boycott

154

Jaime Lluch

worked well: only 23% participated, and of course the pro-statehood forces won 97% of the vote. The third effect of the constitutional moment of 2012–2020 is a realignment in the political party system: in the last elections held on November 2016, there is an indication that the system is starting to move away from its traditional bipartisan nature. It has traditionally been dominated by two major parties, the PNP and the PPD, with a third party, the PIP, receiving residual numbers in the last elections. Indeed, at the gubernatorial level, this last election saw the irruption of independent candidates, unrelated to any of the three traditional parties. Close to 17% of the vote for the gubernatorial candidates went to independent candidates (Comisión Estatal de Elecciones 2016). The winning candidate, Ricardo Rosselló of the PNP, thus received only 41.80% of the vote, and the runner-up was David Bernier of the PPD, receiving 38.8% of the vote (Comisión Estatal de Elecciones 2016).

Conclusion The shift during 2010–2020 in the constitutional preferences among the citizens of Catalonia is remarkable, and I argue that the constitutional moment of 2006–2010 was the trigger event and the immediate catalyst for this significant growth in the pro-secessionism orientation within the Catalan national movement. The clash between legitimacy and legality in Spain during 2006–2020 has had a concrete political effect: it shows how politics and law actually interact, and how it can serve as a catalyst for the growth of the pro-secessionism orientation in sub-state nationalism in multinational polities. These events also confirm one of the theoretical points made in my previous work: sub-state nationalists inhabit an imagined community that is a “moral polity” where reciprocities are expected and notions of collective dignity, the common weal, and mutual accommodation are essential. The perception by these sub-state nationalists that their expectations of reciprocity have been violated is a factor that contributes to the increasing radicalization of sub-state nationalists’ political preferences (Lluch 2014). However, it needs to be recognized after the trigger event of the constitutional moment of 2006–2010, other factors came into play, which had an additional effect on the growth of sub-state

The Legitimacy-Legality Constitutional Paradox

155

secessionism in Spain. Some of these factors “concern strictly political issues such as election results and formation of new governments or they are related to public policy (bills, public investment in the area)…or economic factors (the economic crisis and its impact on the finances of the Government of Catalonia, with all its consequences); or, even, they affect some symbolic elements (expressions of opposition to the action of the Head of the State, for example). Also, this process is completed with the structuring of a wide social movement in favour of independence, which showed a high capacity for action in the public sphere and to exert pressure on political parties” (Argelaguet 2014). From 2010 to the present, there has been a constitutional standoff between the Catalan government (which has been proposing and finally did hold a constitutive referendum on independence) and the Spanish government (which insists that this is not constitutionally permissible. Unlike the Scottish case, where an agreement between the Scottish prime minister, Alex Salmond, and the British prime minister, David Cameron, was signed on 15 October 2012 in order to provide the legal framework for the holding of Scotland’s independence referendum, the Spanish government (both of the right and the left) has taken a firm stand against the Catalan proposal to hold a self-determination referendum. The Spanish government’s strong opposition is supported by the interpretation of the Spanish Constitutional Court defending the most restrictive point of view on the issue of the right to self-determination of other nations currently existing within the Spanish state (Lopez Bofill 2014). Similarly, during the period 2012–2020 a momentous constitutional moment has configured itself in the relation between Puerto Rico and the United States in two phases. As in the case of Catalonia, it encapsulates the clash between legitimacy and legality. With respect to legitimacy, during its first phase in 2012, a clear majority of Puerto Ricans expressed their disapproval of the status quo since 1952. In 2012, Puerto Ricans invoked their constituent power and rejected their present constitutional status. In 2016, during its second phase, all three branches of the federal government have reasserted and reaffirmed the quasi-colonial nature of the constitutional form over Puerto Rico: the Supreme Court through Sánchez Valle, the Obama Administration through its Amicus Curiae brief prepared by its Solicitor General in that case, and the US Congress by enacting promesa on 30 June 2016.

156

Jaime Lluch

Hence, the clash between legitimacy and legality during and from 2012 to 2020. To date, this has had a dramatic effect on sub-state politics: including both the division in the autonomist party between proponents of ELA Soberano and the advocates of the ELA as it is, a noticeable growth in the pro-federalism sentiment and the support for the option of becoming a unit of the US federation, and a weakening of Puerto Rico’s two-party system. Despite their obvious differences in many dimensions, in both Catalonia and Puerto Rico there occurred a clash of legitimacies between an established constitutional form and the constituent power represented by the democratic will of the people. The analysis presented here helps to further validate my argument that sub-state nationalists inhabit an imagined community that is a “moral polity” where reciprocities are expected and notions of collective dignity, the common weal, and mutual constitutional accommodation are essential (Lluch 2014; 2018). not e s 1 Self-determination referendums such as the Scottish one of 2014, or the one that the Catalan government has been trying to hold since 2010, or the ones that have been held by the government of Puerto Rico are a special type of “constitutional referendum,” according to Stephen Tierney. I prefer the term “constitutive referendums” because they “can manifest a people´s direct democratic capacity to act as the supreme source of constitutional law in foundational constitutional acts” (Tierney 2012, 14). “Constitutive referendums” is more analytically useful and is more appropriate for this chapter than the term “ethnonational referendum” suggested by Matt Qvortrup (Qvortrup 2014,10). 2 Certainly, Title VIII of the 1978 Constitution created the State of Autonomies in order to better accommodate the historic nationalities, especially Euskadi and Catalunya. In addition, perhaps more than two decades ago, the greatest challenge to the Spanish State was presented by Euskadi, not Catalunya. But, in the last ten years, clearly it is the Catalan case that has come to the foreground, and the constitutional and political tensions between that sub-state nation and the majority nation, paired with the central state, has been the central issue in Spanish politics in the last decade.

The Legitimacy-Legality Constitutional Paradox

157

3 These are the Republican Left of Catalonia, Democratic Convergence of Catalonia, Democratic Union of Catalonia, Socialists’ Party of Catalonia, and Initiative for Catalonia-Greens. 4 Spanish Constitutional Court Decision 31/2010 of 28 June 2010. 5 CiU, Convergència i Unió [Convergence and Union], was a moderate centre to right Catalan nationalist coalition. ERC, Esquerra Republicana de Catalunya [Republican Left of Catalonia], is a pro-independence and leftist party. PSC, Partit dels Socialistes de Catalunya [Party of the Socialists of Catalonia] is a Catalan socialist party with narrow links with PSOE (PSOE ). PPC , Partit Popular Català [Catalan Popular Party] is the regional branch of the Popular Party (PP). ICV-EUiA, Iniciativa per Catalunya Verds – Esquerra Unida i Alternativa [Initiative for Catalonia Greens – Alternative and United Left] is a coalition between a postcommunist and green party with a coalition of leftist groups led by the Party of the Communists of Catalonia (PCC). C’s, Ciudadanos – Partido de la Ciudadanía [Citizens – Citizenship’s Party], is a Spanish nationalist and populist party. CUP, Candidatura d’Unitat Popular [Popular Unity Candidature] is an extreme left and pro-independence party. SI, Solidaritat per la Independència [Solidarity for Independence] is a pro-independence party. 6 This complete declaration is available at http://www.parlament.cat/web/ documentacio/altres-versions/resolucions-versions. 7 Five members of the Parliament belonging to PSC did not participate in the vote because they did not want to vote against the “right to decide” like it was suggested by their party. Two deputies belonging to CUP abstained because they rejected the references to EU and some other aspects of this Declaration. 8 The US is a “national federation” (as opposed to a multinational one). Such federations “may be nationally homogeneous (or predominantly so), or they are organized, often consciously, so as not to recognize more than one official nationality...The official goal...is nation building, the elimination of internal...national differences.” (O’Leary and McGarry 2007, 182). 9 Nat’l Bank v. County of Yankton, 101 U.S. 129, 133 (1880). 10 Balzac v. Porto Rico, 258 U.S. 298, 312–13 (1922). 11 See Boumediene v. Bush, 128 S. Ct. at 2255 (2008) which states “century old doctrine [of the Insular Cases] informs our analysis in the present matter.” 12 “La Mortalidad de la Junta,” El Nuevo Día, 2 June 2017.

158

Jaime Lluch

13 “Aumenta entre los boricuas el rechazo a la Junta,” El Nuevo Día, 2 June 2017. 14 “Sigue en picada el apoyo a la JSF,” El Nuevo Día, 9 November 2019. 15 For several decades, the Puerto Rico party system has been very stable and it has three major parties: the autonomist Partido Popular Democrático (PPD), the federalist Partido Nuevo Progresista (PNP), and the independentist Partido Independentista Puertorriqueño (PIP). 16 “Sale Favorecida la Estadidad,” El Nuevo Día, 18 August 2016, 5.

r e f e r e nc e s Ackerman, Bruce. 1991. We the People. Cambridge: Harvard University Press. Adams, Maurice and Jacco Bomhoff. 2012. “Comparing Law: Practice and Theory.” In Practice and Theory in Comparative Law, edited by Maurice Adams and Jacco Bomhoff. Cambridge: Cambridge University Press. Argelaguet, Jordi. 2014. “From Autonomism to Independentism: The Growth of Secessionism in Catalonia (2010–2013).” In Constitutionalism and the Politics of Accommodation in Multinational Democracies, edited by Jaime Lluch. Oxford: Oxford University Press Anderson, Gavin. 2012. “Beyond Constitutionalism Beyond the State” Journal of Law and Society 39 (3): 359–83. Choudhry, Sujit. 2008. “Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design in Divided Societies.” In Constitutional Design for Divided Societies: Integration or Accommodation?, edited by Sujit Choudhry. Oxford: Oxford University Press. Comisión de Derechos Civiles de Puerto Rico, “comición especial

para la investgación, vistas públicas y estudio jurídico, relativo a la consulta sobre el estatus político de puerto rico del 6 de noviembre de 2012.” San Juan, Puerto Rico. 24 July 2015. Comisión Estatal de Elecciones, San Juan, Puerto Rico. Accessed 5 June 2017. http://elecciones2016.ceepur.org/Escrutinio_General_77/index. html#es/default/GOBERNADOR_Resumen.xml Consell Assessor per a la Transició Nacional, Generalitat de Catalunya. 2013. “La Consulta sobre el Futur Politic de Catalunya.” Barcelona.

The Legitimacy-Legality Constitutional Paradox

159

Consell Assessor per a la Transició Nacional, Generalitat de Catalunya. 2014. “Las Vías de Integración de Catalunya en la Unión Europea.” Barcelona. Cordell, Karl and Stefan Wolff, eds. 2011. Routledge Handbook of Ethnic Conflict. London: Routledge. Dorsen, Norman, Michel Rosenfeld, András Sajó, Susanne Baer. 2010. Comparative Constitutionalism: Cases and Materials, Second Edition. Minnesota: West Publishers. Elias, Anwen. 2006. “Europeanising the Nation: Minority Nationalist Party Responses to European Integration in Wales, Galicia, and Corsica.” PhD diss., Florence: European University Institute. Gagnon, Alain. 2003. “Undermining Federalism and Feeding Minority Nationalism: The Impact of Majority Nationalism in Canada.” In The Conditions of Diversity in Multinational Democracies, edited by Alain Gagnon, Montserrat Guibernau, F. Rocher. Montreal: Institute for Research on Public Policy. Ghai, Yash, ed. 2000. Autonomy and Ethnicity: Negotiating Competing Claims in Multiethnic States. Cambridge: Cambridge University Press. Hepburn, Eve. 2007. “The New Politics of Autonomy: Territorial Strategies and the Uses of European Integration by Political Parties in Scotland, Bavaria, and Sardinia, 1979–2005.” PhD diss., Florence: European University Institute. Holmes, Stephen. 2012. “Constitutions and Constitutionalism.” In The Oxford Handbook of Comparative Constitutional Law, edited by Michel Rosenfeld and András Sajó. Oxford: Oxford University Press. Institut d’Estudis Autonòmics, Generalitat de Catalunya. 2013. Informe sobre els procediments legals a través dels quals els ciutadans i les ciutadanes de Catalunya poden ser consultats sobre llur futur polític col·lectiu. Barcelona. Jackson, Vicki C. and Mark Tushnet. 2002. Defining the Field of Comparative Constitutional Law. Westport: Praeger. Keating, Michael. 2001. Plurinational Democracy. Oxford: Oxford University Press. Lijphart, Arend. 1968. The Politics of Accommodation: Pluralism and Democracy in the Netherlands. Berkeley: University of California Press. Linz, Juan, Alfred Stepan, Yogendra Yadav. 2011. Crafting State Nations: India and other Multinational Democracies. Baltimore: Johns Hopkins University Press. Lopez Bofill, Hector. 2014. “The Limits of Constitutionalism: Politics, Economics, and Secessionism in Catalonia (2006–2013).” In

160

Jaime Lluch

Constitutionalism and the Politics of Accommodation in Multinational Democracies, edited by J. Lluch. Oxford: Oxford University Press. Loughlin, Martin. 2010. “What is Constitutionalism?” In The Twilight of Constitutionalism?, edited by Petra Dobner and Martin Loughlin. Oxford: Oxford University Press. Lluch, Jaime. 2010. 2011, “Autonomism and Federalism” Publius: the Journal of Federalism. Vol. 42 (1). Oxford: Oxford University Press. – ed. 2014b. Constitutionalism and the Politics of Accommodation in Multinational Democracies. Houndmills: Palgrave Macmillan. – “How Nationalism Evolves: Explaining the Establishment of New Varieties of Nationalism within the National Movements of Quebec and Catalonia.” Nationalities Papers: The Journal of Nationalism and Ethnicity 38 (3). – 2018. “State-Nations, the Legitimacy-Legality Constitutional Conundrum, and Sub-State Party System Realignments: Catalonia and Puerto Rico (2005–2018).” Revista Jurídica de la Universidad de Puerto Rico 87(1). – 2012. “The Internal Variation in Sub-State National Movements and the Moral Polity of the Nationalist.” European Political Science Review 4 (3). – 2014a. Visions of Sovereignty: Varieties of Minority Nationalism in Multinational Democracies. Philadelphia: University of Pennsylvania Press. McGarry, John, Brendan O’Leary, and Richard Simeon. 2008 “Integration or Accommodation? The enduring debate in conflict regulation.” In Constitutional Design for Divided Societies: Integration or Accommodation?, edited by Sujit Choudhry. Oxford: Oxford University Press. McGarry, John, and Brendan O’Leary. 2007. “Federation and Managing Nations.” In Multinational Federations, edited by Michael Burgess and John Pinder. London: Routledge. Meuwese, Anne and Mila Versteeg. 2010 “Quantitative Methods for Comparative Constitutional Law.” In The Twilight of Constitutionalism?, edited by Petra Dobner and Martin Loughlin. Oxford: Oxford University Press. Nimni, Ephraim. 2011 “Stateless Nations in a World of Nation-States.” In Routledge Handbook of Ethnic Conflict, edited by Karl Cordell and Stefan Wolff. London: Routledge. Poiares Maduro, Miguel. 2005. “The Importance of Being Called a Constitution: Constitutional Authority and the Authority of

The Legitimacy-Legality Constitutional Paradox

161

Constitutionalism.” International Journal of Constitutional Law 3 (2–3): 332–56. Qvortrup, Matt. 2014. Referendums and Ethnic Conflict. Philadelphia: University of Pennsylvania Press. Revista Catalana de Dret Públic. 2010. Especial Sentencia 31/2010 del Tribunal Constitucional, sobre el Estatuto de Autonomía de Cataluña de 2006. Barcelona: Escola d’Administració Pública de Catalunya. Revista d’Estudis Autonòmics i Federals. 2011. Especial sobre la Sentencia de l’Estatut d’Autonomia de Catalunya. 12. Sajó, András. 1999. Limiting Government: An Introduction to Constitutionalism. Budapest: Central European University Press. Suksi, Markku, ed. 1998. Autonomy: Applications and Implications. The Hague: Kluwer Law International. Spanish Constitutional Court. 2010. Spanish Constitutional Court Decision 31/2010. Taylor, Charles. 1994. “The Politics of Recognition.” In Multiculturalism: Examining the Politics of Recognition, edited by Amy Gutman. Princeton: Princeton University Press. Tierney, Stephen. 2006. Constitutional Law and National Pluralism. Oxford: Oxford University Press. – 2012. Constitutional Referendums. Oxford: Oxford University Press. Walker, Neil. 2008. “Taking Constitutionalism Beyond the State.” Political Studies 56: 519–43. Walker, Neil and Martin Loughlin. 2007. The Paradox of Constitutionalism. Oxford: Oxford University Press. Walker, Graham. 1993. “The Constitutional Good: Constitutionalism’s Equivocal Moral Imperative.” Polity 26 (1).

6

Bosnia and Herzegovina: Constitutional Politics in a “State of Minorities” Soeren Keil and Paul Anderson

Introduction Bosnia and Herzegovina1 provides an interesting example of a postwar multinational federation. The country, which endured a civil war between 1992 and 1995, adopted a federal system as part of an international peace treaty – the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP) in December 1995. While Bosnian elites were involved in the negotiations about the postwar political order, international actors and politicians representing Bosnia’s two important neighbouring countries (Serbia and Croatia) also substantially influenced the negotiations that led to the GFAP. The GFAP included a new Constitution for the country and as such Bosnian federalism has been identified as “imposed” and its federal system as “internationally administered” (Keil 2013a). These terms highlight the unique nature of the Bosnian federal political system – one that is based on substantial external input and involvement and which remains heavily contested by the three “constituent peoples” in Bosnia: the Bosniaks, Bosnian Serbs and Bosnian Croats.2 While the institutional provisions and the presence of international actors has ensured peace in post-war Bosnia, the state remains fundamentally contested and democracy has not yet been consolidated (Keil and Kudlenko 2015). What is more, renewed discussions about the future of Bosnian constitutional politics and thus its territorial organization and integrity have ensued as a result of international retreat following a hand-over of international oversight from the Office of the High

Constitutional Politics in a “State of Minorities”

163

Representative (OHR)3 to the European Union (EU) in 2006. Since then, the consolidation of Bosnian statehood and the development of functional democracy has stood still (Keil and Perry 2015). Instead, constitutional debates and tense political rhetoric have been at the forefront of Bosnian politics, with parties representing the three main groups in Bosnia arguing for an adjustment of the GFAP and substantial reform of Bosnia’s federal political system. In this respect, Bosnia makes an important case study for discussion on constitutionalism in multinational states: its system was foremost designed to end a war in the country, its whole constitutional evolution was substantially influenced and managed by external actors, and the long-term stability and success of constitutional engineering remains uncertain. This chapter proceeds as follows. In the first part, we discuss to what extent federalism can serve as a tool of peace-building and conflict resolution in societies recovering from (violent) conflict. Federalism and other power-sharing mechanisms have been increasingly used in the post-Cold War era in order to stabilize political systems, prevent further conflict and lay the foundation of a basic democratic system of governance (Noel 2005). In Bosnia, both federalism and consociationalism were used to bring an end to the conflict between Bosniaks, Serbs, and Croats. Yet, as our discussion will highlight, important questions remain regarding this approach. In the second part of the chapter, we discuss the case of Bosnia and Herzegovina in more detail. We elaborate on the provisions of the GFAP and how the agreement and its provisions have become a major point of contention among the different groups in postwar Bosnia. We argue that all three major groups in Bosnia have a “minority complex” and that this complex drives their policy proposals and constitutional visions. In the concluding section, we highlight what Bosnia can teach us about other post-war countries and how federalism and power-sharing can be used to facilitate conflict resolution and democratization.

Building a Federal State in a Post-Conflict Society: Theoretical Considerations In recent decades, there has been an extraordinary mushrooming of civil wars and intra-state struggles, many of which have been rooted in ethnic, linguistic, religious, and territorial disputes (Bermeo 2002; Cordell and Wolff 2016; Gurr 2000; Kaldor 2012). The proliferation

164

Soeren Keil and Paul Anderson

of such conflicts has necessitated more effective and innovative tools to manage (as well as protect and promote) the ineradicable fact of diversity while concomitantly preventing further conflict and state disintegration. Resultantly, territorial autonomy (e.g. federalism and devolution) and power-sharing mechanisms have become increasingly popular and in the words of Rothchild and Roeder (2005, 5) are “the international community’s preferred remedy for building peace and democracy after civil wars.” Given the commitment of federalism to autonomy and joint decision-making, it comes as no surprise that it has been heralded as a tool of conflict resolution. Offering the potential to safeguard “the sanctity of territorial borders while providing self-governance to minorities,” federalism is an attractive model, able to satisfy the demands of both central governments and sub-national groups (Keil and Anderson 2018, 92). In recent years, for instance, there have been and continue to be ongoing discussions in states as diverse as Afghanistan, Libya, Myanmar, Syria, and Ukraine regarding a federal solution to stop and resolve conflicts in these countries. These states, however, are but a few examples where federalism has been touted as a tool to resolve conflict, build peace, achieve stability, and institutionalize democracy. Bosnia and Herzegovina, Indonesia, Iraq, Nigeria, and Nepal have all used federalism to prevent further violent conflict, albeit with mixed results. In many Western democracies too, federalism (Belgium) and other forms of territorial autonomy (the UK, Spain, Italy) have been used to counter demands for secession and provide minority nations with institutional apparatus to take care of their own affairs. There are various reasons to support the institutionalization of a federal system, particularly from the viewpoints of the international community, central governments, and sub-national groups. As abovementioned, the ability of federalism to divide power, accommodate the demands of both the central government and sub-national elites, while protecting the territorial integrity of the state make it an attractive tool of conflict resolution. In addition, federalism, as is pointed out by McGarry and O’Leary (1993, 30), is “fully compatible with liberal democratic norms” and when compared with other methods used to eradicate diversity – genocide, ethnic cleansing, assimilation, and forced population transfers – is indisputably the most democratic response a state may take in dealing with ethnic diversity (O’Leary 2016, 141). There is, then, a strong

Constitutional Politics in a “State of Minorities”

165

link between federalism and democracy, whereby the latter promotes democratic values such as freedom and pluralism, and ensures a division of power to protect minorities against the despotism of the majority (Chryssochoou 1998; Duchacek 1990; McGarry and O’Leary 2009). The institutionalization of a federal system also ensures that internationally recognized borders remain unchanged. Under a federal system, sub-national minorities are granted internal self-determination, that is autonomy, which may involve the re-drawing of internal boundaries, but which does not affect the external borders of the state. Thus, in providing autonomy to sub-national minorities, tensions are not only alleviated, but secessionism abated and territorial breakup avoided (Lustick et al. 2004, 209–10). In addition, as Keil and Anderson (2018, 93) point out, “few would deny that the creation of hundreds of small, economically and politically inexperienced states is also a scenario best to be avoided.” In this sense, federalism ensures that the states’ minorities are institutionally protected while the territorial borders of the state remain unaltered. For minorities, the principal concern relates to securing autonomy and control over the policy areas deemed crucial for the survival of their ethnocultural distinctiveness (Brancati 2009). In having such control, minority groups are able to promote and protect their diversity, manage their own economic, social and political affairs, and limit the ability of the central government (often controlled by the majority group) to enact policies that promote unjust assimilation or impinge upon the affairs of the minority group (Bakke and Wibbels 2006, 5). In addition, for states concerned with enhancing the participation and inclusion of minority groups in the activities of the central state, federalism may also be connected with other institutional provisions, such as consociational power-sharing (Lijphart 1977). Indeed, according to several scholars, the inclusion of power-sharing mechanisms is often crucial to ensure embattled minorities feel safe in the state, avoid further conflict, and achieve democratic stability (Cordell and Wolff 2016; Hartzell and Hoddie 2003; McGarry and O’Leary 2009). As will be demonstrated below, Bosnia perfectly fits this pattern. Bosnian Serbs (and later also Croats) fought for autonomy and secession from the Bosnian state that was created as part of the dissolution of Socialist Yugoslavia. Yet, the federal system introduced as part of the GFAP ensured their inclusion in the state (no change of external borders) while at the same time provided these

166

Soeren Keil and Paul Anderson

groups with substantial territorial autonomy (re-drawing of internal borders) and participation in decision-making at the central state level through further power-sharing mechanisms (Lijphart 2005). Despite growing enthusiasm in using federalism to manage ethnocultural differences, accommodate territorial divisions, prevent conflict and discourage secession, the academic community remains divided over the ability of federalism to achieve the above-mentioned. The paradox of federalism, “one of the central conundrums of federal theory” (Cameron 2009, 309), has been astutely examined in the academic literature (Anderson 2010; 2013; Erk and Anderson 2010; Lustick et al. 2004; McGarry and O’Leary 2007). Yet, while much scholarly ink has been spilled in examining the Janus-faced nature of federalism, the debate remains inconclusive. As Anderson (2010, 139) notes, “the very same trait that prevents secession in one federation might encourage it in another.” On one side of the debate is a number of scholars who champion federalism as palliative to secessionism and able to mitigate and reduce grievances and conflict (Bermeo 2002; Brancati 2009; Ghai 2000; Gurr 2000; Hechter 2000; Kaufman 1996; Lustick et al. 2004; Stepan 1999). On the opposing side, however, is a sizeable body of academics that openly criticize the use of federalism to manage ethnocultural divisions or abate secessionism. Instead, these scholars argue that federalism freezes and reifies fluid identities, creates opportunities for conflict, encourages nationalist mobilization and whets the appetite of pro-secessionists (Brubaker 1996; Bunce 1999; Cornell 2002; Dorff 1994; Hale 2004; Horowitz 2014; Roeder 2009; Snyder 2000). As we highlight below, the current state of affairs in Bosnia vis-à-vis constitutional politics demonstrates the validity of ongoing discussions on the paradox of federalism. While the introduction of federal institutions, together with heavy international involvement in post-war Bosnia, has prevented any outbreak of further conflict for over twenty years, the provision of substantial territorial autonomy to Serbs and Croats has further intensified their demands for autonomy, including demands for (further) internal and external self-determination. As mentioned earlier, some scholars posit that in deeply divided societies, federalism, or indeed territorial autonomy more widely, will only function well if it is accompanied by a range of power-sharing mechanisms to help stabilize the political system and deepen its commitment to democratic values. However, those designing political

Constitutional Politics in a “State of Minorities”

167

systems in divided societies are often caught between the Scylla of satisfying minority demands for self-determination and convincing them of remaining within the extant state and the Charybdis of ensuring that the majority group does not feel held at ransom by the “tyranny of the minority.” The success of such systems, however, has proven difficult to theorize owing to the dimensions and nuances specific to each state (Erk and Swenden 2010), the origins of the system (Erk and Anderson 2010), the party system (Brancati 2009) or the structures, processes, individuals and attitudes vis-à-vis the system in question (Dorff 1994). Thus far, we have sought to underline the increasing use of federalism as a tool of conflict resolution and illuminate the principal reasons proposed to substantiate this choice. While the focus of this volume is the use of federalism in multinational states and its link to wider questions of constitutionalism, it is important to note that not all federations grow out of concerns for national recognition or diversity or to prevent the territorial disintegration of the state. In deeply divided societies, many of which have experienced violent conflict and continue to be fraught with economic, political, and social uncertainties, federalism and power-sharing often represent the best solutions to construct a democratic system, facilitate trust among different societal groups, and prevent the outbreak of further conflict. This is not to say that federalism or power-sharing are ideal solutions, but often represent the only choice between a democratic system or an authoritarian alternative (McGarry and O’Leary 2009). There is, however, indisputable agreement among many scholars, practitioners, and policymakers on the benefits of constitutional engineering and “the capacity of political institutions to change political outcomes” (Reilly 2016, 297). Attempts at theorizing and finding a solution to the paradox of federalism, however, have shown that how these changes are affected is dependent on a case by case basis.

Constitutional Politics in Post-war Bosnia To understand the current political discourse in Bosnia vis-à-vis constitutional politics, it is important to examine the origins of Bosnia’s current political system. Bosnia declared its independence from Socialist Yugoslavia in April 1992, following a referendum in

168

Soeren Keil and Paul Anderson

which nearly one hundred per cent of voters supported independence, although the vote was boycotted by nearly all Serbs living in Bosnia.4 Their leadership, dominated by the Serb Democratic Party (SDS) of Radoslav Karadžic, ´ argued that Bosnian independence would lead to a dominance of Bosniaks and Croats over the Serb population in Bosnia. What is more, Karadžic´ and his allies, including Serbia’s President Slobodan Miloševic, ´ argued that if Bosnia had a right to declare its independence from Socialist Yugoslavia, then the Serbs in Bosnia should also have the right to declare their independence from Bosnia. To ensure that Serbs in Bosnia could become independent (and eventually join Serbia proper), Bosnian Serb military units, supported by the Yugoslav army and paramilitary troops from Serbia, occupied substantial amounts of territory in Bosnia and ethnically cleansed these territories by forcing all nonSerbs to leave. Consequently, Bosniaks and Croats forged an alliance against the Serbs’ aggression, but by 1993 the Croats in Bosnia were pushing for their own territorial unit (the Croat Republic of Herzeg-Bosna) and fought against the Bosnian army, which by this point was mainly made up of Bosniaks (Hoare 2004). Despite substantial international involvement in peace talks, no solution to the conflict was found until the US became more involved in the negotiations with the appointment of Richard Holbrooke as the chief negotiator for peace in Bosnia. As a result of heavy diplomatic pressure and NATO airstrikes on Bosnian Serb positions, a cease fire was agreed in autumn 1995 which laid the foundations for the peace negotiations in November in Dayton (US). The final peace accord was signed in Paris in December 1995 by the presidents of Bosnia and Herzegovina, Alija Izetbegovic; ´ Croatia, Franjo Tud¯man; and Serbia, Slobodan Miloševic´ (Burg and Shoup 2000). The peace agreement negotiated in Dayton represented a key constitutional moment for post-war Bosnia. The GFAP5 included a new constitution which organized Bosnia into two entities, the Republika Srpska (Serb Republic, RS) and the Federation of Bosnia and Herzegovina (FBiH), which was further divided into ten cantons.6 The FBiH in effect became a federation within a federation – a unique institutional provision to accommodate Bosniaks and Croats (Keil 2013b). The powers of the central government were rather limited and included control over foreign policy, foreign trade policy, customs policy, monetary policy, finances of the institutions, and, for the

Constitutional Politics in a “State of Minorities”

169

Figure 6.1 | Territorial Organization of Bosnia and Herzegovina after 1995

international obligations of Bosnia and Herzegovina, immigration, refugee, and asylum policy and regulation, international and inter-Entity criminal law enforcement, including relations with Interpol, establishment and operation of common and international communications facilities, regulation of inter-Entity transportation, and air traffic control.7 Missing from this list is not only economic and social policy, but also any form of security policy, including control over the armed forces, which was given to the entities, meaning that Bosnia had two (de-facto three) armies after 1995. This was a key (and unusual) compromise agreed to by international actors

170

Soeren Keil and Paul Anderson

in order to ensure Serb and Croat consent to the peace agreement. Separate armies were also seen as the best way to ensure Bosniaks (and their Croat allies) could defend themselves in case of renewed Serb aggression. This was also mitigated by the fact that more than 50,000 NATO troops were stationed in Bosnia after 1995 to oversee the process of demilitarization. In addition to the creation of a highly decentralized asymmetrical federation,8 the constitution also outlined that Bosniak, Serb, and Croat representatives had to share power in the core institutions of the central state. Articles 4 to 6 of the constitution outline the need for the inclusion of Bosniak, Serb, and Croat representatives in the Parliament, presidency, government and Constitutional Court. In some institutions, this representation focuses specifically on Bosniaks, Serbs, and Croats (presidency and House of Peoples), while in others it focuses on representation from the two entities (House of Representatives, government, Constitutional Court). The two entities, however, combine territorial representation with ethnic representation. According to the 2013 census, the population of the RS consisted of 91.39 per cent Serbs. Likewise, 88.23 per cent of the population of the FBiH defined itself as either Bosniak or Croat. This ethnic composition is a result of the 1992–1995 war, as Keil (2013a, 82) argues: [a]t no time in history has Bosnia been organised territorially along national lines, before the developments in the 1990s. This was, in any case, impossible, since Bosnia’s population lived mixed all over the country. There was no basis for a territorial organisation along national lines. The war between 1992 and 1995 created this basis which, today, is a fundamental principle of the Bosnian federal system.

This combination of ethnic and territorial power-sharing has meant that politics in post-war Bosnia requires consensus amongst Bosniak, Serbian, and Croat parties. Yet, the first post-war elections in 1996 brought to power the same parties that were responsible for the civil war and they were unwilling to cooperate and find agreement. Instead, they focused on taking control of the territories that were given to them by the peace agreement and openly challenged international actors by preventing refugee return, perverting the re-integration of the fragmented and devastated country and

Constitutional Politics in a “State of Minorities”

171

by continuously supporting and hiding war criminals. In addition, corruption and mismanagement meant that progress in post-war Bosnia remained limited to a few areas such as the demobilization and decommissioning of many of the heavy weapons used in the war (Keil and Kudlenko 2015). What is more, transitional justice and post-war reconciliation was limited to the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and a human rights commission in Bosnia. The focus on supporting bottom-up initiatives and enabling for example multiethnic education only became apparent in the late 1990s. The inability of Bosnia’s elites to find any agreement on urgent matters such as a citizenship law, new state symbols, the creation of new (neutral) license plates to ensure free movement, and the protection and re-integration of internally displaced persons and refugees, led to increased involvement from international actors, including an extension of the powers of the High Representative to dismiss officials and impose laws.9 The decision to award the High Representative such a vast amount of power can be considered another constitutional moment in Bosnia. This time, an international actor (in this case, the High Representative) became a key actor in Bosnian politics. Consequently, the High Representative became the most important political actor in Bosnia, imposing decisions on a citizenship law, state symbols, constitutional changes to the entity constitutions, and many other laws that had a substantial impact on Bosnia’s federal system. It ensured on the one side that Bosnia would become a more ethnically neutral state by introducing a flag, bank notes, and other state symbols which did not specifically refer to any ethnic group. On the other side, the decisions of the High Representative strengthened the central level by creating new institutions such as the State Border Service (including a state border police force) and a new Ministry of Defence; by passing laws which would give more competences and resources to the central level such as the reform of the Value Added Tax system which ensured an independent income for the central level; and finally by dismissing hundreds of officials who acted against the peace agreement, including a Croat member of the state presidency and a president of the RS. As a consequence of this substantial international involvement a new cleavage emerged in Bosnia between local parties (either Bosniak or Serb or Croat) and the High Representative in which the different Bosnian parties found themselves often allied against the

172

Soeren Keil and Paul Anderson

intervention of the High Representative, for example in the areas of refugee return, constitutional changes in the entities, and his efforts to give more financial and policy-making power to the central level. The focus of the High Representative’s actions, namely state integration and more powers for the central level, was particularly opposed by the Bosnian Serb elite, who saw the GFAP as a guarantee not only of their autonomy and protection, but also for a weak Bosnian state in which major decisions had to be based on consensus amongst the three constituent peoples. Constitutional politics became part of the interplay between local and international actors and major constitutional decisions, including changes to the entity constitutions, were the result of impositions by the High Representative. While some progress in terms of state-consolidation and post-war recovery was achieved between 1997 and 2006 due to heavy international involvement, the relationship between the major parties in Bosnia remained relatively constant. They continued to oppose each other and the differing visions of what Bosnia is and what it should be (Keil 2012). Three different ideas about what Bosnia is and what Bosnia should be can be identified.10 Bosniak parties have consistently argued for more centralization and a strengthening of the central level. They have supported OHR decisions that have enhanced the powers of the central level and have consistently argued for the abolition of the strict power-sharing provisions of the constitution. Moreover, they have argued for a new territorial organization that would overcome the current division in entities and cantons and would instead introduce regions which would follow geographical and historical criteria. Bosniak elites have thus presented themselves as the protectors of Bosnia’s territorial integrity and the only group which favours Bosnian statehood and sees Bosnia as its homeland. Their rhetoric, however, has often blamed Serbs and Croats alike as secessionists and traitors who seek only to undermine the state of Bosnia. Serb parties have focused on improving and widening the autonomy of the RS. They have undergone an interesting metamorphosis as their initial opprobrium towards the peace agreement has transformed into vehement support for its provisions, particularly those related to decentralization, i.e. they oppose further centralization as advocated by Bosniaks (Toal 2013). More recently, they have argued for the RS’ right to have a referendum on independence and have continuously questioned the actions of the High Representative as well as those of other institutions such as Bosnia’s Constitutional

Constitutional Politics in a “State of Minorities”

173

Court which they see as a threat to their entity’s autonomy. Finally, Croats have focused on the perceived discrimination immanent in the peace agreement, which has left them without a specific Croat dominated entity. They argue that since FBiH is an entity dominated by Bosniaks and RS represents Bosniak Serbs, the Croat population resident in Bosnia should therefore also be entitled to some form of autonomy to ensure they are of equal status to the Serbs and Bosniaks. They have not shied away from establishing self-governing institutions (for example, in 2000 and 2012) to voice their concern with the current system of governance. Furthermore, they claim that as the smallest group amongst the three constituent peoples, they permanently face the risk of exclusion and elimination. Many Croats in Bosnia also possess Croatian citizenship which has given them the opportunity to leave Bosnia, and this has created fears that Croats would become extinct in Bosnia in the long-run.

Actors and Constitutional Politics in Post-war Bosnia There are some interesting developments amongst the three main groups in Bosnia. While there has been some consistency in political leadership and party dominance in the Bosniak and Croat camp, there have been fundamental changes in the political parties representing Bosnian Serbs. Yet, no matter which political party has been dominant amongst Bosniaks, Serbs and Croats, the parties have continued to argue in line with the demands of their constituent groups: Bosniak parties focus on centralization, Serb parties focus on increasing the autonomy of the RS, and Croat parties advocate special arrangements to counter their discrimination as the smallest group (Hulsey 2015; Mavrikos-Adamou 2015). The electoral rules, as well as a political environment in which ethnic tensions remain high, have furthermore contributed to a dominance of ethnic parties and to the exclusion of more civil and multi-ethnic alternatives (Hulsey 2010). Moreover, while constitutional debates have dominated post-war Bosnian politics, they have resulted in no substantial constitutional change. Bosnia’s constitution has been changed only once, when the Brc˘ko District was added as an independent district that belongs to both entities and enjoys self-government. However, neither Bosniak demands for centralization, nor Croat demands for a territorial reorganization have resulted in any policy change. Even

174

Soeren Keil and Paul Anderson

international attempts to change Bosnia’s constitution, such as the US-led initiative in April 2006 or the EU-led initiatives in Butmir and Prud a few years later, have not resulted in any agreement on constitutional reform (Perry 2015b). At the heart of the problem are three major issues: 1 the groups in Bosnia have very different visions about the country’s future constitutional organization; 2 strict power-sharing is not conducive for conciliation, compromise, and cooperation; 3 the three constituent peoples in Bosnia suffer from a “minority complex.” The irony of constitutional politics in Bosnia is that constitutional reform and adjustments to the peace agreement and the power-sharing system are demanded by all major political parties, civil society actors and international actors alike (Perry 2015a), yet no major change has been effected since the promulgation of the new constitution in 1995. The demands for self-determination from Serb and Croat elites are countered by international and Bosniak voices that demand further state integration and centralization. The inability of these different political elites to find compromise and move the state forward has resulted in the paralysis of key institutions and a lack of progress in terms of economic development and EU integration (Bennett 2016). In addition, it is important to highlight that strict power-sharing institutions such as in post-war Bosnia are not conducive for conciliation, compromise and cooperation. Instead, electoral rules and decision-making competences favour those parties that focus exclusively on what they perceive to be their own ethnic group. Elections are not usually decided based on which party delivered on the promises they made, but on the question of who can protect one group from the other groups. Fear and hatred still play a very important role in Bosnian politics. This demonstrates a lack of democratic culture and the failure to consolidate democratic governance 20 years after the peace agreement (Keil and Perry 2015a). In this sense, it is also important to point out that major discussions about political change and constitutional politics take place between party leaders, not democratically elected elites. Sometimes party leaders might hold democratic office, but often they lack clear democratic

Constitutional Politics in a “State of Minorities”

175

accountability. This became particularly problematic in 2005, when the US negotiated an agreement with numerous party leaders over constitutional change that would have seen important amendments to strengthen the central level and relax some of the strict power-sharing provisions. This amendment failed because parties which were not involved in the negotiations blocked it and the main Croat party split over the proposed constitutional changes. This failure can be considered another key constitutional moment in Bosnia. While further attempts to change the Bosnian constitution took place in the following years under EU mediation, none came close to overhauling the post-war system. What is more, failure to agree has further polarized Bosnia’s political scene, particularly on the side of Bosnian Serb elites which have opposed major constitutional reforms ever since. Combined with the appointment of Christian Schwarz-Schilling as High Representative in 2006, whose mandate prevented him from using his imposition powers in order to hand power back to Bosnian elites, the year 2006 has often been described as a watershed in which Bosnian politics and progress came to a standstill (Keil and Perry 2015a; Perry 2015a; 2015b). Sumantra Bose (2002) in his analysis of post-war Bosnian politics concluded that fear and hatred characterize Bosnian politics because the groups remain afraid of each other. He argues that this goes back to a “minority complex” that each of the groups still feel. Croats, given that they are the smallest of the three constituent peoples, feel they are more at risk of exclusion and dominance by the other groups (especially the Bosniaks in the FBiH). They therefore argue for special recognition and protection in the constitution to ensure they have the same rights as Bosniaks and Serbs and in turn cannot be excluded from decision-making. Serbs, on the other hand, feel that they remain a minority in Bosnia and that a BosniakCroat alliance could undermine their autonomy and threaten their self-governance. They refer to the independence referendum in 1992, in which Bosniaks and Croats forced Serbs to accept the independence of Bosnia against their expressed will. Finally, Bosniaks, despite having an overall majority in Bosnia, feel taken hostage by Croat and Serb demands because the power-sharing system allows these groups to influence and veto any decisions. This perception of the “tyranny of the minority” has emboldened Bosniak demands for changes to power-sharing arrangements and further centralization of competences. Moreover, because both Croats and Serbs have

176

Soeren Keil and Paul Anderson

neighbouring kin states that will protect their interests, this deepens the “minority complex” of the Bosniaks who only have Bosnia as a state and homeland. In this atmosphere of fear, rivalry, and distrust any progress towards a more integrated and functional state in Bosnia seems impossible. For many years, the international community through the High Representative provided an external agent that ensured reforms were implemented and important decisions were made. It can be argued that between 1997 and 2006, constitutional politics in Bosnia were internationalized and focused on state consolidation and overcoming the major weaknesses of post-war Bosnia’s political architecture. Since 2006, however, the High Representative has intentionally shied away from making major decisions to ensure that Bosnian elites take responsibility for what has been deemed their state and that major decisions are thus taken by elected elites. Bosnian politics, as a result, has been in a condition of stasis. There has been very little progress in most policy areas, including in the area of EU integration. Bosnia’s elites cannot agree on simple decisions such as who should negotiate with the EU, let alone more complex decisions such as how the Bosnian state should move forward from the postwar constitution and address any future challenges to the political system. Constitutional politics, thus, remains a significantly contested policy area. This is also visible when looking at the role of important Courts in Bosnia. The judgments of the Constitutional Court remain unimplemented in the RS, especially if the entity feels that these undermine its right to self-determination. What is more, the judgment of the European Court of Human Rights in the case of Sejdic´ and Finci11 has resulted in new tensions in Bosnia. The question the court engaged with concerned who should be included (and excluded) in power-sharing arrangements. It criticized Bosnia for its lack of inclusion of certain groups and asked it to change its Constitution.12 This, however, has been criticized heavily by authors working on power-sharing who see it as a form of illegal external intervention (McCrudden and O’Leary 2013). Constitutional politics and the need for change still rank high in political discourse, but no major adjustment to the constitutional system has been made, despite demands from political parties, civil society organizations, and international representatives for change. The underlying reason for this is that the elites representing the major parties in Bosnia have very different visions of what Bosnia

Constitutional Politics in a “State of Minorities”

177

is as a state and what it should be. While the GFAP has been able to end the violence and bring peace, it has been unable to bring a compromise and a joint understanding of the state. The strict rules for constitutional change, which require a 2/3 majority in each of the two Houses of Parliament, plus the heightened political tensions among the different political parties explain this lack of constitutional politics. However, the developments since 2006 have further enhanced dynamics in Bosnia, with increased calls for a referendum on independence in the RS and louder calls for a readjustment of the FB iH , and the move towards a third – Croat – entity (Perry 2014).

Constitutional Politics in post-war Federations: Lessons to be learnt from Bosnia and Herzegovina? Politics and constitutional arrangements tend to be contested in all multinational states. At certain points in time, this contestation results in substantial constitutional crises that need to be dealt with by political elites in order to prevent state dissolution or in extreme cases violence. However, in contrast to the developments in established liberal democratic states, post-war multinational federations face additional challenges. This section identifies some key lessons that could be learnt from the Bosnian experience and is of particular relevance for the ongoing discussions on using federalism and power-sharing as tools to manage conflict and diversity. First, as discussed in the case of Bosnia, very often international actors play a key role in the setting up and implementation of federal arrangements. From Bosnia to Kosovo, Afghanistan, Iraq, and more recently Nepal, international actors (including the US, the EU, the UN and others) have been involved in constitution drafting, advising local elites and in certain cases, even directly implementing post-war constitutional provisions. This is not, per se, wrong, as international involvement can evidently contribute to help bring an end to violence and ensure lasting peace, as demonstrated in Bosnia. It becomes problematic, however, when political solutions to these conflicts are seen as externally imposed and not indigenously developed. Finding compromise between former enemies and opponents takes time and there needs to be a willingness on all sides to negotiate in good faith. It is no surprise, then, that constitutional negotiations in Nepal took nearly ten years before an agreement on a federal constitution was

178

Soeren Keil and Paul Anderson

agreed in 2015. Post-war multinational states need time to implement and become familiar with the workings of federal structures and should be given this time. The international community should, therefore, avoid two mistakes: first, it should eschew focusing on short term only solutions which, while successful in bringing an end to violence or authoritarian regimes, risk impeding the development of the political system. It is crucial that domestic actors are involved in any peace process, but international involvement must also continue to support this process to prevent system breakdowns or worse still the outbreak of further violence, as has been observed in Iraq and Libya. This is no easy task and international organizations must walk a fine line between supporting and engineering the peace process, while ensuring its development is supported and engendered by domestic elites. Likewise, international actors should not become the main drivers of constitutional politics and constitutional change in post-war multinational states, otherwise new cultures of dependencies are created and agreements might be seen as imposed, as has been the case in Bosnia. Second, constitutional politics in post-war multinational states should be a flexible process. This does not mean that major issues of the state, including its territorial integrity, should be constantly re-negotiated, but flexibility is of key importance to ensure peace and promote democracy. As Michael Burgess (2006) has pointed out, in multinational states federalism serves as an instrument to manage different nationalisms. But nationalisms are not static, they adapt according to constitutional and political realities. Hence, federal systems adopted to deal with competing nationalisms should also include in-build flexibility. The relationships between groups change and their attitudes evolve over time, as can be seen in the case of the Bosnian Serbs, whose initial inimicality towards the GFAP transmuted into strong support for the agreement. Constitutional politics need to take this into account and allow for a certain degree of flexibility and the potential to revisit and renegotiate the federal arrangement to ensure that it can accommodate the changing needs of different groups. Third, peace-making and state-building in post-war multinational states also need to focus on democratization. Too many peace processes have been dominated either by external actors or local elites that have had little domestic legitimacy. Experiences in Afghanistan, Iraq, and more recently in Libya highlight the importance of a peace

Constitutional Politics in a “State of Minorities”

179

process that includes important local elites and entrenches political decisions through democratic processes. Building democracy and in particular federal democracy in societies that have endured longterm conflict and a history of intra-group conflict, state failure, and violence is no mean feat. But imposed processes or those driven by local elites that have no domestic legitimacy seriously question the long-term stability of any agreement reached. Democratic backsliding in countries such as Russia, Kosovo, and Iraq highlights that democratic norms – and a commitment to federal principles including the respect for constitutional arrangements – are of key importance for the success of territorial autonomy arrangements. Fourth, we should not expect that the introduction of federalism and basic democratic principles will solve all problems in post-war multinational states. Very often issues such as refugee return, reconciliation, and economic reconstruction (as is evident in Bosnia) need to be dealt with as well and these are often processes that take much longer than the implementation of a federal constitution. In addition, the paradox of federalism points to the fact that challenges to territorial integrity and the potential for secessionist demands will not disappear once a new federal arrangement has been reached; multinational states appear destined to live in the shadow of secessionism. While it is of key importance that the major parties in postwar societies mutually agree on a new constitution, it is unwise to assume that old grievances and past injustices will be forgotten over time. Calls for (constitutional and institutional) recognition and secession are likely to also play a role in the post-war period, as has been the case in Bosnia. However, functional institutions, flexibility in the constitutional provisions and a willingness of all elites to work together and make the system work are of key importance to ensure the success of any federal arrangements in post-war federations. What is more, the paradox of federalism can best be addressed by ensuring that those groups demanding external self-determination enjoy substantial internal self-determination and hence can protect their identity and culture as members of the multinational state. Taking demands for recognition and autonomy seriously and ensuring that the state recognizes and protects its diversity is therefore essential to make a post-war federal arrangement work. Finally, as Stepan (1999) has pointed out, the US is not the ideal model to look at when discussing federal provisions in multinational post-war countries. Instead, the ever-changing nature of political

180

Soeren Keil and Paul Anderson

arrangements, the different needs of ethnic groups and the shifting nature of sovereignty in the age of globalization require a rethink of what federalism means in the 21st century. In many post-war societies, we might have to move away from what are perceived to be more traditional federal structures as seen in, for example, the US and Germany and instead move to more confederal arrangements. The autonomy provisions for Iraqi Kurdistan point in this direction. Secession clauses in the federal arrangements for Sudan (2005) and Serbia-Montenegro (2003) also highlight this revised interpretation of what federalism might look like in the future. As pointed out above, contemporary peace arrangements need to be flexible and able to adjust. To do so, we should not shy away from confederal arrangements, secession clauses, and time limits for arrangements that require renegotiation. As the contemporary world is becoming more diverse and difficult to understand, so too should federal arrangements in post-war societies that aim to address contemporary challenges. One of the major problems of the agreement in Bosnia is that it sticks to fixed categories in terms of federalism and consociationalism and consequently allows for little flexibility and adaptability. One lesson we should learn is that difficult and complex problems require difficult and complex answers.

Conclusion Constitutional politics in post-war Bosnia have been dominated by the continuation of political conflict between Bosniaks, Serbs, and Croats. While the GFAP has been able to put an end to violent conflict, it has been unable to address the underlying issues of the conflict; namely the lack of a common understanding of what Bosnia is and how it should be organized. The major groups in the country have divergent perspectives on what the state is, what their relationship to the state should be and how they relate to the other groups in Bosnia. Despite the extensive use of federalism and power-sharing in post-war Bosnia, fundamental problems remain. The current constitutional set-up, while successful in ending conflict and securing peace, has not been able to guarantee political stability or engineer the development of a consolidated democratic political system. Instead, institutions are viewed as straitjackets, constraining the

Constitutional Politics in a “State of Minorities”

181

behaviors and aspirations of the different groups, but engendering no viable solutions to counter the constitutional paralysis pervading the Bosnian state. Strict power-sharing rules and the diametrically opposing views on constitutional amendments make change impossible. Instead, political stagnation and increased fear and hatred have characterized Bosnian politics in recent years. Does this mean that federalism and power-sharing have been unsuccessful? This depends on the definition of success in post-war cases. Federalism and elite power-sharing have certainly contributed to overcoming the immediate danger of a new violent conflict, and they have allowed elites to engage in dialogue and political discussions, rather than use force. Having said this, the institutions in Bosnia have not yet evidenced a culture of compromise and deep-rooted democratization. There are numerous reasons for this, including the design of the post-war institutions, the continuity of actors that were in charge before, during and after the war, as well as over-reliance on international intervention after 1997. This however, does not make Bosnia a failure either. The country is at peace, and its territorial integrity has been maintained for the last 25 years. What is more, power-sharing has ensured that the elites of the three groups have to work together and find compromises – this is often not possible, but there have been important decisions in recent years that demonstrated that compromise is possible. Further, Bosnia has a strong, active civil society that has been funded mainly externally and has been reasonably successful in increasing pressure on political elites, not least during the widespread protests in 2014. Finally, it is worth highlighting that the 2018 elections brought important changes at a number of regional levels, including in certain cantons in the FBiH, where non-national parties gained significant ground. There are multiple lessons we can learn from Bosnia for other post-war multinational states in which federalism is considered as a possible tool of conflict resolution. Using federalism to manage ethnic conflict and end violence has become much more prominent in the post-Cold War era and so it is essential that lessons are learnt from past experiences, including Bosnia. The success of federalism, however, remains contested. Some point to experiences in Bosnia, Iraq, and Sudan to highlight the failure of federalism to consolidate democracy and increase the effectiveness of the state. Others point out that there are few alternatives to federalism and power-sharing

182

Soeren Keil and Paul Anderson

and highlight the success stories in Macedonia and Nepal. A third group of scholars argue that individual circumstances of each of these countries explain their success or failure. Yet, overall a picture emerges that demonstrates that federal arrangements need to be embedded in flexible constitutional arrangements which are agreed upon by domestic elites. Furthermore, it is becoming increasingly evident that in order to address the complex issues involved in violent ethnic conflict, new, flexible and non-traditional solutions have to be developed to promote peace and democracy. The conclusion we can reach almost three decades after the end of the Cold War is that ethnic conflicts in multinational states are becoming ever-more complex and relevant. This means, therefore, that solutions addressing these conflicts also need to be ever more relevant and flexible. not e s 1 Following the general use in the literature, the short form Bosnia will be used throughout this paper. 2 According to the 2013 census in Bosnia and Herzegovina, there are 3.53 million people in Bosnia: 50.11% identified as Bosniak, 30.78% as Serb, 15.43% as Croat and 2.43% identified as “others.” For more information, see Toe (2016). 3 The Office of the High Representative was created as part of the GFAP to oversee the civilian implementation of the peace agreement. In December 1997, the High Representative was given powers to remove officials who obstruct the implementation of the peace agreement and to impose laws. For more on the OHR and its changing role, see Peter (2015). 4 The official figure of votes in favour of Bosnian independence was 99.7% on a turnout of 63.4%. 5 The GFAP is available at: http://www.ohr.int/?page_id=1252 (last accessed 10 October 2016). 6 GFAP, Annex IV “Constitution of Bosnia and Herzegovina” Art. 1.3. 7 Source: https://en.wikipedia.org/wiki/Cantons_of_the_Federation_of_ Bosnia_and_Herzegovina#/media/File:Bih_cantons_en.png 8 Ibid. Art. 3.1. 9 Asymmetry in Bosnia refers on the one side to the organisation of the two entities – the FBiH consists of 10 cantons and is highly decentralised while the RS is a centralised political unit. On the other side, asymmetry also refers to the relationship between the two entities and the third territorial unit – namely the District of Brc˘ko, which has similar autonomy powers

Constitutional Politics in a “State of Minorities”

183

compared to the RS, but it is not an independent territorial unit. Instead it is a self-governing territory belonging to both entities equally. 10 The decision to extend the powers of the High Representative was made by the Peace Implementation Council (PIC), the international body that oversees the implementation of the peace agreement. The decision was made in December 1997 at the Bonn Summit of the PIC, and can be found here: http://www.ohr.int/?p=54133 (last accessed 10 October 2016). 11 See on this the detailed discussion in Keil 2013a: 138–54, as well as in Perry 2015a. 12 See European Court of Human Rights, Judgment Sejdi´c and Finci v. Bosnia and Herzegovina (27996/06 and 34836/06), 2009.

r e f e r e n ce s Anderson, L. 2013. Federal Solutions to Ethnic Problems: Accommodating Diversity. Oxon: Routledge. – 2010. “Towards a Resolution of the Paradox of Federalism.” In New Directions in Federalism Studies, edited by J. Erk and W. Swenden, 126–41. Abingdon: Routledge. Bakke, K.M. and E. Wibbels. 2006. “Diversity, Disparity, and Civil Conflict in Federal States” World Politics 59 (1):1–50. Bennett, C. 2016. Bosnia’s Paralysed Peace. London: Hurstand Company. Bermeo, N. 2002. “The Import of Institutions.” Journal of Democracy 13 (2): 96–110. Bose, S. 2002. Bosnia after Dayton – Nationalist Partition and International Intervention. London: C Hurst and Co Publishers Ltd. Brancati, D. 2009. Peace by Design. Managing Intrastate Conflict through Decentralization. Oxford: Oxford University Press. Brubaker, R. 1996. Nationalism Reframed: Nationhood and the National Question in the New Europe. Cambridge: Cambridge University Press. Bunce, V. 1999. Subversive Institutions: The Design and the Destruction of Socialism and the State. Cambridge: Cambridge University Press. Burg, S. and P. Shoup. 2000. The War in Bosnia and Herzegovina – Ethnic Conflict and International Intervention. Armonk and London: M.E. Sharpe. Burgess, M. 2006. Comparative Federalism Theory and Practice. London and New York: Routledge. Cameron, D. 2009. “The Paradox of Federalism: Some Practical Reflections.” Regional and Federal Studies 19 (2): 309–19.

184

Soeren Keil and Paul Anderson

Chryssochoou, D.N. 1998. “Federalism and Democracy Reconsidered.” Regional and Federal Studies 8 (2): 1–20. Cordell, K. and S. Wolff. 2016. The Routledge Handbook of Ethnic Conflict, Second Edition. Abingdon and New York: Routledge. Cornell, S. 2002. “Autonomy as a Source of Conflict: Caucasian Conflicts in Theoretical Perspective.” World Politics 54 (2): 245–76. Dorff, R. H. 1994. “Federalism in Eastern Europe: Part of the Solution or Part of the Problem.” Publius 24 (2): 99–114. Duchacek, I.D. 1990. “Perforated Sovereignties: Towards a Typology of New Actors in International Relations.” In Federalism and International Relations: The Role of Subnational Units, edited by H. J. Michelmann and P. Soldatos, 1–30. Oxford: Clarendon Press. Erk, J and L. Anderson. 2010. The Paradox of Federalism. Abingdon and New York: Routledge. – 2010. “Taking Stock during Times of Change.” In New Directions in Federalism Studies, edited by J. Erk and W. Swenden, 187–206. Oxon: Routledge. Ghai, Y. 2000. “Autonomy as a Strategy for Diffusing Conflict.” In International Conflict Resolution after the Cold War, edited by P. Stern and D. Druckman, 483–531. Washington, D.C.: National Academy Press. Gurr, T.R. 2000. People Versus States. Minorities at Risk in the New Century. Washington: United States Institute of Peace. Hale, H. 2004. “Divided We Stand: Institutional Source of Ethnofederal State Survival and Collapse.” World Politic, 56 (2): 165–93. Hartzell, C. and M. Hoddie. 2003. “Institutionalizing Peace: Power Sharing and Post-Civil War Conflict Management.” American Journal of Political Science 47 (2) 318–32. Hechter, M. 2000. Containing Nationalism. New York: Oxford University Press. Hoare, M.A. 2004. How Bosnia Armed. London: Saqi Books. Horowitz, D. 2014. “Ethnic Power Sharing: Three Big Problems.” Journal of Democracy 25 (2): 5–20. Hulsey, J. 2015. “Electoral Accountability in Bosnia and Herzegovina under the Dayton Framework Agreement.” International Peacekeeping 23: 511–25. – 2010. ‘‘Why Did They Vote for Those Guys Again?’ Challenges and Contradictions in the Promotion of Political Moderation in Post-war Bosnia and Herzegovina.” Democratization 17: 1132–52. Kaldor, M. 2012. New and Old Wars: Organized Violence in a Global Era. Third Edition. Cambridge: Polity.

Constitutional Politics in a “State of Minorities”

185

Kaufman, C. 1996. “Possible and Impossible Solutions to Ethnic Civil Wars.” International Security 20 (4): 133–75. Keil, S. 2013b. “Building a Federation within a Federation: The Curious Case of the Federation of Bosnia and Herzegovina.” L’Europe en Formation 369: 114–25. – 2012. “Federalism as a Tool of Conflict Resolution: The Case of Bosnia and Herzegovina.” L’Europe en Formation 54: 205–18. 2013a. Multinational Federalism in Bosnia and Herzegovina. Farnham and Burlington: Ashgate. – 2013a. Multinational Federalism in Bosnia and Herzegovina. Farnham and Burlington: Ashgate. Keil, S. and P. Anderson. 2018. “Decentralization as a Tool of Conflict Resolution.” In Handbook of Territorial Politics, edited by E. Hepburn and K. Detterbeck, 89–106. Cheltenham: Edward Elgar. Keil, S. and A. Kudlenko. 2015. “Bosnia and Herzegovina 20 Years after Dayton: Complexity Born of Paradoxes.” International Peacekeeping 22: 471–89. Keil, S. and V. Perry. 2015. “Introduction: Bosnia and Herzegovina 20 Years after Dayton.” International Peacekeeping 22: 463–70. Lijphart, A. 1977. Democracy in Plural Societies – A Comparative Exploration. New Haven and London: Yale University Press. – 2005. “Constitutional Design for Divided Societies.” Journal of Democracy, 15 (2): 96–109. Lustick, I.S, D. Miodownik and R.J. Eidelson. 2004. “Secessionism in Multicultural States: Does Sharing Power Prevent or Encourage It?” American Political Science Review 98 (2): 209–29. Mavrikos-Adamou, T. 2015. “Leader-Dominated Ethnic Parties and Dysfunctional Institutional Design in Bosnia and Kosovo.” In StateBuilding and Democratization in Bosnia and Herzegovina, edited by S. Keil and V. Perry, 173–92. Farnham and Burlington: Ashgate. McCrudden, C. and B. O’Leary. 2013. Courts and Consociations – Human Rights versus Power-Sharing. Oxford and New York: Oxford University Press. McGarry, J and B. O’Leary. 2009 “Must Pluri-national Federations Fail?” Ethnopolitics 8 (1): 2–25. – 2007. “Federation and Managing Nations.” In Multinational Federations, edited by M. Burgess and J. Pinder, 180–211.New York: Routledge. – 1993. “Introduction: The Macro-Political Regulation of Ethnic Conflict.” In The Politics of Ethnic Conflict Regulation, edited by J. McGarry and B. O’Leary. London: Routledge.

186

Soeren Keil and Paul Anderson

Noel, S. 2005. “Introduction.” In From Power Sharing to Democracy – Post-Conflict Institutions in Ethnically Divided Societies, edited by S. Noel, IX-XIII. Montreal and Kingston: McGill-Queen’s University Press. O’Leary, B. 2016. “Debating Partition.” In The Routledge Handbook of Ethnic Conflict, edited by K. Cordell and S. Wolff, 138–55. Second Edition. Abingdon and New York: Routledge. Perry, V. 2014. “A ‘segmented state’ Vision of the Future of Bosnia and Herzegovina.” Transconflict. 10 February 2014. Last accessed 2 September 2017.Available at: http://www.transconflict.com/2014/02/ segment-state-vision-future-bosnia-herzegovina-102/ – 2015a. “Constitutional Reform Processes in Bosnia and Herzegovina: Top-Down Failure, Bottom-up Potential, Continued Stalemate.” In State-Building and Democratization in Bosnia and Herzegovina, edited by Keil and V. Perry, 15–40. Farnham and Burlington: Ashgate. – 2015b. “Constitutional Reform in Bosnia and Herzegovina: Does the Road to Confederation go through the EU?” International Peacekeeping 22: 490–510. Peter, M. 2015. “No Exit: The Decline of the International Administration in Bosnia and Herzegovina.” In State-Building and Democratization in Bosnia and Herzegovina, edited by S. Keil and V. Perry, 131–50. Farnham and Burlington: Ashgate. Qvortrup, M. 2014. Referendums and Ethnic Conflict. Philadelphia: University of Pennsylvania Press. Reilly, B. 2016. “Centripetalism.” In The Routledge Handbook of Ethnic Conflict,edited by K. Cordell and S. Wolff, 278–89. Second Edition. London and New York: Routledge. Roeder, P. 2009. “Ethnofederalism and the Mismanagement of Conflicting Nationalisms.” Regional and Federal Studies 19 (2): 203–19. Rothchild, D and P. Roeder. 2005. “Dilemmas of State-Building in Divided Societies.” In Sustainable Peace. Power and Democracy after Civil War, edited by P. Roeder and D. Rothchild, 1–26. Ithaca and London: Cornell University Press. Snyder, J. 2000. From Voting to Violence: Democratization and Nationalist Conflict. New York: W.W. Norton. Stepan, A. 1999. “Federalism and Democracy: Beyond the US Model.” Journal of Democracy 10 (4): 19–34. Toal, G. 2013. “ ‘Republika Srpska will have a Referendum’: The Rhetorical Politics of Milorad Dodik.” Nationalities Papers 41: 166–204.

Constitutional Politics in a “State of Minorities”

187

Toe, R. 2016. “Census Reveals Bosnia’s Changed Demography.” Balkan Insight. 30 June 2016. Last accessed 10 October 2016.Available at: http://www.balkaninsight.com/en/article/new-demographic-picture-ofbosnia-finally-revealed-06-30-2016

c o n clu si on

The Nature, Actors, and Process of Constitutional Politics André Lecours, Nikola Brassard-Dion, and Guy Laforest

As the contributions of this book have shown, constitutional politics comes in all shapes and sizes. Indeed, constitutional politics is strongly tied to the historical political development of the state, including its understanding and structuring of deep diversity. There are, therefore, no two scenarios, or sets of dynamics, alike. The Catalan situation is shaped by the Spanish state’s refusal to allow and recognize a self-determination referendum. Constitutional politics in the United Kingdom is structured by the dynamics of the 2014 Scottish independence referendum and also by Brexit. Belgian constitutional politics is enmeshed in the consociational practices of the political system. In Canada, constitutional politics involving Quebec has been strongly shaped by federalism while it has been conditioned by colonialism when it comes to Aboriginal peoples. In Puerto Rico, the colonial situation has also weighed on constitutional politics, particularly in the form of the disinterest and disengagement of the United States government, which ultimately controls the constitutional future of the island. In Bosnia and Herzegovina, constitutional politics is a function of the post-conflict and democratizing nature of the state. This book has used key case studies to shed light on the what, who, and how of constitutional politics in multinational democracies, that is, its nature, actors, and process.

Conclusion

189

The Nature of Constitutional Politics in Multinational Democracies The contributors to this book show how constitutional politics in multinational democracies is a function of the deep diversity of these types of states. Indeed, in all the states studied in this book, there is a modern day “nationality question” (Keating 2004). What is the political future of Catalonia? How can Belgium be structured to satisfy Flemings and Francophones? What will the relationship between Scotland and the British state look like? In Canada, what does Quebec want and how can the Canadian state re-shape its relationship with Aboriginal peoples, including the Métis nation? What relationship do Puerto Ricans want to have with the United States? How does Bosnia and Herzegovina hold together its tripartite federation? As the chapters in this book show, the deep diversity of multinational democracies involves nationalist movements making claims for self-determination, either external or internal. These claims, as powered by nationalism, trigger constitutional politics. The chapters in the book suggests that the impact of constitutional politics tends to be great in the minority national communities where the self-determination claims emanate, but is variable in the country as whole. Constitutional politics has profoundly affected the minority national communities examined in this book. In this sense, periods of constitutional politics often represent critical junctures in the political development of minority national communities. For example, the chapter by Lluch shows how the Catalan process of self-determination has completely re-configured Catalan politics, including the party system. The chapters by Brown Swan and McEwen as well as by Rocher and Casanas Adam explain how the 2014 referendum on Scottish independence and its constitutional aftermath have boosted some political forces (most notably the SNP) at the expense of others. In some cases, the impact of constitutional politics is felt on the country as a whole. This is clearly the case for Spain and also, as Keil and Anderson explain, in Bosnia and Herzegovina where constitutional politics is inseparable from the very existence of the country. It is also the case in Belgium where every new reform of the state brings changes to the distribution of powers in the federal system. In other states, the self-determination claims of minority national communities and the resulting constitutional politics barely resonate in the state as a whole. This is the case

190

André Lecours, Nikola Brassard-Dion, and Guy Laforest

in the United States where, as Lluch shows, Puerto Rico stands at the extreme periphery, and in Canada when it comes to the Métis nation who, as Dubois explains, is also at the margin of the state. The contributions to the book highlight the power relationships involved in constitutional politics. These relationships feature, as Rocher and Casanas Adam mention, power asymmetries. Indeed, constitutional politics represents an effort to alter the power relationships between groups or between minority national communities and the state, or both. These power relationships often crystallize a particular institutional structure, which are challenged by the self-determination claims of nationalist movements. Typically, some communities within a state want more autonomy (Scotland, Catalonia, Flanders, Quebec, Republika Srpska) while others (England, Wallonia, most of the rest of Spain and of Canada, and Bosnia) prefer a greater role for the central government. Constitutional politics becomes a terrain for possible discussions and negotiations over state structures although in some circumstance the state just chooses to either ignore self-determination claims or simply overpower the minority national community, or both, as was the case with the first encounter between the Métis nation and the Canadian state described by Dubois in her chapter. In the case of the Métis in Canada and as well of Puerto Rico, as explained by Lluch, constitutional politics occurs in a colonial context. For the Caribbean nation, colonial rule means that its constitutional fate is ultimately in the hands of the United States Congress. As we mentioned in the introduction, constitutional politics is not normal politics. As Rocher and Casanas Adam suggest, it gives rise to a different discourse and a heightened rhetoric. Constitutional politics involves existential questions for minority national communities and for the state, which means the stakes are high. As such, it is the theatre of both reason and emotion. Members of a minority national community tend to consider the state’s position in constitutional politics as a reflection of the wider citizenry’s view of that community. Hence, the recognition (or non-recognition) of distinctiveness and the level of autonomy that should be afforded to communities such as Catalonia, Scotland, and Quebec are emotionally charged questions as they relate to identity and group standing. The chapters in this book convey the emotional dimension of constitutional politics, when the very future of the state and of the (statewide) nation, often seems to be in play.

Conclusion

191

This emotional dimension contributes to the delicate nature of constitutional politics as does the often-found tension between legitimacy and legality it harbours. In a multinational democracy, the claims for recognition or increased autonomy put forth by a minority national community draw their legitimacy from a democratically elected parliament (Laforest and Lecours 2016), but they often hit the wall of constitutional law. This tension between legitimacy and legality is, as Lluch points out, a conundrum of constitutional politics by which Catalonia and Spain have been especially acutely confronted. Yet, resolving this conundrum is essential for avoiding political violence, a challenge particularly salient in postwar state such as Bosnia and Herzegovina.

The Actors of Constitutional Politics in Multinational Democracies As we mentioned in the introduction, constitutional politics in multinational democracies involves, at the most basic level, minority national communities and the state. Yet, this ontology hides important political dynamics that animate constitutional politics, most importantly that minority national communities are not monolithic blocs, but rather divided societies themselves. Hence, the specific self-determination claims put forth by the governments of Catalonia, Scotland, Flanders, Quebec, and Puerto Rico at any moment are far from consensual within these communities. Even considering nationalist movement as actors is somewhat of a reduction since some members of a minority national community do not consider themselves nationalists. Political parties feature prominently in the analyses offered in this book, suggesting they are useful ontological elements to understand constitutional politics. Within minority national communities, some parties identify as nationalists and, among these nationalist parties, one or more typically pursues independence. Nationalist parties, both in their secessionist and autonomist varieties drive constitutional politics. The chapters by Sinardet, Rocher and Casanas Adam, Brown Swan and McEwen, and Lluch all speak to the importance of nationalist parties for understanding constitutional politics in the United Kingdom, Canada, and Spain. Sinardet’s chapter highlights how the Flemish-nationalist party N-VA choice to emphasize primarily self-determination or socio-economic issues (from a right of centre

192

André Lecours, Nikola Brassard-Dion, and Guy Laforest

perspective) has tremendous impact on constitutional politics in Belgium. The first SNP majority government was the instigator of the 2014 referendum on Scotland’s independence, which triggered various exercises in constitutional politics (most notably, the Scotland Act and the Wales Act). The secessionist turn in the CiU was the catalyst for the Catalan self-determination process. The threat the PQ represented to Canadian unity led to a long period of mega-constitutional politics in Canada. In Bosnia, parties representing the three main groups have been the main actors in the negotiations on the structure of the state. To be more precise, constitutional politics there takes place between party leaders who are not democratically elected. In Puerto Rico the political party advocating for statehood for the island, the PNP, has been at the forefront of the pressures for status change, showing that non-secessionist parties can also drive constitutional politics. The Métis nation in Canada is an exception as its small population, even at a provincial level, effectively prevents representation through a political party.1 The chapter by Dubois on the Métis nation speaks to the importance of political parties for creating agency in constitutional politics as the Métis have had tremendous difficulty being recognized, without a political party to specifically represent them, as a legitimate actor in this context. Of course, constitutional politics in multinational democracies does not only involve the political parties and broader nationalist movements of minority national communities. The rest of the country also has a voice. Here again, political parties are a useful, indeed a necessary, consideration since they articulate responses to the claims of minority national communities on recognition and autonomy. As the chapter by Rocher and Casanas Adam shows, the response of unionist parties to the claims of nationalist movements, sometimes in the form of promises for reforms, is central to the dynamics of constitutional politics. In Bosnia and Herzegovina, this ‘state of minorities’ as Keil and Anderson call it, the voice of the “rest of the country” is in fact that of political parties representing the various groups, with Bosniaks playing somewhat of a unionist role in supporting a strong central government. A similar structure exists in consociational Belgium where Francophone parties represent the other side in the constitutional dialogue. As the chapter by Lluch shows, Puerto Rico is another outlier here as the rest of the country (the continental United States) has shown little interest in constitutional politics on the island.

Conclusion

193

In analyzing the role of “the rest of the country” in constitutional politics, it can be useful to consider the state as macro-level entity, especially when looking at constitutional politics over the long term. For example, the chapter by Brown Swan and McEwen argues that the meaning of self-government in Scotland is tied to the evolution of the British state and to its relation with the rest of the world. In other words, the context of the Empire and, later, of the European Union conditioned a view of independence as largely embedded, which in turn has shaped constitutional politics in Scotland from the march towards devolution to the dynamics of the 2014 referendum campaign. It can also be useful to disaggregate the state. If institutions such as governments and parliaments can be analyzed through political parties, the same cannot be said for the judicial branch of the state. Indeed, chapters in this book by Rocher and Casanas Adam, Lluch, and Dubois have demonstrated the importance of courts in constitutional politics. The Supreme Court of Canada weighed in the process of constitutional change in 1981 when then Prime Minister Trudeau was seeking to reform the Constitution in the absence of an amending formula and then again in 1998 with its Reference re Secession of Québec. In Catalonia, the 2010 judgment by the Spanish Constitutional Court on the 2006 reform of the Catalan Statute of Autonomy effectively launched the process of self-determination. In 2016, the United States Supreme Court rendered a decision in a criminal case re-affirming that Puerto Rico does not possess sovereignty; that decision served to undermine the credibility of the supporters of the current ELA status and boosted that of statehooders. The Métis nation in Canada has seen recent Supreme Court of Canada decisions speak to its rights in a way that has forced the federal government to engage with the Métis like it never did before. The chapter by Keil and Anderson highlights the fact that external actors can be central to constitutional politics. In the case of Bosnia and Herzegovina, constitutional politics was internationalized from the beginning as the peace accord that ended the war and gave the state its new constitution, signed in Dayton in 1995, was negotiated in the determining presence of the United States. Moreover, an international presence remained in the country for a decade in the form of the Office of the High Representative, whose termination in 2006 involved a greater oversight role for the EU. Hence, in post-conflict constitutional politics, the relevant actors are not only domestic.

194

André Lecours, Nikola Brassard-Dion, and Guy Laforest

The Process of Constitutional Politics in Multinational Democracies Most of the contributions of this book highlight how constitutional politics typically occurs within a fairly short, discrete period, at least in comparison to normal politics. In other words, normal politics is, from time to time, interrupted to usher in a period of constitutional politics. For example, most of the contemporary history of the United Kingdom featured constitutional stability and, therefore, normal politics. Devolution involved constitutional politics, then the 2014 Scottish independence referendum and its aftermath, and now Brexit. In Canada, negotiations on the 1982 Constitution Act that followed the first Quebec referendum on sovereignty marked the beginning of a fifteen-year period of constitutional politics. Bosnia and Herzegovina stands as an exception amongst the cases considered in this book, as constitutional politics is a protracted affair that has not really stopped since the Dayton agreement. Indeed, as the chapter by Keil and Anderson discusses, all the major political parties in the country have been demanding constitutional change, although none as actually occurred. Belgium is a little different since there have been many different periods of constitutional politics over the last half century with, as Sinardet mentions, more expected. When periods of constitutional politics begin, it is often the result of a crisis. Typically, the claims for self-determination of a minority national community becomes so strong that they overtake normal politics: existential debates about the political future of the minority national community (and sometimes of the state) come to dominate. This process of constitutional politics can include self-determination referendums. In fact, the chapter by Rocher and Casanas Adam shows that when such a referendum is held, as was the case in Quebec (twice) and in Scotland, they become central, and indeed defining, events for constitutional politics, even when the option of change is not endorsed by voters. In particular, unionist parties typically have to make promises for some kind of change during an independence referendum campaign and, although these promises are not always fully implemented, the structures of the state can thereafter be altered. At a minimum, a referendum campaign typically alters the power relationships between the various political actors and redefines the terms of the political debate.

Conclusion

195

Whether they are self-determination referendums (as in Quebec, Scotland, Puerto Rico and Catalonia), court decisions (Catalonia and Puerto Rico), constitutional agreements (Bosnia and Herzegovina, Belgium) or something else, constitutional politics often involves one or more crucial moments. These constitutional moments, invoked in many chapters of this book, are defining and structuring for the whole of politics (not just constitutional) in a state. Sometimes, as in the case for Bosnia and Herzegovina, they completely re-shape the basic framework of the state and, with that, the interactions between groups and the state as well as among groups. At other times, constitutional moments do not involve constitutional change, but they yield political and social change. For example, the referendums in Scotland and Catalonia, although they did not lead to independence, gave new credibility to the independence option, strengthened the parties supporting this option and thus put new pressures on the British and Spanish state to tackle the question of self-determination (Lecours 2018). In all these versions, constitutional moments have enduring effects on the politics of minority national communities and the larger state. Not only do they tangibly alter constitutions, institutions, and power relationships, but they are often highly symbolic outcomes that can shape collective memories for decades to come. In sum, the process of constitutional politics often represents critical junctures in the evolution of national communities and of states. It is a time of fluidity when multiple categories of actors (elected officials, political parties, voters, civil society organizations, judges, international stakeholders) take national communities into different paths of political development through negotiations, political participation, mobilization, adjudication, and sometimes mediation. Always, normal politics takes a back seat during periods of constitutional politics, and these periods almost unavoidably leave their marks. What does the future hold for constitutional politics in multinational democracies? In the United Kingdom, as Brown Swan and McEwen point out in their chapter, it is inextricably linked to Brexit, the withdrawal of the United Kingdom from the EU will involve a return of legislative and policy-making powers that will require parsing amongst the governments of the country. Moreover, Brexit brings up an immediate concern for peace in Northern Ireland as the Good Friday Agreement is premised on free movement between Northern Ireland and the Republic of Ireland. It also brings up latent issues in relation to Scotland as Scots had voted by 62% to remain

196

André Lecours, Nikola Brassard-Dion, and Guy Laforest

within the EU. Although, and contrary to expectations, the Brexit referendum did not trigger a spike in support for independence, the actual departure of the United Kingdom from the EU could still have this effect, especially if the post-exit relationship with the EU is minimal. In Spain, some type of prolonged conversation about the relationship between Catalonia and the rest of Spain seems necessary, although it might not happen. Up until now, constitutional politics has taken the form of a conflict between the Catalan government and the Spanish state on the legitimacy, constitutionality and, ultimately, the possibility of secession. The way ahead could be much of the same as the Catalan self-determination process has contributed to a re-configuration of the Spanish party system yielding new voices with a hard approach to the “Catalan question.” Most Spanish parties are not showing any sign of wanting to negotiate anything with a Catalan secessionist government, in which case the polarization of Catalan society will surely remain. In Puerto Rico, as Lluch points out, constitutional politics has been highlighted by self-determination referendums, most recently in 2017, where the party in power predictably promotes its option while the others often call for boycotts. The end result is a lack of legitimacy for the apparently winning option and the perpetuation of the ELA status. What is clear in Puerto Rico is that the statehood option has been gaining support. What is less clear is if there is any appetite on the part of the United States government to welcome a relatively poor and primarily Spanish-speaking fifty-first state. In Puerto Rico, like in Catalonia, there is no straightforward path for effectively changing the existing status. In Belgium, the timing and content of the next round of constitutional negotiations is unclear after a federal election in 2019 where the two strongest parties in Flanders were nationalist parties, N-VA and the far-right populist Vlaams Belang. Belgium is the case where constitutional politics is closest to normal politics insofar as constitutional negotiations occur every decade or so. Indeed, constitutional politics brings the type of change necessary (decentralist change) to safeguard most Flemish parties’ support for Belgium. Hence, we are awaiting the next episode of constitutional politics in this country, knowing it will happen. In Canada, the “Quebec question” has receded since the 1995 referendum. Support for secession is at its lowest point in 40 years

Conclusion

197

and the two biggest parties in the province oppose the independence of the province. Moreover, there has been no hint that anybody (none of the Quebec provincial parties and none of the federal parties) wishes to hold discussions to change the Constitution. Constitutional politics in Canada is now geared towards the country’s Aboriginal peoples, including the Métis discussed in Dubois’ chapter. The objective is not to amend the Constitution, at least in the near term, but to define the latter’s constitutional rights and, in doing so, to re-structure their relationship with the Canadian state. This re-structuring was an avowed objective of the Trudeau Liberal government, framed in terms of reconciliation. In Bosnia-Herzegovina, constitutional politics have taken the form of the continuation of a conflict (political, this time) between Bosniaks, Serbs and Croats. The different groups have different, indeed divergent, views of the state, and there is no sense that these can be reconciled. The case of Bosnia and Herzegovina shows how a constitutional agreement can be successful in ending a conflict but might not automatically lead to political integration. However, in post-conflict states, if constitutional politics can secure civil peace and start building democracy, it is already a significant achievement. The framework provided in this book for understanding constitutional politics in multinational democracies (analyzing its nature, actors, and process) presents potential beyond established liberal-democratic countries. Nepal represents a recent case of constitutional politics in the context of a developing country transitioning towards democracy after a civil war. Nepal experienced a period of constitutional politics from the end of the civil war in 2006 to the proclamation of the new Constitution in 2015. Constitutional politics in Nepal featured demands for all kinds of liberal-democratic devices and rights protection, including autonomy through federalism (Lecours, 2014). Indeed, the country’s many historically disadvantaged (and oppressed) minorities, including Madheshis in the South, insisted that the new Nepal be federal; territorial autonomy was for them a sine qua non condition for accepting a new Constitution. Thus, the nature of constitutional politics in Nepal was not fundamentally different from the cases examined in this book, except for the much greater diversity (almost 100 recognized groups) found in the Himalayan country. The key actors of constitutional politics in Nepal were political parties, and these parties’ struggles for power were at the centre of the negotiations (and delays) around the new constitution. Here again,

198

André Lecours, Nikola Brassard-Dion, and Guy Laforest

the fundamental agency dynamics in this developing and transitioning country are not altogether different from the cases analyzed in previous chapters. One set of actors that were particularly important in Nepal’s constitutional politics, but much less so in the cases of this book (with the partial exception of Bosnia and Herzegovina) were foreign states (both donor countries and neighbouring states, primarily India). Finally, the process for constitutional politics in Nepal was in many ways more participatory than in established-liberal democracies. Although political parties ultimately wielded decisive political power over the new Constitution, a Constituent Assembly as well as a variety of consultative and deliberative forums attempted to collect and aggregate the preferences of Nepalis (Center for Constitutional Dialogue, 2010). There is no doubt that some countries face specific challenges in the context of constitutional politics: extreme diversity; poverty; absence of liberal-democratic traditions; fragile civil peace; meddling foreign states, among other things. These particular features have to be taken into consideration to understand constitutional politics in developing and transitioning countries. At the same time, political power, identity, and self-determination claims are mainstays of constitutional politics in multinational states everywhere. not e 1 The uninominal majoritarian electoral system used in Canada also

works against groups such as the Métis forming political parties.

r e f e r e nce s Center for Constitutional Dialogue. 2010. Federalism Dialogues. Kathmandu, Nepal: CCD. Keating, Michael. 2004. “European Integration and the Nationality Question.” Politics and Society 32 (3): 367–88. Laforest, Guy and André Lecours, eds. 2016. The Parliaments of Autonomous Nations. Montreal and Kingston: McGill-Queen’s University Press. Lecours, André. 2014. “The Question of Federalism in Nepal.” Publius: The Journal of Federalism 44 (4): 609–32. – 2018. “The Political Consequences of Independence Referenda in Liberal Democracies: Québec, Scotland, and Catalonia.” Polity 50 (2): 243–74.

Contributors

paul anderson is lecturer in politics and international relations at Canterbury Christ Church University, uk . His main research interests include territorial politics, autonomy and secessionist movements, and federalism or decentralization, or both, as tools of conflict resolution. He is co-lead of the UACES Research Network (2020–2024) “(Re)Imagining Territorial Politics in Times of Crisis.” His most recent works focus on decentralization in Spain and the Catalan independence movement. His latest co-authored work, Federalism and Conflict Resolution, will be published in 2021. nikola brassard-dion is a PhD candidate in political science at the University of Ottawa and a member of the Centre on Governance’s Federalism and Multilevel Governance research axis. His main areas of research are on multiculturalism policy, constitutional politics, and comparative federalism, especially Canadian and Australian politics. coree brown swan is a research fellow at the Centre on Constitutional Change, University of Edinburgh. She works on independence parties and movements, intergovernmental relations, Brexit, and constitutional change. She received her PhD from the University of Edinburgh.  elisenda casanas-adam is a lecturer in public law and human rights and associate director of the Edinburgh Centre for Constitutional Law at Edinburgh Law School. She holds a PhD from the

200

Contributors

European University Institute and was previously lecturer in constitutional law at the Autonomous University of Barcelona and the University of Girona. Her main research interests lie in the comparative analysis of public law, focusing on plurinational constitutionalism, referendums and self-determination, and the protection of human rights in multi-level systems. She has published a number of journal articles and book chapters in these areas.

janique dubois is an associate professor in the School of Political Studies at the University of Ottawa. She is the co-author of Métis Politics and Governance in Canada. Her research on federalism, political activism, and constitution building has been published in domestic and international journals, including Nations and Nationalism and the Canadian Journal of Political Science. soeren keil, PhD, is reader in politics and international relations at Canterbury Christ Church University in the UK. He is also visiting professor at the Centre International de Formation Européene (CIFE) in Nice, France. His research focuses on the use of territorial autonomy as a tool of conflict resolution, the political systems of the Western Balkan states and the process of EU enlargement. His recent publications include: Power-Sharing in Europe – Past Practice, Present Cases, and Future Directions (Palgrave 2020, co-edited with Allison McCulloch) and Federalism and Conflict Resolution (forthcoming with Palgrave, co-authored with Paul Anderson). He is also the Academic Director of the website www.50shadesoffederalism.com which publishes regularly freely accessible discussion papers on federalism and decentralization.  guy laforest was appointed executive director (directeur général), École nationale d’administration publique in 2017, after thirty years in the department of political science at Université Laval. He is also a member of the Royal Society of Canada and sits on the board of directors of ACFAS (Association universitaire francophone). His main areas of teaching and research include political theory, intellectual history in Quebec and throughout Canada, constitutional politics in Canada and other multinational states, and the comparative study of federalism and nationalism. He lives in Quebec City.

Contributors

201

andré lecours is professor in the School of Political Studies at the University of Ottawa. His main research interests are nationalism and federalism. He is the editor of New Institutionalism. Theory and Analysis (University of Toronto Press, 2005); the author of Basque Nationalism and the Spanish State  (University of Nevada Press, 2007); the co-author (with Daniel Béland) of Nationalism and Social Policy. The Politics of Territorial Solidarity (Oxford University Press, 2008); and the co-author  (with Daniel Béland, Gregory Marchildon, Haizhen Mou and Rose Olfert) of Fiscal Federalism and Equalization Policy in Canada. Political and Economic Dimensions (University of Toronto Press, 2017). jaime lluch (Ph.D., J.D., Yale University) is associate professor in the department of political science at the University of Puerto Rico. He is a comparativist who works on the constitutional and political accommodation of national diversity in multinational democracies, comparative federalism, migration and citizenship in comparative perspective, nationalism and imperialism, European and EU politics, and comparative public law. He is the author of the award-winning Visions of Sovereignty: Nationalism and Accommodation in Multinational Democracies (2014), and the editor of Constitutionalism and the Politics of Accommodation in Multinational Democracies (2014). nicola mcewen is professor of territorial politics at the University of Edinburgh, and co-director of the Centre on Constitutional Change. Her research spans nationalism, devolution, and multi-level government. She is currently Senior Research Fellow at the UK in a Changing Europe, researching the implications of Brexit for devolution and the politics of Scottish independence. Recent outputs can be found at https://www.centreonconstitutionalchange.ac.uk/ françois rocher is a full professor at the School of Political Studies and held the Jean-Luc Pepin Research Chair at the University of Ottawa. His research interests include issues related to multi-ethnic and plurinational diversity, citizenship, constitutional politics, Canadian federalism, and Quebec

202

Contributors

nationalism. In May 2016, the Société québécoise de science politique (SQSP) awarded him the Prix excellence for his outstanding contribution to the advancement of political science. He was President of the SQSP (2001–2002) and of the Canadian Political Science Association (2018–2019).

dave sinardet is a professor of political science at the Vrije Universiteit Brussel (VUB) and at the Université Saint-Louis Bruxelles. His main research interests include nationalism, federalism, multilingual democracy and multi-level governance. He published in journals such as Party Politics, Publius, Governance and Government and Opposition. He is also an expert on the Belgian constitutional reform process as well as on Belgian politics in general.

Index

Aboriginal peoples, see Indigenous Peoples Action démocratique du Québec (adq ), 63 Act Respecting Constitutional Amendments (Canada), 67 An Act Respecting the Future of Québec, 63 Anderson, Paul, 18, 162–183, 199 Assiniboine River, Manitoba, 28 Australia, 6, 85 Austria, 88 autonomism, 137, 139, 144–145, 146, 147, 153 autonomy of minority nations, 46, 117–119, 144–145, 165, 179, 190 Basque provinces, Spain, 134 BC Association of Non-Status Indians, 39n10 Belcourt, Tony, 35 Belgium, 101–122; Christian Democratic Party (cd andv, Belgium), 106, 107, 116, 117, 119, 120; consociational democracy, 8, 12, 102, 106–107, 164,

188, 192; constitutional politics, 4, 14; constitutional reform, 101–102, 114–120, 119; costa/ coree (Commission for State Reform), 102; Défi, 117; Flanders, 11, 17, 107–114, 115, 117, 196; Francophone party, 17, 102, 109–111, 113–114, 121, 192; future of, 196; linguistic and socio-economic cleavage, 104–107; migration issue, 112; mp ’s on constitutional reform, 116; Nieuw-Vlaamse Alliantie (n-va ), Belgium, 4, 103, 107– 115, 117–118, 119, 120–121, 191; Partirep, 114; Parti Socialiste (ps ), Belgium, 106; ps (Parti Socialiste), 106, 113–114, 116, 119, 121–122; Vlaams Belang party, 108, 112–113, 116, 117, 119, 121, 196; Volksunie (Flemish-nationalist party), 103, 107, 111; voters on regional autonomy, 117–119; Wallonia, 11, 105–106, 108, 111, 115, 117 Bernier, David, 154 Bloc Québécois (bq ), 62, 63

204

Index

bna Act (British–North America Act), 61 Boente, Dana, 153 Bose, Sumantra, 175 Bosnia and Herzegovina, 162–183; about use of name, 182n1; Bosniaks, 162–163, 168, 170– 176, 180, 182n2, 192, 197; cantons of, 169; constituent peoples, 162, 170, 173–177, 192; constitutional politics, 167–173, 177– 181; Croats, 162–163, 165–166, 168–170, 172–175, 180, 197; demographics, 170, 182n2; District of Brc˘ko, 173, 182n9; Federation of Bosnia and Herzegovina (fb ih ), 168, 170, 173, 175, 177, 181, 182n9; future of, 197; Office of the High Representative (ohr ), 162–163, 171–172, 176, 182n3, 182n10, 193; overview of the federal state, 163–167; Peace Implementation Council (pic ), Bosnia, 182n10; Republika Srpska (Serb Republic, rs ), 168, 170, 176, 177, 182n9; Serbs, 162–163, 165–166, 168, 170, 172–175, 178, 180, 197; US involvement, 18, 168, 175, 193; votes for independence, 182n4. See also gfap Boumediene et al. v. Bush (United States), 149–151 Brassard-Dion, Nikola, 3–22, 188–198, 199 Brexit: about, 69n1, 189, 195–196; and Scotland, 51, 56–57, 78, 89, 93, 95, 188, 195–196

British Broadcasting Corporation (bbc ), 91 British Commonwealth of Nations, see Commonwealth British Empire, 83–86, 95n1 British Isles Common Travel Area, 91 British–North America (bna ) Act, 61 Brown, Gordon, 53 Brown Swan, Coree, 16, 75–95, 189, 191, 199 Building a Nation: Post Devolution Nationalism in Scotland (snp ), 78 Burgess, Michael, 178 Bush, Boumediene et al. v. (United States), 149–151 Calder (Supreme Court of Canada), 34 Calls to Action, trc (Canada), 37 Calman Commission, 51, 53 Cameron, David, 53–54, 155 Canada: Act Respecting Constitutional Amendments, 67; bna Act (British–North America Act), 61; Calls to Action, trc , 37; Charlottetown Accord, 64; Charter of Rights and Freedoms, 58–59, 61; Clarity Act, 66; Constitution Act, 1982, 26–27, 35–36, 57, 60–61, 194; constitution reform, 1981, 193; Doctrine of Discovery, 28; electoral system, 198n1; future of, 196–197; Indian Act, Canada, 25; Liberal Party of Canada (lpc ), 57–58, 61–62; Meech Lake Accord, 64;

Index New Brunswick/Nova Scotia/ Ontario, 29; Reference re Secession of Québec, 193; relationship with uk , 85; Supreme Court of Canada, 27, 34, 36, 193; Trudeau, Justin/ Liberal Government, 4, 15, 37–38, 197; Trudeau, Pierre, 35, 60, 62, 193; Truth and Reconciliation Commission (trc , Canada), 37. See also Indigenous Peoples and Canada; Manitoba; Métis Nation; Québec Candidatura d’Unitat Popular (cup , Popular Unity Candidature, Spain), 137, 142, 143, 157n5, 157n7 cantons of Bosnia and Herzegovina, 168, 169 Casanas Adam, Elisenda, 16, 44–69, 189, 190, 199–200 Castellà, Antoni, 139 Catalonia: about, 3–4, 138–140, 188, 189; independence election, 142–143; political parties, 130– 131, 136–137, 139, 142–143, 153, 157n5, 192; referendum, 44, 127–128, 156n1; self-determination process, 3–4, 189; similarity to Puerto Rico, 17; and Spain, 11, 142–143, 156n2, 188; Statute of Autonomy, 130–135, 193; survey of independence options, 141; survey of national identity, 140; voters’ constitutional preferences, 138 Catalunya Si Que Es pot (csqp ), 142

205

cdandv, Belgium (Christian Democratic Party), 106, 107, 116, 117, 119 cdc, Democratic Convergence of Catalonia (Convergència Democràtica de Catalunya), 131, 139, 153 Charlottetown Accord, Canada, 64 Charter of Rights and Freedoms (Canada), 58–59, 61 Charter of the French Language (Québec Government), 61 Chartier, Clément, 35 Chartrand, Paul, 27, 31, 37 Chrétien, Jean, 34 Christian Democratic Party (cd andv, Belgium), 106, 107, 116, 117, 119 Cities and Local Government Devolution Act 2016 (uk ), 55 Citizens-Citizenship’s Party, Spain (C’s, Ciudadanos-Partido de la Ciudadanía), 137, 142, 157n5 CiU (Convergència i Unió, Convergence and Union, Catalonia), 130–131, 136–137, 139, 157n5, 192 Clarity Act, Canada, 66 Common Market, see European Union (eu ) Commonwealth: and Puerto Rico, 146–147, 149–151; and United Kingdom, 16, 83–85, 94–95, 95n1 confederalism, 108, 121, 180 consociational democracy, 8, 12, 102, 106–107, 164, 188, 192 constituent power and constitutional form, 126–127, 129, 133–134, 136, 147–148

206

Index

Constitution Act, 1982 (Canada), 26–27, 35–36, 57, 60–61, 194 Constitutional Court, Bosnia and Herzegovina, 176 constitutional law, 130 constitutional moments: about, 128–130; Bosnia and Herzegovina, 171; Puerto Rico, 145–147, 149–151; Spain, 130–135, 136 constitutional origins of sub-state party system realignments: constitutionalism in Spain (2006– 2020), 136–144; Puerto Rico and type of autonomy, 144–145 constitutional paradox, legitimacy-legality, see legitimacy versus legality (constitutional paradox) constitutional politics, 3–22, 188–198; actors of, 191–193; comparison between mono- and multinational states, 7; constitutional agreements (see Belgium; Bosnia and Herzegovina); court decisions (see Catalonia; Puerto Rico); guidance for, 177–181; how the constitution is viewed, 129–130; nature of, 189–191; versus normal politics, 3, 13, 14, 190, 194, 196; outline of, 15–19; periods of, 12–14; in post-war Bosnia, 167–173; process of, 194–198; self-determination referenda (see Catalonia; Puerto Rico; Québec; Scotland) Convergència Democràtica de Catalunya (cdc , Democratic Convergence of Catalonia), 131, 139, 153

Convergència i Unió (CiU, Convergence and Union, Catalonia), 130–131, 136–137, 139, 157n5, 192 costa/coree (Commission for State Reform, Belgium), 102 covid-19, 113 critical junctures, 13–15, 23–24, 76, 189, 195 Croats, 162–163, 165–166, 168–170, 172–175, 180, 197. See also Bosnia and Herzegovina Cruz, Carmen Yulín, 153 C’s, Ciudadanos-Partido de la Ciudadanía (CitizensCitizenship’s Party, Spain), 137, 142, 157n5 cup, Candidatura d’Unitat Popular (Popular Unity Candidature, Spain), 137, 142, 143, 157n5, 157n7 currency, 69, 89–91, 93, 95 Daniels decision, Supreme Court of Canada, 36 decentralization, 7, 11, 79, 118 Défi, Belgium, 117 de Gispert, Núria, 139–140 Delors, Jacques/Delors’ Commission, 88–89 Demòcrates de Catalunya, 139, 142 Democratic Union of Catalonia (Unió Democràtica de Catalunya, udc), 131, 139 Dewar Gibb, Andrew, 84 De Wever, Bart, 108–109, 111 District of Brc˘ko, Bosnia, 173, 182n9 Doctrine of Discovery (Canada), 28

Index Draft Bill on the Sovereignty of Quebec, 62 Dubois, Janique, 15, 23–43, 200 Duran i Lleida, Josep Antoni, 139

ecr (European Conservatives and Reformists), 110 Edinburgh Agreement, 51 efa (European Free Alliance), 110 ela , Estado Libre Asociado (Free Associated State of Puerto Rico), 144, 148, 150, 153, 193, 196 ela Soberano, Estado Libre Asociado Soberano, 153, 156 Elazar, Daniel J., 144 English votes for English laws (evel ), 55 Esquerra Republicana de Catalunya (erc , Republican Left of Catalonia), 130–131, 139, 142, 143, 157n5 Estado Libre Asociado (ela ) Soberano, 153, 156 Estado Libre Associate (ela , Free Associated State of Puerto Rico), 144, 148, 150, 153, 193, 196 European Community, see European Union (eu ) European Conservatives and Reformists (ecr ), 110 European Court of Human Rights, 176 European Free Alliance (efa ), 110 European Union (eu ): and Bosnia and Herzegovina, 162–163; European Union (Withdrawal) Act 2018, 56; European Union Continuity Bill (Scotland), 56; and Scottish National Party

207

(snp ), 16; and sovereign states, 81 evel (English votes for English laws), 55 Ewing, Winnie, 85–86 exceptional politics, see constitutional politics

fb ih (Federation of Bosnia and Herzegovina), 168, 170, 173, 175, 177, 181, 182n9 federalism, 7, 18, 79, 144–145, 164–167, 177, 179 federalization/defederalization/ refederalization, 11, 106–107, 117, 119, 122 Federation of Bosnia and Herzegovina (fb ih ), 168, 170, 173, 175, 177, 181, 182n9 First Nations, see Indigenous Peoples and Canada Fiscal Control Board, Puerto Rico, 151–152 Flanders, Belgium, 11, 17, 107–114, 115, 117, 196. See also Belgium; Nieuw-Vlaamse Alliantie (n-va ) Flemish nationalism, see Flanders Fletcher, Andrew, 91 Fort Garry, Manitoba, 29 Franco, General, 135 Garcia-Retamero, R., 49 Gaudry, Adam, 28 gfap (General Framework Agreement for Peace in Bosnia and Herzegovina), 18, 162–163, 168, 172, 177, 178, 182n3, 182n5

208

Index

Gibson, Tom H., 85 Good Friday Agreement (Northern Ireland), 8, 195 Harris v. Rosario, 150 Holbrooke, Richard, 168 Horowitz, Donald, 6 Hroch, Miroslav, 109 Hudson Bay Company (hbc ), 28, 29, 30, 38n1 human rights, 171, 176 Huyse, Luc, 105

icv, Iniciativa per Catalunya-Verds (Initiative for Catalonia-Greens), 131, 137, 157n5 immigration/migration issues, 109–110, 112, 115, 120–121 India, 85 Indian Act, Canada, 25 Indian Residential Schools, Canada, 25 Indigenous Peoples and Canada: BC Association of Non-Status Indians, 39n10; Doctrine of Discovery, 28; First Nations, 26, 28, 34, 65; Indian Act, 25; Inuit, 26, 34; nation-to-nation relationship, 4–5; Native Council of Canada, 33, 34; residential schools, 25; Royal Commission on Aboriginal Peoples, 33; treaties, 5, 28–29, 34–36; Truth and Reconciliation Commission (trc ), 37. See also Métis Nation Indonesia, 164 Iniciativa per Catalunya-Verds (icv , Initiative for CataloniaGreens), 131, 137, 157n5

Insular Cases (us ), 145–147, 149–151 International Criminal Tribunal for the Former Yugoslavia (icty ), 171 Inuit, see Indigenous Peoples and Canada Iraq, 164, 180 Ireland, 83, 91, 195. See also Northern Ireland Isaac, Thomas, 36–37 Izetbegovic, ´ Alija, 168 Jambon, Jan, 113, 121 Jarymowicz, M., 48 Jones Act (us ), 147–148 Jost, J.T., 48 Junqueras, Oriol, 143 j xcat (Catalonia), 143 ka ishi pimaatishiyaahk (protection of way of life), 29 Karadžic, ´ Radoslav, 168 Keil, Soeren, 18, 162–183, 189, 192, 193, 200 Kurdistan, 180 Labour Party (uk ), 76 Laforest, Guy, 3–22, 188–198, 200 language issues, 66–67, 102, 104– 107, 132, 134–135 law versus politics, see legitimacy versus legality (constitutional paradox) League of Nations, 84 Lecours, André, 3–22, 188–198, 201 legitimacy versus legality (constitutional paradox):

Index constituent power, Puerto Rico, 147–149; overview, 125–128; in Puerto Rico (2012–2020), 152–154 L’État cvp , 106, 121 Liberal Government/Justin Trudeau (Canada), 4, 15, 37–38, 197 Liberal Party of Canada (lpc ), 57–58, 61–62 Lijphart, Arend, 23–24 List of Rights (Métis Nation), 29–30 Lluch, Jaime, 17, 80, 125–158, 201 López Bofill, Hèctor, 133 Lougheed, Peter, 35 Lussier, Antoine, 33 MacCormick, John, 81, 84 Macdonald, John A., 29, 31–32, 38n1, 39n7 MacEwan, Alexander, 84 Manitoba, Canada: about, 27, 28; Fort Garry, 29; Manitoba Act of 1870, 27, 30, 36; Manitoba Language Rights Reference, 23; Manitoba Métis Federation, 39n10; Red River/Settlement, Manitoba, 28, 29; Riel, Louis, 23, 25, 26, 29, 30, 31–32, 39n7; Selkirk Treaty, 1817, 28–29 Marshall, T.H., 82 Mas, Artur, 132, 136, 142 McDougall, William, 29 McEwen, Nicola, 16, 75–95, 201 McGarry, J., 164 McIntosh, Sandy, 85 Meech Lake Accord, Canada, 64 Métis Nation, 23–43; about, 15, 24, 38n1, 39n5, 192; and

209

Canada’s constitution, 24–27; deal for rights in 1870, 27–30; denial of rights, 30–33, 198n1; land grants, 39n3; List of Rights, 29–30; reconciliation, 37–38; rights in 1982, 33–37; Supreme Court of Canada ruling, 27, 193; various councils, 39n10 Michel, Charles, 110 migration/immigration issues, 109–110, 112, 115, 120–121 Miller decision (uk ), 54, 56 Miloševic, ´ Slobodan, 168 minority nations: autonomy of, 46, 117–119, 144–145, 165, 179, 190; recognition of, 7, 9–10, 46, 82, 130, 133–134, 179, 190 Mitchell, J., 77, 92 mononational democracies, 6 Montilla, José, 136 Most Different Systems Design (mdsd ) approach, 126–127 Müller-Rommel, F., 79, 80 myeu waahkootoohk (development of good relations), 27, 29 nationalism: about, 9–10, 80, 86, 126, 128–129, 178; in Canada, 26, 33, 62, 67; in Scotland, 78, 92; in Spain, 136, 154. See also Belgium National Party of Scotland (nps ), 83–84 Native Council of Canada, 33, 34 nato , 82, 90–91, 168, 170 Navarra, Spain, 134 Nepal, 164, 177–178, 197–198 New Brunswick, Canada, 29

210

Index

New Flemish Alliance (n-va) , see Nieuw-Vlaamse Alliantie (n-va ) New Zealand, 84–85 Nieuw-Vlaamse Alliantie (n-va ), Belgium, 4, 103, 107–115, 117–118, 119, 120–121, 191 Nigeria, 164 normal politics versus constitutional politics, 3, 13, 14, 190, 194, 196 Northern Ireland, 8, 53, 75, 195 See also Ireland Norway, 88 Nova Scotia, Canada, 29 Obama administration, 151, 152 Office of the High Representative (ohr ), Bosnia, 162–163, 171– 172, 176, 182n3, 182n10, 193 O’Leary, B., 164 100 Questions on Home Rule (McIntosh), 85 Ontario, Canada, 29 Pakistan, 85 Partido Independentista Puertorriqueño (pip ), 158n15 Partido Nuevo Progresista (pnp , Puerto Rico), 153, 158n15, 192 Partido Popular (pp , People’s Party, Catalonia), 131–133, 137 Partido Popular Democrático (ppd , Puerto Rico), 153, 158n15 Parti Québécois (pq ), Canada, 57–59, 63, 192 Partirep, Belgium, 114 Parti Socialiste (ps ), Belgium, 106, 113–114, 116, 119, 121–122 Partit dels Socialistes de Catalunya (psc , Socialists’ Party of

Catalonia), 131, 137, 157n5, 157n7 Partit Demòcrata Europeu Català (pd ecat ), 142 Partit Popular Català (ppc , Catalan Popular Party), 157n5 Party of the Communists of Catalonia (pcc ), 157n5 Peace Implementation Council (pic ), Bosnia, 182n10 pluralism, 130 pnp (Partido Nuevo Progresista, Puerto Rico), 153, 158n15, 192 The Policy of the Scottish National Party (snp ), 78 politics versus the law, see constituent power and constitutional form; legitimacy versus legality (constitutional paradox) power sharing, see consociational democracy; decentralization Powley, R. v. (Canada), 27, 36 pp, Partido Popular (People’s Party, Catalonia), 131–133, 137 promesa (Puerto Rico Oversight, Management, and Economic Stability Act), 151–152 ps (Parti Socialiste), Belgium, 106, 113–114, 116, 119, 121–122 psc, Partit dels Socialistes de Catalunya (Socialists’ Party of Catalonia), 131, 137, 157n5, 157n7 Puerto Rico: constitutional moments, 145–147, 149–151; Fiscal Control Board, 151–152; future of, 196; legitimacy versus legality, 127, 152–154; promesa (Puerto Rico Oversight, Management, and

Index Economic Stability Act), 151–152; Puerto Rico v. Sánchez Valle, 149–151; referendums, 4, 17, 127, 129, 147–149, 156n1; since 1898, 144–145; Torres v., 150; US Court decision, 127, 145–147, 151, 188, 193 Puerto Rico Oversight, Management, and Economic Stability Act (promesa ), 151–152, 155 Puigdemont, Carles, 132, 143 Pujol, Jordi, 139 pvda/ptb (unitary party in Belgium), 102, 116, 119 Québec, Canada: about, 4, 188, 196–197; Action démocratique du Québec (adq ), 63; Bloc Québécois (bq ), 62, 63; Charter of the French Language (Québec Government), 61; at confederation, 29; consequences of secession, 50, 68; as distinct society, 63–65; Draft Bill on the Sovereignty of Quebec, 62; Parti Québécois (pq ), 57–59, 63, 192; Québec-Canada: A New Deal (Québec Government), 58; Quebec Liberal Party (qlp ), 58–59, 63; Reference re Secession of Quebec, 65–66; referenda, about, 12, 44; 1980 referendum, 57–62, 69n2; 1995 referendum, 62–68; similarity to Scotland, 16, 67–68; sovereigntyassociation, 58 Qvortrup, Matt, 156n1

211

Rajoy, Mariano, 143 recognition of minority nations, 7, 9–10, 46, 82, 130, 133–134, 179, 190 Red River/Settlement, Manitoba, 28, 29 Reference re Secession of Quebec, 65–66 referenda: about, 194–196; Catalonia, 44, 127–128, 156n1; Puerto Rico, 4, 17, 127, 129, 147–149, 156n1; Québec, Canada, 12, 44, 57–68, 69n2; Scotland, 2014, 50–57, 90, 109, 156n1, 188, 189, 192. See also secession referenda Republika Srpska (Serb Republic, rs ), 168, 170, 176, 177, 182n9 residential schools (Canada), 25 Return to Nationhood (snp ), 86 Riel, Louis, 23, 25, 26, 29, 30, 31–32, 39n7. See also Métis Nation Ritchot, Father, 31 Rocher, François, 16, 44–69, 190, 201–202 Roeder, P., 164 Rosario, Harris v., 150 Rosselló, Ricardo, 154 Rothchild, D., 164 Rousseau, D.L., 49 Royal Commission on Aboriginal Peoples (Canada), 33 rs, Republika Srpska (Serb Republic), 168, 170, 176, 177, 182n9 Rudolph, J., 79 R. v. Powley (Canada), 27 Salmond, Alex, 78–79, 89, 90, 92, 155

212

Index

Sánchez, Pedro, 144 Sánchez Valle, Commonwealth of Puerto Rico v., 149–151, 152, 155 Schwarz-Schilling, Christian, 175 Scotland, 75–95; and Brexit, 51, 56–57, 78, 89, 93, 95, 188, 195–196; and the British Empire, 83–86; in the British Isles, 90–93; Calman Commission, 51; concept of independence and self-government, 79–83; consequences of secession, 50, 52, 68; Edinburgh Agreement, 51; in Europe, 86–89; European Union Continuity Bill, 56; National Party of Scotland (nps ), 83–84; Return to Nationhood (snp ), 86; Scotland Act 2012, 51; Scotland Act 2016, 53; Scotland Analysis Papers (uk Government), 53; Scotland Lives (Wolfe), 86; Scotland’s Future (White Paper, Scottish Government), 51–52, 78, 89, 90–91; The Scotland We Seek (snp ), 78; Scots National League (snl ), 83; Scottish Party, 84; Sewel Convention, 53; similarity to Québec, 16, 67–68; treaties with uk , 88, 91. See also Scottish 2014 referendum; Scottish National Party (snp ) Scottish 2014 referendum, 50–57, 90, 109, 156n1, 188, 189, 192 Scottish National Party (snp ): about, 16, 75–78, 192; elections, 51; merger of nps and Scottish Party, 84; The Policy of the Scottish National Party (snp ), 78; policy platform, 76; on

relationship with Europe, 87–89; The SNP and You, 78 Scott, Thomas, 31 Sealy, Bruce, 33 secession referenda, 44–69; Québec, 1980 referendum, 57–62; Québec, 1995 referendum, 62–68; Scotland, 2014 referendum, 50–57; similarities between Québec and Scotland, 16, 67–68; theoretical considerations, 46–50 self-government, classification system, 79–80 Selkirk Treaty, 1817 (Manitoba), 28–29 separatism, 53, 80–82, 95 Serb Democratic Party (sds ), Bosnia and Herzegovina, 168 Serbia–Montenegro, 180 Serb Republic (Republika Srpska, rs ), 168, 170, 176, 177, 182n9 Serbs, 162–163, 165–166, 168, 170, 172–175, 178, 180, 197. See also Bosnia and Herzegovina Sewel Convention (uk ), 54, 56 shared rule, 7–8, 79, 91, 144 si, Solidaritat per la Independència (Solidarity for Independence, Catalonia), 157n5 Sillars, Jim, 88 Sinardet, Dave, 17–18, 101–122, 191, 202 Smiley, Donald V., 61 Smith, Donald, 29–30 Smith Commission, uk , 54 Socialist Party, Belgium, 106 Socialist Yugoslavia, 165, 167–168, 171

Index Solidaritat per la Independència (si , Solidarity for Independence, Catalonia), 157n5 sovereignty: Québec, 58–59, 62–63; Scotland, 81, 82, 90 Spain: Basque provinces, 134; constituent power versus constitutional form, 127, 129; Constitutional Court judgement, 193; constitutional moment, 17, 130–135, 136–144, 156n2; C’s, Ciudadanos-Partido de la Ciudadanía (CitizensCitizenship’s Party, Spain), 137, 142, 157n5; Euskadi, 156n2; future of, 196; recognition of minority nation, 10; secessionism in, 155; Spanish Constitutional Court (scc ), 133–135. See also Catalonia Sprague, D.N., 33 Sri Lanka, 85 Statute of Autonomy, Catalan (csa ), 131–135 Stepan, A., 179 Sturgeon, Nicola, 4, 78–79, 90 sub-state national unit, see minority nations Sudan, 180 Supreme Court of Canada, 34, 36, 193 Swinney, John, 92 Taché, Alexandre (bishop), 31 Teillet, Jean, 25–26, 35–36 Thatcher government, uk , 88–89 Thompson, R., 79 threat-hope dyad, 47–50, 52–53, 57, 60 Tierney, Stephen, 156n1

213

Torra, Quim, 143 Torres v. Puerto Rico, 150 treaties: Flanders and Wallonia, 108; Indigenous Peoples and Canada, 5, 28–29, 34–36; Scotland and uk , 88, 91. See also gfap (General Framework Agreement for Peace in Bosnia and Herzegovina) Treaty of Union, 1707 (England and Scotland), 88 Troubles, Ireland, 75 Trudeau, Justin/Liberal Government, Canada, 4, 15, 37–38, 197 Trudeau, Pierre, 35, 60, 62, 193 Truth and Reconciliation Commission (trc , Canada), 37 Tud¯man, Franjo, 168 Unió Democràtica de Catalunya (udc , Democratic Union of Catalonia), 131, 139 United Kingdom (uk ): bna Act (British–North America Act), 61; British Empire, 83–86, 95n1; British Isles Common Travel Area, 91; consequences of Scottish referendum, 51, 195; Ireland, 83, 91, 195; Northern Ireland, 8, 53, 75, 195; recognition of minority nation, 10; Sewel Convention, 54, 56; Thatcher government, 88–89; treaties with Scotland, 88, 91; The Vow, 4, 53–55; Wales Act 2017, 55. See also Brexit; Commonwealth; Scotland United Nations (un ) Migration Pact, 112, 121

214

Index

United States (us ): about, 157n8, 179; Boumediene et al. v. Bush, 149–151; Court decision on Puerto Rico, 127, 145–147, 151, 188, 193; intervention in Bosnia and Herzegovina, 18, 168, 175, 193 Venice, Italy, 44 Verrilli, Donald, 151 Vlaams Belang party, Belgium, 108, 112–113, 116, 117, 119, 121, 196 Volksunie (Flemish-nationalist party), 103, 107, 111 The Vow, uk , 4, 53–54

Wales Act 2017, 55 Walker, Neil, 126 Wallonia, Belgium, 11, 105–106, 108, 111, 115, 117 Watts, Ronald L., 145 Weinstein, John, 35 White Paper: Scotland’s Future (Scottish Government), 51–52, 78, 89, 90–91 Winnipeg, Manitoba, 28 Wolfe, Billy, 86 Young, Douglas, 85 Young, Hugo, 86 Yugoslavia, 165, 167–168, 171 Zapatero, José Luis Rodríguez, 132