和合
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作者：和合 在 罕见奇谈 发贴, 来自 http://www.hjclub.org
魁北克人民投票! Dr Hong, would you respond?
送交者: davidz 2001年12月14日18:03:28 于 [天下论坛]http://www.creaders.org
Reference re Secession of Quebec 217
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IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C., 1985, c. S-26;
AND IN THE MATTER OF a Reference by the Governor in Council concerning certain questions relating to the
secession of Quebec from Canada, as set out in Order in Council P.C. 1996-1497, dated the 30th day of September,
1996
Indexed as: Reference re Secession of Quebec
File No.: 25506.
1998: February 16, 17, 18, 19; 1998: August 20.
(davidz: the following is the question brought to the court)
1.Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the
secession of Quebec from Canada unilaterally?
(davidz: the following is the answer provided by the Supreme Court of Canada
(2) Question 1
The Constitution is more than a written text. It embraces the entire global system of rules and principles which govern
the exercise of constitutional authority. A superficial reading of selected provisions of the written constitutional
enactment, without more, may be misleading. It is necessary to make a more profound investigation of the underlying
principles animating the whole of the Constitution, including the principles of federalism, democracy, constitutionalism
and the rule of law, and respect for minorities. Those principles must inform our overall appreciation of the constitutional
rights and obligations that would come into play in the event that a clear majority of Quebecers votes on a clear
question in favour of secession.
The Court in this Reference is required to consider whether Quebec has a right to unilateral secession. Arguments in
support of the existence of such a right were primarily based on the principle of democracy. Democracy, however,
means more than simple majority rule. Constitutional jurisprudence shows that democracy exists in the larger context of
other constitutional values. Since Confederation, the people of the provinces and territories have created close ties of
interdependence (economic, social, political and cultural) based on shared values that include federalism, democracy,
constitutionalism and the rule of law, and respect for minorities. A democratic decision of Quebecers in favour of
secession would put those relationships at risk. The Constitution vouchsafes order and stability, and accordingly
secession of a province "under the Constitution" could not be achieved unilaterally, that is, without principled negotiation
with other participants in Confederation within the existing constitutional framework.
Our democratic institutions necessarily accommodate a continuous process of discussion and evolution, which is
reflected in the constitutional right of each participant in the federation to initiate constitutional change. This right implies
a reciprocal duty on the other participants to engage in discussions to address any legitimate initiative to change the
constitutional order. A clear majority vote in Quebec on a clear question in favour of secession would confer
democratic legitimacy on the secession initiative which all of the other participants in Confederation would have to
recognize.
(davidz: here the Court says no to Quebec)
Quebec could not, despite a clear referendum result, purport to invoke a right of self-determination to dictate the terms
of a proposed secession to the other parties to the federation. The democratic vote, by however strong a majority,
would have no legal effect on its own and could not push aside the principles of federalism and the rule of law, the rights
of individuals and minorities, or the operation of democracy in the other provinces or in Canada as a whole. Democratic
rights under the Constitution cannot be divorced from constitutional obligations. Nor, however, can the reverse
proposition be accepted: the continued existence and operation of the Canadian constitutional order could not be
indifferent to a clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The
other provinces and the federal government would have no basis to deny the right of the government of Quebec to
pursue secession should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec
respects the rights of others. The negotiations that followed such a vote would address the potential act of secession as
well as its possible terms should in fact secession proceed. There would be no conclusions predetermined by law on
any issue. Negotiations would need to address the interests of the other provinces, the federal government and Quebec
and indeed the rights of all Canadians both within and outside Quebec, and specifically the rights of minorities.
The negotiation process would require the reconciliation of various rights and obligations by negotiation between two
legitimate majorities, namely, the majority of the population of Quebec, and that of Canada as a whole. A political
majority at either level that does not act in accordance with the underlying constitutional principles puts at risk the
legitimacy of its exercise of its rights, and the ultimate acceptance of the result by the international community.
The task of the Court has been to clarify the legal framework within which political decisions are to be taken "under the
Constitution" and not to usurp the prerogatives of the political forces that operate within that framework. The
obligations identified by the Court are binding obligations under the Constitution. However, it will be for the political
actors to determine what constitutes "a clear majority on a clear question" in the circumstances under which a future
referendum vote may be taken. Equally, in the event of demonstrated majority support for Quebec secession, the
content and process of the negotiations will be for the political actors to settle. The reconciliation of the various
legitimate constitutional interests is necessarily committed to the political rather than the judicial realm precisely because
that reconciliation can only be achieved through the give and take of political negotiations. To the extent issues
addressed in the course of negotiation are political, the courts, appreciating their proper role in the constitutional
scheme, would have no supervisory role.
所有跟贴:
魁北克部份人民企图从加拿大分离出去，台湾则拒绝统一！ - 洪哲胜 12/14/01 (12)
无论根据PRC的宪法还是ROC的宪法，台湾都是中国的一部份 /无内容 - 和合 12/14/01 (2)
中国不是国家。台湾即使是中国的一部份，SO WHAT！ /无内容 - 洪哲胜 12/15/01 (1)
中国当然是一个国家。无论在PRC宪法还是ROC宪法中都是。 - 和合 12/15/01
(0)
我先????，再????老婆和你女儿，种的都是我的种，看你怎么独 - urfather 12/14/01 (0)
The issue is the so called principle of self-determination - davidz 12/14/01 (0)
what's you logic theory! - ivvy 12/14/01 (6)
记住，台湾是ROC的“领土”，中国是PRC的“领土”，它非国家。 /无内容 - 洪哲胜
12/14/01 (5)
both TW and mainland are ROC的“领土” - davidz 12/14/01 (3)
如果台湾宪法写太阳从西边升起，怎办？IGNORE IT！ /无内容 - 洪哲胜
12/14/01 (2)
台湾宪法? there is no such thing! /无内容 - davidz 12/14/01 (1)
你不晓得中华民国总统在国际上经常被称为台湾总统吗？ /无
内容 - 洪哲胜 12/15/01 (0)
中国不是国家???--中国是国家,台湾大陆是中国的领土 /无内容 - 张大哥 12/14/01
(0)
the question was so misleading - wiseguy 12/14/01 (4)
The question is for the Supreme Court of Canada - davidz 12/14/01 (3)
You are wrong. That's the question for Quebec Referendum. - wiseguy 12/15/01 (0)
i mean, the judges are NOT stupid /无内容 - davidz 12/14/01 (1)
get your fact correct first /无内容 - wiseguy 12/15/01 (0)
DR.Hong, what is your opinion about it? /无内容 - ukf 12/14/01 (0)
Are you kidding? Vote the chinese president first. - ivvy 12/14/01 (11)
Please don't use Quebec as an example to further Taidu cause - davidz 12/14/01 (10)
tired of Taidu topics, why not focus on mainland china - ivvy 12/14/01 (9)
solving TW problem is 1st step toward modernizing china. /无内容 - ukf 12/14/01 (
no one will listen to us if we are still poor country! - ivvy 12/14/01 (7)
right. but TW problem is the first one for now. /无内容 - ukf 12/14/01 (6)
even chinese government did not say that. They - ivvy 12/14/01 (5)
right. This is the voice of the PEOPLE!1300000000! /无内容 -
ukf 12/14/01 (4)
only your voice, do not stand for others! /无内容 - ivvy
12/14/01 (3)
how do u know"do not stand for"? - ukf 12/14/01
(1)
At least you could not stand for me! /无内容
- ivvy 12/14/01 (0)
i am consisting to that number,right? /无内容 - ukf
12/14/01 (0)
The Supreme Court of Canada says no to Quebec separatists - davidz 12/14/01 (0)
作者：和合 在 罕见奇谈 发贴, 来自 http://www.hjclub.org |
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转贴天下论坛：加拿大最高法院对魁北克分离投票的判定
