A Multinational Constitution? By Professor Richard Janda

In his leadership platform entitled Agenda for Nation Building, Michael Ignatieff asserts that “Canadians should be prepared to ratify the facts of our life as a country composed of distinct nations in a new constitutional document.” He claims that this is principally because “Quebecers, by considerable majorities, consider Quebec their nation and Canada their country.”

What would it mean to establish a constitutional framework based on a declaration that Canada is composed of distinct nations? Of the twenty-five federal countries listed by the Forum of Federations, only three have constitutions that recognize multiple nations: Spain, Russia and Ethiopia. In each case, the implications of this recognition are quite significant.

Article 2 of the Spanish Constitution states:

The Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, and recognizes and guarantees the right to autonomy of the nationalities and regions which make it up and the solidarity among all of them.

The right to autonomy of nationalities in turn gives rise to a procedure according to which each of the autonomous communities can seek to assume self-government powers enacted in a Statute of Autonomy.

The Preamble to the Russian Constitution states: “We, the multinational people of the Russian Federation” and provides different degrees of autonomy for the 88 sub-units. In particular, Article 5 provides that the republics, which include non-Russian nationalities, shall have their own constitutions, and Article 11 envisages treaties between the federal government and the federal units. This has produced a complex and conflict-ridden variable geometry of federalism.

The Preamble to the Constitution of Ethiopia declares: “We, the Nations, Nationalities and Peoples of Ethiopia” and in Article 39 outlines the “Rights of Nations, Nationalities and Peoples”. In particular, “Every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession.” The Ethiopian Constitution goes on to provide an explicit secession procedure.

Mr. Ignatieff has suggested that “[t]o recognize Quebec—and Aboriginal peoples—as
nations within the fabric of Canada is not to make some new concession. It is simply to acknowledge a fact. Nor is it a prelude to further devolution of powers.” Perhaps Mr.Ignatieff envisages a statement in the preamble to the Constitution similar to the resolution adopted by the Quebec National Assembly on October 30, 2003, reaffirming that “the people of Quebec form a nation”. Yet a constitutional statement, unlike a parliamentary resolution, would necessarily raise the question concerning what form of autonomy each nation is granted, as the constitutions of Spain, Russia and Ethiopia make clear. The word “nation” carries the connotation of self-determination. Our Aboriginal Peoples seek recognition of their nationhood so as to gain rights of self-government. If Quebec gained recognition of its nationhood in the Constitution, it would certainly ground an autonomy claim that would have to be tested according to Canada’s amending formula. Is Mr. Ignatieff’s eloquence powerful enough to convince not only a majority of federal parliamentarians but also the legislatures and people of seven provinces representing at least fifty per cent of the population that Canada, Quebec and the aboriginal peoples form our multinational country?

In fairness, Mr. Ignatieff has made clear that he would make constitutional reform a longer term rather than a short term objective. But since his proposal seeks to succeed where Meech Lake failed, it is worth asking whether the underlying idea is the same. Constitutional scholar Jeremy Webber, whose book Reimagining Canada championed the idea of recognizing Quebec as a distinct society and giving it asymmetric powers, preferred the terms “society” or “community” to “nation.” In his view, “the [latter] term usually carries the assumption that an individual can have only one nation. But the crucial fact about Canada is precisely that people belong to more than one political community at the same time.” Whereas one can move between societies and be at home in more than one, is the same true of distinct nations? Mr. Ignatieff seems to believe that the answer to this question is yes. After all, when he speaks of nation building, he is referring to the nation of Canada, and thus imagines not only that Quebeckers would say that their nation is Quebec and their country is Canada, but that this country is also their nation. Can such an idea be widely shared?

The idea of plural, overlapping civic nationalities within Canada would require re-casting what the idea of “nation” and “people” has meant in the past. It has generally entailed singular and exclusive affirmations of identity. In Mr. Ignatieff’s memorable turn of phrase, nationalism is about “blood and belonging”. Perhaps Canadian multinationalism could be about hybridity and hospitality instead. But as Mr. Ignatieff has documented in his work on conflict zones, civic nationalism often gives way to more powerful, and exclusionary, ethnic nationalism. One must therefore question the prudence of having “nation” serve as a constitutional term of art.

Richard Janda is a professor at the Faculty of Law, McGill University, where he teaches comparative federalism