The justifications offered by federal Justice Minister Allan Rock and Minister for Intergovernemental Affairs Stéphane Dion for Ottawa’s decision to request an advisory opinion of the Supreme Court of Canada on the legality of a unilateral declaration of independence were unreliable and unconvincing. Unreliable because they suggested that the purpose of the reference is legal, which it isn’t. Unconvincing because they purport to be upholding the rule of law, when the law they hope to apply lacks legitimacy or existence.

Under the disguise of legal argument, the reference to the Supreme Court is in fact a purely political move on the part of Jean Chrétien’s Liberal government. The reference is undoubtedly a strategic move to buy some time and to create a vacuum on the constitutional front which could be to the government’s advantage.

In the light of the failure of the Chrétien government to fulfill the promise made to Quebecers at the eve of of the Oct. 30 referendum, it will allow the government to shy away from any attempt at constitutional reform or deal with the traditional claims of Quebec on such a front. It is, furthermore, a move to maintain the emphasis on Plan B (in which Ottawa spells out the terms and emphasizes the cost of separation).

This could be electoraly profitable and easily undermine the support of the Reform Party in the rest of Canada. In this area as well as others, the Liberal government is simply implementing the Reform Party’s agenda and is appealling to an electorate unwilling to contemplate any real change to the federation and eager not to compromise with Quebec. It could prove to be efficient east and west of the Quebec borders.

But, considering the action of every other federalist and nationalist leader of Quebec, from Jean Charest to Daniel Johnson and Mario Dumont, without mentioning the views of Lucien Bouchard and Michel Gauthier, the move is ill-advised. It is provoking dramatic divisions within the federalist ranks and will be of dire consequence for the Liberal Party of Canada during the next federal election.

The legal argument is also unreliable when it becomes shifting and volatile. At first, the argument was to the effect that more clarity was needed on the reach and meaning of the right to secede unilaterally under both constitutional and international law. Now the ministers are admitting that the answers provided by the Supreme Court of Canada are intended to make Quebecers think twice before embarking on the route of sovereignty.

Both the minister of justice and the minister of intergovernmental affairs add that foreign powers could refuse to grant recognition to a sovereign Quebec because of the legal opinion of the highest court in Canada. Although this might be seen as a Machiavellian interpretation of the objectives of the Chrétien government, it is difficult to believe that the opinion requested of the Supreme Court is a genuine and pure attempt to lay down the ground for the adoption of rules and terms for secession that will allow for an orderly accession of Quebec to sovereignty.

It seems obvious that if, as expected, the Supreme Court of Canada gives a unanimous and resounding No to all three questions, the federal government will pursue the implementation of its Plan B. It will draw up terms of secession that will not be intended to facilitate and constitutional withdrawal from the federation, but rather that would set conditions thst will jeopardize the freedom of Quebecers to decide on their political future. Clearly, the ministers are opting for the legal route to influence national and international public opinion and thwart the will of the Quebec people.

If the use of legal argument is rather unreliable, the reference to the rule of law is less than reliable, it is unconvincing. The rule of law is undoubtedly an important norm within advanced democratic states. It maintains that the law is pre-eminent in the affairs of government and that legal norms are not ignored by authorities in a state, otherwise known as "Reich-Staat", or "État de droit".

But for the rule of law to be given such primacy, it needs and requires legitimacy. It must be unchallengeable in its legitimacy. Such is not the case, with regard to the Canadian constitution, which the federal government is relying on to challenge the right of Quebec to accede (unilaterally) to sovereignty. The government - as was Guy Bertrand in his legal query before then Superior Court of Quebec – is arguing that the amending procedure of the Constitution Act of 1982 prevents the National Assembly, the legislature or the government of Quebec from proceeding to a unilateral declaartion of independence.

Whether it be the general amending formula (which requires the consent of 7 provinces with 50 per cent of the population) or the unanimity procedure (which demands the consent of Ottawa and all the provinces) provided in that Act, both these procedures lack legal legitimacy. They were imposed on Quebec by the federal government and nine provinces in 1981 and have never been accepted by Quebec’s successive governments.

The legal argument thus lacks a solid basis. And in matters of politics and high politics, such as the accession to sovereignty of a people, legitimacy is overriding. When it comes to the rule of international law, it would not be suprising if the Supreme Court affirms that no rule allows for a unilateral right of secessionist self-determination. But international law clearly allows for the accession to sovereignty of peoples. Thus no rule of law can be invoked to condemn any attempt by Quebec to become, in a democratic and peaceful fashion, an independent and sovereign state.

Rather than use and abuse the law and the rule of law, the Chrétien government would be better advised to redo its homework on the constitutional front and design a federal order that would be a credible alternative to sovereignty for Quebec. To put the emphasis on Plan B and the legality of secession, to prepare other Canadians to support harsh terms of secession is counterproductive. It is moreover misleading if it intends to make other Canadians believe that Quebecers will be intimidated by such moves. Such a policy will only reinforce Quebecers in their belief that constitutional remedies have been exhausted and that they should embark on a more promising route – toward national sovereignty for Quebec and international partnership with Canada.