In the 1998 Secession Reference, the Supreme Court of Canada opined that while a majority vote in favour of the independence of Québec would give rise to a duty to negotiate eventual separation, only the outcome of a negotiation, not the vote itself, could legitimate secession. Similar questions regarding the legitimacy of a unilateral declaration of independence in the aftermath of a vote in favour of secession surrounded last year’s independence referendum in Catalonia. There too, the vote alone seems to have been found insufficient to justify the creation of a new constitutional order, although it arguably undermined the legitimacy of the old one. These examples show that democracy―or at least majoritarianism―may well be a force with greater destructive than constructive potential, when it comes to constitutional legitimacy. It can call the legitimacy of an existing constitution into question, but something more is necessary for a new constitution to be legitimated.
In Taiwan, the advancement of indigenous values has been affected by the development of a national consciousness based on Confucian and liberal values. This process overlays deep political fissures between those individuals who equate Taiwanese identity with Chinese identity and those who assert a separate Taiwanese cultural and political identity. The Taiwanese identity combines Confucianism, post-colonialism and western liberal democracy, which makes Taiwanese citizens and government “capable of pursuing contradicting [sic] concepts: modernity and Confucianism, pro-independence and pro-unification, and status quo pitted against an accessible future.” This paper argues that indigenous claims for the group identity and constitutional recognition claims create alternative models of Taiwanese constitutionalism and national identities, presenting additional and unaddressed challenges to the development of a Taiwanese identity and constitutionalism.
Embedded within the New Zealand and the American legal systems are a series of rules concerning the peoples who inhabited the area prior to colonisation. These rules involve the establishment of European sovereignty, the ongoing status and use of indigenous lands, indigenous political institutions, the interpretation of treaties, and fiduciary obligations. The development of these rules, however, did not occur in a vacuum, but evolved as part of, and influenced, the general constitutional development of the each state. This paper discusses how the indigenous presence impacted the constitutional development of New Zealand and the United States. It argues that in the United States the status of the Native Americans and their relationship to the Federal and state governments under the 1789 Constitution allowed for a more pluralist constitutional development, while in New Zealand the political and military threat from Maori resulted in a more unitary constitutional system.