Wednesday, December 03, 2008

Canada’s Constitutional Conundrum

PM Harper as bound to overstep the mark sooner or later. Despite his training as an economist Harper has shown a greater regard for the practice of political thuggery, ignoring global crisis to create his own.

The crisis he has created has plunged the country in relatively uncharted waters, but only relatively. The splintered, albeit majority, opposition have worn Harper’s bulldozer tactics long enough. This week they released an open letter to the Governor General, Michaelle Jean:

Today we respectfully inform the Governor General that, as soon as the appropriate opportunity arises, she should call on the Leader of the Official Opposition to form a new government, supported as set out in the accompanying accords by all three of our parties.
from Dion [Lib] to the Governor General | from Layton [NDP] to the Governor General

Constitutional crisis?
Britain's constitution is part written in statutes and partly maintained through custom and convention. Commonwealth countries generally do have written constitutions, though provisions related to the powers of the monarchy, and by extension the governor’s general, are hazy at best.

The Canadian crisis is not the first instance in a commonwealth country; the most striking former example being in Australia in 1975. In that case the GG fearing being sacked by the PM, Gough Whitlam, jumped first and dismissed the Whitlam government.

Sure there were questions of constitutional propriety of installing the opposition as government. A fresh election, confirming public support for a change of government, soon smothered further enquiry. While questions are arise on these hazy extra-constitutional questions the issues are rarely addressed beyond ‘expert’ chatter.

The vexing questions giving rise to the constitutional crisis claims include: Can the GG sack a serving prime minister and government? Conversely can a PM sack a GG? If the first can the GG appoint a new PM from the existing house or must the house go to election?

Canada, like Australia, is essentially a parliamentary democracy the individual elected members should have precedence over political parties. Convention holds that where there is no majority party after an election the party with the most reps should be asked to form a minority government.

That is the current Canadian situation, with the added dynamic that the current government apparently cannot ensure the confidence and support of a majority of MPs. As with the Australian situation in 1975 that situation can become untenable if supply bills are blocked by a hostile parliament. Those bills allocate the money to run government.

We know from that episode that a GG can sack a PM, what we don’t know is how that action would stand up to the scrutiny of the courts. No one has yet tested it. We know the Aussie GG of the time acted to avoid the PM sack. Again, we have no idea how this would stand the test of a court challenge.

To my mind, the important factor is the will of an elected parliament; that means the individual members. Once voters have elected their representatives those office holders hold a delegated authority.

That does not mean they are bound to the shifting whims of an electorate, they have been given authority to act as they believe is best for the electorate. To do otherwise would require endless consultation with voters, most who have no way of being privy to the intricacies the parliamentary situation.

We have been conned into believing we are voting for a presidential type leader. That is untenable under a Westminster style system. The rigid dominance of the party structure already dilutes democratic principles enough without handing all power to one person.


abi said...

My esteem of Canadians sagged a bit when they elected Harper in the first place. But this business of dissolving (or whatever they call it) parliament to prevent a no-confidence vote Harper was sure to lose is hard to comprehend.

I wonder - has Harper put Karl Rove on the payroll?

Cart said...

Abi, I suspect Karl would have shown a bit more flair. After all, direct confrontation is not his preferred style, building dubious support bases is.

The thing that concerns me, in the absence of set rules, is the prorogation sets a precedent here as well as in Canada.
These situations arise so infrequently they tend to become the rule.