stegner said:
I am surprised that the media is not reporting about the discretion of the Governor General in this case. Harper is saying that Parliament is dysfunctional-which is analogous to a de fact admission that he cannot maintain the confidence of the House of Commons. Responsible government dictates that unless you have the confidence of the House of Commons your advice is not advice per se, but suggestion at best and by no means does this need to be heeded. If I were the Governor General (one day, one day) I would ask Harper to do two things before listening to any of his advice. Firstly, demonstrate that Harper as PM holds the confidence of the House of Commons. Since Harper has had Parliament prorogued it is not clear whether is trying to deliberately avoid losing confidence. He must empirically demonstrate that he is able to govern! Though he runs the risk of be defeated and will fight tooth and nail to avoid this as the NDP, Liberals and Bloc are perfectly able to go to the Governor General and ask to form a coalition government in this instance, with one of those three leaders being commissioned as Prime Minister. Or the Governor General can appoint Dion as PM at this point. The second thing I would ask Harper as Governor General would be to amend the elections act to remove the provision of fixed election dates. Harper is trying to have his cake and eat it too. He wants to be hailed as a reformer though be willing to break the law (its non-binding so they are no punishments except in public opinion) when it suits him. He is claiming now that it was never intended to deal with minority governments. However, this seems a little disingenuous. Why did he not mention this when he passed the legislation? His explanations this past week seem a little too convenient for me. As well, it is bad form for the PM request that the Governor General help him break the laws of Canada. Given these factors, I argue that the Governor General is able to and in fact should refuse Harper’s advice.
I think
stegner and
most of the ‘experts’ whose opinions litter our daily papers are wrong. They,
stegner and the ‘experts’ misunderstand our Constitution and misread our history – and the two are intertwined.
The
King Byng thing (1926) confirmed two provisions of the Constitution:
1. The sovereign (governor general)
must take appropriate Constitutional action when her (or his) prime minister no longer has the confidence of the House. Broadly the sovereign has two options:
a. Call a general election, or
b. When the situation permits call upon another (party) to form a government and
seek the confidence of he House. This is the course of action Byng chose to follow in 1926 – against he advice of Prime Minister King; and
2. The sovereign must
receive the advice of her (or his) prime minister but (s)he is not
obliged to follow it.
But, notwithstanding the provisions of the Constitution
as it existed n 1926, Byng and the Crown soon learned (through Meighen’s failure to secure confidence and the results of the consequential general election) that the
political advice of the prime minister is – and
must be accepted as – the final ‘authority’ on how to manage parliament.
Despite Trudeau’s 1982 amendments, the most important parts of the Constitution are unwritten – and are likely to remain so. The Constitution changes, day by day and year by year. The Constitution of Canada in the summer of 2008 is different, more ‘advanced’ than was the Constitution of Canada in the fall of 1926.
In 1926 there is little doubt hat Byng did the right thing because:
• The Conservatives, not King’s Liberals, were the largest party in the House;
• The last (1925) election was not ‘far enough’ in the past; and
• King was seeking dissolution to avoid censure in the House.
But, while those
facts were legally and properly sufficient in 1926
they do not exist today. The Liberals are not the biggest party, the governing Conservatives are. The last election was more than two and a half years ago – quite long enough for most minority governments. Harper is not in any danger of being censured. The
Szabo Zoo may be able to embarrass the Conservative Party in its kangaroo court but that has zero, zilch Constitutional significance. Further, the
principle King established – that the prime minister, not the sovereign, is the best judge of how to mange parliament – means that the sovereign’s ‘reserve powers’ are further defined than they were n 1926.
The situation is: Nothing in the fixed election date law interferes, in even he smallest way, with the sovereign’s right to call an election when she ‘decides’ (on the advice of her prime minister) to do so. The law is, clearly, applicable only to stable, majority situations. The sovereign (governor general)
must receive her prime minister’s advice re: dropping the writs and, post 1926, she is also bound to give it great weight. There is nothing in our (or Britain’s) Constitution to say that a ‘dysfunctional’ parliament is
not good grounds for dissolution and a general election. Losing a vote is the most common way for parliament to deny a government confidence but it need not be the only one; the Constitution, being unwritten, is flexible and changes, as I said, day by day and so on.
I suspect that the GG’s political and legal advisors are very cognizant of the Constitutional and historical realities – unlike most of the ‘experts’ – and will advise HE to grant Mr. Harper the election he wants when he wants it and for the reasons he offers.
To do otherwise would be to turn the clock back by 80+ years and that, in an of itself, would be
unconstitutional. The Constitution has changed since 1926; the situation is also quite different; if Prime Minister Harper says he cannot govern then the GG
must call an election. She is duty bound to uphold the Constitution.
