I’ve been spending more time than I’d like trying to sort through this fixed-election stuff. Over at his stuffily-named “Andrew Coyne’s Blog”, AC accuses me of actually cheering Harper on w/r/t ignoring the fixed-election date. True enough. My reasoning is a bit elliptical on this, but it boils down to this: I hate the fixed-date amendment, and I think that if this parliament makes it to the fixed date it will set a precedent that I believe to be constitutionally dangerous in the long term. So, I think the short-term political damage done by ignoring it is mild compared to the constitutional damage that could follow if it becomes entrenched.
That said, I’ve been more than a little intrigued by the to-and-fro between constutional experts. Required reading for today’s class is Errol Mendes’ piece in Thursday’s OC arguing that the GG could well deny Harper dissolution, and Patrick Monahan in today’s Globe replying that, no, actually, she can’t.
Let’s start with Prof Mendes, who says that SH is claiming the right to call an election on two grounds, one constitutional, the second political.
1. The constitutional argument. Harper is arguing that since the fixed-election amendment expressly says that nothing in the amendment constrains the powers of the GG to grant a dissolution, then nothing constrains the powers of the PM to ask for one either.
Hang on, says Prof. Mendes. Since the fixed-election amendment basically amounts to a statutory promise by the PM not to ask for an election, then while the GG’s power to grant a dissolution might remain, perhaps the amendment does constrain the Prime Minister’s ability to ask for one.
But that makes no sense. Since the GG only acts on the advice of the prime minister, any statute that limits his power to advise her must, of necessity, indirectly limit her powers. And that’s unconstitutional — which is exactly what Prof Monahan concludes in today’s Globe.
So here is the dilemma: If the fixed-election amendment is effective in limiting the power of the PM, it is unconstitutional, and if it is constitutional, it is ineffective. Which is another way of saying that the fixed-election amendment was always a political gambit, not a legal limitation, which is why the best remedy for this is political, not legal.
2. The Political argument
There’s another argument for why the GG should grant dissolution, and that is that parliament has become dysfunctional. Harper has been waving this one around for a while, and the critics are scoffing. As Prof. Mendes points out: First, Harper has actually been able to govern quite well (to the extent that this parliament has frequently resembled, as Wells puts it, some weirdo European “Grand Coalition”). Second, to the extent to which parliament is dysfunctional, it’s because Harper himself has made it so.
It is the transparent self-servingness of Harper’s political argument that most enrages those who are opposed to him getting his dissolution. Indeed, Coyne’s lovely column on the issue focuses almost entirely on this aspect of it — that parliament seems to be functioning quite well.
But my response is: SO WHAT?
That is: Who cares why Harper wants an election? Should whether he get his dissolution or not hinge on the question of why he wants one? My view is that, with the exception of the most bizarre or exceptional circumstances, it is simply not for the GG to judge the merits of the Prime Minister’s request.
I can already hear Andrew Coyne’s reply: “But Potter, the fact that Harper passed a fixed election date amendment just IS such an exceptional circumstance!”.
Sorry, but I can’t agree, for reasons both legal and political. For the legal reason, see the dilemma hilighted in section 1 above.
The political reason goes to the heart of why I hate the fixed-election amendment. I happen to think that one of the great virtues of parliamentary government — perhaps the one virtue that marks it out as superior to the American system — is that it allows the government of the day to go to the people over a question of national significance. I think that the threat to take something to the people, and the ability of parliament to take the government up on that threat, is a fantastic democratic instrument.
Curiously, Harper has such a question at hand: Senate reform. In her column in today’s Globe, Jane Taber says that senior Tory strategists are suggesting that, for all his ability to get his agenda through, Harper has seen no motion on the key policy of Senate reform. Frankly, if Harper is serious about reforming the Senate, I think an election is not just desirable, but mandatory.
So why is Harper talking up parliamentary dysfunction instead of Senate reform? I don’t know. But frankly, I don’t care. The mere fact that he wants an election is good enough for me, and it should be good enough for the Governor General. It might not be good enough for the rest of you, and for that you are invited to cast your ballot accordingly.