“Manipulation of public opinion by a well oiled and resourced propaganda machine has no place in the profound and critical constitutional decision making of the Governor General. It is simply unstatesman like to exploit the public’s misconceptions about parliamentary democracy.”
A round robin Q&A with four of the constitutional experts who joined with more than thirty of their colleagues to sign an open letter advising Governor General Michaelle Jean to consider all of her constitutional options – including calling on the Leader of the Opposition to attempt to form government – should the Prime Minister be forced to trek back to Rideau Hall in the coming days.
UPDATE: Through no fault of his own, Osgoode Hall Law School professor Bruce Ryder was not credited for his contributions. That has been remedied – sorry about that, professor!
1. Why are you sending out this open letter now, instead of in the days leading up to the Prime Minister’s visit to Rideau Hall last December?
Barbara Cameron, York University: There was academic commentary in December around prorogation. There was some frustration that the media was not featuring commentary that accurately portrayed the constitutional situation. Quite a bit of the media seemed to accept without question the quite inaccurate view that the Governor General had to accept automatically the advice of the Prime Minister and that her only option was to grant a dissolution to the Prime Minister.
Errol Mendes, University of Ottawa (bio), Margot Young, University of British Columbia (bio) and Bruce Ryder, Osgoode Hall Law School (bio): Last December, events moved very fast and time was limited to get such a collective action going. Several of us, myself included, only had time to make our individual views known extensively in the media. The principle is an important one and calls for clear assertion. In general elections, we elect a Parliament, not a government. A government’s democratic legitimacy depends on whether it can maintain the confidence of a majority of elected members of the House of Commons. Statements to the contrary are profoundly irresponsible.
2.If a return trip by the PM was preceded by a confidence vote, would the Governor General would have to consider the question from a different perspective, and in a different legal/constitutional context than when she decided to grant the prorogation request?
Cameron: A decision by the Governor General to grant a dissolution to a Prime Minister who was facing a vote of confidence in the House of Commons would go against the consensus of constitutional experts today. The Governor General is only bound by the advice of a Prime Minister who has the confidence of the House. If there is a question about that, then she is entitled to say to the Prime Minister that he needs to clear up any confusion by facing the vote of confidence. If he comes back to her with a vote of confidence in his pocket, then she would be more inclined to take his advice, especially if members of the House were aware that he was seeking dissolution.
If the government is defeated on a motion of confidence, the Governor General may listen to the advice of the Prime Minister but acts according to her own judgment. The preferable situation is for Parliament to solve the problem on its own by identifying through its own processes the leader who enjoys the support of the majority of members of the House of Commons. In that situation, she appoints as Prime Minister the leader who is assured of the support of the House. In determining if there is such a leader, it is constitutionally appropriate for her to consult with the leaders of the other parties and anyone else she chooses. The procedure followed in the current situation by the leaders of the opposition parties of coming to a signed agreement among themselves about who the Prime Minister would be in an alternative government and what the main lines of policy would be is considered a legitimate and useful initiative by numerous constitutional scholars, both Canadian and British.
Even if a government has not been defeated on a vote of confidence and there is no impending motion of confidence, constitutional experts argue that under certain limited circumstances the refusal by a Governor General to grant dissolution to a Prime Minister would be constitutionally defensible. In particular, it is widely agreed that a Prime Minister who has been granted one dissolution should not be granted a second one in a situation where there is an alternative government available. This path is seen as particularly appropriate when Parliament is in the early stages of its life and another election is some time in the future. In the current context, the 40th Parliament has so far sat for only thirteen days. Constitutionally, elections must be held every five years and under the current government’s own amendment to the Canada Elections Act, the next fixed date for the election is almost four years away.
The circumstances identified by many constitutional experts as justifying a refusal of dissolution even when a government has not been defeated in the House fit closely – one might even say precisely — the current Canadian situation.
Mendes/Young/Ryder: There was a confidence vote on the Throne Speech in the last brief Parliament which Harper used to argue that his prorogation request be granted. However, the critical issue was that a no confidence vote was scheduled, then rescheduled, only to have it not take place by means of refugeto the Governor General.
Under these particular circumstances, there was clear evidence that the PM was dodging the certain loss of confidence of the House. It is in reference to these circumstances that the open letter makes the fundamental point that the Governor General would have no option but to call on the opposition to form a government that would then seek to retain the confidence of the House. A repeat performance by the PM would mock our Parliamentary democracy.
What if it was a straight repeat of what happened last month, with no formal confidence vote having been held, but the likely results all but certain to be against the government?
Cameron: With respect to the comparison with the prorogation decision, there is a debate among constitutional scholars in Canada about whether or not the grant of prorogation was appropriate in a situation where it was clearly intended to preempt a vote of confidence in the House of Commons. An argument in favour of the Governor General’s decision is that it did not foreclose the current Parliament having the opportunity to vote on a confidence motion but rather delayed it. However, the motion of confidence that was set to be voted upon expired when the first session of the 40th Parliament was ended by the prorogation. In that sense, the Governor General’s decision could be seen as giving an advantage to the Prime Minister and as favouring one party over another, thereby compromising the impartiality of the Governor General. Most of the criticism, however, is directed at the Prime Minister rather than the Governor General who was placed in a difficult situation (not for the first time by this Prime Minister).
The situation is much clearer on a request for a dissolution of Parliament. In the scenario you raise, it would be inappropriate for a Prime Minister to advise dissolution in order to preempt a vote of censure in the House of Commons and constitutional experts agree that the Governor General would be well advised to reject such advice.
Mendes/Young/Ryder: Were a plausible coalition waiting in the wings, the PM should not be allowed to seek prorogation or request dissolution and trigger another election so soon after the last one (the consensus is that there must be at least a six to nine month period since the last one). To quote the leader of the opposition, Canadians currently need another election “like a hole in the head”. If the government loses a confidence vote in the House when the 40th Parliament reconvenes, and the PM then invites the GG to dissolve Parliament, she would be in a much stronger position to refuse his advice and invite the leader of opposition to attempt to form a government that can obtain the confidence of the House, especially if the opposition parties are still publicly expressing their commitment to forming a stable coalition government.
3. To what extent should a Governor General “no longer bound by the advice of the Prime Minister” take public opinion into account when reaching her decision – and if she should, what would be an appropriate way of gaging what that public opinion could be — polls (either those done by media outlets/outside parties, or commissioned by the Governor General herself), letters/calls/emails/faxes from the public, or another mechanism?
Cameron: In general, in a parliamentary democracy, it is Parliament that expresses the “national will” between elections and it is not up to the Governor General to gauge it. We often hear criticisms of governments governing by opinion polls. It is odd that we should ask the Governor General to do that. Should a coalition government be formed, then its participants will be judged by the electorate at the next election. The key consideration for the Governor General is that she have in place a government to advise her that is capable of maintaining the support of the House of Commons for a reasonable period of time. The alternative is to support government by plebiscite which would dispense with the need for elections and a House of Commons entirely.
Mendes/Young/Ryder: The Governor General is the guardian of our system of Parliamentary democracy, not a guardian of public opinion manipulated by the party that has lost the confidence of the House and that responds by misrepresenting how our electoral and parliamentary systems work. Canadians elect MPs who then decide which party or coalition of parties will maintain the confidence of the House and thus form the government.
The PM of a minority party in the House has no assured “right to govern”. He or she can do so only if the confidence of the House is retained. Elected membership of the House reflects the will of the people, not a single Prime Minister. Keep in mind also that a minority government means that a sizeable majority of the electorate did not vote for the governing party and, certainly. not for the leader of that party to become Prime Minister. Manipulation of public opinion by a well oiled and resourced propaganda machine has no place in the profound and critical constitutional decision making of the Governor General. It is simply unstatesman like to exploit the public’s misconceptions about parliamentary democracy.
4. Finally, your letter notes that the debate has revealed that many Canadians are “unfamiliar with the basic rules of our constitutional democracy.” Given the reflexive negative reaction to the possibility of the coalition taking power, are you concerned that increased familiarity could breed if not contempt, a call to reform the current system into one more closely modeled on the American system, particularly in the immediate afterglow of the election of President Obama?
Cameron: Canadians might decide after a process of debate that the American system is superior to the parliamentary system adopted from Britain. However, it is much more likely that they would be inclined to reform our system to make it more democratically accountable – and there are definitely changes that are needed. The American system can produce a George Bush as much as a Barrack Obama.
There are two key points to make in the current context. The first is that it is up to Canadians to decide to make a change in the fundamental nature of our constitution and that would involve a serious process of public discussion. It should not happen through the decisions of a Prime Minister or a Governor General in response to an immediate situation in Parliament. That would be profoundly undemocratic.
The second point is that importing the (apparently) direct democracy notions from the model of electing a US President without radical changes to other elements of our constitutional system would result in a Prime Minister having tremendous power between elections. In our system, it is Parliament that has the main responsibility for keeping the executive branch democratically accountable between elections. One of the primary tools the elected legislators in fulfilling this responsibility is the possibility of turfing the government out of office on a vote of non-confidence, most easily done of course in a minority Parliament. (The US model, of course, is not really a direct democracy when it comes to the election of a President because of the electoral college).
Prime Minister Harper stated that he would pursue all legal means available to him, essentially to prevent the Governor General from appointing as Prime Minister a leader capable of doing what he apparently was failing to do: maintain the confidence of the House. This is a scary proposition if one understands that there are no legal limits on what the Governor General can decide with respect to the dissolution of Parliament. If one accepts the view put forward by Harper that the Governor General should automatically accept a Prime Minister’s request for dissolution, then he could conceivably call election after election with lower and lower voter turnouts until he finally got a majority government.
Mendes/Young/Ryder: As mentioned, the reflexive reaction to the coalition (which from the most recent polls seem to be undergoing a major change) was a large result of irresponsible misrepresentation of our democratic system and the circumstances of the coalition. The real question is whether an accurate representation would have resulted in such contempt. We suspect not. If those who govern our country are faithful to its constitutional foundations, there is a complex system of checks and balances which over time allow our democracy to adapt to changing circumstances. With the rise of the Bloc in Quebec and the growing strength of the Green Party it will become increasingly necessary to be clear about the foundational rules of our system. Minority governments may become much more common and the foundational principles of our system, when properly invoked, can function to enable avoidance of the huge expense, inefficient governance, and economic fall out occasioned by too frequent elections.
After all, the British Parliamentary system we modeled ourselves on has lasted for centuries. While we are perhaps enthralled with the election of Obama, we tend to forget the darker side of the Presidential system that George W. Bush so aptly illustrated as he rode roughshod over the Constitution, ignored the rule of law (both domestic and international), and exploited the potential for gridlock with Congress in a true separation of powers model.