Monday, December 01, 2008

Prime Minister Stephane Dion?

The thought of Stephane Dion as Prime Minister will not appeal to most Canadians, including I dare say thinking members of the Liberal Party of Canada (a party that is risking its future on a brazen desire for immediate power, it seems to me), or possibly even members of the NDP (who may be concerned with the alternative possibility that they are helping the Liberals escape disintegration as a party by giving them access to power).

Not only Dion, but his confederates in the new Parliamentary alliance - Gilles Duceppe and Jack Layton - are, to my mind, some of the least appealing political leaders in Canadian history. Furthermore, the issue on which these three propose to overthrow the government - its failure to spend immediately $30 billion (about $1000 for each Canadian) as an emergency "stimulus" package - is to my mind an entirely flimsy issue on which to stand and provoke a potential constitutional crisis. It is also not the real issue that has provoked this crisis. What's more, I think these three generally stand for an objectionable, anti-freedom, pro-nanny state, politics.

However, there is a more important consideration at stake than one's attitudes towards these three. We should all give some time to consider what courses of action we must grudgingly support in the name of upholding the integrity of our Constitution.

There are, for the moment, at stake two basic Constitutional principles essential for our system of responsible Parliamentary government: 1) the principle that the government must have the confidence of the House of Commons; and 2) that, unless circumstances are dire, the Governor General should not be put in a position where she has to deny the request of her duly-established Ministers, and thus make a decision that is likely to be seen, or later interpreted, as politicizing her office, and not reflecting her properly disinterested concern for the integrity of our Constitution and nation.

If the House of Commons votes non-confidence in the present government, as now seems likely, Stephen Harper should very probably bite the bullet and resign from office. If he were to request that the Governor General dissolve Parliament and call an election, he would likely be asking the Governor General to put the integrity of her office at risk, unless he can make a convincing case that the present coalition of Liberals-Bloc Quebecois-NDP is inherently unstable and, perhaps because it includes separatists, a profound danger to the country.

If Harper does choose to make that case, it would seem to me that the Governor General would be ill-advised to refuse his request for a dissolution. The principle that a Governor General should only refuse the advice of her Ministers in the most necessary and rare circumstances would be damaged, and her office politicized. It would be better to allow the voters to decide whether they had any sympathy for a Prime Minister who refused to resign when he lost the support of the House of Commons and who put the Governor General on the spot. The voters would have to pass judgment on what both sides in this Parliamentary war over power are doing.

To support this argument, allow me to quote from the late great constitutional authority, J.R. Mallory:
The circumstances in which the Governor General may hesitate to grant a dissolution will only arise when a Prime Minister who has been defeated in the House of Commons - or who anticipates defeat - may decide to ask for a dissolution instead of submitting his resignation. This he might do if he anticipates, as Mackenzie King did in 1926, that the party situation in the House is such that the leader of the opposition cannot form a government [or, as Mallory argues in a footnote, there is reason to believe that the opposition could not sustain a government for any period of time, given the antipathies of those involved in any new coalition government].
[...]
The result of Lord Byng's miscalculation [in 1926] of the political situation was that both his position and his motives were misunderstood. The Governor General had felt he was performing his constitutional duty in trying to avoid, under the usual party circumstances which then prevailed, a second general election within a year.
[...]
Lord Byng's defence of his position rested, as he explained to the King, on "these salient features":
A Governor-General has the absolute right of granting or refusing a dissolution. The refusal is a very dangerous decision. It embodies the rejection of the advice of an accredited Minister, which is the bed-rock of constitutional government. Therefore nine times out of ten a Governor-General should take his Prime Minister's advice on this as on other matters. But if the advice offered is considered by the Governor-General to be wrong and unfair, and not for the welfare of the people, it behoves him to act in what he considers the best interests of the country.
Lord Byng's statement of his constitutional position is clearly literally correct. But he overstated it. The occasions on which a Governor General may consider disregarding the advice of his constitutional advisers are much rarer than one in ten; they are very infrequent indeed. They do exist, but they are so rare as to elude precise formulation, and at best have a pragmatic sanction. The Governor General can employ his discretionary powers only in those circumstances where he can get away with it, and where the alternative is something close to constitutional chaos. On that basis Lord Byng was mistaken, though not unconstitutional.

Every unsuccessful use of power is an adverse precedent. While it is impossible to agree with those who say that the 1926 affair disposed forever of the Governor General's supposed discretion in granting a dissolution, it is clear that the future discretion of a Canadian Governor General has been somewhat narrowed.
[...]
there was speculation in the press in 1957 that Mr. Diefenbaker upon taking office might demand another election at once to break the stalemate. As it happened he revealed no such intention, but even if he had sought a dissolution in the first weeks of the Twenty-third Parliament, he might have placed the Governor General in an awkward position had the Liberals been anxious to take office again. In such a case the Governor General would clearly have been entitled to refuse Mr. Diefenbaker's request if it appeared that Mr. St. Laurent was capable of carrying on without another general election.
J.R. Mallory, The Structure of Canadian Government (Gage: 1984), 53-57.
Mallory's last-mentioned scenario might seem to apply to the present crisis. However, it is the Conservatives who formed the last government and who increased their numbers in the House of Commons in the last election. The House has already met and passed the Throne Speech. This, along with the fact that Stephane Dion is a lame-duck leader who proposes to rule a coalition of three parties, including separatists, might give Stephen Harper a case to make an argument that the voters need first to be asked to give their support to the newly-proposed coalition. However, in doing so, he would risk politicizing the Governor General's office. And he should only request a dissolution if, in his best conscience, and once he has thought the matter over with whatever serenity this moment will allow, he truly believes the proposed coalition is unworkable and a profound danger to the country. It would then be up to the voters to judge Harper's (good) conscience in comparison with those of the other three party leaders.

11 comments:

Dag said...

The beauty of jurisprudence is in its dispassion, exactly the opposite of politics.

Good work on both fronts from you here.

Dag said...

Wow. This is looking like a bloodless coup d'etat, worthy of imitation by any banana republic I've ever been to. This is one for the books.

Anonymous said...

Mallory has never been my favourite among writers on the constitution. Norman Ward (Dawson's The Government of Canada) is definite on the Governor-General's discretion on being advised to dissolve the House by a defeated Prime Minister; so is C.E.S. Franks (The Parliament of Canada). Eugene Forsey (in both The Royal Power of Dissolution and How Canadians Govern Themselves) is even more emphatic. In another work he went so far as to say that "there are circumstances, the exception rather than the rule, when dissolution to a defeated government is proper (my italics).

I think the case against a dissolution is more or less like this:

1. The present government has by far the greatest number of seats in the House.

2. The proposed coalition depends entirely on the support of the BQ, which is not backed by any Cabinet responsibility. (This overlooks the BQ's agreement not to back votes of non-confidence, a la the Ontario NDP in 1985 -- which did not turn out well for the NDP.)

3. The people deserve a chance to pronounce on whether they want a minority government beholden to the BQ,and committed to a major economic upheaval. (The best argument, in my view; but the one that politicizes the office most.)

I think, constitutionally, we are stuck with this. Let's hope something happens that causes the BQ to stay home one day, en Bloc, if you'll pardon the pun.

Jim Whyte

truepeers said...

Thanks Jim,

Not having your authorities at hand, I'm curious how they square a generous sense of the GG's discretionary power over a dissolution with responsible government. My reading on this is limited.

I also wonder how scholars will see a "contract" on confidence votes. Just as we cannot recognize a contract by which a man presumes to sell himself into slavery, can the GG recognize a "contract" by a party that promises not to vote against a government, for a set period of time, come what may. That is what I find most offensive in all of this. They have a responsibility to come to each vote as the representatives, not bound men and women, they are, however rich the fruits of that binding.

Furthermore, a government "contractually" relying on the Bloc to project an aura of stability, while the Bloc takes no responsible position in government, and is not held accountable in Parliament, strikes me as dubiously constitutional.

The more I think about it, the more it seems the GG would be well advised not to refuse Harper if he advises dissolution. But I'm not at all sure whether Harper has any business putting the GG on the spot.

CH said...

I thought the parties were banding together b/c Harper was trying to take away their public funding essentially crippling them. They point about how they dont like the budget is really just a cover so they dont look like they are playing politics as Harper is during a time when we need our leaders looking at the books not pulling dirty moves.

Why would Harper try to pull their funding like that? Doesnt he want a robust democracy? If it were up to me all parties would get the same amt of public money to run an election.

Dag said...

The Liberals, NDP, and BQ are making Obama, Hillary, and Farakan look like a class act.Once they gain power they might well improve the stature of Mexican politicians in comparison. Oh, the fun continues, it being a long way to the bottom.

truepeers said...

CH,

If every party received the same amount of free money, thousands of people would start parties tomorrow and that would be chaos. Once we have a limit on party and campaign donations, so that a few rich interests can't unduly shape the system, it seems to me that parties should be mostly dependent on raising their own funds. i certainly don't like my pocket being tapped without my permission. But perhaps Harper tried to push through changes in the system too quickly, so that it only seemed as if his goal were to bankrupt the Liberals. He should have laid down a timeline for them to be weaned from their significant dependence on the public teat. If people don't want to volunteer donations, why should they be taxed to supply them?
-------------

Dag, it's not fun for me. The Liberal Party is allowing a man who goes hysterical when under pressure - as demonstrated in today's question period - with few non-academic skills and basically no creditability in his own party to lead the country into a mine field just because said party worships power and the nominal leader is a bad loser who is too immature, too unworldly, too inexperienced in non-academic reality, to accept the revelation that he is a failure as a politician. He gets conned by Taliban Jack, an opportunist cancer on the system who thinks he must redeem all the dangerous Utopian nonsense he has spent years promoting by showing how he can exercise power. And then these two get into alliance with separatists, throwing decades of their own party preaching about "national unity" into the trash (which might not be such a bad thing, from my perspective on the need to avoid building a big government in Ottawa). It is little more than a coalition of Toronto, Vancouver, Montreal, and Quebec separatists, with only a few isolated members in the rest of Canada. What's more, much now turns on the Governor General who is readily painted as a socialist immigrant with separatist sympathies, should she turn to this motley crew without first an election. This is going to create huge rage in the country, in many quarters. Will we in future have the means to transcend the divides that are now being widened? I can only feel contempt for Layton and Dion and the lackeys in their parties who haven't stood up to this madness. They've allowed their Harper Derangement Syndrome to delude them into thinking they are standing on some great principle, when they are now revealed as scapegoat artists in need of dead kings, and with no patience to sit and grow on the opposition benches.

Dag said...

I distinguish between defining moments and the end of history. This is one of those defining moments in Canadian history, obviously not bringing on the end of history at all. Still, this is some move on the parts of the opportunists in politics, such a shameless power-grab that only the most committed ideologue will look at this without feeling sickened. Unbelievable.

And yet, this kind of critical point is good in that it clears the air of miasmas that have built up for ages. Things can always get worse, though. There's no certainty that this will improve things at all. The next lot could always be worse. That's the danger of the politics of confrontation without a leadership of greatness. Americans had it in the founding generations. Here in Canada, I'm not too convinced, nor am I greatly optimistic. But what a show.

Anonymous said...

All good points, Truepeers. And I should take the opportunity to correct my post above -- what I meant to type was "the case for a dissolution", not "against".

There is precedent for a "contract", that being 1985 in Ontario. With Bob Rae, no less (and we know how well that worked out for him in 1987). The principles of responsible government are neither for nor against contracts like this -- members are still free to swallow their own freedom and commit to something like this.

On the other hand, if you suddenly got a bunch of MPs rebelling and voting against their party, nothing could stop them, so the "contract" could quite conceivably evaporate in the even of a split in any of the Libranos, NDP, or Bloc. There wouldn't be a legal recourse against that. (And I'm not sure, but I suspect there's something in the Elections Act that prohibits a backbench member from committing his vote formally in advance.)

The caucus-rebellion scenario could even happen if a party was governing in a majority. Present-day party discipline makes it unlikely, but it's nowhere near impossible.

To your second point: relying on a party that doesn't take part in government is not unconstitutional. That's what Harper has done through his whole ministry. Clark did it (unsuccessfully) in 1979. Pearson did it from 1963 to 1967. Diefenbaker did it twice, 1957 and 1962. There are plenty of examples from Ontario and Manitoba in recent years.

But what we must remember is that the system rests discretion with the GG, not with some polly-sci prof's imaginative decision tree. (The excellent study is John Saywell's The Office of Lieutenant Governor -- the 1986 edition has plenty on the 1971 Newfoundland minority and the 1985 Ontario coalition.)

The GG is there to apply good sense and loyalty to the country and the system in situations like these. She should do exactly that.

Non-registered Jim

Anonymous said...

A PS to the above -- I agree entirely with your political analysis in your reply to Dag.

The Undocumented Alien

truepeers said...

Thanks again for your comments Jim.

I assumed that earlier for/against was a typo.

Apparently Ted McWhinney was arguing on CTV yesterday that there is a lot wrong with the NDP-Liberal-Bloc "contract" in comparison to the 1985 agreement - that was extensively reworked before the LG signed off on it, but unfortunately I can't find his argument anywhere on the web. I'd be curious to know how one might judge these things.

I take your point about minority governments relying on other parties being standard procedure. But I wonder if we have fully digested the reasoning by which a GG can weigh such contracts, given that 1985 seems to be the only example.

I'm not at all sure I like today's precedent, allowing the PM to prorogue in these circumstances. However, when I reflect on what I see as a failure of leadership in all the parties, it's possible that a cooling-off period is the best of the bad choices. This would confirm your view that we need to have wise GGs who can use their discretionary powers without being bound by polisci profs' abstractions, or even entirely by precedents. The point about the need for better leadership is that each and every such event will be irreducible to those that came before, however much they are also genetically linked to them.