I’ve been following the issue of a 2010 Green Party of Canada Leadership "Contest" for some time now, through the blogs and comments of other GPC members (and a few non-members too who have provided welcome insight into this issue). Many have been blogging as if the Leadership "Contest" is absolutely going to happen in 2010. I have a different perspective, which I’m going to spell out for you in detail in this really long post (with my personal apologies to all of those who have pointed out that my blogs would be a lot more readable if they weren’t so damn long! This issue, though, requires careful analysis).
If you’d just like to skip down to the summary of my findings, you’re welcome to do so. But you might miss a couple of locations where I’ve "assumed" that wording in our Constitution and by-laws means something which you might not agree with. In those circumstances, I’ve tried to provide an enhanced explanation regarding why I think something means what I think it means. Pay particular attention to the discussion regarding "Special General Meeting" and what it means to be "present" at a General Meeting.
While currently I agree that there is a requirement for the election of a Leader to Federal Council next year, I’m not sure that I would go so far as to suggest this is a "Leadership Contest" as we’ve come to view them through other Party’s processes. Although the outcome of electing a Leader to Federal Council is tantamount to electing a Leader of the Party, we should be careful to better understand what is actually required by our Constitution for 2010, and to acknowledge that "Leadership" of the Party is found through the machinations of the Constitution and the by-laws, and not by a direct vote of Membership.
Two final things here before I begin my analysis. First, as I re-iterate at the end of this blogpost, I’m not going to discuss my own opinion on whether any of the situations I describe should or should not be occurring. Instead, I’m going to limit my conversation to whether or not the situations can occur, based on my own careful analysis, which admittedly might be flawed.
Second, having worked through the Constitution and the By-laws to arrive at the conclusions which I eventually arrive at, it has become apparent to me that the Constitution and by-laws are flawed documents in desperate need of a major over-haul, just from a workability standpoint. That being said, I continue to believe that the documents have served the Party well, and continue to serve us well. The spirit and direction of these documents is vivid and alive (if I may use such terms to describe what others might view as terribly pedantic). The framers of our Constitution may have lacked in technicalities, but they certainly did not lack in vision.
Some might say maybe that’s the story of the Green Party of Canada in general!
Official Status of the Leader
Article 7 of the GPC Constitution indicates in Subsection 7.1.2 that the Leader is a person who has official standing within the Party under the Constitution and By-laws, and that the Leader is defined as "the Member [of the Party] filed Leader as defined by the Canada Elections Act". The only other "person" defined by Article 7 as having status within the Party is the "Member". So we are a Party composed entirely of Members, one of which is deemed the Leader. That’s it; no one else actually has any constitutional standing (do the Deputy Leaders know this?).
Article 7 goes on to identify "Units" of the Party with official standing, including Federal Council, Shadow Cabinet, EDA’s, etc. For purposes of this discussion, I draw your attention to subsection 7.2.4 of Article 7, which sets out that Federal Council is a unit of the Party with official standing under the Constitution, and describes Federal Council as the "council referred to in Article 9 and are elected or appointed in accordance with the by-laws".
Article 9 of the Constitution sets out in 9.1.2 that the composition of Federal Council shall include the Leader.
The reference in Article 7 to "elected or appointed in accordance with the by-laws" takes us to By-law 2, "Federal Council". This is the by-law to be followed for the election (and appointment) of Federal Councillors, including the Leader. It is the only location in the Constitution / by-laws which sets out how the Leader is to be elected...but only to Federal Council. Interestingly, our Party does not appear to elect a Leader of the Party; instead, we elect a Leader to Federal Council, which is just a defined "unit" of the Party. By virtue of the Leader’s election to Federal Council, we consider the Leader to be the Leader of the Party, even though we are not directly electing the Leader to Lead the Party; we’re only electing a Leader to sit on Federal Council, and to assume the responsibilities of Leader as outlined in the Constitution and By-laws (and as required by the Canada Elections Act). But the Leader is only elected by the Membership to the party unit called "Federal Council". That’s all that we do when we elect a Leader. The Leader becomes the Leader of the Party only as a result of election to Federal Council and by virtue of the articles in our Constitution which set a Leader apart from every other Member.
The actual assumption of "Leadership" (which sets our Leader apart from all other Members) is done through a filing with Elections Canada.
Further, as subsection 220.127.116.11 of By-law 2 gives the authority to de-register units of the Party to Federal Council, and as Federal Council is a unit of the Party, clearly Federal Council has the ability to de-register itself. Should such an unlikely situation occur (unlikely, but contemplated by the Constitution and the by-laws nevertheless), than we would be without a process to elect a new "Leader", as our Leader is only elected to a unit of the Party. The Leader is not elected to lead the Party at large. In such a situation, it’s unclear what criteria the Party would use to determine which Member gets to file as Leader with Elections Canada.
One caution here: this process of not directly electing a Leader to lead the Party, but only to be an elected Member of Federal Council may not be in keeping with the Canada Elections Act, which has its own requirements regarding Leaders. I will need to look into that further.
How a Leader is Elected to Federal Council
So, what is the process for electing the Leader to Federal Council? The requirement for the election of all Federal Councillors, including the Leader, is found in Section 2.1.4 of the By-law, "Election to Federal Council and Term of Office". Subsection 18.104.22.168 of By-law 2 indicates the Leader is to be elected every 4 years, starting in 2006. This means that the year 2010 will be the year which triggers the election of a Leader, and the next election will be held in 2014.
The process for election is spelled out in Section 2.1.3, "The Leader", of By-law 2. Subsection 22.214.171.124 indicates that 100 members of the Party in good standing shall be required to nominate for the position of Leader. This means that anyone who wants to be Leader needs 100 signatures on their nomination papers, from members in good standing (not sure what might happen if a member signing the nomination paper loses their status of "good standing" when papers are filed).
Subsection 126.96.36.199 goes on to indicate that all members of the Party in good standing shall be eligible to vote for the position of Leader (I believe that this is in conflict with provisions found in By-law 1, Membership, which seems to allow all Members to vote, whether they are in good standing or not, but I’ll save that for another day).
How will such a vote occur? Subsection 188.8.131.52 indicates that the vote for any "office" of Federal Council shall be by preferential ballot. Presumably, the word "office" is used here to distinguish between the various types of Councillors (Regional vs. At-Large vs. Leader). Subsection 184.108.40.206 goes on to indicate that ballots are to be mailed out to Members 30 days in advance of an election.
Subsection 220.127.116.11 of By-law 2 spells out the process for removing the Leader or any member of Federal Council: only a 3/4 vote of Federal Council can do so.
Subsection 18.104.22.168 indicates that the Leader may be removed from office by a motion at a General Meeting, to hold an election to replace the Leader.
Subsection 22.214.171.124 and 126.96.36.199 spell out the process for removal due to non-attendance of Federal Council meetings. This process is also applicable to the Leader, as the Leader is a member of Federal Council.
These appear to be the only ways in which a Leader can be "removed" as Leader. Of course, the Leader could still resign on their own initiative. My point is, though, that there does not appear to be any requirement for the Leader or any Federal Council to be removed or to remove themselves during an election for a position on Federal Council.
To me, this process is clear: we can elect a Leader through a mail-in ballot. And there is a constitutional requirement that we elect a Leader in the year 2010, and every 4 years afterwards.
Our Constitution and By-laws also seem to create the following situation: The Leader, unless he or she steps down from the position, does not cease to be the Leader, even during that time when a new Leader is being elected. Our Constitution does not require that our Leader resign or cease to be the Leader of the Party during the timeframe of the Federal Council election. And this only makes sense if you think about it. Last year, we elected Federal Councillors. During the time of the election process, those Councillors seeking re-election did not cease being Federal Councillors. Also, when a federal election is called, the Prime Minister doesn’t stop being Prime Minister. It’s the same with the Party: the Leader does not automatically cease being the Leader, even when he or she may be standing for election. Remember, this all comes about because we are choosing the Leader as a Member of Federal Council, and not specifically as a Party Leader.
Changing the Process: Constitutional and By-law Amendments
If this process for electing a Leader to Federal Council is failing the Party, there are remedies. Essentially, either the Constitution or the By-law can be changed (or both). Here is the process for amending these documents, as outlined in Article 10 of the Constitution, "Amendments to Constitution and By-laws".
Subsection 10.1.1 indicates that notice for amending the Constitution shall be included in the notice of meeting at which amendments shall be considered. The requirement for a meeting is found in subsection 10.1.3, which indicates where amendments can be considered. 10.1.3 indicates that amendments shall be adopted by a majority of the votes cast be Members in good standing at a General Meeting, and shall only become effective upon Members in good standing passing an identically worded amendment by a vote of greater than ½ of the votes cast in a Members’ vote conducted by mail-in ballot, with a return date of 120 days following the General Meeting.
Essentially, Constitutional Amendments follow a two-step ratification process. First, you hold a General Meeting, and those Members present at the General Meeting vote in favour of the amendment. Then, we take the amendment to our Members throughout Canada through a mail-in ballot process. If it passes muster here, our Constitution is so amended.
The process for by-law amendment as set out in Section 10.2 of Article 10 is similar to the first part of the Constitutional amendment process: notice of proposed changes has to be issued in advance of a general meeting, and amendments shall be adopted by a majority of Members in good standing at a general meeting. The only difference here is that amendments to by-laws do not require the ratification of the Membership at large: those Members present at the General Meeting alone can amend a by-law (more on what it means to be "present" later).
The long and short of it is that Constitutional Amendments and By-law Amendments can only happen at General Meetings.
General Meetings and "Special General Meetings"; Biennial General Meetings and Other General Meetings
The process for holding General Meetings is found in Article 8 of the Constitution, "General Meetings of the Entire Membership of the Party". Subsection 8.1.1 indicates that General Meetings shall consist of individual Members in good standing who have one vote. Subsection 8.2 indicates that quorum shall be 50 Members present at a General Meeting who are in good standing, representing at least two regions, as defined by the by-law. Subsection 8.4 sets out the notice provisions for General Meetings: 60 days notice to Members is required (and not just Members in good standing!). Subsections 8.5 and 8.6 indicate that General Meetings of Members and "Special General Meetings of Members" (presumably something different than just regular General Meetings of Members", by virtue of reference in two subsections, although I’m not sure in what way they are intended to be different) shall be called in accordance with the By-laws.
What do the By-laws say? By-law 4, "General Meetings of the Entire Membership of the Party", sets out the process further. Note: while this by-law provides for processes for holding "Biennial General Meetings" and "Other General Meetings", I do not see the term "Special General Meeting" defined anywhere. To me then, at present, the although the Constitution allows for holding "Special General Meetings of Members", as per subsection 8.6 of Article 8 of the Constitution, there is no process spelled out in the by-laws for doing so. Since 8.6 clearly indicates that "Special General Meetings of Members" must be held in accordance with the by-law, and as there is no by-law currently available to implement this provision, it is my interpretation that the only type of General Meeting which the Green Party of Canada can currently hold is a General Meeting of the Members. This will remain the case until such a time that we have a by-law for Special General Meetings of Members. This is similar to provision 8.1.2 of the Constitution, which indicates that proxy votes are allowed at General Meetings, but only in accordance with the by-laws. As we don’t have a by-law to implement proxy voting, proxy voting remains unavailable (even though the Constitution contemplates it occurring in the future). The only difference between 8.1.2 and 8.6 is that the Constitution in 8.1.2 for proxy votes makes it clear that a by-law is required for implementation, while 8.6 is silent.
Silence, though, does not imply that we have a process under an existing by-law.
One might try to argue that a "Biennial General Meeting of the Members" should be considered the only type of meeting to be considered a "General Meeting" for the purposes of Section 8.5 of the Constitution, and that there is in fact a process for holding "Special General Meetings of the Members" outlined in By-law 4 for "Other General Meetings of Members". I can not concur. Not only is the terminology different (which to me implies that there has always been an intended differentiation between "Special General Meetings" and what the by-law refers to as "Other" General Meetings), but the Constitution itself requires only that a "General Meeting of the Members" be held every 2 years. Interestingly, our By-law does not indicate that it is to be the Biennial General Meeting which is intended to be the General Meeting held every two years! One might presume this to be the case, based on the title of the meeting (Biennial means "once every two years"), but the fact is By-law 4 does not require the Biennial General Meeting to take place in that timeframe, and our Constitution does not identify that it’s to be the Biennial General Meeting which we hold every 2 years!
As long as a "General Meeting" of some sort is held every two years, the Party meets its Constitutional requirements.
Holding General Meetings
Anyway, whether a "Special General Meeting" falls into the category of "Other General Meeting" is likely a moot point anyway, as the process for holding these meetings are largely the same. The difference is found in who is able to call a Biennial General Meeting (only by Federal Council in a majority vote) versus an "Other General Meeting", which may be called by: a committee mandated by a General Meeting; Federal Council (in a 2/3 majority vote); through a petition to Federal Council submitted by 10% of the Members of the Party; a petition to Federal Council submitted and signed by the CEO’s of at least 1/3 of the registered EDA’s and Provincial Organizations; and, through a resolution adopted by a majority at a General Meeting. This is all found in subsections 188.8.131.52 through 184.108.40.206 of the By-law.
For those meetings which came about as a result of a petition to Federal Council, subsection 4.2.2 of By-law 4 indicates that Federal Council shall within 90 days of receipt of the petition select the location and date of the General Meeting (note not "Special General Meeting", so again more ammunition that these "Other" General Meetings are not "Special General Meetings").
This is where things get really interesting. There is a 60 day notice provision in the Constitution for Members to be notified that a "General Meeting" is taking place (subsection 8.4 of Article 8). As Article 8 distinguishes between "General Meeting of Members" and "Special General Meeting of Members" in subsections 8.5 and 8.6, I would argue that the notice provision of 8.4 applies only to "General Meetings of Members" and not to "Special General Meetings of Members". Others may disagree with that interpretation, but I would have to think that the framers of our Constitution considered GM’s and SGM’s to be two different animals.
If you accept my interpretation, though, that right now our by-laws only authorize "General Meetings", it doesn’t really matter what the Constitution says or doesn’t say about notice provisions: since all General Meetings are "General Meetings" (and not "Special General Meetings"), the 60 day notice provision applies.
But what if you believe By-law 4, through its use of the term "Other General Meetings" applies to "Special General Meetings" as set out in subsection 8.6 of Article 8? If you accept that, then it’s clear: when one of these "Other General Meetings" (or "Special General Meetings") is called, no notice is required. Which seems ridiculous! And that’s further ammunition (to me) to suggest that "Other General Meetings" are not the same as "Special General Meetings". "Other General Meetings" are still General Meetings as per subsection 8.5 of Article 8; they’re just not the same as the Biennial General Meeting (the same Biennial General Meeting which, as I noted before, is not actually a requirement of our Constitution).
Amending the Constitution and By-laws at a General Meeting
Therefore, I think I can safely get back to describing the process for amending the Constitution and By-laws at a General Meeting, as I believe that’s the only kind of meeting which our Party can currently hold. Amendments to either the Constitution or by-laws will take place by way of motions made to the Membership which, if adopted (or "passed") become resolutions which for constitutional amendments require the further ratification of members throughout the country. For by-laws, the resolutions are simply implemented right away.
Beyond the 60 day Constitutional requirement for notice of the General Meeting, subsection 4.3.1 of By-law 4 indicates that Members shall be notified 30 days in advance of any deadline for the consideration of motions at an upcoming General Meeting. Note, subsection 4.3.3 sets out a process for hearing motions from the floor, but only if they are of an "emergency nature".
Subsection 4.3.4 indicates that all motions must be provided to the Membership 60 days in advance of the start of a General Meeting.
Note the timeframes involved here. A General Meeting must be set far enough in advance to accommodate the following by-law provisions:
-30 days for Members to be advised of the deadline for motion submission;
-60 days for Members to be advised of the motions.
This means that at the very least, and assuming instantaneous transmission of documents through Canada Post, which is unreasonable, a General Meeting which considers motions can only be held 90 days after it is called, and not before. Realistically, it should be at the very least 100 days, so that received motions from Members can be copied and mailed to all Members.
Curiosities - Location of General Meetings
This is going to surprise you. If a General Meeting is a Biennial General Meeting (as defined in subsection 4.1 of the by-law), and if the General Meeting is an "Other General Meeting" which has come about through a petition (as indicated in 220.127.116.11 and 18.104.22.168 of the by-law), ONLY THESE MEETINGS NEED TO BE HELD IN A PHYSICAL LOCATION as per the provisions of 4.1.1 and 4.2.2 of the By-law. All other General Meetings (including a General Meeting called by a 2/3 majority vote of Federal Council) do not have to be held in person.
Seems strange that we can hold a General Meeting without actually meeting? Yes, it does. Yet, this process is clearly contemplated by the By-law. The By-law even tells us how this is to occur. Subsection 4.4.1 of the by-law indicates that votes cast by mail or electronic mail, or by fax, shall follow a process where the authenticity of the voter can be verified.
What it Means to be "Present"
I arrive at this conclusion despite the fact that subsection 8.2 of Article 8 of the Constitution refers to quorum for a General Meetings as being "50 Members present at the General Meeting who are in good standing, representing at least two regions, as defined in the by-laws". While this subsection seems to suggest that members need to be present physically, I would argue the opposite. What it means to be "present" is not defined elsewhere. Since the Green Party has developed a voting process through Section 4.4.1 of the by-law which does not require someone to be physically "present" to cast a ballot, I suggest that it would be best to determine who is present by simply counting the votes. By developing a voting process, and through silence on defining what it means to be "present", it seems to me that the framers of our Constitution and by-laws contemplated holding meetings without attendance of those meetings in person.
I would further argue that this is the case, because both our Constitution and by-laws do not provide for processes for opening and closing General Meetings, who chairs these meetings, etc. It seems to me that the only thought the Party has expressed about decision-making at these sorts of General Meetings has been to establish a process for a mail-in, electronic or faxed ballot. This, to me, is in keeping with the notion that the Party has always considered the need to hold some General Meetings in a "virtual" way. As long as the votes tallied meet the quorum requirements of 50 Members in good standing from two regions, the "meeting" and decisions rendered at the meeting through the vote should be considered valid.
Virtual General Meetings
Whatever shortcomings there might be with amending by-laws and our constitution through such a process isn’t really the issue I’m trying to make here. Nor am I commenting on the logistics of holding a "virtual" meeting. My point is that I believe we can amend our by-laws through a virtual meeting process. I am not at all suggesting that we should.
Again, our Party can hold virtual General Meetings. No physical location is required. It might make the consideration of emergency resolutions from the floor a little problematic (well, impossible), but no matter: we can do it. Of course, we could also hold one of these General Meetings in a real location, and follow regular meeting processes. The point is that we do have this innovative option available to us in our Constitution.
What Does This All Mean?
Here’s what this all means to me. Clearly, there is currently a requirement for the election of a Leader to Federal Council in the calendar year 2010. All who wish to become Leader need to follow the same process for nomination; everyone starts out at square one. A mail-in ballot will determine who is elected.
This does not mean that Elizabeth May would cease to be Leader during this time frame; only that she would be standing for election to Federal Council (if she chose to stand) to occupy the position of Leader on Federal Council. By virtue of her having filed as Leader with Elections Canada, she remains Leader, presumably until somebody new is filed.
However you see such an election unfold, it remains clear that currently, as written, our Constitution requires that we hold an election to elect a Leader to Federal Council in 2010.
Now, some have said that this process is problematic politically. But that’s the process we have in place; it’s currently a requirement of our Constitution that this process occur. That being said, if we were to amend our Constitution or By-laws (or both), conceivably there would no longer be such a requirement. To amend, though, and as we have no processes for convening a "Special General Meeting", we need to follow the process for submitting motions for consideration at a General Meeting, and pay attention to timeframes, notice provisions, and opportunities for all Members to bring forward motions. The General Meeting, though, need not occur in a physical location; it can be conducted "virtually", and decisions can be made through a mail-in ballot, or electronic ballot, or by fax.
Conceivably, we can amend our Constitution or By-laws to remove and/or replace the provisions regarding the 4-year requirement for the election of a Leader to Federal Council, as that whole process could potentially take place within approximately 100 days. I’m not going to comment today on whether I think this is a good idea or not, although I have a strong opinion about it which I’m sure I’ll share in the near future.
Can of Worms
Of course, if a General Meeting is called, the By-laws indicate that there needs to be a 30-day opportunity for the Members to bring forward other motions in advance of the 60-day General Meeting notice. At a virtual meeting, there is no chair to rule motions "out of order", and if decisions are to be made through the mail, there will be no opportunity for debate. As long as motions are worded properly and submitted on time, they will need to be provided to the Membership for consideration. That means that things could potentially get quite interesting at a virtual General Meeting. We’d certainly be heading into new and uncharted territory if we tried to hold a meeting virtually!
Comments are welcome and encouraged.
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