In Part I of this series, I expressed my own understanding about how parliament works with regards to the ability of parties to work with another and establish a government in circumstances where two or more parties, who don’t have the most seats, combine their efforts in government.
That’s currently the situation on the ground in Israel today, where Kadima won the most seats in an election, but where a coalition of smaller parties have formed government, centred around Prime Minister Benjamin Netanyahu’s Likud Party, and propped up by former Israeli Prime Minister Ehud Barak’s Independence Party.
As far as I know, Stephen Harper has never suggested that the government of Israel is “illegitimate”. And that’s telling.
Now, I’m going to be wading into Constitutional waters for a little bit. I need to point out that I do not pretend to be an expert on Canada’s Constitution, or matters constitutional. These observations are my own, and while I’ve put some good thought into them, I simply don’t possess the academic skills to have more than a cursory discussion of these issues. Not that it’s going to stop me from sharing these ideas, mind you. I enjoy kicking a political football around as much as anyone.
The Scenario: No Prorogation
So, back in December 2008, the Opposition Parties have just defeated the Conservative minority government by voting non-confidence. Harper is forced to go to Governor General Michaelle Jean and…
And this is where things get interesting. What would have been Harper’s options in this situation? Clearly, he could have advised the GG, as Frank Miller did, that he had lost the confidence of the House and that the Opposition has indicated that they could form a stable government, and that the GG should turn to the Opposition now. After all, there had just been an election, so there needn’t be another one. Had Harper, in this scenario, offered this advice to the GG, the GG could have accepted it and turned to Stephane Dion and asked him to form a government. She also could have refused Harper’s advice, through the use of the GG’s Reserve Powers, and dissolved parliament, bringing about another election. Although it’s almost certain that she would not have done so. Certainly the LG in Ontario didn’t use those powers when Miller advised that the Opposition was a government-in-waiting.
But would Stephen Harper have ever offered the GG that advice? Harper was already on record saying that Stephane Dion’s attempt to seize power was illegitimate (“he does not have the right”); that’s similar to what Harper has been saying on the hustings during this campaign about a coalition government of losing political parties. Clearly, his position on this matter has been consistent (at least since becoming Prime Minister; his prior track record on this issue is as clear as mud).
After having said publicly that Dion doesn’t have the right to form a government, and after the Conservative’s hyper-partisan media campaign to convince people that the Opposition was trying to seize power from a legitimately elected government, it’s inconceivable to me at least that Harper would have advised the GG to invite Stephane Dion to become Canada’s next Prime Minister at the head of a Liberal-NDP coalition government.
Instead, he could have advised the GG that parliament be dissolved and an election be held.
This is where things would have got really interesting. Clearly, in this circumstance, the GG would have had the authority to exercise Reserve powers, and make up her own mind regarding a course of action that is in the interests of Canada. In this scenario, she could have decided to ignore the advice of the Prime Minister and turn to Stephane Dion anyway. We’d just been through an election, after all. What might another election have accomplished?
What does it mean, however, for the GG to use “Reserve” powers? I seem to recall at the time of the so-called Constitutional Crisis, that the Conservative Party had trotted out a number of constitutional experts which offered the opinion that, over time, the GG’s use of Reserve powers has become restricted, since that whole King-Byng affair took place back in the 1920s.
When you look into this matter of the use of Reserve powers, what you’ll find is that invariably, the GG just doesn’t use them. The notion here is that the Crown is going to interfere in the affairs of the State as little as possible. What the Prime Minister wants, essentially, is what the Prime Minister gets.
Regarding the use of Reserve powers, constitutional experts use phrases like “only in the most exceptional of circumstances” and “only when the advice or actions of the Prime Minister undermine the very foundations of the political system.” And I’m not at all certain that a Prime Minister, having just lost the confidence of the House, and requesting the dissolution of parliament and calling for an election, would be one of those circumstances which undermine our political system. I’m not sure that a strong case could ever be made that asking the people of Canada to vote in an election is, in any way, shape or form, an action which undermines our democratic institutions.
As I wrote earlier, Conservative cabinet Minister John Baird was already on record with his nebulous idea of returning to the Canadian people if the Conservatives didn’t get the permission from the GG that they wanted in order to prorogue parliament. Some have suggested that this might have been a reference to appealing to the Queen, or simply part of a larger media campaign to mislead Canadians. But what if Baird was telling the truth? That the plan was to face a vote of confidence, lose it, and have Harper advise the GG that an election should be held, going straight to the Canadian people?
Do you recall the toxic atmosphere which existed in late November / early December 2008? The rhetoric had been upped a notch, that’s for sure. The Conservatives were starting to use terms like “coup d’etat” to describe the Opposition’s attempt to form a coalition government. The term “coup” is not one to be thrown lightly around in political circles. Many Canadians, however, scoffed at the notion that the Opposition was engaged in a coup. Conservative supporters, however, clearly begged to differ.
From the point of view of Stephen Harper and the Conservative Party, Dion had “no right” to form government after “losing” the election, and that the attempt by the Opposition to form a coalition government was an illegitimate attempt to seize power by an extra-constitutional means. From a Conservative viewpoint, one that Harper would have expressed to the GG at the time had he found himself in the scenario I’ve here created for him, a strong case could be made that Harper’s call for an election would have been much more in keeping with Canada’s democratic values than what the Opposition was trying to do. Hence, there would have been no need for the GG to use Reserve powers.
What Actually Happened
Of course, the above-scenario never had the chance to play itself out, because the GG granted Harper’s request to prorogue parliament. Many expressed their outrage that the GG would allow parliament to be prorogued, in order for the government to avoid a confidence vote. Indeed, back in the 1920s, when Prime Minister MacKenzie King visited the Governor General, Lord Byng, on the eve of a confidence vote, and requested a dissolution of parliament, Byng used the GG’s Reserve powers and denied the request.
But, as I’ve indicated earlier, the King-Byng affair can be viewed as an anomaly in the context of the history of the relationship between the Crown and State in the Westminister system. Did you know that, in Canada (and in Britain), no request to a Crown head of state to prorogue a parliament has ever been denied, at least not since the passage of the 1867 Great Reform Bill. I have to admit, I didn’t actually know that until recently. And it certainly put into clearer context the decision of Governor General Michaelle Jean to prorogue parliament back in 2008.
It appears that a strong case can be made that the Governor General’s use of Reserve powers to act against the advice of a Prime Minister is not something which can be undertaken lightly, and indeed, should only occur in extreme circumstances where the very foundations of our democratic principles and institutions are at risk. In that context, the request to prorogue parliament for a period of time amounting to a few months was determined not to constitute such a risk, even if it meant that Harper’s government would avoid a motion of confidence for a while.
And that’s just it: the prorogation of parliament wasn’t actually the tool used to avoid a vote of confidence; at the time the GG granted the request, it simply was going to delay the vote until parliament’s return in the new year. What scuttled the vote of confidence in the House was the fall of Liberal Leader Stephane Dion, and the rise of his replacement, Michael Ignatieff. It was Ignatieff’s decision to withdraw from the coalition. Remember his, “A coalition if necessary, but not necessarily a coalition.” (and with straight-talk like that, is it any wonder that Ignatieff’s Liberals have fallen so hard in the polls recently?).
In Part III of this series, I’ll explore the possible future scenario of a Conservative Minority government resulting from this election, and how all of the above might play itself out.
(Opinions expressed in this blogpost are my own, and should not be considered consitent with the views of the Green Party of Canada)
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