December 5

Canada: a poltical, and not a constitutional crisis

Canada's Governor General, Madame Michaelle Jean, has cut short a trip to Europe to deal with a growing political crisis under the reserve powers of the Canadian Crown. The Crown provides leadership above politics; these powers are exercised without any consideration of political advantage, which would occur if the head of state were a politician or under the control of the politicians.

As in Australia the reserve powers are unwritten, and in contrast with those in other constitutional systems, work extraordinarily well.  

 

 

The crisis arose because the two months old minority conservative government of Prime Minister Stephen Harper appears to have lost the confidence of the House of Commons. The opposition parties have formed a coalition and are determined  to bring down the government.

Mr Harper has indicated he will ask for a temporary suspension of parliament to stop the opposition voting him out.

To do this, Parliament will need to be prorogued by an Order- in- Council that is the Queen's Privy Council for Canada, Le Conseil Privé de la Reine pour le Canada.

 This would involve the Prime Minister advising the Governor- General to assent to a draft Order-in-Council.

Normally the Governor-General would so assent, provided she was satisfied that the action proposed was within her power and that any conditions on the exercise of that power had been fulfilled.

Given the circumstances which bring into play the reserve powers, Her Excellency would be properly  entitled to reject that advice, or indicate that the period requested was too long.

In that event the Prime Minister could resign, or wait until he actually loses a vote of confidence on the floor of the House of Commons. If he did not then resign, the Governor General would no doubt withdraw his commission.

 

The Prime Minister could ask for a new election, which the Governor General could, but would be unlikely to grant. It has been suggested that the Prime Minister might seek to neutralise the opposition by recommending the appointment of some opposition members to the Senate.

The Governor General could quite properly reject this advice.

It has even been suggested that one option for the Prime Minister would be to advise The Queen to replace the Governor General with someone who would do his bidding.

This is not a serious option. There is no guarantee that The Queen would accept this advice, or accept it in sufficient time for the Prime Minister to take advantage of this ( see The Cane Toad Republic,1999, pp 141-149.) 

In deciding to call the Leader of the Opposition, Her Excellency would be aware that the opposition Liberals and New Democrats agreed to form an alliance on Monday, 1 December. This is backed by the Bloc Quebecois, and the Governor-General would be entitled to seek an assurance as to this.

In Australia in 1941, when two independents brought down the Menzies government, the Governor-General Lord Gowrie sought assurances from the independents that, if he called the Labor Leader John Curtin to form a government, they would support him.


….compare our system with that most venerable republic, the USA…

   

We should contrast the Westminster system with the only other system which is of equal vintage.

One of the great disadvantages of the American constitution is that it places the government in the hands of one person. Barring a criminal conviction by the Senate on an impeachment by the House of Representatives for “treason, bribery, or other high crimes and misdemeanours,"  a President and therefore  the government cannot be removed.

Under the Westminster system a government which loses the confidence of the lower house must by convention resign. (Governments may also be dismissed for illegal or unconstitutional conduct, as determined by the constitutional head of state, the sovereign or the viceroy)

This provides greater flexibility and more considerable checks and balances on government. Central to this is the Crown, our oldest institution, and one which indubitably provides leadership beyond politics..

The crisis in Canada is political, and thanks to the Westminster system,not constitutional.


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