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Democratizing the Constitution: Reforming Responsible Government.

Democratizing the Constitution: Reforming Responsible Government

By PETER AUCOIN, MARK D. JARVIS and LORI TURNBULL. Toronto: Emond Montgomery Publications, 2011. Pp. 250, index.

It is the nature of Canadian constitutional law and politics to embrace ambivalence, thrive on contradiction and muddle through. This was put to the test during the tumultuous minority parliaments from 2003 to 2011. It is now an ideal time to reflect on how our traditions have withstood the test and how they have been shown inadequate to modern realities (and values). Democratizing the Constitution offers such a sober and thoughtful assessment--all the more poignant because it constitutes Peter Aucoin's final contribution to a career spent enriching our understanding of Canada's distinct political institutions. (1)

The fibre that has held together much of Canadian democracy is trust. While governments could abuse and manipulate the neutrality of the public service, for example, by and large they do not. One reason is that it may cause career-ending scandals (witness the sponsorship affair); another is that the potential short-term gain would give rise to long-term damage to a fundamental institution of the political system (the neutrality of the public service is vital to public confidence in the government as a whole). Similarly, the government could use its appointment power to place openly partisan supporters on the bench, but the damage to the judiciary's credibility would far outweigh a sympathetic ear in a Charter challenge. One might have said the same thing about a minority government's use of the office of the governor general to outflank opposition attempts to hold a vote of non-confidence. While it may have succeeded in staving off a government's fall for a short period, the perception of the governor general's participation in the obstruction of democratic accountability would do lasting damage. Such a scenario unfolded with the prorogation crisis of December 2008. The government survived, arguably strengthened by the collapse of the short-lived opposition coalition, and any sense of a line in the sand evaporated. While the debate on the part played by the governor general continues, the view that trust is a sufficient bulwark against abuse has evaporated as well.

If not trust, then what? Some would like to see a more robust role for the courts. While the courts will weigh in to clarify conventions that engage the Charter of Rights or core principles of Canadian federalism, courts have eschewed intervening in questions of parliamentary convention and prerogative powers themselves, as demonstrated by the court's declining even to consider whether the government violated its own fixed-election legislation by calling the election of October 2008 over one year prior to the date of 19 October 2009 set by that Act. The Federal Court indicated it had no jurisdiction over "advice" given to the governor general by the prime minister. (2)

In Democratizing the Constitution, Aucoin, Jarvis and Turnbull suggest turning not to the courts bur back to Parliament itself. They argue for enhancing parliamentary power to constrain the discretion of the prime minister to "abuse the constitutional powers to summon, prorogue and dissolve the House of Commons to advance the partisan interests of the governing party." (p. 3) They further argue that the prime minister should be constrained in how the rules and procedures of the House of Commons may be manipulated for the same ends (for example, the prorogation of 2008 was made possible by delaying an "opposition day" in the House of Commons in December 2008 which would have permitted the vote of non-confidence that the government wished to avoid).

One strength of the book is that it is non-partisan. This may be read by opponents of the current prime minister as grist for their mill, but the flaws in our constitutional and parliamentary systems are discussed in relation to "abuses" by politicians of various partisan stripes. Even before the 2008 crisis, for example, Jean Chretien's us of prorogation in 2003 to forestall the tabling of the auditor general's report on the sponsorship scandal until his successor took office is emblematic of the mischief at which this call for reform is directed.

Another strength of the book is its view of Canada as part of a broader Westminster culture. What appears to be the conventional practice in Canada may be more properly cast as inconsistent with the values underlying the Westminster parliamentary framework. The authors' attention to how responsible government functions in Australia, New Zealand and the United Kingdom also buttresses their argument that reform is necessary. Whereas some ambiguity is inherent in this parliamentary tradition, the authors assert that Canada's murky approach to unwritten conventions creates a state of limbo which facilitates partisan excesses (or at least provides insufficient safeguards against abusing those conventions when it matters most).

One of the most eye-opening consequences to the prorogation crisis of 2008 was the criticism by the Conservative party that a vote of non-confidence, followed by the governor general's asking a coalition of other parties to form a government, amounted to a kind of parliamentary "coup d'etat." (3) The authors address this issue directly and make a compelling case that the so-called distinction between the "democrats" and "parliamentarians" is false. (4) Parliamentarians are democrats. Here again, the authors highlight the damaging consequences of a "crumbled consensus" and lack of clear rules.

As Gary Levy observed in his review of Democratizing the Constitution, in the early days of our last federal election, statements by Prime Minister Harper and Opposition Leader Michael Ignatieff added to the confusion about this constitutional convention:

In fact no one is "called upon" to form a government after an election. The government that was in office remains in office. Only when a government resigns or is defeated in the House does the issue arise. Government formation has rarely been an issue in Canada bur it is so fundamental that failure to clarify this convention weakens our country and exposes it to potential collapse one day (Levy 2011 [Review of Democratizing the Constitution in Canadian Parliamentary Review (December). Available from http://www.revparl.ca/english/issue.asp? param=205&art=1449]).

The heart of the book is not a chronicle of what is wrong with our constitutional and parliamentary tradition; rather, it is a call to action to make it right. The proposals advanced by the authors include:

1. a deadline requiring the House of Commons to be summoned within 30 days after a general election;

2. fixed election dates every four years which could be altered by the prime minister only if a two-thirds majority of MPs approves a motion to dissolve;

3. a "constructive non confidence" procedure whereby the opposition can only bring down a government via an explicit motion of non-confidence that would also identify who would become the new prime minister; and

4. the consent of a two-thirds majority of the House of Commons in order to prorogue Parliament.

These reforms are intended to clarify existing conventions and impose a democratic procedure to authorize specific instances of discretion by the prime minister who might be open to partisan abuse. One would be hard-pressed to claim they are radical and, indeed, recent reforms in the U.K. mirror such ideas. (5) Other reforms suggested by the authors speak to blunting the partisan edge to the conduct of the business of the House of Commons. These include:

--adopting legislation limiting the size of cabinet ministries to a maximum of 25 plus 8 parliamentary secretaries;

--using secret preferential ballots by committee members to select committee chairs for the duration of a parliament;

--adopting a schedule of opposition days in the House that cannot be altered unilaterally by the government;

--reducing by 50 per cent the partisan political staff complement on Parliament Hill.

--restoring the power of party caucuses to dismiss party leaders including a sitting prime minister and to appoint a new interim leader;

--removing the party leader's power to approve or reject party candidates for election in each riding;

--introducing measures to enhance decorum and allow for more thoughtful questions and answers in question period;

--enhancing open government initiatives to make government information more accessible;

--decreasing the politicization of the public service, including the prime minister's power to appoint the senior public service (e.g., deputy ministers); and

--enhancing the democratic legitimacy of Canada's parliamentary system through some form of proportional representation.

While this may seem a daunting list, it leaves out issues such as Senate reform (alluded to in just two pages) (pp. 50-51) and the model for an enhanced role for the senior public service explored in the Gomery Report, (6) which barely receives a mention.

The crux of these proposals is that they cannot be achieved by a single party or government. They require constitutional amendment and broad-based support. Ironically, if we have a foundation to move forward together on such reforms, they may not be so crucial to the well-being of our constitutional democracy; but because they are so needed, they may prove elusive. Therefore, while the book is a clarion pitch for a coherent and comprehensive approach, its greatest utility may be in providing some basis for incremental change. Good examples are the establishment of the Chief Electoral Officer in 1920 as a non-partisan regulator of the elections process and the Electoral Boundary Commission as a non-partisan decision-making process, which together have allowed Canada to avoid the gerrymandering which corrodes American democracy. Reform to introduce constraints on the power of the prime minister, in other words, is possible where it is clearly in the long-term interests of all political parties. If even a few of the reforms suggested by the authors could be approved with all-party support, they might create precisely the foundation of shared principles and momentum for animating a broader constitutional discussion.

Until then, ambiguity and ambivalence will continue to characterize the constitutional foundation of Canadian democracy. The authors are right when they decry, "The failure of Canada's political parties to advance a concrete, comprehensive reform agenda is nothing less than astonishing." They are also right when they caution that not every reform is progressive. Reforms that have no clear objective or are left to the whim of the prime minister without any dear mechanism for enforcement through the House of Commons, or that are designed both for majority and minority parliaments may in fact do more harm than good. Democratizing the Constitution serves not only as an excellent roadmap for progressive reform, but also as a long overdue reinvigoration of a national debate on the future of Canadian democracy.

Notes

(1) Peter Aucoin died on 7 July 2011, shortly after the publication of this book. Aucoin spent his academic career at Dalhousie University, was a fellow of the Royal Society, a member of the Order of Canada, an invaluable mentor to generations of political scientists and a leading voice on Canadian public administration.

(2) Conacher v. Canada (Prime Minister), [2009] F.C. 920.

(3) See Michael Valpy. 2009. "The crisis: A narrative." In Parliament in Crisis, by P. Russell and L. Sossin. Toronto: University of Toronto Press; see also Democratizing the Constitution, p. 175. While the phrase was uttered by Conservative MP Darryl Kramp, it was repeated often by a variety of Conservative government members and their supporters.

(4) This distinction was forwarded by Andrew Potter in "Unbalanced thoughts," published in Literary Review of Canada (July/August 2009), and critiqued by the authors at p. 177.

(5) For a discussion of the implications of the U.K. reforms, see Peter Russell and Cheryl Milne. 2011. Adjusting to a New Era of Parliamentary Government: Report of a Workshop on Constitutional Conventions. Toronto: David Asper Centre for Constitutional Rights.

(6) See C.E.S. Franks. 2006. "From Gomery to the Accountability Act: The devil is in the details." Policy Options pp. 45-52. Available from http://www.irpp.org/po/archive/jun06/ franks.pdf.

Lorne Sossin is Dean and Professor, Osgoode Hall Law School, York University.
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Author:Sossin, Lorne
Publication:Canadian Public Administration
Article Type:Book review
Date:Jun 1, 2012
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