Sunday, August 24, 2008

Tories Confused By Their Own Election Law

There seems to be some confusion in Tory circles about the intent of the fixed election date law. The main bone of contention is what happens in the case of a minority Parliament? Tories are saying that Harper is not breaking the law because this is a minority Parliament and the law was only meant to stop "majority" prime ministers from pulling the plug and calling an early election. That is a wonderful and imaginative theory, but that is not what the government's own House Leader and Minister of Democratic Reform (Rob Nicholson) said during the debate on the bill:
I believe all parties share the view that elections belong fundamentally to citizens. They belong to the people. All parties agree with the principle that the timing of elections should not be left to the Prime Minister, but should be set in advance so all Canadians know when the next election will occur.

I will begin with the description of the current process for calling general elections and I will discuss some of the difficulties associated with it. This will be followed by a discussion of the many advantages associated with fixed date elections. Finally, I will be very pleased to present the specifics of Bill C-16.

Currently, it is the prerogative of the Prime Minister, whose government has not lost the confidence of the House of Commons, to determine what he or she regards as a propitious time for an election to renew the government's mandate. The Prime Minister then requests dissolution of the House from the Queen's representative and if the Governor General agrees, he or she proclaims the date of the election.

What we have is a situation where the Prime Minister is able to choose the date of the general election, not based necessarily on what is in the best interests of the country, but what is in the best interests of his or her political party. Bill C-16 would address this problem and would produce a number of other benefits.
That sounds familiar. Has the PM lost the confidence of the House? Nope. That is one point, but there are more.
First, let me discuss the question of fairness.

Fixed date elections would help level the playing field for those seeking election in a general election. With fixed date elections, the timing of the elections would be known to everyone. Since the date of the next election would be known to all political parties, each party would have an equal opportunity to make preparations for the upcoming general election. Instead of the governing party having the advantage of determining when the next election would take place, an advantage it may have over the other parties for several months, all parties would be on an equal footing. It is only fair that each party would have equal time to prepare for the next election and to know when it would be.

Another key advantage of fixed date elections is transparency. Rather than decisions about election dates being made behind closed doors, general election dates would be set in advance, as prescribed by this bill. Once the bill is passed, the date of election will be known by all Canadians.
Does anyone but the PM know when the next election will be held now? Nope. His bill was supposed to fix that too. But wait there's more.

The Tories seem to be hanging their hat on the fact that the bill does say that the law will in no way stop the Governor General from dissolving the House. That is quite true and the truth is, the law had to say that in order for it to be constitutional. However, well let's just have Rob Nicholson explain the original intent of the bill in this area:
I would like to return to the details of the bill. Legislation providing for fixed date elections must be structured to meet certain constitutional realities of responsible government. They include the requirement that the government have the confidence of the House of Commons and respecting the Governor General's constitutional power to dissolve Parliament. The bill before us was drafted carefully to ensure that these constitutional requirements continued to be respected.

The bill does not in any way change the requirement that the government must maintain the confidence of the House. Moreover, all the conventions regarding loss of confidence remain intact.

In particular, the Prime Minister's prerogative to advise the Governor General on the dissolution of Parliament is retained to allow him or her to advise dissolution in the event of a loss of confidence. The bill states explicitly that the powers of the Governor General remain unchanged, including the power to dissolve Parliament at the Governor General's discretion. (emphasis mine)
The intent was to limit the PM's ability to ask the GG for dissolution to only those times when the governing party has lost the confidence of the House. Nicholson is quite clear in the matter and so this law should apply until the Conservatives lose a vote of confidence. To try to weasel out of their obligations under the law because the law itself does not say that a PM can go the GG at any time is, well, weaselly.

Don't get me wrong. I want an election and I want it now. However, I also believe (unlike this government apparently) that the government should follow the law. Harper should bring the House back and put his government to the confidence test. It is what the law has meant for him to do. To do otherwise makes that law (and by extension all laws) merely a suggestion, to be followed or ignored on the whim of the government of the day. Tories may cheer Harper's "boldness" now, but I suspect if they let him get away with this, they may live to regret the actions of some future PM, with whom they do not share an ideological kinship.
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  1. If Harper does call an election without losing a vote of non-confidence, what is the likelihood that the GG would refuse the election call if she deems that he's violated his fixed-date elections law?

    Of course, if she were to do that, Harper would probably call the GG an outdated liberal institution and call for its abolition...

  2. I don't think the chances are very good that the GG would stop him. The Monarchy has lost its taste for constitutional crises.