Last month marked the 30th anniversary of the patriation of the Canadian constitution and the adoption of the Charter of Rights and Freedoms. What should have been an occasion to reflect upon Canada’s constitution as a whole, a critical organ for our democratic well-being, with few exceptions, devolved into a series of polarizing partisan critiques: Who did and did not sufficiently celebrate the Charter’s birthday? Was the Charter the best or worst thing that has happened to our country? How severely has patriation and the amending formula hamstrung Canada?
No one likes grim news. But the reality is that parts of Canada’s constitution have left our democratic fortitude in critical condition.
In our book, Democratizing the Constitution: Reforming Responsible Government, we examine the dysfunctions that plague our parliamentary system. In particular, we look at the specific powers that enable prime ministers to silence Parliament, inhibiting MPs from ensuring that the government is accountable to the citizens it serves.
We submit that there has been a breakdown in the shared understanding of the unwritten parts of our constitution — the constitutional conventions — and that this breakdown now allows a prime minister to exercise a particular set of sweeping powers known as the reserve powers.
These have always been, and continue to be, the Crown’s prerogative powers that are “legally” left to the discretion of the monarch’s representative, the governor-general. With limited exceptions, prime ministers have exercised full discretion with respect to summoning, proroguing and dissolving the House of Commons. In other words, the prime minister seems to have the unchecked power to decide when the House should be in session, when elections should occur, and even, in some circumstances, when their governments do or do not have the confidence of the House.
Access to these powers confers an enormous political advantage to a sitting prime minister in both majority and minority situations. In the past 100 years, prime ministers have only once encountered resistance from governors-general in their use of these powers.
Our written constitution, which is silent on the relationship between the governor-general and the prime minister, does not offer us help in determining in whose hands these reserve powers truly lie. Absent a consensus among experts, pundits and politicians with respect to the unwritten parts of the constitution, it is impossible for these conventions to serve as a constraint on a prime minister’s power. This in turn makes it impossible for Canadians to be sure what, exactly, their constitution articulates.
Of course, the reserve powers are but one source of a prime minister’s might.
In the House, the prime minister and government have considerable control over day-to-day operations. This allows governments not only to set the agenda, but to carry it out with ease. The prime minister commands the steadfast loyalty of his MPs, largely through a carrot-and-stick approach; co-operative MPs might be rewarded with cabinet posts or coveted committee positions, while rogues can be — and at times are — punished with removal from caucus or even barred from running as a candidate for the party in future elections. All of these are vestiges of prime ministerial power. The party caucus has little leverage with which to counterbalance the prime minister’s power because party leaders are chosen (and replaced) by the party at large, rather than by the caucus. Thus, the government’s MPs have no effective mechanism through which to stand their ground against a very powerful leader or effectively represent his or her constituents.
Rather than becoming more like a system of presidential executive authority, this situation has left Canadian prime ministers in a position more akin to historical monarchs. The evolution of Westminster democracy in Canada is very much a story about the struggle to wrestle power away from the Crown and shift it to Parliament, and specifically the House of Commons, our primary democratic body and check on unfettered prime ministerial power. The ability of prime ministers to retain and use these Crown powers, alongside other powers over MPs and the House of Commons, is resulting in a situation where prime ministers have the power to make decisions, partisan and otherwise, that limit or negate Parliament’s role as a guardian for accountability in our democratic system.
This is not simply about politics or even personalities. Almost all recent prime ministers have used these powers to try to advance their partisan interests. What it is about is the erosion of our democratic institutions and the effect on democratic governance.
Politicians and parties are not the only ones who bear responsibility for this. The situation is also the result of a lack of attention from academic experts, the media, pundits and a general lack of understanding of citizens as to how our democratic system is supposed to work.
These are real challenges, with real consequences: Less transparency, less debate, less effective scrutiny of public policy and less accountability. But workable solutions do exist.
The most effective means for addressing these challenges would be formal, written constitutional amendments, such as those that we describe in Democratizing the Constitution. Less formal measures, such as cabinet manuals, do not have the same capacity to act as effective constraints on prime ministers.
Of course, there is little appetite for constitutional change. There is a palpable fear, expressed by politicians, voters, scholars and journalists alike, of opening the Pandora’s Box that is the constitution.
Understandably, no one wants to relive the political instability and national discord that characterized the Meech Lake and Charlottetown accords, Canada’s two most infamous efforts at constitutional change. But this collective fear of entering into constitutional negotiations has become a major impediment to positive and necessary democratic reform. This renders us incapable of fixing real problems. It also reflects our immaturity as a country.
Despite this collective fear of “opening the Constitution,” the status quo has become an untenable proposition. It is time that we overcome this paralytic fear. Constitutional reforms should never be so easy that they become routine, but nor should they be an impossibility. The bar set by the amending formula could be reached with political will in Parliament and at the ballot box.
The main reforms described in our book seek to address the problems posed by the breakdown of the constitutional conventions relating to how Parliament works. We propose some firm, clear rules that constrain prime ministers’ power over the practices governing confidence and the summoning, prorogation and dissolution of Parliament.
We also advance some modest proposals that would reduce the ability of prime ministers and their governments to dominate parliamentary and political party structures and procedures, such as reinstating the ability of caucus to remove a leader and chose an interim replacement and to reduce the size of cabinet.
These measures are designed to restore Parliament as an effective check on prime ministerial power, ensure an effective House of Commons and limit the potential to use these powers for partisan interests.
Ultimately, these reforms are about ensuring responsible and effective government for all Canadians.
Original Article
Source: national post
Author: Mark D. Jarvis & Lori Turnbull
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