Tuesday, 12 January 2010

And Now, Some Constitutional Pedantry...

The action is really over at Catelli's, where I am set to be engaged in a genteel constitutional mud-wrestling match with the author of MaderBlog over the question of how best to reform the way our executive head of state discharges his or her duties. I shall, of course, get my ass kicked.

I thought I should post my own contribution to this debate here as well, for those of you who wish to respond to the substance of my perspective without reference to the fray soon to be kicked up over at Catelli's.

So pour yourselves some of the last of your soon-to-be-expired eggnog, and read all about what this despairing Tory hopes for and knows will never come to pass.


Canadians may legitimately ask themselves whether their nation any longer has a head of state. The titular and ceremonial incarnations of what is, theoretically, the supreme Canadian law-giver have receded so far into practical desuetude as to be, arguably, totally dispensable. Meanwhile, politically conscious Canadians have for decades denounced arrogant, unresponsive governments pursuing agendas utterly unrelated to issues that actually matter to their lives. Many of those who don’t complain simply opt not to vote at all, as Canada’s voter-turnout percentages continue to drop ever closer to American levels.

It is tempting to see a causative relationship between widespread voter apathy and a sovereign reduced to impotence. Government leaders are always primarily party leaders and are thus necessarily committed to the pursuit of whatever policy priorities the endorsement of which secured them, first, the party leadership and, later, election to the federal premiership through the support of relatively small percentages of the popular vote. The federal executive must necessarily be, then, a “partial” creature in two senses of the word—firstly, as the subset of a particular party pledged to a definite set of ideological perspectives; secondly, as the de facto delegates bound to the explicitly expressed wishes of a usually quite small percentage of the nation’s electors.

Given the need to fit through those bottlenecks, the prime minister cannot help but govern in such as a way as to routinely alienate large masses of the population and cannot help but be tempted to twist Parliamentary norms “undemocratically”—that is, according to the priorities of the few to whom he owes his position of party leadership (committed party members) and of national leadership (the small number of electors who voted for his party). It is this set of political necessities--driven by the inalterable partialities inherent in our electoral system--that motivates most of the kinds of Parliamentary abuses that have turned politics into a locus of such profound popular disgust.

To be sure, this partiality is both legitimate in and necessary for the working of a party-based democracy. In order to maintain the integrity of the system within which the parties contend, however, the system must have as its fundamental centre of gravity an agent both internal and external to it—something as inside as it is outside—that ensures the perpetuation of a constitutional totality that is invulnerable to the political manipulation of self-interested partisans.

What we’ve described is, essentially, the constitutional function of the office of the Governor General: it is the keeper of Canada’s constitutional totality. The Governor General’s awesome powers are always deployed, of course, on behalf of the reigning monarch. It is the monarch who is literally the keeper of the totality; the Governor General’s keepership is synecdochal. Our Constitution Act puts it unequivocally: “the executive government of and over Canada is declared to continue and be vested in the Queen”. Thus, the sovereign is declared to be both inside and outside the system—both the principle by which government actually operates and the legitimating principle of government as such. By virtue of embodying those principles, the Crown (usually through its synecdochal representative) enjoys wide powers designed to prevent that partisan distortion of Parliamentary procedure to which we’ve already alluded. The import of the Crown’s Royal Prerogative (or reserve powers) is ably explained by the great scholar Eugene Forsey:

…in Canada, the head of state can, in exceptional circumstances, protect Parliament and the people against a Prime Minister and Ministers who may forget that “minister” means “servant,” and may try to make themselves masters. For example, the head of state could refuse to let a Cabinet dissolve a newly elected House of Commons before it could even meet, or could refuse to let Ministers bludgeon the people into submission by a continuous series of general elections. The American head of state cannot restrain the American head of government, because they are the same person.
Over the last century, the reserve powers have melted like ice castles in May and have recently become stagnant swamps from which Canada’s parliamentary life is forced to draw its water. No longer do Governors General feel able to discharge their constitutional obligations in order to halt clear parliamentary abuses such as Tupper’s or King’s. Now, we watch the Harpers of the nation flout constitutional convention whenever politically convenient (though Harper is hardly the worst offender of the last twenty years) and learn of the Royal Prerogative being covertly abused by Ministers of the Crown in ways later found by competent authorities to have been, not just unethical, but objectively illegal.

To the extent that the Canadian prime minister has appropriated or can depend on the senescence of many of the Governor General’s powers, our constitutional totality has been grossly deformed: we now have a virtually unchecked executive, or at least one that can safely ignore the most fundamental species of check our constitution provides. Supremely confident that no Governor General shall or can ever refuse their ministerial advice, no matter how constitutionally offensive, government parties have tailored our national totality to fit their own partisan needs. They’ve crammed the whole into the particular, something abhorrent to nature and fatal to democracy.

Faced with this dilemma, many Canadians (perhaps most) understandably pine for an elected head of state, someone with both the democratic legitimacy and concomitant power to stand before prime ministers and frustrate their pursuit of constitutionally illegitimate aims. There is an easier and more effective solution, however. We merely need to initiate such changes in our governmental culture and practice that shall allow our Governors General to actually do their jobs. We need to re-establish and restore the office—not change it.

What’s urgently required is a curious institutional hybrid: we need Governors General who feel constrained by the established conventions of our constitution but who also feel fully able to impose those norms on prime ministers who wish to flout them. The Governor General needs to be a harnessed horse, pulling the carriage of state: to move, the state requires its Governors General to move—they must use the power vested within them. This power shall always require the harness, though, if it is to perform its office. We need heads of state able and willing to act independently, even against the advice of their governments, and in ways conformable to a strict (I shall not say “literal”) interpretation of constitutional conventions. The reform we require is one that gives back to the office of the Governor General the right to use its harnessed power; if we jettison the harness or the horse, we cannot move at all—hence our current Parliamentary inertia.

Of all possible reforms to the nature of Canada’s head-of-stateship, the above are the most immediately feasible and the most comfortably conformable to the way our constitution actually operates. Most pressingly, we need to restore the Governor General’s constitutional independence--that is, his or her willingness to assess ministerial advice on its own merits, according to the silent yet authoritative testimony of our constitutional heritage, whilst withstanding the bullying blandishments of executive partisans who never blush when bludgeoning Crown servants with the allegedly unanswerable moral force of their election. This requires that candidates to the office be two things. It requires, first, that they be explicitly non-partisan--which implies, further, that they be appointees.

Clearly, we can neither expect nor ask our Governors General—vice-regal, yet all too human, after all—to arbitrate vexed Parliamentary questions dispassionately, objectively and with regard to nothing but the relevant norms if they have deep and abiding commitments to particular political parties and to the ideologies they espouse. The exceptional candidates may so arbitrate—not the mass of them. If nothing else, the appearance of objectivity (like that of justice) is as important as the reality. Think on the matter deeply, for a minute. It is the Governor General who (nominally) appoints the Canadian prime minister. This act might seem utterly pro forma given the nature of our current Parliamentary and electoral systems, but it might soon become a delicate operation indeed—especially if Canada ever adopts some form of proportional representation, multiplying and diversifying the violence of Parliamentary contention. Appointing as prime minister the party leader with the greatest number of seats is a convention, not a law. Sometime in the relatively near future, a House may find itself so composed as to allow any number of parties a just claim to determine the prime ministership (e.g. a party may argue that the popular vote is more important than the number of seats, or vice versa). Inter-party negotiations might prove unproductive or degenerate into sordid intriguing. In such a case, we would need an unpartisan and independent head of state to make ultimate decisions based on the letter and spirit of the constitution rather than on his or her (even the appearance of his or her) partisan affiliation. Obviously, rulings on the legitimacy and effect of no-confidence and censure votes also require the appearance of non-partisanship. Thus, we require heads of state with no record of membership in or public advocacy for any of our political parties; ideally, we would restrict incumbency to constitutional scholars, with whom Canada is abundantly blessed.

Moreover, the requirement that Governors General be non-partisan implies that they must also be appointed. Opening up the office to election would have many consequences, the most significant and easily predictable of which would be that the office would drop into the gift of our established federal parties. Elections are extremely expensive, and running national campaigns requires a relatively sophisticated network of fundraising, advertising, and logistical technologies. Very few independent candidates (and none who lack the “star power” carried by celebrities or major sports figures) would be able to compete. Inexorably, the Governor Generalship would become merely yet another high office (in this case, one of the highest) monopolized by the party machines now so loathed by the Canadian public. The institutional “legitimacy” many believe elections would confer upon the office would be snuffed out by the moral illegitimacy of the competitors.

The task before us is to ensure the scholarly, non-partisan credentials of candidates to the office: this is key to its restoration. We could proceed any number of ways, but the crucial thing is to develop a set of selection criteria—as skill-set, if you will—and enshrine it by statute, binding prime ministers in the choice they deliver to the Queen for her (pro forma) approval. As mentioned, one criterion should be a biography free of overt partisanship. Another should be demonstrable scholarly knowledge of Canadian constitutional law—its history and practice. We may require others; the two mentioned are indispensable. Naturally, the House cannot bind the Crown to accept candidates satisfying those criteria: the Crown cannot be bound by statute. Fortunately, however, the prime minister can be so bound: the monarch appoints the Governor General based on the prime minister’s recommendation; the House has every right to set statutory restrictions on the kinds of recommendations prime ministers can offer.

Then, once the House formulates the statute codifying the selection criteria, it can empanel a House committee of selection tasked with finding and nominating candidates (perhaps five) who fit the criteria, from whom the prime minister shall choose one (thus leaving him some discretionary scope) and recommend his or her appointment to the Queen. Something like the process described could be used each time a new Governor General is required. It could begin its work immediately, in fact, without causing very much turbulence at all to the current system.

Those constitutional reforms are best which bring the letter of the document being reformed closer to the spirit in which it was written. The best reforms among the best are those which bring constitutional practices closer to the letter and spirit from which they sprung. The reforms proposed above are moderate--as befits the personality of the constitution they perfect—but cannot but have a moderating effect on the irresponsible executive of whose excesses Canadians have grown desperately weary. They are free, at least, of a basic and fatal paradox that would attend any attempt to make the Governor Generalship open to the franchise. If it be true that the legitimacy of elected Governors General would rest solely in the fact of their election, then those we elect would have more legitimacy than the Queen (or King)—the actual head of state they represent. This would have the grotesquely amusing but disorienting effect of totally de-legitimising the sovereign under whom they serve and upon whose person rests the very constitutional framework they are duty-bound to maintain. Thus, the act of turning the Governor Generalship into an elected office would necessarily imply the ethical (and, I think, require the actual) disestablishment of the Canadian monarchy. This is not an impossible task, of course, but it would have to happen through the démarche of a series of dizzyingly Byzantine constitutional mechanisms. This is something I think even republican Canadians, in their heart of hearts, would sell their very souls to avoid.


Peter Burnet said...

A fine piece of work, SF.

I do, however, have a few quibbles with your statutory restrictions, specifically the combination of non-partisanship and constitutional expertise. In the first place, if qualifications are grounded in law, it means their exercise can be legally challenged, surely an unsavoury prospect. If Parliament has bound itself, it has bound itself, and it can't automatically assume its five candidates all qualify simply because there is a purported consensus. One of the best arguments against PR or unfettered MP's, etc. is that we do not have a strong tradition of national bi-partisan consensus on "higher" matters, and it seems to me you are betting we could develop one pretty quickly.

Secondly, why a non-partisan past and who would decide what that means? Do you mean to bar just former M.P.s or would you include electoral losers and past presidents of party youth wings? What about respected candidates from provincial politics? Yes, I understand you want to cut out hacks and yes-men, but what about elder statesmen like Stanley Knowles? Schreyer? At one point, Loughheed was mooted, and he might have been very good. It's perhaps a sad comment on the age that we have just come to assume all politicians are pigs at the trough. I think there has to be some room for the notion of noble service and sacrifice in politics in any system based on heredity/appointment.

With all due respect to your profession, there is no reason to favour academic constitutional expertise, and a few to be wary of it. Guarding the royal perogative is not a full time job. The position is, and would remain, largely ceremonial and we politicos should be wary of downgrading or minimimalizing that side. Opening schools in Nunavut with grace and aplomb, something the current incumbent excels at, is an important part of the job, and one the public sees and appreciates more than beating up on PMs. And far too many academics enter public service with naive notions of "making a difference" or being given the chance to apply theories they have been working on quietly for years. Frankly, I think the judiciary may yield a more promising crop than academia.

Finally, you forgot age. No one under fifty-five or even sixty need apply. The position demands a complete absence of ambition and a sense of being in one's sunset years--tolerant of all the crazy kids trashing the place, but only up to a point. It also demands the stature civilized societies accord to acquired wisdom and experience--it should be capable of packing the moral punch of an angry, beloved grandparent. But a willingness to mount a robust defence of the royal perogative demands a keen sense of how rarely it should need to be defended.

Sir Francis said...

Thanks, Peter.

1) The House has always found itself able to negotiate workable agreements on matters similar to what I'm proposing--House Speakerships being one example of House appointment that usually proceed with little serious contention. I think the fact that GG candidates would come to the selection committee with no partisan background or baggage would preclude the outbreak of obstructionist partisan battles, simply because there would be no partisan stakes involved. We're not talking about the kind of often poisonous process by which U.S. cabinet members and Supreme Court justices are vetted.

2) No. I'm afraid I have to be fundamentalist about this. I'm deeply disturbed by our post-Diefenbaker habit of appointing ex-politicians as GG, a qualm that has nothing to do with the characters of the candidates themselves--many of whom have been sterling. I see this habit as a violation of what the office is meant to embody--the whole state, not a piece of it--and I do not think liberating the GG from the shackles of ministerial pressure (which is the soul of my proposal) could be ethically justified if the GG's office, with its considerable power, were open to active partisans. That would merely create a more extensive distortion of the totality I want to see restored. As to exclusionary criteria, as I said--we would simply need to exclude people who have a history of public partisan activism, which is an extremely small slice of our population in any case.

3) Exercising the Royal Prerogative is not now a full-time job--or a part-time job--because it's not a job at all. The GG's office is only (not just “largely”) ceremonial. Given the Parliamentary vigilance that a GG working under my dispensation would be required to provide, I think we would need somebody who actually knows what he or she is doing and can make decisions responsibly--that is, without recourse to the anonymous and unaccountable ad hoc advisors to whom our recent GG's have had to turn for advice.

I considered restricting the office to one of our puisne Supreme Court justices, but I'm not sure that even the hardest-working justice could do both jobs at once.

4) About the age issue--I feel your way about the Senate, frankly (perhaps I'm wont to take the etymology of the word too literally). But I think the GG's office requires someone younger and more vigorous--someone not ambitious politically, but ambitious professionally.

jkg said...

Unfortunately, due to my time constraints this week, I only did a cursory read, SF. Sorry, but still, one compliment I would like to give is the observation about how a still appointed GG would serve positively should Parliament institute PR. I think it is an important one as those who are clamouring for a PR system may not realize that the convention in which the Prime Minister is determined in the House could very well become under great instability. It is a distinct possibility, and one could only imagine the deadlock that would ensue should we have a stalwart from a political party as GG presiding over such a case following an election.

Sir Francis said...


Yeah. As I wrote, I kept in mind that our electoral framework shall undoubtedly undergo serious changes over the next decade or two. Frankly, I think some kind of PR is an inevitability.