December 29, 2008

 

An article on the prorogation...

From: The National Post
http://www.nationalpost.com/news/story.html?id=1046102

Prorogation, then and now
By sending MPs home rather than face the judgment of a hostile House, Stephen Harper is following in the footsteps of Canada's first prime minister
By: Barbara J. Messamore
Published: Monday, December 08, 2008

Justin Trudeau likened Stephen Harper's request for prorogation to a panicky student pulling the fire bell to avoid an exam. It is not an altogether inapt analogy. The move was undoubtedly intended to delay certain defeat in the House of Commons. Apologists for the measure might dress it up in more statesmanlike terms, citing the need for breathing space, for cooler heads to prevail, to consult opinions across the country and such. But the conclusion is inescapable: had Harper and the Conservatives not requested prorogation, they would have almost certainly fallen to a nonconfidence vote. Had that occurred, Harper would have been compelled to resign, and Governor-General Michaelle Jean would probably have called upon the opposition to form a government. A dissolution of Parliament a mere seven weeks after the last election, with a viable alternative ministry standing ready, would be unlikely.

That said, was the Governor-General correct in accepting Harper's advice to prorogue Parliament? The answer is an unqualified yes.

Only in the most extraordinary circumstances would the governor-general be warranted in refusing the advice of the prime minister. As Prime Minister, Harper is entitled to use this manoeuvre to buy a little time to see if he can garner sufficient support and to test the ability of the coalition to maintain the allegiance of enough Liberal, NDP and Bloc members. Should even a handful of these members buck party discipline in these unusual circumstances and reject the coalition, a very different picture might emerge in the weeks ahead. And some members may have reservations about the coalition based upon feedback from their constituents.

There is nothing in the coalition agreement that is constitutionally suspect, despite overblown rhetoric likening it to an attempted coup. But of course, there is political risk attached to it. Supporters of each of the three parties involved could well find the alliance distasteful on a number of scores, and those who have watched the value of their investments plunge still further in the wake of recent events may wish to punish those who seem to have exacerbated a climate of economic instability by promoting political instability.

For Harper, too, there is political risk in what he has done: His overt evasion of the verdict of Parliament is permitted constitutionally, with the governor-general's consent, but it has the appearance of a slick and unprincipled political trick worthy of that consummate master of political gamesmanship, John A. Macdonald. And indeed, if we look back into Macdonald's political career, we can find one of the most relevant constitutional precedents. On the face of it, it might seem surprising to draw upon examples from the 19th century. Yet the fundamental workings of the parliamentary system have not changed in many basic respects. Ever since the 1848 advent of colonial self-government - "responsible government," as it is usually called in Canada - the principle has been that the executive must command the support of a majority of the legislature on key pieces of legislation, on confidence measures like those associated with finance. (External matters, of course, continued to be under the purview of the imperial government until Canada gained that power incrementally in the 20th century.) Whether he was a British appointee or, after 1952, a Canadian, the governor-general was meant to be an impartial arbiter who would be guided by the principle of ministerial responsibility and would refuse the advice of his ministers only under the rarest of circumstances.

In 1873, the governor-general, Lord Dufferin faced a request for prorogation from Conservative prime minister John A. Macdonald. The Pacific Scandal had broken that spring. The Liberals had evidence to show that key Conservative ministers, including Macdonald himself, had accepted money from Sir Hugh Allan, who hoped to be awarded the contract to build the railway to British Columbia. A commission of inquiry was summoned to investigate allegations of Conservative corruption, and more and more damning details were emerging by the day. With Parliament scheduled to sit in August 1873, Macdonald feared a non-confidence vote and asked Dufferin to prorogue the House rather than allowing a vote on adjournment.

Members of the opposition, led by Liberal Alexander Mackenzie, along with former Macdonald supporters who had fled the Conservative standard, signed a memorandum to the governor-general pledging their support for a new Liberal ministry. The press was full of advice for Dufferin on prorogation: Dufferin should not regard himself as merely the "recording clerk of his ministers," forced to collude in every iniquity they planned, the Liberal Globe insisted. For the governor-general to allow his office to be used to shield a guilty ministry would throw the Crown into disrepute, they charged.

Dufferin agonized over the correct course of action, writing torrents of letters to anyone who might be able to shed light on the matter, but swearing all these unofficial advisors to secrecy and asking them to burn his letters. He complained of the absence of precedent and the fact that "the very men who were bound to advise me were those most interested in cajoling me into some false move." The message from the British secretary of state for the colonies, Lord Kimberley, did not provide much guidance: "We shall be sure to give you all possible support... unless you made some egregious blunder." Yet in the end, Dufferin accepted Macdonald's advice and prorogued the House.

Of course, for Dufferin and for Macdonald the prorogation did not end the dilemma. Parliament reconvened in October, and while the governor-general feared that he might actually have to force Macdonald from office, the prime minister at last had to accept that he had lost support and tendered his resignation. Dufferin reflected with satisfaction that Macdonald's fall from office could now be said to be unequivocal, not the result of any precipitant action on the part of the governor-general.

While Harper's ministry has not been implicated in any wrongdoing, the parallels to the present case are strong: Only under the rarest of circumstances would the governor-general refuse the advice of her ministers. She must allow them to avail themselves of every constitutional remedy. Should they go down to defeat in January, it will not be through any involvement of the governor-general.

The verdict of the House will in the end prevail. Political scientist Frank MacKinnon has likened the governor-general to a constitutional fire extinguisher - conspicuous and brightly coloured, but seldom used. Harper may have pulled the fire bell, but until we see the flames the reserve powers to refuse ministerial advice need not be used.

Barbara J. Messamore teaches history at the University of the Fraser Valley. She is the Author of Canada's Governors General, 1847-1878: Biography and Constitutional Evolution.

Copyright 2008 - The National Post

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