Thursday, September 04, 2008

What Should the Governor General Do?

It is now universally acknowledged that Prime Minister Harper will soon ask the Governor General for a dissolution of Parliament. Patrick Monahan argued in the Globe on Saturday that when he does, she has no choice but to give it to him. I think this is wrong. She should accept his resignation, but she should not dissolve Parliament until M. Dion has been offered a chance to form a Ministry and meet Parliament and has either (a) refused the Governor General's invitation or (b) accepted, and then lost the confidence of the House or been denied supply.

The dissolution of Parliament is a Crown prerogative, vested in the Governor General by Letters Patent of George VI in 1947 ((reproduced in R.S.C. 1985, App. II, No. 31). Legally, she can dissolve Parliament or not at her wish. This power was retained by Bill C-16, which created fixed election dates, and indeed it was confirmed that the dissolution of Parliament was 'at the Governor General's discretion."

Of course, responsible government implies the convention that -- in general -- she will only exercise her powers at the "advice" of the Prime Minister. The extensive legal powers of an appointed Governor General are only acceptable in a democracy because she almost never uses them.

However, as the King-Byng and Whitlam-Kerr crises show, and as the Supreme Court of Canada recognized in the Patriation Reference, the general rule that the Governor General must do what the Prime Minister says (whether or not she agrees) is subject to limits. Democratic legitimacy and responsible government are the basis for the rule, but they are also the basis for exceptions. It is only because the Prime Minister presumably enjoys the confidence of the House that the Governor General should listen to her, rather than to someone else.

If Mr. Harper tells Mme. Jean that Parliament is "unworkable", then that amounts to saying that he can't work it. He does not think he enjoys its confidence, at least if he wants to do what he feels he must. She has no business in going behind this statement. If the electorate think he is really motivated by a desire for a tactically-favourable election date, it is up to them to punish him.

However, by saying that he can't work with this Parliament, Harper also ceases to have the legitimacy of responsible government behind his "advice." If there is even a remote possibility that someone else can form a Ministry, then that person should be invited to do so. There are innumerable examples from before the modern party system calcified of Parliaments long outliving Ministries.

Before the fixed date amendments to the Elections Act, it could be argued that whether the failure of a Ministry implied the failure of Parliament was a matter of political judgment. Therefore, it was said, the Governor General should only disregard the Prime Minister's advice when it was clearly abusive (for instance, if it occurred very soon after the election). However, it seems to me that the fixed election date changes that. Parliaments are presumed not to fail until their time expires -- it is only if the Governor General has exhausted potential ministries that she should go to the people.

The Liberals have never had a chance to try to make this Parliament work. They could decide that it isn't in their interest to do so -- and if they did it would be harder for them to slam Harper politically for going sooner than Bill C-16 suggests is normal. Or they could bring forward a budget and legislation based on their green tax proposals and dare the (now) opposition to bring them down. But they should get the chance.

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