Sunday, December 07, 2008

Interesting note on prorogue.

A former prof of mine blogs irregularly, and has posted something here about what Michaëlle Jean actually knew when asked to prorogue. The essence of the argument is this: there's a distinction between what the people know and what, constitutionally, a GG knows. Everyone knew that Harper had lost the confidence of the House, but the GG technically may not have because, constitutionally, the only evidence she had was the support of the Throne Speech (which indicates confidence). Similarly, while everyone may (or may not) know that the coalition is not a legitimate government, constitutionally, there is nothing which counts as evidence for or against the coalition. The election results don't measure whether Dion can be PM, and there has been no expression of non-confidence in the house.

However, what also follows is that the GG doesn't have to take the advice of Harper if he loses the confidence of the House in January. That is, because she will then know that the House lacks confidence in him, she doesn't have to take his advice and can decide, on her own, whether to allow the coalition to govern or not.

Read the whole thing. You may also want to read this one.

10 comments:

Jim Johnston said...

On the other hand, when the last election was called, the GG took the PM's word for it that the House had become dysfunctional (lost confidence) despite no vote of confidence.

Also, she is holding a letter from the three opposition leaders which says the PM does not have the confidence of the House. Can the Queen's representative be willfully blind to this evidence?

ADHR said...

The question is what, constitutionally, the GG is required to do and permitted to acknowledge as evidence. So, with regard to the first point, as the Queen's representative, she pretty much has to take her first minister's word for it that Parliament is not functioning, unless there is clear (and constitutionally valid) evidence to the contrary -- such as a confidence vote in a different government.

With regard to the second, a letter from the opposition doesn't have, as far as I know, any clear constitutional status. So, it doesn't seem to count as evidence she is permitted to acknowledge.

The constitutionality of any of this is extremely byzantine, and it doesn't always follow common sense, given that we're dealing with centuries-old conventions rather than explicit statutes. It might thus make sense to spell these things out in more detail somewhere.

Gene said...

See also An Unlimited Disaster and Proroguing Democracy. They are quite interesting.

Jim Johnston said...

Only in Canada, eh?

ADHR said...

Gene,

First one looks pretty conspiracy theory to me. Second link is interesting -- those who haven't clicked it, do so: it's from a Kiwi, where they also have a Westminster system, but with MMP rather than SMP.

Jim,

Well, maybe not. There's GGs in Australia and India (at least, until they switched their GG for the President). So, there's other countries with similar potential issues.

Constant Vigilance said...

Very interesting point your old prof brought up but I'm not sure I see the connection to prorogation. The recommendation to prorogue has never, as far as I know, been tied to an imminent non-confidence vote.

I think this should be considered when deciding how much weight to give to this view.

Gene said...

Adam, Mathews is a long-standing columnist at Vive and is very knowledgeable in Canadian politics. I would agree that his blogpost takes us places where we have not been yet and probably will not stay. Still, his are interesting questions, I think. Let's say that he has pushed the horizon a bit further from where I, at any rate, thought it was.

ADHR said...

CV,

You're right, but he's not talking about whether there's a convention about that. He's talking about whether convention allows the GG to consider an imminent as opposed to actual non-confidence vote. Hence why the argument is framed in terms of epistemology: did the GG, in her capacity as GG, have the ability to know that the government had lost the confidence of the House?

Gene,

I wasn't criticizing the guy, but the argument. So, whether he's long-standing isn't relevant.

My concern is principally driven by his attempt to connect the GG's heritage to our current federal political situation. It's just a weird non sequitur. Certainly, Haiti is an embarrassment for Canada -- insofar as I understand the situation, his take seems accurate. But I don't see how it has or could have anything to do with our current problem. The connection is never actually traced in his argument; he raises the possibility and allows it to rest primarily on guilt-by-association. (Democracy was undermined in Haiti; Jean is Haitian; therefore... what, exactly?)

He also misses the distinction between what the GG can legitimately take into account in her deliberations and what a reasonable person can be expected to know (which overlooks the way the role of the GG, and of the Queen, has changed over the years), which is Prof. Matthen's point; and he fails to see that the GG is not nearly as independent now as the office once was (when he declares that the GG is not bound by precedent), in much the same way as the Queen is not nearly as independent as she once would have been (compared Elizabeth II to, say, Henry VIII).

Gene said...

Points taken, Adam. I know you weren't attacking Mathews. I brought up his long standing work at Vive to underline the fact that he's able to connect the dots in innovative, admittedly sometimes colorful, ways that are interesting.

Also, I did not read the linkage he was making between Jean and Canada as pertaining to 'her heritage'. Rather, I think he was making the point that because of the role that Canada has played in Haiti, it is conceivable that that might have influenced Jean in her decision over prorogation.

I guess we might both be right. Were she not from Haitian heritage, Mathews would not have brought up this issue. What I'm saying is that were there no Canadian involvement in the terrible misery that is brought to bear on the Haitians, Mathews would not have brought this issue, notwithstanding the GG's heritage.

ADHR said...

I think the connection is pretty clearly done because Jean is Haitian. He says, after all, "She was born in Haiti, came to Canada, became Governor General, and visited her homeland in that role – visiting it as if all is normal there and as if she was/is unaware of its almost unbelievable recent history." And then segues into talking about Canada's role in Haiti. The tragic problem, of course, is that Canada has far from a clear human rights record internationally. Haiti is one example, but we could just as easily point to Afghanistan and our actions there, or our inaction in Darfur.

I tend to think if Mathews were interested in understanding what motivated Jean's decision, he would have looked at who advised her on it (as of right now, we have no idea who her constitutional advisors are, which would seem quite pertinent) and also the precedents in the UK, Australia and India (to pick three other Westminster systems).