Saturday, April 30, 2011

What constitutional crisis?

The news making the rounds this morning is Stephen Harper's non-answer to CBC's Terry Milewksi's the question of whether the former would accept a Governor General's decision to award the other parties a coalition the government. Harper seems to think he has choice.

I am by no means a constitutional expert but I'm at a loss to understand just what Mr. Harper could do if the GG asked a coalition to form the government.

This isn't the same thing as his vow to 'go to the people' during the 2008 prorogue. His party was the government at that time and and there was no question that he was prime minister acting, skulduggerously as it was, within his powers.

He has no such power now
and is merely the head of the Conservative Party of Canada and their federal candidate for Calgary Southwest, and caretaker Prime Minister. Nothing more. A decision by David Johnson to award the government to a coalition of the other parties is perfectly legitimate. Harper would have no office to refuse to vacate, no power to prorogue, and no power, at least as far as my lay mind can see, to challenge the GG's decision.

Could he go the Supreme Court? My feeling is that unless he's bribed all the justices, he'd be sent packing.

What then could he do? Refuse to vacate 24 Sussex? Call for armed insurrection from his supporters? Refuse to attend parliament?

Could he attempt to jump the GG and go the Queen? Should the GG grant the other parties the government, Harper would not be Prime Minister and would thus, as I see it, have no authority to ask the Queen to remove a Governor General he didn't like or instruct that GG to revisit his decision.  I'm not sure Ma'am would have anything to say to a petulant ex prime minister other then to send him back the GG he appointed. Historical precedent suggests the Monarch has no interest in playing an active role in domestic constitutional problems:

I am commanded by The Queen to acknowledge your letter of 12th November about the recent political events in Australia. You ask that The Queen should act to restore Mr. Whitlam to office as Prime Minister.
As we understand the situation here, the Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.
I understand that you have been good enough to send a copy of your letter to the Governor-General so I am writing to His Excellency to say that the text of your letter has been received her in London and has been laid before the The Queen.
I am sending a copy of this letter to the Governor-General.
17 November 1975
So candidate Harper can make all the suggestive and subversive statements he wants about how the legitimacy of coalitions and the like are open to debate. However, like his views on the contempt ruling from the Speaker that started this election, he is voicing nothing more than his blinkered feelings. My guess is that these statements are all smoke and mirrors for his idiot base to make them think he's got some sort of magical power to overturn the final result of a federal election. The reality is that despite the the endless monotone "let me be clears", Harper is a weak man in about the weakest possible position he can be in as a party leader in a federal election.

I'm also quite sure an academic like David Johnson has done his homework on the issue and is watching this election very closely.

UPDATE:  The specific question asked of Harper was:

"Will you or will you not accept a decision by the Governor General to call on the second party to form a government if you again lose the confidence of the House?"
This appears to assume another Harper minority defeated on confidence and the GG then asking the Official Opposition to form the government, not a petition by the NDP and Liberals in the wake of Monday to ask the GG for the keys as I alluded to above. Still, I fail to see what real choice Harper would have if the Opposition agreed to such a request from the GG. He could make speeches and stonk about, but once a different government were sworn in, I imagine there'd be little he could do. The GG would be acting within his constitutional powers and the system would be performing as it should. 
Shy of a majority, with an energised NDP as Official Opposition, Harper is in a shitload of trouble. 
Here's another question: Could Harper request an immediate post-election prorogue of a new minority government?

(h/t POGGE and Bob)


pogge said...

According to constitutional convention, Stephen Harper remains the Prime Minister of Canada, although he leads a caretaker government during the election. If his party emerges with the most seats after May 2nd, he remains prime minister and can proceed to form a government and attempt to win the confidence of the House of Commons. If his party doesn't win the most seats, he remains the prime minister and can still, if he really wants to push it, attempt to form a government and win the confidence of the House of Commons.

Harper remains the prime minister until he actually submits his resignation to the Governor General, who only then would turn to someone else to attempt to form a government. And this is where the concept of reserve powers becomes the subject of debate.

If Harper can't gain the confidence of the Commons, he can request a new election instead of submitting his resignation. The GG would have to invoke his reserve powers if he wanted to, instead, insist on Harper's resignation and let someone else take a turn without an election.

That's how I understand it.

Boris said...

Thanks pogge. I would assume that would be the case should other parties not attempt to form a coalition. If the GG awarded other parties a coalition government, I don't see Harper to be in a position to challenge that other than through the normal operation of parliament.

Would Harper have to formally resign in order for a coalition PM to take office?

pogge said...

As I understand it, Harper remains prime minister until he resigns unless the GG fires him. There's an article at the Globe by Peter Russell that discusses a lot of this. Russell also points out that Harper is in a position to slow everything down by failing to request of the GG that he recall parliament.

Things may start to get even more interesting on May 3rd than they've been so far. (Remember the Chinese curse?)

West End Bob said...

After the votes are tabulated in BC's ridings is when this election begins to get really interesting . . . .

Poor Dead Ned said...

The historical remedy for subverting the rule of parliament is clear. (

Although technically, since Harper isn't royalty, the parliamentary precedent is a bit harsher. (,_drawn_and_quartered)

Arguably, the criminal code has softened the punishment a bit (

If parliament refuses to enforce its rights for a third time, the democratic chain-of-command will be in serious jeopardy. Hopefully, no parliamentary factions will be unclear in future instruction to prime ministers or governor generals. And enforce their rights as our representatives.