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Edward McWhinney
Constitutional Guidelines for a Governor General in Minority Government
Situations
Sir:
Further to the review of my book The Governor General and the Prime Ministers:
The Making and Unmaking of Governments by Professor Tom Urbaniak in the
Summer 2006 issue please allow me to explain why I think we need Constitutional
Guidelines for a Governor General in Minority Government Situations.
The Reserve, Prerogative, discretionary powers of the head-of-state are
Conventions of the Constitution and they are not to found spelled out in
constitutional charters and legislative codes, although Continental European
countries with a rather similar dualist executive (head-of-state/head-of-government)
have found no particular difficulty in legislating their main elements
in the new, post-World War II constitutions.
Such a codification has been recommended by two of the foremost Empire
and Commonwealth constitutionalists of modern times, Justice Herbert Vere
Evatt in 1936, and Professor Zelman Cowen (later Governor General of Australia)
in 1968, as a means of avoiding politically difficult confrontations between
head-of-state and head-of-government over their respective constitutional
roles in the formation or continuance of governments of that sort that
had already occurred in some jurisdictions (as in Canada in 1926 in the
King-Byng conflict) and that would recur spectacularly in Australia in
1975. The Evatt-Cowen proposal has not been acted upon, for reasons that
Canadians, remembering the twin disasters of Meech Lake and Charlottetown
as ventures in legislating fundamental constitutional change, will fully
understand. The nearest example, perhaps, is to be found in the 1937 Constitution
of the Republic of Ireland.
The Conventions of the Constitution have to be found in the records of
government, inter-institutional practice over the years, ripening eventually,
like the historical English Common Law, in concrete problem situations,
into a form of custom of varying degrees of authority according to the
context in which it first emerged. There is a particular difficulty, with
the Conventions as to the Reserve, Prerogative powers in potential political
crisis situations i.e. the making and unmaking of governments, that we
have found ourselves with in Canada, on a continuing basis, since the June
2004 federal elections.
The needed constitutional precedents consistent with the Governor General's
primary constitutional duty of finding and maintaining a stable government
are simply not there.
In 2004, the only real “Canadian” precedent - King Byng of 1926 went back
eight decades to the era before the enactment of the Statute of Westminster
in 1931 and Canada's attainment of full legal sovereignty within the emerging
British Commonwealth, when the Governor General was still a British national,
appointed in law and in fact by the Imperial government and considered,
quite properly, as an agent of Imperial authority.
When this 1926 precedent is studied in the context of its immediate historical
origins, the claimed political vindication of Mackenzie King's argument
that the Governor General must always yield to the constitutional “advice”
of the Prime Minister, sought to be derived from King's majority election
victory in a battle fought out, in large nature, over the issue, is hardly
persuasive constitutional authority in a present-day context where the
Governor General is, and has been for over half a century, a Canadian citizen
chosen and effectively appointed by the Prime Minister of Canada.
The Governor General is now fully part of the internal Canadian system
of constitutional checks and balances, with his or her own constitutional
autonomy in relation to other, coordinate institutions of government at
the federal level - Prime Minister and Cabinet, Parliament, and the Supreme
Court, and capable on that account of, exercising the residual, Reserve
powers in his or her own legal right, subject to the general obligations
of Comity and mutual deference accorded to those other institutions. Establishing
what these latter are or should be today may call for a creative approach
both to old Conventions, and also to old doctrines formulated in another,
rather different time era in the evolution of democratic constitutionalism
such as Bagehot wrote for in 1867, immediately before the enactment of
Disraeli's great Second (electoral) Reform Bill and still further years
before Gladstone's Third Reform Bill.
As for the Conventions themselves they are not and were never intended
to be frozen once and for all at the time of origin. The British have
not had a minority government since 1931 and have had no occasion, therefore,
to re-examine constitutional formulations on the proper exercise of head-of-state
discretionary powers. The more lively and interesting present-day examples
tend to come from countries like India that, with the basic Westminster-model
duality of head-of- state/head-of-government, have had to deal, over the
past three decades, with frequently recurring minority government situations
in which the President, as head-of-state, in fulfillment of his duty to
obtain and facilitate formation of stable, continuing government, has moved
to fill the gap and to assume something of a pro-active role in the encouragement
of building coalition administrations out of a number of disparate parties
or parliamentary blocs. To ensure that such ad hoc coalitions, once granted
the mandate to form a government, will not be ephemeral or fleeting, the
Indian President adopted an innovatory practice of requiring potential
partners in such coalitions to pledge, in advance, their support and to
evidence that commitment in written form. The Indian practice was introduced
into Canadian discussion in the extended constitutional seminar, organized
on then Governor General Schreyer's initiative at a reunion of Canada's
federal and provincial heads-of- state held in Victoria, B.C. in February
1982.
Lieutenant Governor John Black Aird of Ontario, who was present at the
Victoria discussions had no difficulty in accepting a similar, properly
evidenced public undertaking, in writing, furnished by then Provincial
Opposition Leader, David Peterson and third party (NDP) leader Bob Rae,
as the basis for granting a mandate to form a new government to Peterson,
in spite of the objections of “unconstitutionality” advanced by the incumbent
Conservative Premier who had emerged from the recent Provincial elections
in a minority situation but with still the largest number of seats in the
Provincial House. In the result, a stable, continuing provincial government
emerged, with the Peterson-Rae agreement honoured by the two parties for
its guaranteed two year term. This is how Conventions of the Constitution
emerge as precedents: they are validated in action by their evident common-
sense and reasonableness and community acceptance.
Governor General Clarkson's exercise of the discretionary Reserve, Prerogative
powers inherent in her office was carried out in politically difficult
times, but with full awareness of the larger Commonwealth body of precedents
and the different national societal contexts in which they emerged and
their opportunities and also limits of relevance in contemporary Canadian
terms. Her performance, which was achieved without any apparent confrontations
or discord with any of the main political players, against a background
of a particularly unruly House of Commons, will be widely studied as an
exercise in the process of up-dating and modernisation of old constitutional
practices and routines to meet new political challenges. I suggest the
following limiting constitutional parameters for the head-of-state's use
of discretionary powers in an era of participatory democracy and public
involvement and criticism. First any actual exercise of the Reserve powers
today has to be transparent, with the grounds for acting or for not acting
in a particular case clear and obvious enough to all of the main contending
parties. Second the decision itself must be rational, as demonstrated
concretely in a government capable of obtaining and maintaining majority
support in the House. Third the decision should be perceived and accepted
as equitable and politically fair as between all the main political players.
One other issue now undergoing some further public discussion in Canada
is whether the Governor General, for the past half century effectively
chosen by the Prime Minister of the day, should be accorded the extra constitutional
legitimation of some form of public involvement in that choice, whether
by parliamentary ratification vote by special or even simple majority
of the House of Commons, or in direct democracy by vote of the population
at large. To the argument that such a procedure would “politicise” the
office and render it subject to the give-and-take of partisan conflict,
or, separately from that argument, perhaps embolden the ultimate choice
to become involved gratuitously in high policy choices more properly in
the domain of Cabinet and Parliament, the answer has to be that the empirical
record in those parts of the Commonwealth that have some system of public
involvement in the choice suggests otherwise, and that the heads-of- state
concerned have displayed a studied degree of self-restraint with no pretensions
to political self-aggrandizement. In the Republic of Ireland which has
gone furthest of all with direct popular election of the head-of-state,
we have just seen an incumbent President re-elected, unopposed, to a second
term in office in what was clearly a display of non-partisan cooperation
by all main political groups.
Edward McWhinney
Vancouver
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