Prorogation - where do we go from here?

Two weeks after my last post, Canadians Against Proroguing Parliament has grown by leaps and bounds (217,000 members and counting), rallies have been held on January 23 in around 60 locations across Canada and abroad (even in Oman!), bringing together over 30,000 concerned Canadians. It's in the news every day, as unlikely as this may seem, alongside the devastation in Haiti. Clearly, the objective of bringing the issue to light and into the public consciousness has been achieved and surpassed. Fine, but, now what? Parliament will not be un-prorogued. What is it exactly that we want?

There are many negatives flowing from the prorogation of Parliament on December 30.
- Yes, the MPs are on extended holiday. But that's not the big issue. Parliament could have been adjourned for an extended Christmas recess instead and no one would have minded.
- Many bills have been killed and all the time, money and effort expended in getting them to the stage at which they were when Parliament was prorogued has been wasted. This is a serious issue, but not the fundamental one.
- All the committees of Parliament have been disbanded, including the special committee examining the issue of the Afghan detainees. This is an extremely serious issue, but still not the fundamental one.

No, at the heart of this prorogation debacle stands the most serious menace to our democratic institutions in living memory: the executive branch of government (ie the Prime Minister) has twice in one year dismissed the legislature arbitrarily, for the sole purpose of self preservation (or naked self-interest, as The Economist, from a neutral perspective, has correctly characterised it). We cannot stand idly by while the King dismisses the people's representatives. This is a battle that we thought had been settled long ago, but that we are called upon to fight once more. It is such a grievous attack on our democracy that we cannot let it stand nor can we allow it to occur again in the future.

So what can be done about it? At a minimum, we would want the perpetrator to pay such a heavy price that no future PM would ever consider using a similar stratagem. The ultimate price of course for the PM is to lose control of the government. How can that be accomplished? The PM could be found in contempt of Parliament and forced to resign; or the government could lose a vote of non-confidence, and the PM forced to resign, with the Leader of Opposition invited to form a government; or the government could be defeated in a future election, whenever it is called.

You will note that absent from these solutions are the types of legislative or House rule changes currently proposed by the NDP and Liberal parties. The proposed measures are woefully inadequate in that they do not in any way bring to justice the perpetrator of the current attacks on our democracy nor do they strike fear in the hearts of any future potential perpetrator. In addition, they introduce all kinds of opportunities for new House shenanigans. In any event, the problem is not with our institutions and conventions. We have managed very well for 143 years with the unwritten rules as they are. But, as they are unwritten, compliance depends on the goodwill and respect for Parliament of the government of the day. All, until the current government, have shown the necessary deference to our institutions. The solution then is to replace the government of the day and to make it clear that a similar fate awaits any future government that attempts to so subvert our democracy.

Of the possible outcomes of resignation, defeat in the House or defeat in a future election, which is most achievable?

Resignation seems the least likely. It could result from intense internal dissension within the ruling party (as in the case of Diefenbaker in 1962, or even Chrétien in 2004). Resignation could also be the outcome if the PM were found to be in contempt of Parliament. Contempt of Parliament is the crime of obstructing the parliament in the carrying out of its functions. It could be argued that this is exactly what the PM has been doing.

Defeat in the House is much more likely. There will be a Throne Speech and a budget tabled when Parliament reconvenes in March. The opposition has the votes to bring the government down, if not on the budget, then on a motion of non-confidence specifically addressing the abuse of the PM's prorogation powers. Maybe we can't expect the opposition to act on principle in this matter, even though it is the most fundamental principle of representative government. Whether they muster the courage to defeat the government will probably depend on their electoral prospects. This is where the Governor General might play a role. It is not an immutable law that an election must follow the defeat of the government in the House. Some would argue that convention makes it imperative that an election be called. However, there are not many precedents.

Of the 40 Parliaments elected in Canada since 1867, 11 have led to minority governments. Of these 11 minority governments, only four have fallen as the result of a non-confidene vote. The first one, in 1925-26 led to the famous King-Byng affair. In the election of 1925, the Conservatives under Arthur Meighen garnered the most seats, but the Liberals under McKenzie-King remained in power thanks to an alliance with the Progressive party. However, this alliance eventually fell victim to revelations of scandals and McKenzie-King, facing a vote of non-confidence, asked the Governor General to dissolve Parliament so that elections could be held. Elections had been held less than six months before, in October 2005, and the GG refused the request and instead asked Arthur Meighen to form a government. This was exactly within the GG's authority and duty to do, even though it has been contested. In the case of the other three defeats in the House, (Diefenbaker in 1962, Clark in 1979 and Martin in 2005), Parliament was dissolved and elections were held. (In all three cases, the opposition party was elected to form a government.) How would the current Governor General deal with a request for dissolution should the Government fall in March? Would elections necessarily be held or could she invite the Leader of the Opposition to form a government and try to maintain the confidence of the House? I suspect that many Canadians would prefer to give this a try rather than go to the polls for the fourth time in six years.

However, if the PM does not resign, and if the Government is not defeated in the House, then it will be up to the people to mete out the required punishment in the next elections. It will be difficult to maintain the momentum until the election call and the splintering of the electorate makes the outcome of elections very unpredictable, and so there is no guarantee that the current government will pay the price. It's a very big challenge but our democracy deserves our best efforts to make it happen.

Post-prorogation blues

Well, here we are one week later and a lot has happened since my last post on the prorogation of Parliament by the Conservative government on December 30. Since then, it has been blasted on just about every editorial page in the country, it has been severely criticized in The Economist, an influential magazine with a wide international readership, a Facebook group (Canadians Against Proroguing Parliament) has grown to over 160,000 members, it has been condemned in an open letter to the Prime Minister signed by over 170 Canadian professors of constitutional law and political philosophy, and even Tom Flanagan, erstwhile mentor to Stephen Harper and eminence grise of the conservative movement in Canada, has come out against his former protégé and admitted that the prorogation was an abuse of parliamentary process to stifle a parliamenry committee's investigation of the treatment of detainees in Afghanistan. So, you would think I would be happy with all these developments but, actually, I am a little apprehensive.

You can never be happy when the democratic institutions of your country are under attack. Of course, it is wonderful that so many people perceive the threat and are trying to organize. In particular, the CAPP group on Facebook, which I joined, has brought out thousands of thoughtful and concerned citizens who are motivated by civic duty and inspired by national pride (along with other denizens of the Internet with wide and wacky interests, including many on-line "agents provocateurs", colorfully called "trolls"). CAPP members are planning rallies and demonstrations across the country on January 23 to register their discontent and to communicate their concern to an even wider cross-section of citizens beyond the Internet. It has become clear though this process of communication and exchange that their concern is not only over this single act of prorogation but it is over the systematic pattern of disregard and abuse of democratic process exhibited by the current government. So, what is the remedy? Beyond the demonstrations, then what? This is where my apprehension kicks in. If this issue disappears as quickly from public view as, say, the Copenhagen agreement has (the Copenhagen what?), then we will be saddled with more bad government for a long time. (Is it because the Conservatives believe that government is bad that they can't help but provide bad government?)

The path from here goes through the reconvening of Parliament on March 3. Soon thereafter, there should be many opportunities for the Opposition to bring the government down on a confidence vote. Will they take the opportunity? Can the energy and concern of the last week be sustained through to then? If, somehow, the emails, letters and public marches of thousands of concerned citizens can be sustained, then it might give the opposition members the courage to act. The next act would then play out between the Prime Minister and the Governor General. Will she acquiesce to Mr. Harper's request for the dissolution of the 40th Parliament, which would set off elections? If, somehow, the emails, letters and public marches of thousands of concerned citizens are directed at Rideau Hall, it might give her the courage to refuse and invite the Leader of the opposition to try his hand at forming a government and maintain the confidence of the House. This would be entirely within the traditions and conventions of our parliamentary democracy and, at this point, safer than holding yet another election, which given the splintering of the electorate, would likely lead to another minority.

So, a lot to worry about...

Tories suspend Parliament, again

For the second time in two years, the Tories have prorogued Parliament. They are spinning that this is a routine event, having occured 104 times before (yes, but since 1867!!). But this is far from routine. Past governments have ended a session of Parliament once their legislative programs were largely completed and a new Throne Speech was required to lay out their plans for a new session.

In the last 30 years, Parliament was prorogued 11 times, always in these circumstances, except for the last two times in the current Parliament. The Harper Tories have instead used prorogation as a sneak attack to get out of messy jams. Last year, it was to put the brakes on the coalition that threatened to vote them out as a result of their poison pill fiscal update. This was the first time ever that a government had asked the Governor General to suspend Parliament to avoid a confidence vote. Hardly routine.

This time, there is an even less legitimate reason to prorogue. Their legislative program is far from complete, with many of the goverment's own cherished "tough on crime" bills still on the order paper and therefore now back to square one. Even the repeal of the long gun registry has been killed (although this piece of government policy was presented in a private member's bill, which traditionally is given a free ride in a new session of Parliament. Wake up Oppostion!) This is more evidence of the depth of cynicism that animates this goverment. They are willing to kill the bills that they aver are most important to them for some kind of political calculus that nobody can figure out. The best anyone can come up with as the real reason for prorogation right now is that it dissolves all the Parliamentary committees, in particular the ones that are causing them grief, like the one investigating the issue of detainees in Afghanistan. (Maybe some members of the public do not care about the treatment of detainees in Afghanistan. According to some, we could torture them ourselves and that would be fine. But we hope, and expect, that our government is wiser than this.)

What this really shows is that this government, like their ideological brethren, the Republicans in the United States, is willing to use any loophole, ambiguity or omission in convention or legislation to its advantage, adopting the letter over the spirit of the rules that govern our institutions, and subjugating the means to the ends in every case. This is because they are a minority, a desperate minority, trying to survive by whatever means. And the end is not about good government. As Stephen Harper has made abundantly clear in the past, his objective, and therefore that of the party he rules so completely, is to change the historical political culture of Canada permanently, from a small l liberal polity to one with a clear conservative bent. This a daunting, long term project, and capturing and controlling the apparatus of government, even on an a minority basis, is just a step along the way.

Prime Minister Harper is not a power hungry demagogue and dictator as some fear. He is a different type of politician, more insidious and arguably more dangerous. He is an ideologue, a true believer in a grand cause, and he will do whatever it takes to achieve his aims.