December 2008: Listen to Eugene Forsey

Defeating a government doesn’t have to trigger election
December 5, 2008

“One of the biggest threats to parliamentary democracy in Canada,” wrote the late constitutional expert Senator Eugene Forsey, “is the dogma that any government, regardless of circumstances, always has a dissolution in its pocket: that an appeal to the people is always proper.”

My father was writing in 1953, but more than half a century later Canadians are again being held hostage to the false notion that a government can never be defeated in the House of Commons without triggering an election.

After our recent futile trip to the polls, we are a country massively frustrated and disillusioned with our own politics. Our alienation is due to many elements: our continuing enslavement to the “first-past-the-post” electoral model, short-sighted partisan vote-grabbing among rival opposition parties, macho posturing and point-scoring that freezes out more collaborative approaches or dismisses them as “weak.”

But another major contributing factor, largely invisible up to now, is Canadians’ vast ignorance of our own Constitution, particularly the sophisticated safeguards it offers against abuse. One of those safeguards is the right of the Governor-General, in certain circumstances, to refuse to dissolve Parliament and instead to call on another party in the existing House of Commons to try governing.

If the public, the politicians, and the media had understood this vital element of our Constitution and invoked it back when Stephen Harper first started throwing his weight around, events would have unfolded very differently. We would most likely have been spared both the latest election and the perpetuation of a Harper-led government. Our current affliction is largely due to our collective political ignorance, exploited and manipulated by the powers-that-be to create the “learned helplessness” so evident now in our battered and bruised electorate.

What would the constitutional alternative have been? The opposition parties–collectively a majority in the last Parliament as in this one–should have called Harper’s bluff on the first of his spurious “confidence” motions, and voted to defeat him. At that point, the Governor-General, rather than automatically granting a dissolution and plunging us into an early election, could have called on the leader of the Opposition to form a cabinet and try to get the support of the House to govern.

Stephane Dion would then have had the chance to bring in legislative and budgetary measures more acceptable to the Canadian people and our elected representatives. The 39th Parliament could have got on with its work, and quite possibly worked very well. With input from NDP MPs and others holding the balance of power, an open and cooperative minority government could have started making the shift to the kinds of progressive policies our country so urgently needs.

All this should have happened early on. But nobody, from the Governor-General to the Opposition politicians to the media to the general public, seemed to realize it! As a result, we’ve been subjected to more than two years of high-handed and regressive government, and put through the hassle and expense of an unnecessary election just to end up with essentially the same situation. And the moment Harper decides that this Parliament also “isn’t working” to his satisfaction, it could happen again--unless we start understanding and implementing the options our Constitution provides.

Eugene Forsey had a fine grasp of those options. One of them, of course, is dissolution and an election call. “The Canadian Constitution very sensibly allows governments to appeal from Parliament to the people when the public interest so requires,” he explained. “But it does not follow that it provides no means of protecting fundamental democratic rights against abuse of these powers. It does; and the means is the reserve power of the Crown as guardian of the Constitution.”

Over the years, my father waged a continuing campaign to defend those “reserve powers” as a pillar of our democracy. His PhD thesis on the royal power of dissolution of Parliament thoroughly documented the constitutional precedents and the logic behind them, and demolished the popular but mistaken theory “that the Crown is just a rubber stamp for Cabinet, or that, if it isn’t, it ought to be.” In particular cases, he argued, the power of the Crown to refuse a dissolution may be all that stands in the way of an autocratic government “spanking the electorate into submission” by repeatedly forcing them back to the polls.

In a 1943 Canadian Forum essay, he appealed directly to his CCF comrades to recognize the dangers of the “rubber stamp” theory. “Unquestionably, the [reserve] power exists,” he wrote, citing the instances of its use and the wide range of constitutional authorities and politicians who upheld its propriety. “Unquestionably also, it is a power to be exercised only in very special circumstances: ordinarily the Crown must follow the advice of the Cabinet. But many people feel that there must be no exceptions whatsoever. Is this in fact a safe doctrine for any democratic party? What might be the consequences for the CCF if it adopted the rubber stamp theory as its official policy?”

One of the scenarios Senator Forsey used to make his case starts with a familiar situation. “Suppose the government gets a dissolution, and no one gets a clear majority,” he wrote. “The government retains office and meets the new Parliament--as it has a perfect right to do--hoping to pick up enough votes to keep it in power. But the new Parliament defeats it. It declines to resign; governments don’t automatically resign on defeat. Instead, it asks for a second dissolution, and upon a further defeat in the ensuing Parliament, a third, and so on, until the electors give in or revolt. Is the Governor-General bound to acquiesce in this game of constitutional ping-pong from electorate to Parliament, from Parliament to electorate again, back and forth interminably?”

His example of this approach came from Mackenzie King in 1926, but it could equally well have been Stephen Harper in 2008. King accused Parliament of having “ceased to be in a position to make a satisfactory decision” about who should govern. Harper blamed a “dysfunctional” Parliament that “wasn’t working.” Both meant the same thing: a Parliament which failed to do the Prime Minister’s bidding. And for both men, the prescription was also the same: get an obedient Governor-General to dissolve the unsatisfactory Parliament and bring on another election.

Eugene Forsey called this “a ‘heads I win, tails you lose’ theory of the Constitution. It bears not the faintest resemblance to parliamentary government. Yet, on the rubber stamp theory of the Crown’s powers, there is no escape from it, no protection against the Cabinet dictatorship it would rivet upon the country.”

Harper’s minority Conservatives spent their first term in office demonstrating their contempt for the people and their elected representatives. They systematically sabotaged the work of multi-party committees, used Orders-in-Council to avoid Commons debate and defy the law, and took the art of parliamentary bullying to new heights by declaring every government bill a matter of confidence, daring MPs to defeat it.

On the “rubber stamp” theory, any such defeat in the House would automatically trigger a new election, something opposition politicians are generally reluctant–for good reasons and bad–to provoke. Whether or not Harper knew that premise was false, he was certainly willing to bet it wouldn’t be challenged. Sadly, he was right. The opposition parties mouthed their platitudes, but never mentioned any constitutional alternative. While they played dead, Harper was able to keep pushing through his appalling legislation and stay in office till the time of his choosing.

My father understood the danger decades ago. “It is the rubber stamp theory which is undemocratic,” he said. “It makes existing governments irremovable except by their own consent. Such a doctrine is a travesty of democracy. It delivers every Opposition gagged and bound into the hands of any jack-in-office. The jack-in-office may loosen the gag and the ropes--[perhaps] so much that we don’t realize they’re there. But he can tighten them again whenever he pleases, and as tight as he pleases. This is not democracy. It is despotism; more or less benevolent, perhaps, for the moment, but despotism none the less.”

The antidote to this form of despotism is an understanding of the reserve power of the Crown to refuse a dissolution, and the political will to demand that it be used. Harper’s bullying tactics depend on the continuing ignorance and docility of the opposition, the media, and civil society–an ignorance regularly fertilized with forkfuls of bullshit from politicians and the media.

One example--out of many--was a recent statement by CBC Radio News that Harper’s technique of declaring every Commons vote a matter of confidence forces the opposition to either “support the government, force an election, or not vote at all.” It is precisely this widespread but false belief that reduces the opposition majority to a state of helpless frustration and allows the government to walk all over us.

This is not to say that it would be simple for the Governor-General to reject the ruling cabinet’s advice. As Eugene Forsey noted, a Governor-General would rightly be reluctant to do so without excellent reasons, and without a new cabinet willing to accept the responsibility. The reserve power on dissolution comes into play only in exceptional circumstances: when the last election is still relatively recent, no great new issue of public policy has arisen in the interim, and the makeup of the new Parliament provides the practical possibility of an alternative government.

But the fact that this reserve power exists is key to counteracting the paralyzing sense of helplessness that has made Canadians pawns in Harper’s cynical electoral game. It lets us move from mass frustration and wishful thinking to the practical possibility of the opposition forming a government. The current opposition parties would have to set partisan selfishness aside, but they wouldn’t need a formal coalition, just enough cooperation on each bill to reach agreement. That’s how responsible minority government works.

This becomes a very real option when we understand and insist on the constitutional principles surrounding dissolution. The specifics will depend on how the situation unfolds, but the deciding factor will be the opposition’s collective willingness to call Harper’s bluff early in the new session. Backed by informed public pressure, they should defeat him in the House as soon as he starts pushing his reactionary policies, and demand the chance to govern sensibly and cooperatively in his place.

If the opposition lacks the gumption to do this, or if the Governor-General simply knuckles under and grants Harper another dissolution, the public outcry should be so loud that Eugene Forsey will rise from his grave to join us.

(Writer and activist Helen Forsey is a daughter of the late Senator Eugene Forsey.)