The delicate role of the Governor General
As a woman of colour and the daughter of a refugee from strife-riven Haiti, Michaëlle Jean has already made history simply in being appointed Canada's 27th Governor General.
She probably does not want to go down in the history books as one of the very few governors general to have had to buck a sitting prime minister.
As representatives of the Queen in Canada, the vast majority of Canadian governors general have lived mostly uneventful constitutional lives.
Theirs is a largely ceremonial role, with the added requirement to provide moral leadership, which is why most governors general take on special causes — advancing the cause of young people or aboriginal Canadians or the disadvantaged, for example — during their terms in office.
But as Canada's acting head of state, standing in for the Queen in our constitutional monarchy, a governor general has what are called reserve or prerogative powers, emanating from the throne, which are only to be invoked in a time of great constitutional and political impasse, such as may be the case now.
Simply put, the governor general is to be the final arbiter to ensure Canada has a stable and functioning Parliament, a requirement that could — in the extreme case — provoke her to dismiss a prime minister who may be trying to cling to power unconstitutionally or acting above the law.
Who elected her?
No Canadian governor general has ever actually dismissed a prime minister (which occurred in Australia in 1975 in that country's great constitutional crisis) and no one expects that to be the case here in this current situation involving a potential coalition government.
Governors general are expected to take the "advice" of the sitting prime minister on almost every occasion. Should they not, because they feel their obligation to ensure a stable and functioning government supersedes that advice, then the prime minister has no alternative but to resign.
That has happened at least twice before in Canadian history: in 1896 and in 1926 in the so-called King-Byng affair, which provoked an almost violent reaction against the decision of the then British-appointed governor general, Lord Byng.
A similar confrontation could occur again as early as this week or early next should Prime Minister Stephen Harper ask the Governor General to adjourn (prorogue) Parliament for a period after only two weeks of sitting, or to call a new election if his Conservatives are defeated in the House, an event that appears imminent.
An archaic authority
Some constitutional scholars argue that the so-called reserve power of a governor general is so archaic and unused that it should not be relied upon in contemporary situations — the electorate should always be the ultimate decider — which is why Gov. Gen. Jean is getting so much conflicting advice of late.
The three main reserve powers that a governor general has are to dismiss a prime minister, to dissolve Parliament (or not) and to delay or refuse royal assent to legislation, which has been used only once before, in Alberta during the Depression.
These constitutional conventions are not written down and so involve a fair amount of subjectivity on the part of the incumbent.
In Jean's case, the fact that she is a Quebec francophone, was appointed by the Liberals and was accused of separatist leanings at one point (which she denied) may also factor into her decision making, some observers argue, if only because she might not want to be seen dragging her high office into petty controversy.
But those anti-monarchists who ask why we have a non-elected official deciding who will govern miss a point: virtually every western republic in the world (save the U.S.) has a dual system involving a head of state and a head of government, based largely on the Westminster model, for just these eventualities. At some point, somebody has to decide.
In fact, in India, a democratic republic with a history of fleeting coalitions, the head of state, the president, has taken on the difficult task of trying to herd coalition partners together and to, shades of Jack Layton and Stéphane Dion, spell out their commitments in written form.
The U.S. invests its reserve powers in the president, which can prove problematic when he uses his "royal prerogative" to dole out controversial pardons just as he leaves office or to decide on his own what constitutes something like torture.
The first test of Michaëlle Jean's constitutional authority could come as early as this week should Harper ask her permission, usually a routine request, to prorogue this current session and begin a new one in late January, when a Conservative budget is to be delivered.
An adjournment is usually requested only after Parliament has dealt with a body of legislative work — not after just a few weeks of sitting — to give MPs a chance to get back to their constituencies and take a sounding.
Of course, the fact that the three opposition parties are now proposing to defeat the government at the first opportunity and impose two of their number in the Conservatives' place may be enough of a legislative mouthful to warrant adjourning the House for a time and letting MPs from all parties explain their ambitions a little more fully.
Proroguing means any legislative initiatives currently underway are history and a new session picks up with a new speech from the throne and a new set of legislation.
The power of a prime minister to make appointments and carry on the business of government while Parliament is prorogued is unaffected. But in this case, given that the opposition parties have declared their intention to overpower the government and take over, some constitutional scholars have suggested the Governor General might want to curb the prime minister's authority a bit over the next several weeks while the situation plays itself out.
If Jean were to reject Harper's request for a time out, he would have no recourse but to resign, which raises the big question: what next?
Election or coalition?
If Harper resigns, either because his request for an adjournment has been denied or he has been defeated in the House, he has two options: he can ask the Governor General to dissolve Parliament and allow an election; or he can ask that she invite another party leader to form the government.
This is where things get interesting. Previous governors general have allowed elections after short-lived minority governments in 1958 (nine months), 1963 (10 months) and 1979 (nine months), for example.
But to have another election just two or three or four months after the last one (on Oct. 14, 2008), assuming Harper can hang on until after his budget, would seem to be pushing it, especially if there is an opposition coalition ready to step up and take over.
Unless, that is, the Governor General feels the coalition is not truly viable or will not pass her sense of broad public acceptance.
There are no hard and fast standards here. But constitutional scholars like Edward McWhinney (a one-time Liberal MP) have argued that important decisions like this "are validated in action by their evident common sense and reasonableness and community acceptance."
In her memoirs, former governor general Adrienne Clarkson said she was forced to confront a similar situation following the election of Paul Martin's minority Liberal government in spring 2004.
The Harper Conservatives and Layton NDP were talking of an agreement to unseat the Liberals and Clarkson said she would only have allowed a Martin request for dissolution if he had been in office six months. "To put the Canadian people through an election before six months would have been irresponsible," she wrote.
She also gave an extremely long lecture at the University of Toronto, where she declaimed the continued relevance of the governor general's office as constitutional fire extinguisher for just such situations.
In King-Byng in 1926, then Liberal prime minister Mackenzie King, in the midst of accusations of government wrongdoing and sensing he would be defeated in the House, formally requested dissolution and another election, which Lord Byng refused on the grounds that there had only just been one eight months earlier.
Lord Byng offered the government to the Conservatives, who had in fact quite a few more seats than the Liberals but not the support of the third-party Progressives in that minority parliament.
King's position was that the governor general must always accept the constitutional advice of the sitting prime minister and, deriding Byng as a symbol of British imperial authority, forced the defeat of the Conservatives in the House and an election in September 1926, which he won.
There was also the situation in Ontario in 1985 when David Peterson's Liberals, on the basis of a written two-year "accord" with Bob Rae's NDP, supplanted the minority Conservative government, defeating it immediately on its inaugural throne speech.
On their defeat, the Conservatives requested, somewhat half-heartedly it seemed at the time, that the Lieutenant Governor of Ontario allow for a new election. But as the Liberals were within only four seats of the Conservatives and had the clear support of the third party, Lt.-Gov. John Black Aird invited Peterson to form the government.
Prof. McWhinney suggests
Because the rules governing the governor general's prerogative powers and minority governments are so steeped in history and occasional use (and because the British Parliament has not seen a minority government since the 1930s, so it hasn't been much help on this front), McWhinney recently suggested a set of guidelines in an article in the Canadian Parliamentary Review.
His main points, which have surely been brought to the Governor General's attention:
- Any actual use of the reserve power must be transparent, with the basis for acting clear to all the main contending parties.
- The decision to change governments without an election must be made only if the new government concretely demonstrates the capability to obtain and maintain majority support in Parliament.
- The decision should be perceived as equitable and politically fair among all the main political parties.
That last point could be a bit of a stickler.