Errol Mendes, a professor of international, constitutional and human rights law at the University of Ottawa, says convention has dictated that in a minority government situation, a prime minister would only seek dissolution of Parliament if he lost a confidence vote.Oh the challenges this PM is posing to our constitutional traditions by having enacted this fixed election date law and now preparing to ignore it. He's certainly keeping the constitutional scholars busy, isn't he?
"In that case, no one can (dispute) ... that there is a right to go and seek the dissolution of the House once a vote of confidence has been lost – but that is not the situation here," Mendes said in an interview. In the current circumstances, "I think what (Harper) is doing is illegal," Mendes said.
After Bill C-16, the fixed-election-date legislation, was introduced in May 2006, Rob Nicholson, then government House leader, said the Prime Minister would retain his "prerogative to advise dissolution to allow for situations when the government loses the confidence of the House." The legislation, which amends the Canada Elections Act, says: "Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor General's discretion."
The legislation sets the date of the next vote for Oct. 19, 2009.
The problem with using the constitutional convention argument to constrain Mr. Harper's actions, however, is that they are not enforceable in a court of law. They can be used to supplement the interpretation of a law, which is perhaps where Mr. Mendes is going with his comments above. Meaning that Mendes is "reading in" a lost confidence vote as a requirement for a minority government PM to go to the G-G with legitimacy under the new fixed election date law. Because in Mendes' view, the PM has otherwise constrained his own ability to ask for an election. His fixed election date law has to mean something, after all. The G-G's powers remain intact, but the PM's conventional power to ask for an election has been constrained by statute. So absent a lost confidence vote, he can't do anything. That's Mendes' view. Professor Patrick Monahan disagrees. I'm not sure the legal arguments are going to be relevant in any event unless someone, like Mendes, seeks an injunction constraining Harper.
Mendes raising the issue of constitutional conventions is nevertheless useful to inform the political debate about what Harper is doing. These conventions, such as the convention that minority governments are defeated on votes of confidence, form integral components of our constitutional democracy. The survival of these conventions depends on the respect of those exercising the levers of power to honour them:
A constitutional convention is known to be established when there is a general acceptance of it as obligatory and when it is respected by the people or institutions it supposedly governs.As Mendes suggests, Mr. Harper is about to cause his minority government to fall, on his own initiative just as a majority government PM would. This is a radical departure from our constitutional traditions and generally accepted expectations as to how a minority government works. The present PM is unwilling to be defeated in the normal course of parliamentary procedure of a minority government. And clearly, he's unwilling to follow his own fixed election date law. This should tell Canadians about the value he places on such quaint traditions. They've been good enough throughout the life of our nation...until now.