Introduction
Politics in Canada, more often than not, are considered uneventful. The politics of its neighbouring country, the United States of America, overshadow the events that take place within Canadian political life. However, as witnessed in recent years, the problems of the continuity of minority rule in the House of Commons have been enlarged and magnified. The core issue that led to, and continues to, create dispute amongst Canadians today is the issue of prorogation and its use by the current Prime Minister of Canada Stephen Harper, leader of the Conservative Party of Canada. The use of such political tool has been scrutinized by many and as such requires discussion. Prorogation, by any government, must be contained within law in order to establish checks and balances for a true and fair democracy. Prorogation (in the modern Canadian context), without immediate necessity of implementation, is violence against the people because it constitutes undemocratic silencing of the opposition’s voice, creates a probable autocratic rule, and diminishes the idea of trust in government.
Proroguement in Canada
Firstly, I examine the background that led to the proroguement of parliament performed by the Prime Minister. By the end of 2008, Canada’s parliament went through a dispute that caused a political crisis in Canada. The dispute started when Prime Minister Harper requested dissolution of the 39th Canadian Parliament, one that had a minority conservative government led by him. Prime Minister Harper argued that the 39th Canadian Parliament, at that time, did not function productively because of opposition from Stéphane Dion and the Liberal Party along with the other opposition parties. The Prime Minister gave a statement and said that many of the legislation on the floor was being obstructed in the House of Commons “principally by Mr. Dion” and that as a result of this he was seriously considering whether parliament could continue while being dysfunctional. The Prime Minister inclined to comment on the committee system to being in a chaotic state. The CBC hinted that this reference was made towards the increased fighting in an ethics committee that dealt with the Conservative spending during the election. On September 1st, 2008, Prime Minister Harper and Liberal Party leader Dion met to discuss ways in which to make the next session of parliament more productive. However, they could not agree on steps to better parliament, which resulted in the Prime Minister requesting the Governor General of Canada, Her Excellency Michaëlle Jean, to dissolve parliament and call for a new election to be set on October 14th (News, Harper hints at triggering elections).
The federal election for the 40th Canadian Parliament resulted in a new mandate for the Conservative Party of Canada. The Conservative Party was re-elected as the new minority government, with 143 seats, up from 127 in the previous election. The Liberal Party, led by Dion, returned as the loyal opposition with 77 seats, down by 19 seats from the previous election. Bloc Quebecois garnered 49 seats while the New Democratic Party, led by Jack Layton, received 37 seats. Basically, this election renewed Canada’s confidence in the Prime Minister’s Conservative Party and gave it a stronger mandate to rule (News, Canada Votes – Harper ‘very pleased’ with stronger minority).
Shortly after the minority government was formed, on November 27th, 2008, the Finance Minister Jim Flaherty delivered to the House of Commons the government’s fiscal update, which was highly contested bythe opposition parties due to the items it consisted. One of the items that caused this opposition would be the elimination of public spending towards federal political parties. A move that would see cut in public spending by about $300 million every year. However, since the opposition parties heavily depend upon much of these subsidies, a move like this would cripple the opposition’s campaign efforts in upcoming elections. Furthermore, other items on the update included the suspension the ability of civil servants to strike and stopping pay increases for members of Parliament and federally appointed judges. While the update mainly consisted of curbing public spending in the midst of economic uncertainty, it did not contain any economical stimulus to improve conditions for Canadians during the ongoing world economic crisis (News, Flaherty to axe subsidies to political parties in fiscal update).
As a result of a money bill being a confidence motion as well, the opposition would either have to vote in favour of the bill or vote against it, accordingly triggering a vote of non-confidence to the new conservative minority government. Thus, an agreement was formed between the Liberal Party and the New Democratic Party with the support of the Bloc Quebecois to form a coalition to topple the newly formed government by voting against the bill invoking a vote of non-confidence (News, Liberals, NDP, Bloc sign deal on proposed coalition). The reaction, thus, from Prime Minister Harper was to request the Governor General Jean to prorogue parliament in order to avoid a scheduled vote of non-confidence. On December 4th, 2008 Her Excellency Michaëlle Jean, Governor General and vice regal representative of Her Majesty the Queen granted this request to the Prime Minister to prorogue Parliament until January 26th, 2009 consequently avoiding a scheduled confidence vote to be taken on December 8th, 2008 (News, CBC News – Canada – GG agrees to suspend Parliament until January). When parliament reconvened after the prorogation period ended, the dynamics of the political atmosphere surrounding the House of Commons changed. The liberals saw a change in leadership from Mr. Dion to Mr. Michael Ignatieff. The Conservatives under Prime Minister Harper continued governing after the throne speech and the fiscal update. However, Canadians again saw the use of prorogation by the Governor General on the advice of the Prime Minister by the end of 2009. The usual recess that parliament undertakes over the winter break saw it prolonged until March.
It is important to note that historically Prime Ministers of Canada have exercised the right to prorogue through the Governor General of Canada. Therefore, this raises the following question: “if it is wrong for Prime Minister Harper to prorogue, would the justifications of previous Prime Ministers who chose to prorogue be legitimate?” However, the circumstances differ. More often than not, previous Prime Ministers of Canada prorogued parliament mainly when the orders of business in the legislative body of government have been completed, thus necessitating the Head of Government to ask for proroguement from the Governor General in order to set new priorities for the next session of parliament (The Economist – Halted Mid-debate). On the contrary to previous precedents, the 40th parliament debated legislation, under Prime Minister Harper, was far from over. In fact, the parliament the Prime Minister decided to prorogue had before it 36 legislative bills being debated (The Economist – Canada’s Parliament Harper Goes Prorogue). The first prorogation occurred right after the introduction of the economic budget, an important and core legislative bill which under the circumstance should have been debated. The bill was important as it was introduced during the world economic crisis that led to a worldwide market recession.
In his essay, titled “The Turmoil Surrounding the Prorogation of Canada’s 40th Parliament & the Crown”, Kenneth Munro provides insight toward the same issue, i.e., the constitutionality of prorogation as it is used today. He questioned the constitutionality of prorogation in the Canadian context as a result of the Prime Minister’s decision. He furthermore posed a rather important question central to the discussion about whether or not justification for prorogation must be legitimate. Munro asked, “[W]as Prime Minister Stephen Harper abusing the prerogative and reserve powers of the Crown for partisan political advantage? (Munro).” The answer to this question may be argued from both sides supporting and disagreeing with the Prime Minister, but, essentially, the question itself raises a further question: Is prorogation legitimate when it is not justifiably strong?
Avoiding opposition in a representational democracy
It is very important that the discussion of the current and modern example of prorogation in the Canadian context is discussed in light of the earliest, if not the first, usage of the political tool (prorogation) in ancient times. The comparisonis set between the establishment of such a political tool in the ancient Roman Republic and the Canadian positions taken today when its application occurs. A prime and precedent setting of this is prorogation in ancient Rome. As the Roman Empire began and continued its policy on expansionism, the idea of proroguing the powers of a commander in times of war against other cities became important. Therefore, it became practice for the Roman Republic to enforce the concept of prorogatio in what is known today as prorogation. The concept established the prolonging of a consul’s ‘imperium’ over his magistracy; imperium here being power while magistracy referred to elected office in the Roman Republic (Lintott). Accordingly, prorogation by government of the legislative branch in the Roman Republic has been put in place to ensure that immediate circumstances are met swiftly in times of war. The success of the Roman Republic, with their expansionism policy, could be attributed to this idea of prorogatio. In Linott’s The Constitution of the Roman Republic, the first example of such a use is mentioned. According to the book, the first time prorogatio or the extension of a consul’s imperium over his magistracy was Q. Publilus Philo in 326 BC. The reason his imperium was prorogued was because it was seen as necessary that he hold on to power as commander if the mission of completely capturing Naples was to become realized. This continued on when military need was justified. As a result, the need for the continuity of a commander’s power. or imperium as the Roman’s put it, was so great that their power needed to be prorogued in order to ensure triumph was secured for the Roman Republic.
The comparison, and its importance with the current use of prerogative powers to prorogue parliament in Canada with its earlier counterpart in the Roman Republic, is explained henceforth. The importance lies in the contrast between the two and the different circumstance that occurred in the use of proroguement. The circumstances analysed are the decisions that led Prime Minister Harper to prorogue in both cases and whether those decisions were taken to be justifiable.
The first case of proroguement by the Prime Minister occurred shortly after the formation of the 40th Canadian parliament that resulted in a Conservative Party of Canada winning the election to form a minority government. The dispute that preceded the election was between the Prime Minister Stephen Harper and the opposition leader Mr. Dion of the Liberal party of Canada in the 39th parliament. The dissolution was thus a political one with Mr. Harper grasping the chance for an increased mandate, albeit not enough a mandate for a majority. In the mean time, while the current 40th parliament was formed in late 2008, the world was experiencing strong economic recession that saw many money markets fail, Canada included. The dispute that aroused that resulted in the first proroguement was because of differences in the stimulus that was proposed by the conservative budget after the throne speech was given. The conservatives opted to cut spending in many programs while limited the scope of spending during the recession. The liberals wanted to see more spending in order to boost the economy. The disagreements were so profound that a coalition between the two major opposition parties with the support of the bloc was created to vote against the budget that would allow a vote of non-confidence against the minority government. The hope of the coalition then was to fail the vote and pass the non-confidence vote that would lead the Governor General to ask the coalition to form a new government instead of calling early election right after an election. However, as witnessed, Prime Minister Harper prorogued parliament to dodge the threat of bringing down his minority government (The Economist – Canada’s Parliament Harper Goes Prorogue).
The point being made in illustrating the attempt of a coalition by the opposition and the decision taken by the Prime Minister to prorogue is to convey the need for a justifiable and legitimate reason to suspend parliament. In this very case, the conservatives, being a minority in parliament, refused to cooperate with the opposition who made up a majority over the budget. Instead of coming up with a compromise, the leader of the minority government decided to prorogue. Hence, the argument against this decision is that the act itself was undemocratic and highly authoritarian from a political point of view – the retention of power. “When a government starts trying to cancel dissent or avoid dissent is frankly when it’s rapidly losing its moral authority to govern” (Liberal.ca). These are words spoken by the Prime Minister of Canada himself. The statement was made during the 38th session of the Canadian Parliament when he was the leader of the official opposition to the Liberal minority government. Today however, a different perspective is seen when the Prime Minister of the current session prorogued parliament three times over the span of the two different parliaments (the 39th and 40th). The reasons for proroguement often raises the question of a government’s legitimacy or, as the Prime Minister himself put it, “moral authority to govern”.
It could also be argued that the when the Prime Minister prorogued parliament, he did so in an act of defiance against the will of the Canadian people; for it is true that although an election gave his party mandate to rule, it was a mandate that formed a minority government. Therefore, by proroguing, the Prime Minister silenced an opposition that represented a majority who were elected by voting Canadians. Hannah Arendt, in her book On Violence, wrote, “Power springs up whenever people get together and act in concert, but it derives its legitimacy from the initial getting together rather than from any action that then may follow. Legitimacy, when challenged, bases itself on an appeal to the past, while justification relates to an end that lies in the future. Violence can be justifiable, but it never will be legitimate” (Arendt 241). Legitimacy could be defined as a condition that allows government the authority to govern rightfully by the will of people without having to abuse the right of authority to govern. The quote fits in very well with the current situation of proroguement of parliament in Canada. When Prime Minister Stephen Harper justified the proroguement, the justification he provided related to the passing of the economic budget, however, the legitimacy, according to Arendt, lacked in this context. Therefore, if the Prime Minister’s decision to prorogue was primarily to remain in power by avoiding a vote of non-confidence, then his justification is a means to an end that lays in the future “power”. This justification is not legitimate to Arendt and thus is considered violence done against the people.
Arendt furthered her argument about power and violence by showing that violence could be justified and legitimate in one case. She wrote, “No one questions the use of violence in self-defense, because the danger is not only clear but also present, and the end justifying the means is immediate” (Arendt 241). This idea ties in with prorogation as it was meant in the Roman Republic compared to today’s use by Prime Minister Harper. According to Arendt, by allowing proroguement, violence is being inflicted on the people. However, this violence could be considered legitimate because its justification in using it is as a result of dealing with immediate concerns of war. The immediacy of war warrants the use of violence from power (prorogatio) to fight in self-defense. For that very reason, the use of proroguement by the Roman Republic was justified and legitimate but the use of it by the Canadian Prime Minister was justified but illegitimate.
As a result of the prorogued period that was agreed upon by the Governor General of Canada – October 2008 to January 2009 – called from members of the Liberal Party of Canada for the immediate resignation of their leader Dion came into light. Liberal MPs along with others at the New Democratic Party questioned the way Dion handled the coalition and his leadership style in general (Laghi). The failure in actually passing the non-confidence vote was blamed on Dion. Mr. Dion accepted the request and an interim leader of Her Majesty’s Loyal Opposition was appointed. The new leader of the official opposition became Ignatieff. Due to his reluctance in supporting the coalition coupled with increased calls from the public against an election, the New Democrats abstained from the non-confidence vote thus allowing the Prime Minister and his minority government to retain power.
Accordingly, the Prime Minster, by proroguing parliament, avoided opposition in what is considered a representational democracy. Critics would argue that his decision to prorogue would be considered politically smart, in the sense that proroguing allowed him to stay in power. However, such a use of proroguement is highly politically immoral as the Prime Minister put it himself earlier. The moral authority to rule lacked because by suspending parliamentPrime Minster Harper silenced the voice of the opposition. In a democratic state, proroguement in this instance became an undemocratic use.
During the same 40th Canadian parliament, and after the resumption of the parliament in the second session after the minority government under Prime Minister Harper survived a confidence motion, another decision of the same by the Prime Minister was taken, i.e., to prorogue. This time round, after getting the acceptance from the Governor General to prorogue, the Prime Minister claimed the reason for proroguement was because it was a “routine move to allow the government to adjust its budget due on March 4th” (The Economist – Halted Mid-debate). Yet again, parliament was still in session and was discussing legislation, therefore its orders of business was incomplete. Therefore, why did he really prorogue? The Liberals this time around argued that the real reason for proroguing was to end an ‘embarrassing’ debate, as The Economist put it, which surrounded the involvement of the Canadian government in the torture of Afghan detainees (The Economist – Halted Mid-debate).
Even after the throne speech was presented, a customary tradition that opens a new session of parliament, the mentioned ideas in the speech delivered by the Governor General were dubbed to be similar in nature to previous ones. The federal budget was introduced the next day and did not introduce different economic measures. Spending was largely cut. As a result of the previous proroguement, Michael Ignatieff, the new Liberal leader, refused to fail the money bill because Canadians did not want another election. This could be seen to provide an autocratic rule for the conservatives over the opposition parties. The issue of minority governments and the way in which the current Prime Minister dealt with the situation gives rise to the question of rule. Is it right for the conservatives to take measures based on a minority rule without consulting and consensus with other opposition parties? I would argue that, again, this would be considered highly undemocratic. Ruling from a minority point of view that uses prorogation to avoid any opposition creates probable autocratic rule.
As a result to the second case of prorogation, the opposition, instead of forming another coalition, decided to propose alternative courses of action should a similar situation arise in the future. Their proposals (the Liberals’ and NDP’s, that is) consisted of the creation of motions that would limit the powers of the Prime Minister to prorogue. The Liberal’s plan for example, would require ten days’ notice in writing from the Prime Minister of Canada about the intention of proroguing and would allow for a debate in the House of Commons about it (Greenway). In essence, their alternatives to the current precedent of proroguement would set a system that involves a check and balance on any government that would seek to silence parliament to avoid any opposition and retain power. If these proposals were to ever become law, the setting of the political atmosphere would be more democratic. It would provide for a much more improved democratic setting where if minority governments were governing, the opposition would still be able to voice their opinions if necessary. However, many would argue that the introduction of such proposals would be considered unconstitutional. This is mainly because of the way in which the constitution of Canada is formed, i.e., originally uncodified and traditionally brings a focus on precedent settings. The counter-argument is presented in the last section of this essay.
Trust in government
The political framework that exists in Canada builds upon a common principle of ‘trust in government’. For a government to remain in power, it should have the support of a working majority in the House of Commons. Through this concept, the cabinet is held responsible to the House of Commons. This yields a responsible government. The concept has been introduced since 1714. Therefore, the constitutionality of the working majority of any government must have the support of its entire party if a majority already exists, or involving the opposition for a responsible government. The political theory or concept of responsible government thus yields the idea that a responsible government uses power but never possesses it. The power is exerted by a government given in trust by the crown. Therefore, the cornerstone of Canada’s constitutional parliamentary democracy is that power is held by a non-partisan institution, i.e., the crown of Canada (MacLeod).
After the second proroguement of parliament by Prime Minister Harper, this very idea of responsible government lacks in reality than in theory. The reality is that the current conservative minority government led by Prime Minister Harper has abused the prerogative powers of the crown by proroguing illegitimately because of the lack in credible justification. As Ned Franks in The Economist article stated, “No previous prime minister has prorogued the legislature ‘in order to avoid the kind of things that Harper apparently wants to avoid’” (The Economist – Halted Mid-debate). The premise for the statement was that Prime Minister Harper was setting a precedent that did not comply with how or why previous Prime Ministers of Canada prorogued. The article went on to say that this precedent becomes dangerous. In reality, it is.
The Canadian constitution, as stated previously, is made up of both written and unwritten uncodified constitutional conventions of which prorogation is an unwritten one. Therefore, the breakdown of checks and balances of the government could happen or could be argued that it is happening with the current Canadian government. This could be avoided by learning from previous democracies such as that of the Roman Republic. The case of prorogatio will be revisited with a more critical lens as to how its use was abused.
Prorogatio, as stated earlier on in this essay, was meant to prorogue the imperium of a consul’s magistracy in order to accomplish a set of objectives that belonged to Rome’s policy of expansionism. However, because the constitution of the Roman Republic was also unwritten and uncodified, prorogatio became as a result of precedent. However, the breakdown of checks and balances occurred when private citizens were given direct power to rule, i.e., given imperium to be a pro-magistrate without ever being elected (Linott). Therefore, the breakdown of the checks and balance in the Roman Republic must be realized here in the modern context if Canada would want to solidify its democratic tradition in a Canadian constitutional parliamentary democracy.
The need for legislation to amend the constitution is imperative for the reasoning behind proroguing parliament. A convention would not be able to sustain itself as witnessed by the recent use of prorogation by Prime Minister Stephen Harper. It is important to include the provision under which any Prime Minister is allowed to request or advice the Governor General for prorogation of the parliament. If the principle of responsible government, one that requires the working majority of the House of Commons is followed strictly, the absence for a solid check on the use of proroguement is necessary. The issue of necessity, as stressed earlier is also imperative to the use of proroguement. But, as witnessed in the events that followed the parliamentary dispute of the 40th Canadian parliament, proroguement was used mainly as a means to an end that would secure political power for the conservatives rather than deal with issues of immediacy that threatened its legitimacy.
Prorogation, as emphasized in this essay, is a sensitive issue that put into question the legitimacy of its use in recent times, specifically by Prime Minister Harper. The reason as to why prorogation must be established lawfully and legitimately in Canada is to avoid the breakdown of checks and balances of a responsible government. The lack of any reform for the prerogative powers of the crown that is highly influenced by elected officials might lead to Arendt’s arguments that power that is abused is violence that in turn leads to an abuse of power to meet an end; an end that could be probable in any governmental context – autocratic rule in a democratic society.
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Article photo: TheTyee.ca
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Works Cited
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