Jungle said:
... I don't mind the monarchy, but I'm not a fan of it.
I am a staunch federalist, but I would like to see a Canadian republic after the current monarch's reign.
Here, reproduced under the Fair Dealing provisions (§29) of the Copyright Act from today’s
Globe and Mail web site, are Norman Spector’s (well informed, he was Chief of Staff to Prime Minister Mulroney and was also a very senior bureaucrat and diplomat) views:
http://www.theglobeandmail.com/blogs/spector-vision/fixing-a-constitutional-grey-area/article1319854/
Fixing a constitutional grey area
Norman Spector
Saturday, October 10, 2009
The spat between Prime Minister Stephen Harper and Governor-General Michaëlle Jean that’s in the headlines is not about ego or strained interpersonal relations. Nor is it about some arcane constitutional niceties that are of interest principally to the dwindling number of passionate monarchists in Canada. Rather, behind the semantic dispute over the correct description of Her Excellency’s Office, lies a debate about power — real power — and a potential constitutional crisis.
In both Canada and Britain, the Head of State hires and can fire the prime minister. That’s no problem in the U.K., where no one questions that the Royal Family is completely above politics. And, as part of its duties, the Royal Family takes great care to school those in the line of succession in the constitutional aspects of the job.
In Canada, by contrast, the prime minister in effect hires the Governor-General through his prerogative of advising the Queen. There is no prohibition on appointing political partisans to the position. Nor is there a requirement that the Governor-General know much about the constitution, or even about the country.
Over the years there has been considerable discussion of finding a better way to appoint the Governor-General, but these discussions have come to naught. Fortunately, until now, we’ve been able to avoid the constitutional crisis that is latent in our current arrangements.
That could very well have changed during last fall’s coalition shenanigans.
According to U of T historian Michael Bliss, “if Stephen Harper’s government had lost a confidence vote in Parliament and the governor general had denied Harper a request to dissolve Parliament to test Canadians’ opinion on whether they supported a coalition based on a legislative agreement with a separatist party, Harper would very properly have concluded that the governor general was behaving unconstitutionally. His recourse would have been to insist that she be dismissed from office by Queen Elizabeth II. There is no possibility that the Queen could deny such a request from her Canadian prime minister.”
I’m not certain of the latter. However, it is clear that we would have had a bloody mess on our hands had the Queen of England (as she is also known) been called on to settle a Canadian domestic political dispute as Professor Bliss suggests. As we would have, had Ms. Jean transferred power to the coalition without an election.
Experts will differ on the constitutionality of the two alternative courses of action for resolving the dispute. Both, however, would have been seen by many Canadians to be illegitimate. Which means that we had better turn our minds to fixing this grey area of our constitution, before we are ever again confronted with a dispute over who will govern this country.
I
think Prof. Bliss is exactly right. Her Majesty is
constitutionally bound to accept the advice of her prime minister, even when it might come to firing her own representative for crass, partisan political reasons, but the PM is also
bound to hear, if not heed, her advice and warnings – and she would certainly have some for him.
The issue becomes the selection and appointment of the GG.
I do not
believe that HM ought to have anything except the most formal role in that. It
must, in my
opinion be a 100% Canadian decision – made in Canada by Canadians.
The
constitutional duty to advise the sovereign on who she should (
must, actually) appoint to the office of GG lies with the prime minister, but there is no reason why (s)he cannot, perhaps even should not
delegate the
nominating process to, just for example, the Senate of Canada. Or the PM might do the
nominating and then allow another
agency to
elect the person he would, eventually, recommend for appointment.
No one should be excluded from consideration for being GG, but appointing superannuated political hacks should be avoided.
Of course, the current contretemps does bring us back to the
reality that
our, Canadian, head-of-state is someone we “share” with several other countries and she, a most admirable woman in all respects, has a full time job in the United Kingdom.
Personally I
wish we had a
bornlives-in-Canada head-of-state, a
de jure rather than just a
de facto Canadian head of the Canadian state. I don’t mind sharing Her Majesty, Queen Elizabeth with the Aussies, Brits and Kiwis but I
hope she might be our last non-resident head-of-state.
But there’s a problem. The form of our state, a constitutional monarchy with the current British sovereign as monarch, is defined in our
Canadian Constitution and it is defined in one of the parts that cannot be amended without the
unanimous agreement of all the provinces and the federal parliament. The late Prime Minister Trudeau lamented that in constitutional negotiations the provinces were inclined to
“trade rights for fish”. Can you even begin to imagine what they would want to trade for a reshaping of the very essence of the state?
But, as I have said before, there is a way.
Parliament could pass a resolution – not an Act of Parliament or a “law,”
per se, just a resolution that expresses its
opinion – rather like the
Nickle Resolution that
requested that the sovereign (actually the British government) stop granting
honours (knighthoods and titles) to Canadians.
While the Nickle Resolution passed the House of Commons it never went father – not even to the Senate (where it was almost certain to be defeated) and it never resulted in anything being sent to London. But it served its purpose. It expressed the will of the
elected House of Commons – the only
will that, even in 1919, mattered in Canada and the only
will that, even a dozen years prior to the Statutes of Westminster, bound the
King of Canada.
A similar expression of the
will of the Canadian House of Commons, the only
elected national political will available to our good Queen, saying that we did not accept, for the Throne of Canada, the rules of succession of the United Kingdom – based, just for the sake of argument, on the
anti-Catholic bias in the Act of Settlement of 1701 – would
bind the entire British Royal Family.
Based on that resolution, that parliamentary opinion, when, as she must, sadly, Her Majesty dies, we would not
proclaim anyone to be our monarch. We would still be a constitutional monarchy and the Throne of Canada would still be the “property” of the British Royal Family but “we,” Canada as represented by our parliament, and they, the Brit Royals, would be unsure of just which
Royal ought to have it. Into the vacuum steps the Governor General of Canada who,
de facto becomes the
Regent of Canada, too. We would have a regency; now regencies are meant to be temporary, interim things but nothing says we ever have to resolve our monarchical
dilemma. We could, almost certainly would, in our own good time, develop our own, made-in-Canada way to
select our
de facto head-of-state, but (s)he wouldn’t get the job by
divine right any more.
I
think it provides a
constitutional way to square the circle.
