Tuesday, September 02, 2008

Advising the Governor General

After several letters to the Globe & Mail suggested that Governor General Michaelle Jean should just refuse the prime minister's request for a dissolution, I was glad to see Professor Patrick Monahan's splash of cold water on that.

We are a constitutional monarchy. We are a parliamentary democracy. We don't want the Crown taking independent measures, we don't want an appointed head of state making executive decisions. The Governor General is bound to act on the advice of her advisors. Monahan sets that out strongly.

There's only one teeny place I might diverge from Monahan's take. He seems to assume that the incumbent prime minister's place as the advisor to the governor general is inassailable. But again we are a parliamentary democracy. If it ever were clear that a majority of parliamentarians had lost confidence in the incumbent prime minister and that the parliament did have confidence in someone else to fill the office, then I think the governor general would need to accept that parliament had indicated a new set of advisors for her.

The model for this -- a very distant one, I emphasize -- was the fall of John A. Macdonald's government in 1873. The members shifted their confidence to Alexander Mackenzie, the leader of the opposition, who became prime minister and governed into 1874 before winning a majority in his own right. The party loyalties of MPs were more fluid then than now: a house that gave majority support to the Conservative leader was able to give majority support to the Liberal leader. That's not likely to happen today. But the principle holds. If the House gives a strong indication that it has other advisors whom it prefers to the current ones, then the GG might have to refuse the advise of the discredited incumbent prime minister.

It's not that the GG is entitled to take independent measures. It's that both she and the prime minister are servants of parliament. The GG is bound to take the advice of her advisors on whether or not to dissolve parliament, but she should pay attention to the will of parliament as to who her advisors should be.

That's more important than some arbitrary six-months rule, I think.

Update: I'm surprised to see historian Michael Behiels arguing here and here that the Governor General could reject advice from her advisors. It's not for the GG to make up her own mind. If the leaders of enough opposition parties clearly informed her that they could and would form a government, then she could accept that the House was giving her new advisors. But in the absence of that, she must take the advice of the advisors she has. Sure, Harper is breaking his word, but he is not breaking his (ill-conceived) law.

'Nother Update: A blog called Pith and Substance, about law and politics, offers a lot of opinions on this topic. The blog is anonymous, which reduces its credibility( as does the author
s belief that "pseudonymous" means anonymous) Still, startling how many of its legally educated participants want a restoration of independent monarchical authority! The degree of uncertainty -- or worse, ill-informed certainty -- about this topic suggests we have a real problem here.

Correction: Dates in the above post have been corrected since first posting.
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