Saturday, November 14, 2020

Comparative history of constitutions, UPDATED

Observing the travails of the American political scene faced with a head of state disinclined to surrender office, constitutional scholar Eric Adams argues that the "least democratic" elements of the Canadian constitution might be our best protection in analogous circumstances. 

By "least democratic elements," he means the Crown, noting that in Canada the head of government is not the head of state. A prime minister who attempted to defy the will of parliament can be removed by the Crown, i,e,, the Governor-General.

He's right, but I fear monarchists may misunderstand him and surround his argument with a lot of blather about how we Canadians can always dutifully rely on the protection of a wise foreign queen or king. 

Adams also doesn't note the unsatisfactory situation that the governor general, the head of state we would need to rely on in a crisis, is effectively appointed by the prime minister. Canada really needs to establish a selection process for GGs that gives that office the status and independence it may one day require.  

Updates, November 16:  Randall White comments:
Greg Barns, executive director of the Australian Republican Movement during the 1999 referendum, and a still enthusiastic republican who spoke to us [the group that became Citizens for a Canadian Republic] in Toronto way back now (and recently did a counterweights piece on the 1975 Palace Letters in the Land of Oz) has just published an interesting piece on anti-monarchy protests in Asia.  

I found his last paragraph especially striking: "When the Prime Minister of Australia wants to appoint a new governor-general, is it not humiliating that he or she has to write to London to get permission to make that appointment? While each monarchy differs, they all share one thing in common -- they undermine the relentless quest of humanity for equality."

Actually I'm not as keen as Greg Barns seems to be on giving a prime minister even more authority to appoint governors general.  Who's working for who, after all?

Alan McCullough weighs in too:

Eric Adams's opinion piece, “The least democratic aspects of Canada's Constitution may provide the best defence of our election process,” is legal theory with little consideration of how the Canadian system has worked. Since King/Byng no governor general has publicly refused the advice of a prime minister. This includes MichaĆ«lle Jean who had a plausible, if weak, case for refusing Stephen Harper’s request for prorogation in 2008.

Based on past form, it is very unlikely that a governor general would remove a rogue prime minister. This would be especially true if the prime minister still retained the support of parliament. If the prime minister controlled a majority in parliament the governor general would have no alternative government to call on.

Parliament should be the first line of defence in removing a rogue prime minister but, as you have pointed out, political parties in Canada are pretty much in the prime minister’s pocket. Relying on a rogue prime minister’s own party to remove him/her would be a risky proposition. We have seen how in the United States a Republican dominated senate refused to convict a Republican president who deserved to be removed from office. The same might well be true in Canada.

If a prime minister lost control of parliament but refused to give up his/her office, then a governor general might be forced to take the unprecedented step of dismissing him/her. Because many civil servants, members of most police forces and the military, many lawyers as well as members of parliament swear an oath of allegiance to the Queen of Canada, not to the prime minister or to parliament, the dismissal might morally and legally free those who have sworn the oath of allegiance from any obligation to support the prime minister or even to remove him from office.

And an update from Randall White:

I’m sure Greg Barns is not in favour of giving a prime minister even more authority to appoint governors general. I can see how his last paragraph might be read this way. But he’s just alluding to current practice, not any future reform.
In the 1999 referendum in which Greg played such a key role, the “question on the republic put to electors ... was whether they approved of: A proposed law: To alter the Constitution to establish the Commonwealth of Australia as a republic with the Queen and Governor-General being replaced by a President appointed by a two-thirds majority of the members of the Commonwealth Parliament.”

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