Furthermore, the Senate and the House of Commons are only two of three parts of the Parliamentary equation, and I believe that reform of the third body is essential as well.
The failing of our Constitutional order is that it allows unwritten convention to overtake the written "rules of the game" leading to unintended consequences. I'm all for changing the rules of the game, but let's be upfront and clearly show how they work; if anything to avoid a reply of the "Confidence" vote/no-vote we saw in the spring.
One of the "unintended consequences" I believe has occurred is the shape of our political landscape today. Our Westminster tradition (which has its strengths and is a tradition we should be duly proud of) is underscored by the principle of the
Supremacy of Parliament. Forget the fact that federalism in Canada has underscored this (a contradictory and yet necessary function), the heart of our national government is in Parliament.
Constitutionally, Parliament is defined as the following in the BNA Act:
17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.
Thus, Sovereignty is a three part deal in Canada. Unfortunately, unintended consequences have evolved Parliament from the "Sovereignty of Parliament" into the "Tyranny of the Commons" (clearly described in Simpson's
The Friendly Dictatorship). This "friendly tyranny" has managed to usurp the rudder of Canada by ensuring that power is concentrated two-fold; power that rightly is shared amongst Parliament is wielded by Commons and all this power centralized into a winner-takes-all party system that has the Party leader at the Apex of the structure. The true sovereign voice of the people, the
vox populi, is ignored as party machinery finds a clever way to rule through unintended concentration of power that is unprecedented in the Western Democracies.
I believe the general solution to be
Checks and Balances. Critics will deride the system of checks and balances of as "American" - but they are not; they've existed before. One only has to view the structure of the Greek polis or of the Roman
Res Publica to see checks and balances at work. I'd argue that checks and balances aren't even "Republican" in nature - Westminster Parliamentary government is built on the foundational check and balance of the
Magna Carta. English (later British) rule has always been a battle of checks and balances - when the system was usurped, civil war rang out with a tyranny of the monarch (Charles I) and a Tyranny of the Commons (Cromwell). Obviously, the balanced middle ground is the desired endstate.
Checks and balances can be, in my opinion, reinvigorated in Canada by simply reinstituting the Constitutional imperative that Parliament be composed of the Queen, the Senate, and the House of Commons. I've tried to rationalize a way to do so with as little change to our Constitutional structure as possible.
The Governor-General is the ideal office for true executive head of the State (whether she be the Queen's representative or not is another debate irrelevant to this discussion
). My reading of the Constitution (more specifically, the BNA Act) leads me to find main duties for our Governor General:
- Heads the Queen's Privy Council for Canada (Section 11)
- Appointment (which includes, but shouldn't, Senators) (Section 14)
- Command of Armed Forces (Section 15)
- Reservation - a fancy word for Veto (Sections 54, 55, 56, 57)
Unfortunately, unintended consequences have seen these duties fall by the wayside or be given to the Prime Minister (who isn't even mentioned in the BNA Act) in the name of "ceremonial".
Regardless, I think these 4 powers are excellent in defining the scope that a modern, real Governor General should have.
The Privy Council: An odd organization that could be useful if modernized. The PC is essentially the "Executive Council" for government. It includes the GG, Cabinet (current and former), Chief Justices, and a variety of other characters who are accorded a spot for either pressing or honorary reasons. The Queen's Privy Council for Canada should essentially be restructured as the "Cabinet". It should contain the GG, the PMO, Ministers, and other important advisers and heads of agencies (for example, something akin to the US National Security Council, the Bank of Canada, etc, etc). A more detailed discussion would be required to ascertain the role of a GG in this body (is it to retain a reserved, observer status? Active member?) but it should be an organization that actively meets in whole or in part to govern Canada, and the GG should be part of this regular meeting (as the Constitution intended).
Appointment: This is an important power - one that can help to eliminate cronyism and patronage if stripped away from the Prime Minister and his party hacks. Make the power of appointment similar to that of the US, where the GG selects the person and the Senate approves of the selection to ensure a democratic "check and balance" is maintained.
Command of the Armed Forces: This is a seemingly minor one, but I think it is very important. The CDS is, alone among senior government officials, guaranteed by law direct access to the Governor General. This relationship highlights the fact that deployments and missions are enacted by Parliament and executed by the GG - legislation sending the Forces away involves a final nod from the GG to the CDS (who, by law, is the only one allowed to give orders to the CF). As head of our Armed Forces, the GG is responsible for ensuring that our military doesn't unduly suffer from negligent politicians (through reservation).
Reservation: The equivalence to the American President's veto - and an essential power I think needs to be brought back. The veto allows the GG to put a check on run-away houses, especially Commons which is the only legal source of Money Bills. Reservation is, like the President's veto, a serious issue. Again, like the US, the allowance of an override through a 2/3 majority vote in both houses should be included to ensure democratic imperative and act as a further check and balance.
Four key powers for our Head of State - four that are good at balancing out the relationships within Parliament (as constituted by Law) and yet unobtrusive to the daily running of the State. Obviously, popular vote is required to give these powers the moral force of the
vox populi. With that in mind, I advocate the following:
1) The Governor General be elected by a simple popular majority (no fancy electoral systems). If a primary vote doesn't yield a winner, take the top two into a run-off.
2) The Governor General be a long-term post, perhaps 8 or 10 years with no ability for re-election. This measure will ensure that the position has, as the executive head of state, a real enduring quality (much like our Monarchy) and that the politics of re-election don't interfere with the ability to perform the duties.
3) That the Governor General be that of an "Elder Statesman". More of a representative (to foreign governments) and an observer. The GG won't have legislative power and can't propose Bills. As well, depending on how Cabinet-Privy Council would be structured, I'm not sure they should interfere too much in the running of the State (if Cabinet votes are required they have one vote) - they should attend to be aware of what is happening in Canada (especially for National Security and what not) so as to have an understanding of policies that they must give Royal Assent to.
4) The Governor General's appointment powers need to be examined. Judges, ambassadors, heads of Crown Corporations are given. What about Cabinet members? In the US, Secretaries are appointed by the President and serve at his pleasure, would the same work for Canada. Unlike the US, which constitutionally forbids legislators from holding executive posts, our Westminster system conventionally gives Cabinet ministries to MP's. In Canada, they all come from Commons, but there is nothing in law that says that Ministers can't come from the Senate or be private citizens. As well, members of the Privy Council have a term that is defined as "time to time", which implies that they serve at the Governor General's pleasure - this means that if voted out they can still legally serve in Cabinet. Conversely, if busy as an executive, are not these MP's and Senators neglecting their important jobs as representatives in the Legislature? All these are valid points and, in the spirit of the best person for the job (as opposed to Art Eggleton), need to be considered in detail when addressing the scope of the GG's power of appointment.
5) Perhaps the GG should be recallable? Maybe by a 4/5's majority by both Houses? Definitely an Impeachment clause.
Thus, a popularly elected GG serving as an effective Head of State acts as the third "check" in Parliament.
Commons loses power in this (along with a Triple-E Senate) structure, but it still maintains it's primacy by being the only body that can propose Money Bills. This is good, although maybe it should now be given to all of Commons and not just to Cabinet members in order to encourage more debate and individual action on the Commons floor. The Prime Minister should be a position that is Constitutionally enshrined as the Head of Government - I believe that there is still many important things for the Prime Minister to do along the lines of the day-to-day affairs of the State. In defining the PMO, his duties should be outlined. I think Commons should be mandated to votes every 4 years. As well, I think we should lose the convention of Commons as a House of confidence in order to allow more free voting and dissention on the floor. Remember that Edmund Burke quote, we have to work at eliminating factionalism and encouraging work towards the interest of Canada as a whole.
Anyways, just more thoughts for the grist mill.
