Saturday, 3 December 2011

Reform and Its Consequences

The elementary premises of physics equally apply to Canadian politics. Every actions has a reaction. A change in one part of a complex and dynamic system will have unintended consequences in another. Simply tinkering with the underlying structures of governance can and do have repercussions down the line. They may not be seismic at first, but they have are nevertheless felt.


Canada's last tectonic shift was the patriation of the Constitution in 1982, most notably in the addition of complex amending formula and the entrenchment of a bill of rights in the form of the Charter. These changes were manifold and complex. In general the change moved Canada further away from the British heritage of pure parliamentary sovereignty and unwritten conventions and norms to a synthesis of Westminster principles and the American model.

A fairly straightforward transition from a statutory bill of rights to a constitutional one had direct implications. Laws previously valid now could be struck down and the judiciary would assume a more prominent role. Parliament would - largely by choice - defer to the judgement of the courts on a wide range of matters. Courts would no longer be the domain of settling disputes between private individuals or between governments - disputes over jurisdiction being most common - but now between peoples and their government. A domestic amending formula with extremely rigid requirements would impose a further constraint on the functioning of federalism. The addition of specific recognition of Aboriginal Canadians would help to expand the scope of litigation and expand previously limited claims, often by accident.

The point is that seemingly trivial matters - in some cases mere wording or a wayward phrase - can have unforeseen consequences, particularly in a complex political system with sometimes arcane or contradictory rules and customs. Moreover, there is a troubling sense that existing institutions are arbitrary creations - mere copies of an original - and thus can easily be changed. Nothing could be further from the truth. Canada's constitution is the product of long standing processes of negotiation. The British North America Act was a complex bargain between two large colonies which were already joined, and two smaller ones largely at odds with Confederation. Several complex issues were at work. First, the protection of a religious, cultural and linguistic population in a what would become the minority French population of Quebec. The Second was the protection of smaller colonies from being dwarfed by their larger more dominant cousins to the west. The third was the protection of individual political rights, largely in the form of the principle of 'rep by pop' - although never fully committed to in Canada. The Constitution Act of 1982 was both a reiteration of these points and an expansion to new constitutional actors - largely 'the West'.

Far from being arbitrary documents, each sought to walk a precarious balance between often contradictory pressures and pulls. Representation by population did not sit particularly well with regional pulls, especially those of tinier provinces claiming a disproportionate share of the political clout. Over time these principles would be modified, yet they would remain largely intact. Constitutional amendments would entrench the 'senatorial clause', ensuring no share of Commons representation could be below a provinces number of senators. The Representation Act arbitrarily froze the Commons in time, guaranteeing provinces a certain level of representation regardless of what happens to population. As such, the current levels of representation and the so-called remedy of the proposed Fair Representation Act are inherently arbitrary and illogical.

Another week, another set of proposals for reform. Some are good and worthwhile, others should be given no further thought. Aaron Wherry does a nice job of collecting proposals pertaining to the House of Commons here. Among typical reforms are the repeated calls - from the NDP most vocally - for the abolition of the Senate. It is often forgotten, however, that this much maligned body - what Dawson once called "the one conspicuous failure of the Canadian Constitution" - serves a purpose. While it has fallen out of favour, failure is largely the fault of politicians and not necessarily the institution itself. Dawson's criticisms were focused on a combination of two elements: political irresponsibility and a lack of independence. Close ties to a governing party without the necessary degree of official independence - to echo the title of his manuscript - doomed the Senate to failure.

Yet the Senate could still fulfill its functions if their was the political will to make it work rather than simply discard it. Beyond its role as a chamber of sober second thought - work that could be improved if ties to the Centre were cut - the Senate is a body of regional representation, part of the historical counterbalance between representation by population and the needs of smaller provinces reflected through regional demands. With some adept maneuvering and newly discovered and reinvigorated purpose, the Senate could be used to alleviate the pressure on the House as it is pulled in two competing directions by population and regional disparities. Simple measures could be taken to improve the quality of the Senate, including new criteria for membership - for instance, requiring a certain skill set or background pertinent to legislation and the prohibition of party bagmen from holding office.

An elected Senate is not necessarily the solution as it would, to borrow a term, result in both known unknowns and unknown unknowns. We would know that an elected Senate would acquire a new found legitimacy. We do not know, however, how this could alter the balance between the two house of Parliament and the legislative process. Similarly, abolition is not an responsible solution. It would eliminate the balance the between regional representation, remove the potential for legislative oversight that isn't in the hands of the judiciary or justice department, and would alter existing principles such as the 'senatorial clause'. More worryingly, such a method would cut off an entire third branch of Parliament leaving only the House and the Crown. With the Crown and its powers essentially devolved to the Prime Minister, the effects on the concentration of power could be colossal. The consequences of such a drastic move are bound to be far reaching.

Other proposed reforms are equally troublesome. Some have called for a new procedure for prorogation and dissolution for an election involving a 2/3 majority in the Commons. There are several problems with this. First, only the Crown - in the form of the Governor General - can call and dismiss Parliaments. Like the useless statute on fixed elections,  nothing in an act may compromise the powers of the Crown. Since they are Crown prerogatives, technically unanimous consent would be required since - while it pertains to the Commons alone - is not a power of the Commons to be dispensed with. Additionally, a 2/3 supermajority is a  radical departure from Canadian and Westminster practice, something much more akin to the United States. In statutory form, any such proposals could be simply undone with simple majority vote. The more productive and plausible avenue would simply be a codification of procedures and practices around dissolution and government formation. In essence, the rules would be written down but would not be altered. This would eliminate the ambiguity of minority governments and prevent the abuse of procedure by the executive.

Similarly, proposals to amend procedure in the House could be easily done, were there the will. The problem, however, is not within the institutions themselves. Indeed, they have shown remarkable durability and adaptability, particularly in dealing with historic compromises. All of these problems ultimately reside in a single source: the disproportionate power of the Prime Minister and the general disempowerment of MPs. Essentially it is a question of agency. Were politicians to respect the institutions and ensure their proper function the need for reform would quickly dissipate. Rather, Canada's political institutions have been ravaged for personal and partisan gain and distorted out of proportion for electoral advantage. All parties are guilty of this. As long as the individuals who occupy Parliament remain ignorant and contemptuous of the workings, history and utility of such institutions Parliament will not function properly. To take irrational steps toward reform without properly identifying the root cause of the malady or taking into account the myriad of side effects defies logic. Killing the institutional body may kill the cancer, but it leaves democracy in no better shape.

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