Sunday, 17 November 2013

Dumbocracy Botch: Democracy Watch's Civic Illiteracy Strikes Again

Democracy Watch and its feckless founder continue to display a profound and stunning inability to grasp the
basic workings of the institutions they seek to improve. For a group that vocally claims to promote basic civic literacy among the general population it continues to demonstrate that as an organization it lacks the collective expertise, wisdom and common sense to fulfill its own mandate. Indeed, the more successful Democracy Watch and its Canadian campaigns are, the more irreparable damage will be done to our collective understanding of how Canadian democracy actually functions.

This is an organization that proclaims boldly that “shuttingdown the Senate is the easiest, least costly, and best solution”. Any expert on the subject – indeed, anyone with a basic grasp of grade school civics – will tell you that this is simply incorrect, improbable and dangerous. Abolition is neither possible – short of unanimous consent – nor desirable. The Senate cannot simply be shut down with massive constitutional change. Senators must be appointed and the courts would enforce this. To state otherwise is a malicious deceit, but reforming the Constitution is easy when you don’t bother to read it.

Democracy Watch’s latest brain fart is designed to make the office of the Governor General – and with it the provincial vice regal representatives – into a political office with a democratic mandate. Proposed in the name of fairness and democracy, this idea, if it came to fruition, would be disastrous, essentially upending responsible government. The idea – the very notion that it is an idea does a disservice to the concept – is premised on an assortment of claims about how government functions. As usual, Democracy Watch confirms that they know nothing about what they propose to reform. I will address each of the problems and factual errors in turn below.

First, Democracy Watch proposes to “Canadianize the Governor General and provincial lieutenant governors”. This, one assumes, is based on the mistaken belief either that the Governor General is an agent of the Imperial Parliament at Westminster or that the “Queen of England” is our monarch. Democracy Watch has demonstrated consistently that it does not understand how the Crown in Canada operates, either by way of its functions or its existing democratic limits. The fact is that the Crown and the office of Governor General have long since been ‘Canadianized’. Britain no longer has a say in the matter and the office for over sixty years been occupied by a Canadian. Therefore a “a new constitutional convention that will Canadianize the GG” cannot be created because it already exists.

Second, seeking to “empower” the Governor General is foolish and, indeed, quite wrong in interpretation. The Governor General does, in fact, retain a small but important array of powers such as the forming and dissolving Parliament and appointing a Prime Minster. These are not trivial powers and, while they are largely exercised automatically, they remain substantial.

It remains unclear what this ‘empowerment’ would entail, but if coupled with a vice regal granted an enhanced democratic mandate it could pose clear and insurmountable problems. First, would a Governor General be given the power to quash legislation that passed the elected House – and perhaps only the elected House, Democracy Watch having magically disappeared the Senate – and thus refuse to grant Royal Assent (something currently beyond the authority of the GG)? Would an empowered Governor General disregard the advice of a Prime Minister with the confidence of the House of Commons and thus abandon the principle of responsible government? Our history of constitutional crises – King-Bing and Prorogation – should guide us against any rash behaviour.

Third, how an ‘empowered’ Governor General would “help stop the abuses of power by the Prime Minister” is equally unclear. Prime Minister Harper may be viewed as an autocrat, but he operates within the strictures of responsible government: he must retain the confidence of the House. Cabinet remains the key decision-making body and it is difficult to comprehend how a Governor General could intervene if a Cabinet is being bullied by the Prime Minister.

Forth, bringing the Governor General closer to the electorate and to the mechanisms of partisan politics unnecessarily politicize an office that currently works precisely because it is above the political fray. The office – as with the office of the Queen – works because it is not brought down to the level of everyday politics and because its discretionary powers are exercised largely democratically.

Fifth, the campaign is at its most basic level fundamentally ignorant of how responsible government works and, as such, is unqualified to make suggestions about how to make our institutions more democratic. The default position of the organization is to treat the Prime Minister and his office as unnatural and tyrannical ignoring the fact that his government is bolstered with the democratic mandate of Parliament as a whole. Parliament’s confidence is a representation of the democratic will. Here the legislature fulfills its important legitimacy function, sanctioning the power of the Prime Minister and Cabinet thus legitimizing the government.

Sixth, contrary to its claims, the Governor General and lieutenant governors are not – I stress not -- “supposed to play a key role in checking abuses of power by the Prime Minister and premiers”. Chief among the GG’s roles is ensuring that a democratically elected government remains in place at all times, not casting value judgement on a government’s leadership or policy preferences. It was never intended, nor is it the case in practice, that a vice regal act as a check on the government. This is the job of the legislature or, if an action is unconstitutional, it enters into the purview of the courts.

Nor are these offices “appointed lapdogs with no clear rules to enforce”. During the prorogation crisis there developed an argument that MichaĆ«lle Jean kowtowed to pressure and acceded to the demands of Prime Minister Harper. The reality was that Jean consulted constitutional experts and deliberated heavily on the matter, weighing the facts and consequences thoroughly before coming to a decision. No doubt she, unlike others, kept in mind the instructive lessons of the King-Byng Affair when rendering her decision. David Johnston was also criticized for allowing a prorogation in much the same language. The reality was that the motives of the Harper government do not factor into the equation. Harper had a majority and the confidence of the House; it was therefore his right to tender advice and have it accepted.

Seventh, we come to Democracy Watch’s big lie: “no amendments [are] needed to the written Constitution”. Duff Conacher and company would do well to actually read the text of the Constitution Act before making such an absurd statement. The role, functions and place of the Governor General are mandated in the written text since 1867 and in the Letters Patent, 1947 (the latter of which are the Queen’s to alter, although to do so without advice is unthinkable). The point is that the office – and those in the provinces – are clearly matters for the written constitution.

Consider that under section 41 – the unanimous consent provision for amending the constitution – the consent of two federal chambers and ten provinces is required amend “the office of the Queen, the Governor General and Lieutenant Governor of a province”. How Democracy Watch managed to overlook this is simply astounding. Perhaps the organization confuses the concept of a resolution. Indeed, all the changes “can be made by simple resolutions in each legislatures”, but these resolutions are written and alter the text of the document. A simple declarative resolution is not enough to alter the text of a constitution. Again, an astounding claim.

Eighth, and related to the above, the federal government and the provinces cannot simply pass legislation concerning the operation of the Governor General with respect to the specific powers of the office (or those of the Queen, who exercises a discrete pool of powers that are separate from the GG). Some of the legislation they cite – for instance fixed election dates -- has been implemented in Canada but has made clear, as the federal legislation does, that the legislation in no way altered the powers of the vice regal because – surprise, surprise – that would require an amendment.

Furthermore, Democracy Watch’s use of the United Kingdom and New Zealand as examples to follow and, in particular, examples to follow because they do not require constitutional amendment, again demonstrate a lack of awareness. The UK and New Zealand are spurious comparisons because they do not have a written constitution – thus Acts of Parliament are the supreme law of the land – and both are unitary states. The written constitution and federalism make these examples manipulative and dishonest.

Ninth, the other changes proposed do not require change precisely because existing practice functions quite well. With only rare exception, governments form within 30 days. To force a legislature to be open for 120 days each year would, again, require an amendment because the existing text mandates Parliament must meet once a year (s.5 of the Charter). Practice also demonstrates that the party with a plurality is given the first chance to form a government. Politicians do actually respect the intentions of voters in this regard. Other changes also correct to remedy problems that do not exist but that, if they were to be established, would require altering the constitutional powers of the office.

Tenth, contrary to Democracy Watch’s continued obliviousness, a mechanism is currently in place that ensures that the candidates for Governor General – and provincial vice regal offices – are non-partisan and qualified. This Advisory Committee on Vice-Regal Appointments is itself non-partisan and professional and is explicitly designed to remove the political aspects of the appointment process and to ensure the position is not one of patronage. The process has by any measure proven a success despite being non-binding advice. Even the Harper Conservatives know and respect that some offices are not to be placed in the partisan fray and be kept  above politics.

Eleventh, and finally, as noted above the Letters Patent, 1947 play an important role as a constitutional document. Contrary to Democracy Watch’s assertion that “the written Constitution does not require that the Prime Minister request the Queen’s approval of the Governor General (GG)” and that the “Prime Minister should simply not request the Queen’s approval for the next person to chosen to be GG”, the approval of the Queen is required. Of course, since Duff and Democracy Watch cannot begin to fathom the basic principles of responsible government, they fail to see that the advice would be accepted as per convention.

Each and every assertion, each proposal for change and reform presented by this group in relation to the Governor General is factually and constitutionally incorrect. The group’s ignorance is absolute as is its arrogance in deigning to assume they can offer solutions to institutional problems they cannot begin to fathom. That they cannot wrap their head around basic concepts simply belies the fact that they have not actually done so much as read the constitution.

The reason debunking these idiotic ideas is necessary is simple: this is a group with a wide cachet as an ‘expert’ organization. Its founder and mascot, Duff Conacher, is regularly given a public soapbox in the Globe & Mail without being fact checked. There is an inherent danger in allow these ideas to propagate simply for the fact that they reduce the degree of general civic literacy. Citizens ignorant of their own institutions cannot take part effectively in their democracy nor can they hope to fix it if they cannot properly diagnose its problems.

For Democracy Watch there isn’t a political ill that cannot be solved by elections. Populist sentiment trumps the constitution and the rule of law. It also trumps common sense. These are dangerous precedents to set. The office of the Governor General is one of Canada's institutions that actually functions well. It does so because politicians and governments respect that it needs to be non-partisan and above the political fray. Moreover, it is a distinctly Canadian institution, Canadianized decades ago. It works as it was intended. Suggestions to fix what isn’t broken will hopefully fall on deaf ears.

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