Constitutional Crisis in Papua New Guinea: Codification Causes Confusion

Posted on 2011/12/21 by J.W.J. Bowden

Introduction

I have published this account somewhat belatedly; however, regardless of the current state of the constitutional crisis in Papua New Guinea, it brings some fundamental underlying principles of Westminster parliamentarism to light and provides an excellent case study in the consequences of combining a highly codified constitution with a system that traditionally rests on unwritten constitutional convention. Papua New Guinea’s codified constitution illustrates the dynamic between the Sovereign (Head of State), the Governor-General (the Queen’s representative), the Prime Minister, and Parliament. Interestingly, it also incorporates several elements that the Forseyite camp of Canadian constitutional scholars have studied or advocated: the constructive vote on non-confidence, the prime ministerial confirmation vote at the beginning of the session, the elimination of crown prerogative on dissolution, etc.

I argue that Papua New Guinea’s present constitutional crisis ultimately derives from its highly codified constitution, which, for instance, attempts to reconcile the contradictory concepts of popular sovereignty, as in a republic, and the sovereignty of the crown, as in a constitutional monarchy. The Constitution of Papua New Guinea provides an interest case study relative to my upcoming article that I co-authored with Nick MacDonald on “Writing the Unwritten: The Officialization of Constitutional Conventions in Canada, the United Kingdom, New Zealand, and Australia”

The Crisis

Papua New Guinea has descended into a bizarre constitutional crisis that pits the ousted Prime Minister Sir Michael Somare and the Supreme Court on one side against Prime Minister Peter O’Neill and Parliament on the other. The Governor-General of Papua New Guinea Sir Michael Ogio and the Queen – the supposed neutral, dignified parts of the Crown – find themselves trapped between the two political factions.

Papua New Guinea held its last election in June 2007. The Prime Minister Sir Michael Somare left Papua New Guinea in April 2011 in order to undergo heart surgery in Singapore; he appointed Sam Abal as Acting Prime Minister. Somare’s family announced his resignation in June 2011 while he was still recovering from surgery in Singapore; however, Sir Michael himself did not submit his resignation to the Governor-General as per Section 146 of the constitution.

On 2 August 2011, the Parliament voted 70 to 24 remove the Acting Prime Minister and nominated Peter O’Neill as Prime Minister. The Governor-General Michael Ogio then formally appointed Peter O’Neill. Sir Michael challenged this ruling upon his return to Papua New Guinea, and on 11 December 2011, the Supreme Court ruled 3-2 in favour of Sir Michael’s reinstatement. Governor-General Ogio then swore in Sir Michael and his cabinet on 14 December 2011 – which in effect gave the country two governments. “Parliament then voted to suspend Ogio” and appointed the Speaker as Acting Governor General. Parliament then nominated O’Neill as Prime Minister, and the Acting Governor General appointed him. These events have plunged Papua New Guinea into an unprecedented constitutional crisis. The latest report (as of 21 December 2011) indicates that the ousted Governor-General Michael Ogio admits that he should not have appointed Somare as Prime Minister.

The Paradox of Codification: Making Conventions Justiciable Limits Parliament and Empowers The Courts

The Constitution of Papua New Guinea contains numerous contradictions and codifies almost all aspects of government over the course of 166 pages, including the roles of the Queen – which the constitution unreservedly calls “the Head of State” –, her representative the Governor-General, the Prime Minister, the National Executive (the equivalent of our Privy Council), the confidence convention, motions of non-confidence, and the procedures for dissolution.

Popular Sovereignty or Parliamentary Sovereignty?

The preamble borrows its introduction from the American constitution and asserts that “We the People of Papua New Guinea […] hereby establish, adopt, and give to ourselves this constitution […].” This wording therefore adopts the republican concept of popular sovereignty and formally vests sovereign authority in the people of Papua New Guinea; in contrast, a constitutional monarchy would vest sovereignty in the Crown-in-Parliament. However, Section 82 defines Queen Elizabeth II as “Queen and Head of State of Papua New Guinea” after “having been requested by the people, through their Constituent Assembly” to assume this role. Essentially, the Queen is the Head of State of Papua New Guinea because the people so asked her. This provision seems inherently contradictory with the idea of constitutional monarchy; however, history shows that the Westminster parliament changed the line of succession twice, in 1688 and in 1707, in order to secure the Protestant succession. William III and George I became kings because Parliament asked them to assume the role of Sovereign. The invitation extends to all the Queen’s rightful heirs and successors: “The provisions of this Constitution referring to the Queen extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom of Great Britain and Northern Ireland.” The difference hinges on parliamentary sovereignty vs popular sovereignty, but the idea of “electing a Sovereign” remains the same in principle.

The constitution prescribes both a “Declaration of Loyalty” and an “Oath of Allegiance.” The Declaration of Loyalty requires the office holder to “freely and willingly declare [his] loyalty to the Independent State of Papua New Guinea and its People and to the Constitution of Papua New Guinea […] and promise [to] uphold the Constitution and the laws of Papua New Guinea.” The Declaration of Loyalty also follows the classic republican model and acknowledges the sovereignty of the people and significance of the constitution in securing their sovereignty. However, the Oath or Affirmation of Allegiance follows the Australian standard: “I,…, do swear that I will well and truly serve and bear true allegiance to Her Majesty Queen Elizabeth II. Her heirs and successors according to law. SO HELP ME GOD.” While I can accept the idea of “electing a Sovereign”, because the Westminster parliament has done so twice in its history, I cannot reconcile the Declaration of Loyalty and the Oath of Allegiance: the former recognizes the republican principle of popular sovereignty, and the latter recognizes the sovereignty of the Crown-in-Parliament.

The Queen and the Governor-General

The constitution also codifies the powers of the Queen and Governor-General and the procedure by which the Governor-General is appointed. After defining the Queen as “Head of State”, the constitution then refers to this office by the latter appellation. Section 86 outlines the functions of the Queen; paragraphs 1 and 2 essentially eliminate all the reserve powers by declaring that the Queen “shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.”

The phrase the Queen “shall act only with […] the advice of the National Executive Council” (the cabinet) eliminates the exercise of royal prerogative at the Queen’s personal discretion or initiative. The addition of “and in accordance with the advice of the National Executive Council” means that the Queen must carry out the advice of her Ministers in Papua New Guinea, “in accordance with whose advice the [Queen] is obliged […] to act.” This paragraph also recognizes that additional Acts of Parliament may further regulate, limit, or abolish the exercise of crown prerogative.

Curiously, Paragraph 4 stipulates that the advice that the Cabinet or Prime Minister offers to the Queen is “non-justiciable” – notwithstanding that almost all the other codified provisions are by definition justiciable.

The Governor-General acts as the Queen’s representative and carries out all powers and functions of that office, except where the constitution otherwise notes. Section 87 Paragraph 5 states that the Governor-General will normally serve only one term, but that Parliament may, but a two-thirds supermajority, approve a second term. By Section 88, “The Governor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a decision of the Parliament.” Judging by the wording, Parliament nominates a person for Governor-General through a simple majority vote and “exhaustive secret ballot”, after which the government must give the Queen binding advice to appoint the nominee. The Queen must remove the Governor General from office on the advice of the government; interestingly, an absolute majority in parliament can also force the government to advise the Queen to remove the Governor General. After the Queen’s dismissal of the Governor General, the Speaker or Chief Justice (in that other of precedence) becomes the “Acting Governor General.” Prime Minister O’Neill invoked this procedure.

The Prime Minister

Upon its first sitting after an election, the Parliament of Papua New Guinea nominates the Prime Minister in a confirmation vote, and the Governor-General is bound to appoint Parliament’s nominee.

Section 142: (2) The Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.

The Codification of the Confidence Convention and Procedures for the Dissolution of Parliament

Section 105 describes the three procedures through which a general election can be held.

1.A general election to the Parliament shall be held—
(a)   within the period of three months before the fifth anniversary of the day fixed for the return of the writs for the previous general election; or
(b)   if, during the last 12 months before the fifth anniversary of the day fixed for the return of the writs for the previous general election—
(i)      a vote of no confidence in the Prime Minister or the Ministry is passed in accordance with Section 145 (motions of no confidence); or
(ii)       the Government is defeated on the vote on a question that the Prime Minister has declared to the Parliament to be a question of confidence; or
(c)   if the Parliament, by an absolute majority vote, so decides.

Papua New Guinea operates parliaments on a fixed term of five years. The specification in part b) seems unusual and only makes sense in light of Section 145. Essentially, it means that parliament can only defeat the government in order to precipitate fresh elections in the last 12 months of the life of the parliament, whether by passing a vote of non-confidence or by defeating the government on legislation that the Prime Minister has deemed a matter of confidence. However, Part c) seems to mean that “an absolute majority” of parliament can decide to dissolve itself at any time during the life of the parliament. The Fixed-Term Parliaments Act of the United Kingdom now allows the Westminster Parliament to follow a similar procedure. The crown prerogative on dissolution does not exist under the constitution of Papua New Guinea.

Section 145 codifies the confidence convention. It also allow demonstrates that the resignation or dismissal of the Prime Minister does not automatically entail the resignation of the Ministry as a whole. Linking back to Section 105, parliament can introduce only constructive votes of non-confidence during the first four years of the life of the parliament: the motion must nominate the next Prime Minister, and parliament cannot be dissolved for an election. And parliament can only introduce traditional motions of non-confidence during the last year of the life of the parliament: this motion must not nominate a new Prime Minister and necessarily triggers an election. Finally, subsection 4 states that parliament may not put forward any motions of non-confidence in the Prime Minister or the Ministry during the first 18 months of the Prime Minister’s tenure.

Conclusion

Section 145 places bizarre and unwarranted limits on parliament’s power. However, based on this section, I can only conclude that the Supreme Court ruled correctly that parliament violated the constitution by removing Sir Michael Somare as Prime Minister. The last election in Papua New Guinea occurred in June 2007, which means that 11 August 2011, the date on which Parliament nominated Peter O’Neill as Prime Minister, fell within the last 12 months of the life of the parliament. Section 145 clearly stipulates that Parliament may not nominate a new Prime Minister within the last 12 months of the life of the parliament; instead, fresh elections must be held.

Australian constitutional scholar Anne Twomey argued that, rather than involving the Queen, the Parliament should be dissolved so that the people of Papua New Guinea – who, after all, are the sovereign according to their constitution – can resolve this crisis through the ballot box. According to Section 105 of the Constitution of Papua New Guinea, “A general election to the Parliament shall be held if the Parliament, by an absolute majority, so decides”, which presumably means that Parliament can dissolve itself at any point during its constitutional limit of 5 years. Since the Parliament of Papua New Guinea possess the power to dissolve itself, I agree with Professor Twomey that fresh elections offer the best solution to the current crisis, especially given that Papua New Guinea must hold elections by June 2012 anyway. The people should determine the outcome in order to preserve what neutrality of the Crown remains, and hopefully, an election would ensure that all parties put aside their differences in order to avoid violence and bloodshed.

In that upcoming article on “The Officialization of Constitutional Convention”, Nick MacDonald and I describe “the codification of convention” as a paradox. Conventions are, by definition, politicallyenforceable norms that complement the written constitution or statutory law. In contrast, Acts of Parliament and the written constitution are justiciable – enforceable in the courts. Codification thus eliminates the politically-enforceable character of constitutional convention altogether by converting these political rules into justiciable law. Under a highly codified constitution, the government’s decisions are subject not merely to parliamentary scrutiny or approval, but to judicial review. Papua New Guinea proves our hypothesis beyond any doubt, and offers a warning to any other Commonwealth Realm on the perils of codification. If only we could have included this example in the article! The article therefore recommends only the “officialization” of constitutional convention: the creation of official interpretations of convention endorsed by Cabinet (in the form of a handbook or manual) that describe the proper exercise of constitutional authority. Officialization preserves the fundamental character of constitutional convention: their adaptability, particularly in difficult situations that would force the normal application of a convention to deviate from the underlying constitutional norm or principle that it represents.

Overall, I can only conclude that Papua New Guinea’s highly codified constitution has little bearing on Canada; Papua New Guinean precedents are therefore not “persuasive” (to use the legal-constitutional term) on Canada, but they do warrant further study. I must admit: while there are 16 Commonwealth Realms, I have only examined the 4 “core Commonwealth realms” (the United Kingdom, Canada, Australia, and New Zealand) in any detail and neglected the remaining 12 others. The constitutional crisis in Papua New Guinea showed me the incredible institutional diversity of the Commonwealth Realms and the excellent opportunities for comparative analyses that they provide.

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No Discretion: On Royal Assent and the Governor General

Posted on 2011/12/12 by J.W.J. Bowden

Introduction

Under our system of responsible government, the Sovereign or Governor General exercises his prerogative powers on the advice of the Crown-in-Council, and his constitutional powers relating to Parliament on the advice of the Prime Minister alone. Responsible government means that “Ministers of the Crown are responsible for acts of the Crown” and responsible to the House of Commons.[1] The Sovereign or Governor General acts as a neutral figure and remains above partisan politics. The Prime Minister is the Governor General’s principle constitutional advisor, and while his government commands the confidence of the House, the Governor General must carry out the Prime Minister’s advice. Under no circumstances can the Leader of the Opposition, the leader of the third opposition party, or any other government or opposition backbencher offer legitimate, binding constitutional advice to the Governor General.

The Crown-in-Parliament (Tidridge 2011, 63)

We must also situation this constitutional relationship between the Governor General (the crown personified) and the Prime Minister and cabinet (Crown-in-Council) to the Parliament of Canada (the Crown-in-Parliament). The Crown-in-Parliament consists of three parts: the House of Commons, the Senate, and the Queen (whom the Governor General of Canada represents as per the Constitution Acts and the Letters Patent, 1947). All three parts of the Crown-in-Parliament must approve of a bill before it becomes law. The House of Commons and Senate must pass the bill, and as the final act, the Governor General must give Royal Assent so that the bill becomes law. Royal Assent represents the pro forma approval of the Queen and her acknowledgement that the bill in question has passed through the House of Commons and the Senate; the final stage of the Crown-in-Parliament thus legitimates the other two. The Crown-in-Council plays no part in this process apart from scheduling the ceremony of Royal Assent. The Prime Minister may not advise the Governor General to withhold Royal Assent.

The Prime Minister may not advise the Governor General to withhold royal assent because the Crown’s veto on legislation no longer exists. The Crown’s veto only applied in the early years of representative government, when the Sovereign’s ministers and the Prime Minister remained in power by virtue of maintaining the favour of the Sovereign rather than commanding the confidence of the House of Commons. Under responsible government, ministers of the crown are responsible for acts of the crown, but by advising the Governor General to withhold Royal Assent, the Prime Minister would call the neutrality of the Crown into question. In addition, the House of Commons would have no recourse against such an action short of withdrawing its confidence in the government, which would not prevent the veto.

A Constitutional Crisis on Royal Assent in the Making

The Federal Court recently ruled that the Harper government’s proposed legislation to abolish the monopoly of the Canadian Wheat Board violates the rule of law because Section 41.1 of the Canadian Wheat Board Act mandates that the government must hold a plebiscite before abolishing this monopoly – even though the Harper government’s legislation effectively nullifies this provision by repealing it. I hope that the Harper government appeals this ruling, because the judge has infringed upon the sovereignty of the Crown-in-Parliament. I have no doubt that the Federal Court of Appeal or the Supreme Court of Canada, if necessary, would overturn this ruling. To paraphrase the great British constitutional scholar of the late 19th century A. V. Dicey, “what parliament can pass, parliament can amend or repeal.” In other words, a past parliament cannot bind a future parliament or prevent an MP or Minister of the Crown from introducing legislation that amends or repeals an Act of Parliament. And if a past parliament intended to pass legislation that limited a future parliament’s ability to pass legislation, then the past parliament erred and attempted to violate the sovereignty of the Crown-in-Parliament.

In light of this controversy, Bob Rae asked the Prime Minister in the House of Commons on 8 December 2011:

To the Prime Minister through you, Mr. Speaker, could I ask how it is that the government’s intention is to proceed with the Wheat Board law and to ask the Governor General to give royal assent to the law when the court in question has said that the minister’s conduct is an affront to the rule of law? Would the Prime Minister not agree that the government should at the very least wait royal assent until such time as all appeals have been exhausted with respect to the ruling of Mr. Justice Campbell?[2]

Bob Rae asked the government to postpone the ceremony of Royal Assent (which the cabinet does organize). Fair enough, but the Harper government certainly will not follow Rae’s advice.

However, Bob Rae raised the stakes in his constitutional brinksmanship earlier today, 12 December 2011.  Bob Rae has overstepped his bounds simply by forwarding this presumptuous open letter to the Governor General – because only the Prime Minister offers legitimate, binding constitutional advice to the Governor General. Worse still, Rae has requested that the Governor General withhold Royal Assent in an unprecedented repudiation of 300 years of Westminster parliamentarism and of responsible government:

As Leader of the Liberal Party, I would ask most respectfully that full consideration be given to awaiting final disposition of this matter before the courts before legislation receives Royal Assent.3]

Why The Royal Prerogative of Veto (Withholding Royal Assent) No Longer Exists

Modern Justification

The website of the British monarchy explains on the page “Queen-in-Parliament”:

The role of the Sovereign in the enactment of legislation is today purely formal, although The Queen has the right to be consulted, to encourage and to warn through regular audiences with her ministers. As a constitutional monarch, the Sovereign is required to assent to all Bills passed by Parliament, on the advice of Government ministers. The Royal Assent (consenting to a measure becoming law) has not been refused since 1707. […][4]

That phrase that the Queen gives Royal Assent “on the advice of her Ministers” means that the government organizes the scheduling of the ceremony of Royal Assent (just as the Canadian sources show) and advises the Queen when to grant Royal Assent – not whether to grant Royal Assent.

Historical Justification

The webpage on the Queen-in-Council has merely restated the conclusions that several British scholars drew in the 19th century.

In his famous The English Constitution, Walter Bagehot wrote in 1867 that “the Crown has lost its veto.”[5] Bagehot continued in his characteristic English wit:

The popular theory of the English Constitution involves two errors as to the sovereign. First, in its oldest form at least, it considers him as an “Estate of the Realm,” a separate co-ordinate authority with the House of Lords and the House of Commons. This and much else the sovereign once was, but this he is no longer. What authority could only be exercised by a monarch with a legislative veto. He should be able to reject bills, if not as the House of Commons rejects them, at least as the House of Peers rejects them. But the Queen has no such veto. She must sign her own death-warrant if the two Houses unanimously send it up to her. It is a fiction of the past to ascribe to her legislative power. She has long ceased to have any.[6]

The Manual of Official Procedure of the Government of Canada and its Appendices provide an excellent primary source that supports the claim that the royal prerogative (reserve powers) to withhold Royal Assent no longer exists because no Sovereign has invoked it since Queen Anne in 1707, in the era of representative government and about 130 years before responsible government told hold. Not even Mad King George ever vetoed legislation. The Hanoverians implicitly accepted the constitutional limitations on their powers – including the destruction of the veto on Royal Assent. In other words, the reserve powers of the Sovereign become obsolete over time as the royal prerogative yields to the crown-in-council prerogative or to the crown-in-parliament. I would argue that the reserve powers on Royal Assent became obsolete some time in the 18th century (though we can never pinpoint an exact date). Certainly, by the time that responsible government had begun to establish itself under William IV in the 1830s, the veto on Royal Assent no longer existed.

Governor General David Johnston Gives Royal Assent, as Prime MInister Harper Looks On

Royal Assent occurs automatically. The Prime Minister advises the Governor General neither to give nor withhold Royal Assent; the Prime Minister only determines the scheduling of the ceremony at which the Governor General gives Royal Assent. According to the Manual of Official Procedure of the Government of Canada, “The Government Leader in the House, in consultation with the Prime Minister and Leader of the Government in the Senate, initiates the decision to give Royal Assent to bills.”[7] Next, “when a decision has been taken [the Leader of the House] informs the Prime Minister and the responsible Assistant Secretary to the Cabinet of the date and time.”[8] The Manual treats Royal Assent as an automatic royal certification that the bill has passed both Houses of Parliament; the Prime Minister does not advise the Governor General to grant or withhold Royal Assent, but merely helps organize the ceremony. If the Prime Minister could advise the Governor General on Royal Assent, our system of responsible government would collapse.

On 29 November1882, an Order-in-Council argued the right of responsible government of 1848 empowered the Ministers of the Crown of the Dominion of Canada to advise the Governor General on all matters where the British Cabinet advises the Queen:

Now it is clear that since the concession of Responsible Government to the Colonies, the Advisors of the Governor General hold the same position with regard to him, as the Imperial Ministry does with respect to Her Majesty. They have the same powers and duties and responsibilities. They ought not to have and of right have not any great authority with respect to the Legislation of the Canadian Parliament than the Queen’s Ministers have over the Legislative action of the Imperial Legislature. […]

Should however any Bill be passed notwithstanding their opposition or adverse opinion, they cannot advise its rejection by the Sovereign.

The power of veto by the Crown is now admitted to be obsolete and practically non-existent. The expression ‘Le Roi’ or ‘La Reine s’avisera’ has not been heard in the British Parliament since 1707, in the reign of Queen Anne, and will in all probability never be heard again. The Ministers [of the Crown] in such cases if they decline to accept the responsibility of submitting the Bill for royal assent must resign and leave to others the duty of doing so.[9]

Section 55 of the Constitution Act, 1867Has Become a Dead Letter In the Wake of The Statute of Westminster, 1931 and the Letters Patent, 1947

“The Constitution Act, 1867 […] expressly confers upon the Queen or the Governor General the power to withhold the royal assent from a bill that has been enacted by the two Houses of Parliament (s. 55), but a convention stipulates that the royal assent shall never be withheld.”[10]

55. Where a Bill passed by the Houses of the Parliament is presented to the Governor General for the Queen’s Assent, he shall declare, according to his Discretion, but subject to the Provisions of this Act and to Her Majesty’s Instructions, either that he assents thereto in the Queen’s Name, or that he withholds the Queen’s Assent, or that he reserves the Bill for the Signification of the Queen’s Pleasure.[11]  

Statute of Westminster (Tidridge 2011, 47)

Section 55 has become a dead letter in the wake of the Statute of Westminster, 1931 and the Letters Patent, 1947. First, this section originally existed in order to allow the British cabinet to advise the British Sovereign to disallow legislation that the Dominion of Canada passed contrary to the interests of the British Empire. In the 19th century, the United Kingdom still controlled the foreign affairs and defence policies of the Dominion of Canada. Second, the Statute of Westminster, 1931 formally recognized the equality and independence of all the Dominions and declared the Crowns of Canada, etc. legal entities independent of and separate from the Crown of the United Kingdom. Thereafter, the Prime Minister of Canada could advise the King or Queen of Canada on Canadian constitutional matters, just as the British Prime Minister advises the King or Queen on British constitutional matters. Third, this analysis has established that by 1867, the reserve power to veto legislation had already become obsolete. And given that Canada inherited a “constitution similar in principle to that of the United Kingdom” in 1867 upon the passage of the British North America Act, 1867, I argue that the Statute of Westminster, 1931 formally freed up the convention inherent in the Constitution Act, 1867 that the Governor General may never withhold Royal Assent. Fourth, the Letters Patent, 1947 provide a further rationale in support of this argument: section 55 of the Constitution Act, 1867 says that a Governor General assents to or “reserves” a bill “subject to […] Her Majesty’s Instructions.” The Letters Patent, 1947 are such an example of “Her Majesty’s Instructions” and delegated all the constitutional powers and authorities of the King or Queen of Canada to the Governor General of Canada. Since the King of Queen of Canada no longer possessed the reserve power to veto Royal Assent, neither then does the Governor General.

If the Sovereign no longer possessed the power of veto in 1867 and 1882, then the Sovereign and the Governor General most certainly do not possess that power today in 2011. The Crown has been bound by precedent and convention for centuries to give Royal Assent to all legislation that passes both Houses of Parliament. British constitutional scholar Sir Ivor Jennings proposed that a custom or practice exists as a convention if it satisfies three questions: What are the precedents? Did the actors believe they were bound by a rule? Is there a reason for the rule?[12] First, the precedents form 300 years of constitutional history. Second, based on all available evidence from the mid-19th century to the present, all Sovereigns and Governors General have considered themselves bound to recognize that the reserve power to withhold Royal Assent no longer exists. Third, the rule exists in order to preserve the principle of responsible government and our entire constitutional system as we know it!

Hogg states that

There is undoubtedly a convention that the Queen or Governor General or Lieutenant-Governor will not withhold the royal assent from bills which have been passed by the appropriate legislative chambers, but I am not aware of that any Queen or King or Governor General or Lieutenant Governor has ever explicitly acknowledged the obligation. The convention is well understood although tacit.[13]

In all reality, the website of the British monarchy cited above shows that the Queen has publicly acknowledged that she does not possess the authority to withhold Royal Assent.

Conclusion

Queen Anne, The Last Sovereign To Refuse Royal Assent.

Only a Prime Minister leading a single-party minority government in a minority parliament would conceivably want to advise the Governor General to veto a bill that passed both Houses of Parliament. But a Prime Minister leading a single-party majority government would probably never feel compelled to offer such advice, notwithstanding its constitutional impropriety. The current situation presents an even more bizarre constitutional quandary because the Leader of the Liberal Party – the third party – has advised the Governor General to withhold Royal Assent and in effect veto Bill C-18, An Act to Reorganize the Canadian Wheat Board and to Make Consequential and Related Amendments to Certain Acts. If the Governor General were to veto this legislation, he would not only repudiate 300 years of Westminster parliamentarism, but the principle of responsible government itself: he would veto this legislation based on his discretionary authority (the reserve powers) against the wishes of the government and against the will of Parliament and on the advice of the Leader of the Liberal Party! The Governor General’s veto on the basis of a reserve power that has been used since the reign of Queen Anne in 1707 and no longer exists; the anti-constitutional use of veto today would precipitate the most serious constitutional crisis since the Glorious Revolution of 1688 and make the Byng-King Affair of 1926, the Dismissal of 1975, and the Coalition-Prorogation Controversy of 2008 look routine. If the Governor General vetoed a government bill on the basis of a reserve power of veto that no longer exists, he would essentially dismiss the Prime Minister and therefore the entire 28th Ministry and leave the country without a government. The Prime Minister of Canada advises the Queen of Canada on the appointment of the Governor General, so he also possess the authority, in exceptional circumstances, to advise the Queen of Canada directly to dismiss the Governor General of Canada; the Queen would likely be bound to follow such advice.[14] Clearly, whatever the ultimate outcome, a gubernatorial veto would leave our entire constitutional system in ruin and chaos.

Last week, Pat Martin suggested in the House of Commons that

It is possible that the Governor General, at least, will refuse to grant royal assent to a bill that the courts have struck down.”[15] However, Mr. Martin acknowledged in an unexpected reply to my tweet that “[The New Democratic Party’s] research shows [refusal to grant Royal Assent] is not an option.[16]

I can only hope that Bob Rae will also recognize that his letter repudiates 300 years of Westminster parliamentarism and offers illegitimate, non-binding and unsolicited advice to the Governor General, and that he is essentially asking the Governor General to precipitate what would become the most disastrous constitutional crisis in Canada’s history.

Related Posts:

[1] Sir John George Bourinot, Parliamentary Procedure and Practice, 4th ed. (Montreal: Dawson Brothers Publishing, 1916): 102; James W.J. Bowden and Nicholas A. MacDonald, “Writing the Unwritten: The Codification of Constitutional Conventions in Canada, the United Kingdom, Australia, and New Zealand.” Journal of Parliamentary and Political Law (forthcoming).

[2] Canada. Parliament of Canada, House of Commons. Debates. 41st Parliament, 1st Session. (Debate on the Senate Reform Act), 8 December 2011: 1230. http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=41&Ses=1&DocId=5319448 [Accessed 12 December 2011].1420.

[3] Bob Rae (Leader of the Liberal Party of Canada), Open Letter to the Governor General of Canada, 12 December 2011. http://www.liberal.ca/files/2011/12/Rae-to-GG-Bill-C-18-EN.pdf [Accessed 12 December 2011].

[4] The Official Website of the British Monarchy. “The Queen-in-Parliament” [emphasis added]. http://www.royal.gov.uk/MonarchUK/QueenandGovernment/QueeninParliament.aspx [Accessed 12 December 2011].

[5] Walter Bagehot, The English Constitution. (London: Collins, 1963): 153. http://socserv.mcmaster.ca/econ/ugcm/3ll3/bagehot/constitution.pdf

[6] Walter Bagehot, The English Constitution. (London: Collins, 1963): 74-75.

http://socserv.mcmaster.ca/econ/ugcm/3ll3/bagehot/constitution.pdf

[7] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar.(Ottawa, Government of Canada, 1968): 417.

[8] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada, Henry F. Davis and André Millar.(Ottawa, Government of Canada, 1968): 419.

[9] Canada. Privy Council Office, Manual of Official Procedure of the Government of Canada: Appendices, Henry F. Davis and André Millar.(Ottawa, Government of Canada, 1968): 469-470 [emphasis added].

[10] Peter W. Hogg, The Constitutional Law, 2011 Student Edition (Toronto: Thomas-Reuters Canada Ltd., 2011): 1-21 to 1-22.  

[11] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5.

http://laws.justice.gc.ca/eng/Const/PRINT_E.pdf [Accessed 12 December 2011].

[12] Corbett Haselgrove Spurin, “Chapter 5: Constitutional Conventions” in Constitutional and Administrative Law (Corbett Haselgrove Spurin, 2004): 3. <http://www.nadr.co.uk/articles/published/ConstitutionalLaw/Chapter005Conventions.pdf>.

[13] Peter W. Hogg, The Constitutional Law, 2011 Student Edition (Toronto: Thomas-Reuters Canada Ltd., 2011): 1-27.

[14] Adam Dodek, “Crisis in Canada: Coalition Governments and Beyond,” Conference by the University of Ottawa’s Faculty of Common Law (Ottawa, Ontario, 4 December 2008); Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Toronto: Oxford University Press Canada, 1991): 41; Peter J. Boyce, The Queen’s Other Realms: The Crown and Its Legacy in Australia, Canada, and New Zealand. (Annandale, NSW: The Federation Press, 2008): 60. Dodek and Heard discussed the fact that the prime minister of a Commonwealth realm can advise the British monarch to dismissal the governor general. Boyce argued in favour of “the monarch’s duty to dismiss a governor-general on the advice of her prime minister.” Conversely, the governor general dismissed the prime minister in the Australian Constitutional Crisis of 1975.

[15] Canada. Parliament of Canada, House of Commons. Debates. 41st Parliament, 1st Session. (Debate on the Senate Reform Act), 8 December 2011: 1230. http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&Parl=41&Ses=1&DocId=5319448 [Accessed 12 December 2011].

[16] Pat Martin, MP. Discussion with Author, 12 December 2011.

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Parliamentarians and National Security

Posted on 2011/12/11 by J.W.J. Bowden

My friend and co-author Nick MacDonald wrote “Parliamentarians and National Security”, for the Canadian Parliamentary Review.

The Parliament of Canada has traditionally deferred to the government on matters relating to national security although parliamentarians have, on occasion, vied for the task of being actively involved in holding the government to account on these matters. In 1991, parliament conducted a five-year review of the Canadian Security Intelligence Service Act where the Solicitor General of Canada and his officials presented classified summaries to parliamentarians to assist them in their review of the effectiveness of the legislation. In 2004, a National Security Committee of Parliamentarians was proposed in Securing an Open Society: Canada’s National Security Policy. The Speaker’s ruling on the provision of documents of April 27, 2010 also dealt with this issue. This paper examines a number of issues and concerns that have arisen in the past on this issue, and it examines parliamentary review of national security matters in the United Kingdom, Australia and New Zealand. It concludes that there are no reasonable barriers to the involvement of parliamentarians in reviewing matters of national security in Canada.

A timely and timeless piece, his article offers an updated explanation of the role of parliament vis-a-vis the crown-in-council on matters of national security by reviewing the old Canadian scholarship, incorporating Speaker Milliken’s ruling from 2010, and comparing Canada’s model to those of the United Kingdom, Australia, and New Zealand. I encourage all of you to read it!

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The Speakership of the New Zealand House of Representatives

Posted on 2011/12/11 by J.W.J. Bowden

The Canadian Parliamentary Review has just published an article by the Speaker of the New Zealand House of Representatives, Lockwood Smith, which he based on a speech that delivered in 2010.

In “The Speakership: A New Zealand Perspective”, Smith reviews the history of the Speakership and Parliament and argues that Sir William Lenthal’s famous response to Charles I means that the Speaker as servant of the House means far more than simply acquiescing to the will of the majority. Smith sees the Speakership as a constitutional guardian and, in New Zealand, as the veritable Minister of the Parliamentary Service. Above all, the Speaker must facilitate the core function of the House of Representatives: to hold the Minister of the Crown to account for its expenditures.

 Of course the monarchy was restored in 1660 with Charles II followed by James II, but religious tensions saw Parliament at odds with the Crown until the glorious revolution in 1688 and the passage of the Bill of Rights Act. It was the start of the constitutional monarchy and, in 1690, the Commons took control over the Crown’s use of revenue as well as taxation.

Those crucial separations of power so fiercely fought for over hundreds of years, remain today and establish, to my mind, the breadth and depth of the Speaker’s role. The role is not just chairing or presiding over the House. It is, in its full context, about ensuring the House of Representatives is free and able to function effectively both as a legislature and in the vital role of holding the Crown or Executive to account. This view of the Speaker’s role guides my interpretation of Standing Orders and also my role as “Minister” responsible for the Parliamentary Service.

Lockwood Smith is a true parliamentarist.

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Constitutional Scholarship or Political Activism? The Role of the Academy Following the Coalition-Prorogation Crisis of 2008

Posted on 2011/11/28 by J.W.J. Bowden

Introduction

The line between academia and scholarship on the one hand and punditry and activism on the other has become increasingly blurred in Canada, especially in the wake of the coalition-prorogation crisis of December 2008. Recent works like Democratizing the Constitution: Reforming Responsible Government are emblematic of the attempt, as well as the failure, to reconcile the mutually exclusive concepts of political activism and constitutional scholarship.

A spin off of that book, Lori Turnbull’s column “A three-peat for prorogation? Bring on reform” in the Globe and Mailalso effectively underscores this problem: sometimes the correct academic argument becomes an obstacle to effective activism. The article makes at least two factual errors and, more broadly, purports a serious conceptual error of interpretation about the nature of crown prerogative and the role of unwritten convention in Canada’s constitution.

Problems with Turnbull’s Column and Democratizing the Constitution: Reforming Responsible Government

On Prorogation and Crown Prerogative

Turnbull argued:

Technically, the power to prorogue belongs to the Crown and can be exercised “officially” by the governor-general alone, but this would never happen without the advice of the prime minister. No Canadian governor-general has refused a prime minister’s advice to prorogue. So history would suggest that the prime minister, not the governor-general, calls the tune, regardless of where the power lies constitutionally. This is not the case in other Westminster jurisdictions.

The Dignified and the Efficient Parts of the Crown

The Supreme Court of Canada recognized in the Patriation Reference that “constitutional conventions plus constitutional law equal the total constitution of the country.” Therefore,  constitutional conventions and the written constitution form equally important parts of Canada’s constitution. The Supreme Court cannot use one part of the constitution (like the Charter) the strike down another part of the constitution (like crown prerogative or parliamentary privilege). The Constitution Act, 1982 mentions that the governor general dissolves parliament, but the Letters Patent, 1947 provide the only complete written instruction that the governor general summons, prorogues, and dissolves parliament. By convention, the governor general cannot exercise any of those powers independently and does so only on the advice of the prime minister. According to the Manual of Official Procedure of the Government of Canada, the governor general’s reserve powers may allow him to reject the prime minister’s advice to dissolve, but not to prorogue or summon, parliament. The rejection of the prime minister’s advice does not equal independent gubernatorial action. Strictly speaking, “the Crown” consists of two parts, what Bagehot called the “dignified” and “efficient” functions, respectively: the Sovereign and governor general, and the prime minister and cabinet. Thus, “crown prerogative” follows this division; the sovereign or governor general possesses “reserve powers” (what I call “royal prerogative”), and prime minister and cabinet control the Governor-in-Council’s crown prerogative.

Given the role of convention in Canada’s constitution, I disagree with Turnbull’s assertion that the governor general can “officially” summon, prorogue, or dissolve parliament independently. Turnbull states correctly that no governor general has ever rejected the prime minister’s advice to prorogue. Based on my analysis above, I find the next statement problematic: “So history would suggest that the prime minister, not the governor-general, calls the tune, regardless of where the power lies constitutionally.” (Isn’t the idiom ‘to call the shots’?) The “power lies constitutionally” in both the governor general and the prime minister, who in effect jointly exercise this crown prerogative.

This over-simplification of crown prerogative and the role of convention in Canada’s constitution probably resulted from the constraints of the newspaper column. In any case, I would have attempted to re-phrase the nature of crown prerogative more effectively, perhaps as:
The crown’s prerogative powers to summon, prorogue, and dissolve in fact rest with both the governor general and the prime minister because the former only acts on the advice of the latter. Any attempt to alter formally and substantively this relationship between the governor general and the prime minister – the crown as a whole – would require an amendment to Section 41 (a) of the Constitution Act, 1982 (“the Office of the Queen, Governor General, and Lieutenant Governor of a province”), which requires the unanimity of the Parliament of Canada and all 10 provincial legislatures.

But more fundamentally, I disagree that the crown prerogative on prorogation should be eliminated and the power vested in the legislature, and ironically, this system would detract from the House’s”basic functions, including holding the government to account.” The government introduces most legislation, for which the opposition holds the government to account. The Prime Minister normally advises prorogation upon the completion of his government’s legislative program; the House’s basic function of holding the crown to account for its expenditures does not include the determination of the end of the government’s legislative agenda.

Jarvis and Turnbull acknowledge in the conclusion of Democratizing the Constitution that their plan to eliminate the crown prerogative of prorogation and vest it in parliament via a two-thirds supermajority would require a formal constitutional amendment, but I think that they have greatly underestimated the difficulty in achieving unanimity under Section 41 (a) of the Constitution Act, 1982.

Nevertheless, in her individual column, Turnbull argues that the Standing Orders of the House of Commons could formally constrain or eliminate the crown prerogative on prorogation.

A political prorogation is a blatant abuse of a prime minister’s access to the Crown’s prerogative powers. As citizens of an elected democracy, we should not tolerate it and, with a few basic changes to the House rules, we wouldn’t have to [emphasis added].      

I guess that Turnbull forgot about the arguments and political activism contained in her own book? Maybe Turnbull should have talked to Jarvis before submitting this column, and then he could have reminded her about the book that they wrote together, and how it was more accurate about this particular subject…

“Other Westminster Jurisdictions”. Which Ones? Please Elaborate!

Turnbull argues : “So history would suggest that the prime minister, not the governor-general, calls the tune [sic (‘Calls the shots’, perhaps?)] , regardless of where the power lies constitutionally. This is not the case in other Westminster jurisdictions.” In which other Westminster jurisdictions has the crown prerogative on prorogation been eliminated? As I explained in the entry on Alex Salmond’s vision of an independent Scotland, the Scottish Parliament has eliminated the crown prerogatives on the summoning and dissolution of parliament by codifying the fixed elections to and automated summoning of parliament in the Scotland Act, 1998. However, the Scotland Act makes no mention whatsoever of the words “prorogue” and “prorogation”, which means that rather than eliminating the crown prerogative on prorogation, it eliminated prorogation itself. I explained in my entries on fixed-elections in the Commonwealth that the Westminster Parliament has devised the Fixed-Term Parliaments Act, which eliminates the crown prerogative on dissolution. The Act also says in Section 6, Paragraph 1 that “This Act does not affect Her Majesty’s power to prorogue Parliament.” The Fixed-Term Parliaments Act, 2011 does not affect prorogation at all. The New Zealand Cabinet Manual and the website of the Governor-General of New Zealand indicate that the Governor-General summons, prorogues, and dissolves parliament on the advice of the Prime Minister. The website of the Governor-General of Australia shows that the Australian viceroy carries precisely the same functions. None of the Canadian provinces have eliminated crown prerogative on prorogation either. I’m quite certain that all six Australian states also preserved the traditional standard.

So what other Westminster jurisdiction operates on the Jarvis-Turnbull principle that only a supermajority of two-thirds of the MPs in the lower house can sanction prorogation? I’ve only looked to the core Commonwealth, but I really wanted to know! Maybe Tuvalu or Jamaica do? And what does Turnbull mean by “Westminster jurisdiction”? I suspect that the phrase would only include legislatures within the 16 Commonwealth Realms that recognize Queen Elizabeth II as their Sovereign, but the vague term could also conceivably include any parliament within one of the 54 member-states (this figure includes the 16 Realms) of the Commonwealth of Nations, since they were all once part of the British Empire. Surely, the editors of the Globe and Mail could have accommodated a few extra words that elaborate on this argument.

Prime Minister Harper Has Thus Far Advised THREE Prorogations, Not Two.

Compared to the aforementioned significant conceptual errors, this statement seems minor. The Parliament of Canada provides an excellent repository of information on all of Canada’s 41 Parliaments, called ParlInfo. It compiles all statistics on the life of all 41 Parliaments, including every summoning, adjournment, prorogation, intersession, and dissolution in the history of the institution.

Turnbull argued: “If the rumours are true, this would be the third time that Mr. Harper has prorogued Parliament. The first occurred in December, 2008 […].” This is incorrect. According to ParlInfo’s statistics on the 39th Parliament, Prime Minister Harper advised that his first prorogation occur on 14 September 2007, and the 2nd session of the 39th Parliament then convened on 16 October 2007 with a Speech from the Throne. Harper subsequently advised prorogation twice in the 40th Parliament. The first prorogation of the 41st Parliament will be the Harper government’s FOURTH, not third. Perhaps Turnbull meant, “the first prorogation of the 41st Parliament will be the Harper government’s third controversial prorogation.”

More fundamentally, now that the PM Harper leads a majority government, why would he advise a prorogation before the completion of his legislative agenda? Turnbull’s column never adequately responds to this point. The Prime Minister will not advise a prorogation until his current legislation program has passed both Houses of Parliament and received Royal Assent. Turnbull herself acknowledges that “[Routine prorogations] occur when the government has fully implemented its current agenda.” Perhaps Turnbull fears that the intersession of the prorogation would become too long. But in a majority parliament, the Harper government would never employ what she terms a “political prorogation” in order “to muzzle opposition criticism, to escape parliamentary scrutiny.” Her argument breaks down at this stage, because the Prime Minister clearly would not request a prorogation in a majority parliament until his legislation program has received Royal Assent, and because the opposition cannot truly threaten the viability of the government; only the Conservative backbenchers can in this majority parliament.

Turnbull continues:

The 2012 prorogation would be substantively different. First, there is no obvious political land mine to avoid. Second, the Conservatives have demonstrated how majority status confers an immunity of sorts from even the most scathing criticism from the opposition benches. These factors make a potential upcoming prorogation less necessary from a political standpoint, but the fact remains: We live in a country where a prime minister can shut down the House, the pre-eminent institution of our parliamentary democracy, on a whim, for no particular reason.

Conclusion

Essentially, the last quoted paragraph says, “I don’t like Stephen Harper, and therefore the rules by which prorogation is carried out should be changed.” This is what I mean by political activism as opposed to constitutional scholarship. The political activists use emotive words and phrases with negative connotations like “abuse”, “acting in bad faith”, “shutting down parliament”, etc. in order to justify their arguments and, more importantly, in order to portray anyone who disagrees with them as enablers of this “abuse.” This method therefore assigns a negative moral judgement to all those who disagree with the political activist’s arguments and attempts to portray those opposed as deceptive at best and evil at worst. This political activist’s tactic subtlety attempts to limit the parameters of acceptable discourse from the outset; in contrast, a true constitutional scholar would “follow the logos”, acknowledge the fair points of opposing arguments, and draw conclusions after examining all available evidence. The political activist defines his position and dismisses competing views as not only factually incorrect or conceptually flawed, but as morally wrong. In so doing, the political activist attempts to frame the debate and market his ideas in the media and to anyone who will listen.

Ultimately, academics must choose: will they engage in true constitutional scholarship, or will they descend into punditry and political activism? In addition, once they have chosen, will they masquerade thinly veiled political activism as having produced true constitutional scholarship? As I described in the “about” section of this blog, the Coalition-Prorogation Crisis of 2008 galvanized me and motivated me to learn more about Canada’s constitution. At the time, the Conservatives made incorrect and inaccurate statements about the legality of coalition governments in the Westminster system; and the Liberal-New Democratic coalition that the Bloc supported made incorrect and inaccurate statements about prorogation, crown prerogative, and what constitutes a loss of confidence in the government. I reserve criticism for both sides. In “No Discretion”, Nick MacDonald and I offered a novel interpretation of prorogation and the nature of the reserve powers of the crown, which I hope has enriched the overall scholarship and academic literature. However, in the conclusion, we acknowledged the normative nature of some of the arguments and that they contradict how some of the events unfolded in reality– because that piece intended to offer novel constitutional scholarship that challenged the prevailing orthodoxy through an historical analysis, rather thinly-veiled political activism designed as a call to reform the system.

While researching for my individual paper that contributed to “No Discretion”, a wise historian told me that in the wake of the Coalition-Prorogation Crisis of 2008, many scholars have conflated the political with the constitutional (in other words, used their political views in order to make an interpretations of the constitution) and thus failed to maintain the distinctions between the two. I could not agree more, and I would extend the distinction to one of constitutional scholarship vs. political activism.

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