Governor General and the Prime Ministers, The: The Making and Unmaking of Governments

By Edward McWhinney

Since Canada may be faced with a period of minority governments, it has become increasingly important to understand the role of the Head-of-Statethe Governor Generalin facing the challenge of dysfunctionality. Edward McWhinney clearly lays out the present powers and responsibilities of the office, advising the country on what to expect from the Governor General and Prime Ministers. He does so within an historical frame, revealing how the office has evolved from a time when the Governor General was the appointee and representative of the imperial government to today when the office has become part of Canada s constitutional checks and balances. McWhinney suggests how it is now possible to use the inherent powers of the Head-of-State in concert with the other coordinate arms of government to make the constitutional system work effectively in crisis situations. He delights in showing how the evolving constitutional precedents rarely result from high theory but from colourful personalities forced to make pragmatic decisions in difficult situations. He goes behind the scenes to portray royals, dignitaries and politicians in their private moments as they struggle to adapt constitutional rules to meet changing times. The volume ranges widely over the Commonwealth, showing how separate and diverse countries have drawn on one another s experience to refashion the Westminster model. McWhinney ends by suggesting possible directions for Canada after the departure of Queen Elizabeth II.

"In his many writings, McWhinney offers a substantial read, aimed at those keen on politics."

Douglas Fisher, The Ottawa Sun

• Language: English
• Publisher: Ronsdale Press
• Release date: Nov 1, 2005
• ISBN: 9781553803041

Edward McWhinney

Edward (Ted) McWhinney, one of the foremost experts on the Canadian constitution, is often called upon to advise the Canadian government. McWhinney has held professorships at Yale, the Sorbonne, Toronto, McGill, Indiana and Simon Fraser University. The author of many books, he travels frequently to give advice to the United Nations and foreign states. Throughout the 1990s he served two full terms as Member of Parliament and Parliamentary Secretary. He continues his work as legal counsel, governmental adviser and writer from his home base in Vancouver.

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therein.

INTRODUCTION

A Singular Office — Titular Head-of-State

THE LAST PRESIDENT of the Third French Republic, Albert Lebrun, once humorously described his main function as titular head-of-state to be attending the official opening ceremonies for flower shows and similar public celebrations. A recent Australian governor general, Sir William Deane, commented wryly that his principal official occupation seemed to be to represent his prime minister at state funerals held abroad. This has normally been part of the lot of Canadian governors general in modern times, except that even here, with the development of global television and easy air travel by executive jet, a governor general may find himself or herself preempted, in the ceremonial representative role at the more important state funerals, by a prime minister who recognizes the high-level diplomatic advantages of these occasions and the media coverage resulting from them.¹

For more than three-quarters of a century, the office of governor general of Canada has been pleasantly free from public controversy, and from involvement in complex and difficult constitutional decisions that too often end up in partisan political conflict. The passage from the Imperially appointed British governors general to Canadians chosen and effectively appointed by the Canadian prime minister had been achieved, easily and gracefully, on a step-by-step basis over the years, and for the last fifty years and more the governor general has been a Canadian citizen. Absence, during all that time, of any real difference or disagreement between the governor general and the prime minister has left the governor general free to concentrate on the quieter and gentler, essentially honorific aspects of the office as titular head-of-state in Canada. At the same time, the vestigial role of the Queen in relation to Canada has been allowed to diminish, by polite acquiescence and mutual consent, to that of Head of the Commonwealth, a purely symbolic post in the continuing informal association of sovereign states that were once part of the old British Empire and the British Commonwealth that succeeded it. With the decline of Empire, the paraphernalia of power that once went with it has been allowed to fade away, and the office of governor general has become more consciously low-key, deliberately unostentatious, and accessible to the general public.

In the last several years, however, events in the federal political arena have meant that differences that in the past were once easily resolved politically through the ordinary political processes and general elections, have threatened to be transferred to the governor general’s office for constitutional-legal arbitrament under the reserve, prerogative powers of the Crown. These events have resulted in part from schisms within the long-reigning federal Liberal party, spilling over into a protracted, often bitter internal battle over the party leadership, as well as from a manifest shift in traditional voter support between the older political parties. Because Canada has for many years had no political confrontations involving recourse to these inherent, discretionary powers of the governor general as titular head-of-state, the exact constitutional parameters of these powers and the range of alternative options under them remain open to debate and to public questioning. They are not written down in the text of the Constitution Act of 1867. They are the stuff of long-time constitutional practice, studied and then acted upon because they were judged as reasonable and fair by subsequent generations — what is known, in distinction from the law of the constitution, as the conventions of the constitution. There is only one purely Canadian precedent, and it goes back to 1926 during the Imperial era when the governor general was still a British official, appointed by the British government of the day. That has raised the basic question of its relevance as claimed precedent for contemporary Canadian problems to be resolved by a contemporary Canadian governor general. Should the 1926 Canadian example not be deemed inapplicable on these grounds?

Fortunately, there is a larger body of precedents to be found in the constitutional practice of other states that were, like Canada, once part of the British Empire or the successor British Commonwealth. After becoming independent republics, they have sometimes either received, or chosen to retain, the Westminster-style system of a titular head-of-state (governor general or president) and a head-of-government (prime minister). In some of these other states, there have been considerable innovations in the developing constitutional practice that may commend themselves to our Canadian constitutional decision-makers today. There is, in fact, a very considerable body of what may be called Commonwealth common law bearing on the constitutional discretionary powers of the head-of-state and their sensible limits today. The corpus of such Commonwealth common law certainly includes the Canadian precedent of 1926, which is an inevitable starting point for legal analysis, but it also ranges widely over constitutional practice in countries as diverse as Australia, India and Ireland, and includes some instances of judicial review by the highest national courts. In attempting to submit general constitutional principles or ground rules to guide or control a governor general’s decisions today on the exercise of the discretionary powers in situations such as we have encountered after the June 2004 general elections, our concern in the present study is this: whom to commission to form a government after a no-clear-majority result in the general elections, and on the basis of what assurances of ability to command a working majority of seats in the House? A further question to address is, if a prime minister, not having a majority of seats in the House after the elections, should be defeated in a House vote, is he/she entitled to receive on request the dissolution of Parliament and fresh elections? Alternatively, is the governor general entitled to explore the possibility of granting the mandate to form a government to the leader of some other party in the House, and if so, on the basis of what assurances?

It remains to examine one other interesting side feature to the contemporary public debate on the constitutional role of the governor general today. The office itself, and its incumbents personally, are being subjected to unprecedented public attacks in the media and in political arenas, often of a highly abusive, personal character. By long-standing convention, an incumbent head-of-state, whether the Crown in person or in its various forms in the Commonwealth countries, does not respond publicly to such intemperate criticisms. That may have compounded the political problem since charges and innuendo, capable of rebuttal on the empirical facts, have remained effectively unanswered. The phenomenon is to be found in a number of widely dispersed Commonwealth countries today.² A good part of the explanation for the current systematic denigration of the office of titular head-of-state and its incumbent, however, would seem traceable to the public’s marked disaffection with political processes and disrespect for political leaders today. This disaffection is manifest in the sharp decline in voter turnout at general elections and the political disengagement among young voters. The head-of-state is an easier target to aim at than ministers and parliamentarians and unlikely, at least up to the present, to strike back in kind at the accusers.

The present study, with its primary emphasis on defining contemporary ground rules for the exercise of the reserve, discretionary constitutional powers of the office, also looks at ways of changing the definition of the office itself, of doing away with it if necessary, but also of bringing it more into line with contemporary principles of democratic constitutionalism.

CHAPTER 1

Legacy of Empire:

Head-of-State (Governor General) and Head-of-Government (Prime Minister)

CANADA’S CONSTITUTIONALLY dependent status within the British Empire, confirmed and concretized in the Canadian Constitution Act of 1867, has long since disappeared. The constitutional transition was peaceful and consensual, achieved between the two World Wars with the evolution from colonial empire to a British Commonwealth of sovereign, independent states, as recognized, in legal terms, in a special Imperial Conference of 1926 and in an equally impressive enactment of the British Parliament in 1931, the Statute of Westminster. The change was achieved through timely acts of statesmanship on both sides, carried out with the usual diplomatic niceties and without any obvious political ill-will. These actions facilitated a gradualist, step-by-step Canadianization of the British legal forms, processes and institutions that had been imported with the early British colonial administrations and later reaffirmed in the Act of 1867, enacted by the British Parliament in Westminster.

Without this continuing process of constitutional transition, we would inevitably have been faced with a more abrupt break such as had occurred in some other parts of the old colonial Empire after the First World War, under the impulse of the world-wide movements for decolonization, self-determination and independence. The absence in Canada of any such sharp rupture with the Empire meant that British, Westminster-style constitutional institutions and processes already in place from 1867 continued in operation. There was no new post-Empire constitutional charter: no new republican system, no temptation or opportunity to consider a shift to a presidential as opposed to a parliamentary executive, and no experimentation with a constitutional separation of powers (executive, legislative, judicial) following American or European models.

The only really significant consideration of constitutional change to institutions or processes of government and their interrelations would come in 1980, when Prime Minister Trudeau responded to the victory of his federal forces in the first Quebec Sovereignty-Association referendum with his constitutional patriation project. However, the Trudeau constitutional reform project ended up, rather disappointingly, with all the political compromises that the prime minister had felt compelled to make to secure acceptance for the Constitution Act of 1982, somewhat more modest and limited than was originally intended. While the Act did introduce a constitutionally entrenched Charter of Rights and Freedoms (with some subsequent unexpected and largely unforeseen results), it left the basic institutions of federal government, including executive power, largely untouched in legal terms.

The Constitution Act of 1867 speaks in its preamble of a Constitution similar in principle to that of the United Kingdom. The succeeding opening sections, dealing with executive power, declare that the executive government and authority over Canada is to continue to be vested in the Queen. They then go on to create the office of governor general which is designated as carrying on the Government of Canada on behalf and in the name of the Queen. That is essentially all there is regarding executive power. There is no mention of the office of prime minister, the cabinet or a parliamentary executive. Trudeau’s Constitution Act of 1982 is equally silent as to such fundamental institutions. It does mention the office of the Queen, the Governor General and the Lieutenant-Governor of a province, but only as a sub-paragraph in the sections introducing new procedures for amending the constitution; and then it is to stipulate that any proposed changes to these offices must be approved by the federal Senate and the House of Commons, as well as by the legislatures of all of the provinces.

To find out where executive power is located in Canada today, and the processes and ground rules under which it operates, one must therefore go back to the original constitutional sources received into Canada with British colonization and then confirmed in that succinct formulation: a Constitution similar in principle to that of the United Kingdom. This wording brings into the Canadian constitutional system not merely the law of the constitution, but also a large mass of historically established institutional customs of the British government. This mass is what has been identified in rather abstract terms as the conventions of the constitution. In fact, virtually all of the legal rules on executive power and on executive-legislative relations are the stuff of constitutional conventions. Neither in Canadian law nor in the original British legal sources can one find anything of substance on the offices of the Queen, the prime minister, the cabinet, or the parliamentary executive system.

Indeed, the emergence of the English parliamentary executive system is an illustration as much or more of casual, accidental historical forces as of any conscious planning and direction. Had the Royalist forces won the Civil War and had Charles I’s constitutional claims on behalf of the Crown’s prerogative powers prevailed, one might have seen the development of a strong, centralized monarchical executive, ultimately culminating in some form of bourgeois revolution as occurred in France at the end of the eighteenth century, and in continental Europe generally thereafter. On the other hand, if the Parliamentary forces’ triumph in the Civil War had endured, and if Cromwell’s Protectorate had survived his own death, something akin to the developments in the American colonies might have emerged, where Puritan populist sources of English ideas on constitutional government continued to be advanced and ultimately to prevail. Instead, with the Restoration in Great Britain in 1660, and its necessary political compromises between rival doctrinal ideas, a pragmatic balance between the Crown and the Parliamentary forces was achieved, then maintained and consolidated after the Glorious Revolution of 1688.

In the eventual Hanoverian royal succession after 1714, the first two monarchs spoke only German and were thus incapable of presiding at the meetings of the King’s Ministers in Council. By 1760, this happy accident had established the firm constitutional practice (when the first bilingual — English and German — Hanoverian sovereign, George III, acceded to the throne) of a council of ministers or cabinet meeting entirely separate from the royal authority. This council was led by a prime minister, as an independent countervailing executive authority responsible to Parliament.

These developments are the stuff of a convention of the constitution. It perfectly illustrates the opportunity for creative change in response to changing political circumstances. Such change is possible in the absence of tethering limitations of the sort that would be imposed by any formal definition of constitutional offices in abstract, a priori written terms. It is at the root of the seemingly two-headed executive system that we have in Canada today as historical inheritance from Great Britain.

Any division of executive authority can be a source of confusion as to the location of effective power. It can also be a potential source of direct interpersonal confrontation where the respective offices are identified through custom or convention only, and not enacted in precise legal form. There may be a temptation among competing office holders to claim residual, reserve powers supposedly still inhering in their historically ancient posts. We will find this additional element of personality conflicts present in some constitutional collisions between governors general and prime ministers, in Canada and in other member-states or former member-states of the Commonwealth. We must look to these confrontations when trying to establish constitutional ground rules for the contemporary office of governor general in its relations with the prime minister and government of the day.

In separating the offices of governor general and prime minister, for purposes of analyzing their respective powers and their prudent limits, it may be helpful to characterize the governor general using the legal language employed in comparative constitutional law: titular head-of-state. This title acknowledges the substantial conventional limitations on the governor general’s powers, and reflects similar limitations upon the British monarch that have developed over the past three and a half centuries. By the same token, the prime minister’s office may best be identified as head-of-government — the unquestioned repository of effective power in Canada today.¹ The two-headed executive authority — titular head-of-state and head-of-government — is accepted as, at most, a minor inconvenience for which it has hardly been thought worth the trouble of organizing a special constitutional amendment, at least until such time as a total renewal of the whole constitutional system should be considered desirable.

It is not only the constitutional heirs of the old British Empire² that maintain a similar dualism of formal executive authority between head-of-state and head-of-government. Other distinct and different political systems have sought to maintain the dualism as a way of facilitating constitutional transition and change on a consensual basis. The constitution of the Third French Republic was formed as a temporary transitional charter out of the disastrous French defeat in the Franco-Prussian War of 1870–71 and the departure of Emperor Napoleon III. Its political masterminds deliberately designed it to permit an early monarchical restoration from among the three or more main competing royalist groups of the time, with essentially a figurehead president as titular head-of-state. It was still there years later when France fell in 1940 — unchanged because of the failure to produce any single agreed royalist candidate in the earlier years of the republic when a restoration might still have been possible.

The short-lived Fourth French Republic (1946–68) maintained the same dualism. When it also fell, the new Fifth French Republic, formed according to the constitutional ideas of Charles de Gaulle, eliminated the dualism once and for