HOUSE RULES / Parliament is king! (Version française reproduite plus bas)
HOUSE RULES
In light of the recent events, it has become clear that many Canadians are unfamiliar with some of the basic rules of our constitutional democracy. In a recent Ipsos Reid poll, 51% of participants mistakenly thought that Canadians directly elect their Prime Minister. We feel that it is our duty, as constitutional scholars, to clarify for the public the rules governing the appointment of government.
After a general election, the Governor General of Canada normally asks the leader of the party that has gathered a majority of seats in the House of Commons to become the Prime Minister and to form a government. According to the principle of responsible government, the government must enjoy the confidence of the House of Commons in order to govern legitimately. Our Constitution requires that the Prime Minister and the cabinet, not being elected directly by the people, enjoy the support of a majority of the elected members of Parliament. In our parliamentary system, it is precisely this support that gives the government its democratic legitimacy. Without this democratic support, the Prime Minister and his cabinet have none.
When the general election does not return a majority of seats to any one party, the Governor General will then have to appoint as Prime Minister a Member of Parliament who is able to gather enough support to sustain the confidence of the House for a reasonable period of time. If the person who was Prime Minister prior to the dissolution of the House of Commons has not yet resigned and it is unclear which party or parties could gather sufficient support from the members of Parliament to lead a government after a fresh election, the Governor General may let that person try to govern until it is made clear that he or she does not enjoy the support of the House. In a minority situation, the Prime Minister cannot claim to have "won" a right to govern. At best, he or she can claim to have the right to try to sustain the confidence of the House.
When a minority government loses the confidence of the House, the Governor General is no longer bound by the advice of the Prime Minister. The Governor General must then exercise what is known as her "personal prerogatives". She may dissolve parliament and call for a new election or, if the elections have been held relatively recently (opinions range between 6 and 9 months), she may invite the leader of another party to attempt to form a government that would enjoy the confidence of the House of Commons. The same may be true if the Prime Minister of a minority government were to request a dissolution of the House early after an election. In fact, certain authorities, such as Eugene Forsey, even claim that "[i]f a government asks for dissolution whilst a motion of censure is under debate it is clearly the Crown's duty to refuse".
While, in our parliamentary system, as it is the case in the Commonwealth in general, the Governor General (or the person fulfilling a similar role in other jurisdictions) may offer the opposition leader the opportunity to form the government in such circumstances, other parliamentary systems give the opposition the right to form a new government (i.e. Spain's and Belgium's constitutions) and, in the case of Germany, the constitution even makes it an obligation in certain circumstances.
Such rules are meant to avoid creating an incentive for minority government Prime Ministers to make successive calls for elections until one party gathers sufficient support to form a majority government. Successive elections can be quite disruptive, if only because without a functioning Parliament to vote on matters of supply, unelected officials are forced to adopt special measures to pay for the operations of government.
When the Governor General exercises her personal prerogatives and decides whether or not to dissolve Parliament or call the opposition parties to form a new government, she must act in a judicial manner, with total impartiality. In such circumstances, she must be guided by her duty to protect the Constitution and, in particular, the principles of democracy and responsible government.
It is our opinion that in the event of a non-confidence vote or a request for dissolution of Parliament after only 13 sitting days of the House of Commons, the Governor General would be well-advised to call the leader of the opposition to attempt to form a government. This would be most appropriate in the circumstances where that leader has already gathered the assurance that he would enjoy the support of a majority of votes on any issue of confidence for the next year or so. The principle of democracy would be protected in so far as the new government would enjoy the support of a majority of the elected officials. This would ensure the stability of our political system.
In alphabetical order:
Prof. Stéphane Beaulac, Law, Université de Montréal
Prof. Karim Benyekhlef, Law, Université de Montréal
Prof. Denis Boivin, Law, University of Ottawa
Prof. Pierre Bosset, Law, Université du Québec à Montréal
Prof. Barbara Cameron, Political Science, York University
Prof. Duncan Cameron, Political Science, Simon Fraser University Prof.
. Mark Carter, Law, University of Saskatchewan
Prof. Michele L. Caron, Law, University of Moncton
Prof. Rachel Chagnon, Law, University of Quebec at Montreal
Prof. François Chevrette, Law, Honorary Dean, University of Montreal
Prof. Prof. John H. Currie Law, University of Ottawa Prof.
. Hugo Cyr, Law, University of Quebec at Montreal
Prof. David Docherty, Dean of Arts, Political Science, Wilfrid Laurier University Prof.
. CES (Ned) Franks, Political Science, Emeritus Professor, Queen's University Prof.
. Sébastien Grammond, Law, Acting Dean, University of Ottawa Prof.
. Andrew Heard, Political Science, Simon Fraser University Prof.
. Martha Jackman, Law, University of Ottawa Prof.
. Jennifer Koshan, Law, University of Calgary
Prof. Francis J. Larocque, Law, University of Ottawa Prof.
. Lucie Lemonde, Law, University of Quebec at Montreal
Prof. Roderick A. Macdonald, Law, FR Scott Professor of Constitutional and Public Law, McGill University Prof.
. Heather MacIvor, Political Science, University of Windsor
Prof. Errol P. Mendes, Law, University of Ottawa
Mr. Brendan Naef, Ph.D. candidate in law, University of British Columbia
Prof. Charles-Maxime Panaccio, Law, University of Ottawa
Prof. Dennis Pilon, Political Science, University of Victoria
Prof. Dianne Pothier, Law, Dalhousie University
Prof. Denise Réaume, Law, University of Toronto
Prof. David Robitaille, Law, University of Ottawa
Prof. Peter H. Russell, Political Science, Emeritus University Professor, University of Toronto
Prof. Bruce Ryder, Osgoode Hall Law School
Mr. Maxime Saint-Hilaire, Law, Associate Researcher, C.R.E.U.M. and Centre Marc Bloch (Berlin), LL.D candidate, Université Laval/Université de Cergy-Pontoise
Prof. Lorne Sossin, Law, University of Toronto
Prof. François Tanguay-Renaud, Osgoode Hall Law School
Prof. Sophie Thériault, Law, University of Ottawa
Prof. Paul G. Thomas, Duff Roblin Professor of Government, University of Manitoba
Prof. Jean-Pierre Villaggi, Law, Université du Québec à Montréal
Prof. Jeremy Webber, Canada Research Chair in Law and Society, University of Victoria
Prof. Margot Young, Law, University of British Columbia
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Le Parlement est roi!
The events that shook Ottawa since December revealed that a large proportion of Quebecers and other Canadians are unfamiliar with the rules of our constitutional democracy. A recent Ipsos Reid poll even showed that 70% of Quebecers believe erroneously that citizens directly elect the prime minister. So we thought it would be useful to clarify to the public the rules governing the selection of members of government in our current political system.
Prime Minister is not elected directly. The Governor General, following in elections, would seek the leader of the party with a majority of seats in the House of Commons to become Prime Minister. Subsequently, the Prime Minister normally chooses his cabinet members (ministers) among members of his party. Under the principle of responsible government, the Prime Minister and his cabinet can not govern without legitimately enjoy anytime of "trust" (in support of a majority of members) of the House of Commons. Our Constitution does not provide for direct election of Prime Minister and his cabinet, they must always be supported by a majority Members elected to the House of Commons. In our parliamentary system, it is precisely this support that gives the government its democratic legitimacy, without this support, the government has none since he himself was not elected.
when no single party manages to elect a majority of seats in a general election, the Governor General shall then appoint as Prime Minister a member capable of attracting enough support to obtain and maintain the confidence of the House of Commons for a reasonable period of time. If the person who was as Prime Minister before the dissolution of Parliament has not yet resigned and it is unclear which party enjoys enough support among MPs to govern, the Governor General will offer that person to remain Prime Minister as it will demonstrate that the confidence of the House of Commons it is acquired. In a minority situation, the government can not claim to have "won" the right to govern. At best, the Prime Minister can claim the right to try to maintain the confidence of the House.
When a minority government loses the confidence of the House, Governor General is no longer bound by the advice of the Prime Minister. The Governor General must exercise his "personal prerogative". It can dissolve parliament and call new elections or, if elections took place relatively recently (opinions vary between 6 and 9 months), it may invite the leader of another party to try form a government that will enjoy the confidence of the House of Commons. This applies even in cases where the Prime Minister of a minority government request a dissolution of Parliament shortly after the general election. In fact, some authorities, such as the late Eugene Forsey famous, declare that [translation] "if a government request dissolution when a motion of censure is debated, the Crown has a duty to refuse it."
In our parliamentary system, as is generally the case elsewhere in the Commonwealth, the Governor General (or person performing a similar role) may, under such circumstances, offer an opportunity for the Leader of the Opposition to form a government. Other parliamentary systems it may be a right (eg.: Spain and Belgium) or even, in certain circumstances, a duty (eg.: Germany) for the opposition to form such an alternative government.
These rules are meant to prevent minority governments plunge us into an election until one party gets a majority of seats in Parliament. Successive elections and can be quite disruptive, especially because in the absence of a functioning Parliament and may take votes on the supply of state, unelected officials should adopt exceptional measures to offset the costs of government operations.
When the Governor General exercises her personal powers and decide whether to dissolve Parliament or whether it will invite one or more parties to form a new government, it must act in a quasi-judicial in total impartiality. In such circumstances, it must be guided by its duty to protect the constitution and in particular the principles of democracy and responsible government.
We believe that if there was a vote of no confidence or if an application for dissolution of Parliament was made after a parliamentary session lasted only about 13 days, it would make sense for the Governor General to invite the opposition parties to attempt to form a government. This would be particularly appropriate in the context where the leader of the Opposition has already received assurances that he would enjoy support from a majority of the House on any question of confidence for a period of about one year. The principle of democracy would be protected to the extent that this government would be supported by a majority of elected members in ensuring this stability to our political system.
In alphabetical order: Prof.
. Stéphane Beaulac, Law, University of Montreal
Prof. Karim Benyekhlef, Law, University of Montreal
Prof. Denis Boivin, Law, University of Ottawa Prof.
. Pierre Bosset, Law, University of Quebec at Montreal
Prof. Barbara Cameron, Political Science, York University Prof.
. Duncan Cameron, Political Science, Simon Fraser University Prof.
. Mark Carter, Law, University of Saskatchewan
Prof. Michele L. Caron, Law, University of Moncton
Prof. Rachel Chagnon, Law, University of Quebec at Montreal
Prof. François Chevrette, Law, Dean Emeritus, University of Montreal
Prof. Prof. John H. Currie Law, University of Ottawa Prof.
. Hugo Cyr, Law, University of Quebec at Montreal
Prof. David Docherty, dean of the Faculty of Arts, Political Science, Wilfrid Laurier University Prof.
. CES (Ned) Franks, political science professor emeritus, Queen's University Prof.
. Sébastien Grammond, right, Acting Dean, University of Ottawa Prof.
. Andrew Heard, Political Science, Simon Fraser University Prof.
. Martha Jackman, Law, University of Ottawa Prof.
. Jennifer Koshan, Law, University of Calgary
Prof. Francis J. Larocque, Law, University of Ottawa Prof.
. Lucie Lemonde, Law, University of Quebec at Montreal
Prof. Roderick A. Macdonald, right, FR Scott Professor of Constitutional and Public Law, McGill University Prof.
. Heather MacIvor, political science, University of Windsor
Prof. Errol P. Mendes, Law, University of Ottawa
Mr. Brendan Naef, PhD in Law, University of British Columbia Prof.
. Charles-Maxime Panaccio, Law, University of Ottawa
Prof. Dennis Pilon, political science, University of Victoria Prof.
. Dianne Pothier, Law, Dalhousie University Prof.
. Denise Reaume, Law, University of Toronto Prof.
. David Robitaille, Law, University of Ottawa Prof.
. Peter H. Russell, Political Science, University Professor Emeritus, University of Toronto Prof.
. Bruce Ryder, Osgoode Hall Law School
Mr. Maxime Saint-Hilaire, law, research fellow, Centre Marc Bloch and CREUM (Berlin) Prof.
. Lorne Sossin, Law, University of Toronto Prof.
. François Tanguay-Renaud, Osgoode Hall Law School Prof.
. Sophie Theriault, Law, University of Ottawa Prof.
. Paul G. Thomas, Duff Roblin Professor of Government, University of Manitoba
Prof. Jean-Pierre Villaggi, Law, University of Quebec at Montreal
Prof. Jeremy Webber, Canada Research Chair in Law and Society, University of Victoria Prof.
. Margot Young, Law, University of British Columbia
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