Though Tony Clement dismisses them as 'elitists', and the Reformers call them 'University Types', the Canadian people should listen up. These professors know about things like the rule of law and the foundations of democracy, and Harper is ignoring both.
This is a very serious thing that is happening here and not something we should be taking lightly. The dictator is trying to justify it by saying that Jean Chretien did the same thing, but that's a deflection.
Jean Chretien had a majority and prorogued after the legislative agenda was taken care of.
Besides as my mother would always say if we tried that excuse at home. "If they stuck their head in the oven, would you do it too?"
The Professors and Prorogation
Macleans
by Andrew Potter
January 11, 2010
Philosophy professor Daniel Weinstock* was on Power and Politics this evening, talking with Evan Solomon about Harper’s decision to prorogue Parliament. For the past couple of weeks Daniel has been working on a short article that he’s been circulating amongst Canadian political philosophers, constitutional lawyers, and poli sci profs, and which sort of went academically viral.
It now has almost 200 signatures and more are coming in all the time.
The piece will appear in La Presse and the Ottawa Citizen tomorrow, along with a few other papers, but both the French and English versions of the piece, along with a list of signatories, can be found here. The list is pretty much a Who’s Who of the field, and it includes Ron Beiner, Sam Brennan, Joe Carens, Avigail Eisenberg, Simone Chambers, Mark Kingwell, Guy Laforest, Charles Taylor, Peter Russell, Reg Whitaker, Christine Tappolet, and (of course) dozens of others. Tom Flanagan is not on the list, but that’s no real surprise.
Daniel’s piece offers what I think is the subtlest, but in many ways most important, critique of Harper’s decision to prorogue, and it focuses on the question of executive self-restraint.
There’s an old line about the American constitution being constructed on the principle that even if the elected officials are knaves, the system will function more or less normally. In contrast, the Canadian constitution leaves a great deal of leeway for official judgement and discretion. As UBC law prof Wes Pue once put it, you could summarize much of Canada’s constitution in two words: “Trust us”.
I think this element of trust, and the way it actually helps create a culture of self-restraint, is one of the least-understood aspects (at least by me) of the workings of our constitution. With great power comes great responsibility, and for the most part Canadian prime ministers have exercised that responsibility with a respectable amount of restraint. One example that comes to mind is the appointment of Supreme Court judges: It would be very easy for a prime minister to simply appoint highly ideological judges, to stack the court in a way that would turn it into another partisan branch. But that would simply lead to a tit-for-tat scenario, where the next prime minister would stack it with *his* preferred partisans, until the court was completely politicized. (Pause here to listen to Andrew Coyne yell, “IT IS!!”) That is of course what has happened in the US, precisely because the system is built on the assumption that this is how presidents will behave.
But when one prime minister exercises restraint, it builds trust that the next leader can rely on for his own decision-making. At its best, the system runs well because complete discretion has a way of inculcating a sense of humility and respect for the institution. Sure, the rules are slack enough that you *could* run roughshod over the common good in the name of partisan advantage, but can doesn’t imply ought. Indeed, sometimes can implies ought not.
Here’s the core of Weinstock’s argument:
Think of the idea of a “loyal opposition” so central to our practice of responsible government. The role of the opposition parties is to hold the government to a high standard of justification. The opposition parties can neglect their responsibilities by being servile and pliant. They can also misuse their powers for narrowly partisan purposes.
We expect them to avoid both these pitfalls. We expect them to be vigorous. And, while an element of partisanship is inevitable in democratic systems of government, we expect that it will be moderated by public-spiritedness and a shared concern for the country’s common good. If it isn’t, then the opposition has failed to do its job.
What is true of opposition parties is true in spades of the office of the Prime Minister, given the very great powers that are concentrated there in our system of responsible government. We expect that the Prime Minister will do his part to ensure that this system works, and that MPs can fulfill the role we elect them to do. Part of what that means is to exercise self-restraint, and not use the powers that he possesses to shut down the mechanisms of accountability to Parliament and the Canadian people.
Harper has clearly not exercised such restraint. His best defense on this is that Jean Chretien did it first. But that is the logic of the schoolyard, not of Parliament, though that is increasingly a distinction without a difference.
Against the Prorogation of Parliament
As Canadian university professors dedicated to educating students about democratic institutions, we are deeply concerned by Prime Minister Stephen Harper’s decision to use his power to prorogue Parliament for a second year in a row in circumstances that allow him to evade democratic accountability.
The Prime Minister is not only making cavalier use of the discretionary powers entrusted to him in our Parliamentary system, but in so doing he is undermining our system of democratic government.
It has been noted by many observers that the Prime Minister did nothing technically wrong by requesting that Parliament be prorogued and in fixing the date for a Throne Speech after the Vancouver Olympics.
The Prime Minister does have the sole responsibility to request prorogation from the Governor-General (although the custom is to request it in person, out of respect for the office of the Queen’s representative, and that was not done in this case). But it is highly unusual – and improper – to request it in circumstances like these.
What, precisely, did the Prime Minister do wrong in proroguing Parliament?
Our parliamentary and constitutional institutions are grounded not just in explicit rules but also in the spirit of those rules. Think of the idea of a “loyal opposition” so central to our practice of responsible government. The role of the opposition parties is to hold the government to a high standard of justification. The opposition parties can neglect their responsibilities by being servile and pliant. They can also misuse their powers for narrowly partisan purposes.
We expect them to avoid both these pitfalls. We expect them to be vigorous. And, while an element of partisanship is inevitable in democratic systems of government, we expect that it will be moderated by public-spiritedness and a shared concern for the country’s common good. If it isn’t, then the opposition has failed to do its job.
What is true of opposition parties is true in spades of the office of the Prime Minister, given the very great powers that are concentrated there in our system of responsible government. We expect that the Prime Minister will do his part to ensure that this system works, and that MPs can fulfill the role we elect them to do. Part of what that means is to exercise self-restraint, and not use the powers that he possesses to shut down the mechanisms of accountability to Parliament and the Canadian people.
The use of the ability to prorogue by the present Prime Minister clearly displays no such self-restraint. It was nakedly partisan when it was invoked to save his government from defeat in a confidence motion in December 2008, and it is nakedly partisan now, when it is being used to short-circuit the work of the Parliamentary Committee looking into the Afghan detainees question and evade Parliament’s request that the government turn over documents pertaining to that
question.The normal way in which a government secures a break in a parliamentary session is through adjournment. That permits the institutions of government to continue. Committees can do their work. Legislation that is in the system can be picked up and advanced once the adjournment is over. In prorogation, all the business of Parliament ceases. Any laws that are in process, with the exception of private members’ bills, have to be introduced again, at the very first step of the process.
The government’s post-election legislative agenda is nowhere near having been fulfilled. The Prime Minister cannot, therefore, credibly invoke the purpose that the power to prorogue properly serves, which is to provide the government with space outside the cut and thrust of Parliamentary sessions in which to submit a new legislative agenda to Parliament.
Given the short-term, tactical, and partisan purposes served by prorogation, and given the absence of any plausible public purpose served by it, we conclude that the Prime Minister has violated the trust of Parliament and of the Canadian people. We emphasize moreover that the violation of this trust strikes at the heart of our system of government, which relies upon the use of discretionary powers for the public good rather than merely for partisan purposes. How do we make sure it serves the public good? By requiring our governments to face Parliament and justify their actions, in the face of vigorous questioning.
The Prime Minister’s actions risk setting a precedent that weakens an important condition of democratic government – the ability of the people, acting through their elected representatives, to hold the government accountable for its actions.
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