Tuesday, December 2, 2008 1:41 PM
Harper's Options
asteele
"We will use all legal means to resist this undemocratic seizure of power," Prime Minister Stephen Harper said yesterday.
Here are the ten options the Prime Minister is likely reviewing:
1. Preemptively Remove Michaëlle Jean
This is the true nuclear option for Harper: a preemptive strike against Jean to remove her from office, and replace her with a governor-general sympathetic to the argument that the people should decide in an election.
The roots of this option are found in the last major constitutional crisis in a British Parliamentary democracy, the 1975 Australian constitutional crisis.
I'll let you review all the background in this excellent Wikipedia article, but the key passage for our purposes is this:
"(Governor-General) Kerr was unwilling to warn (Prime Minister) Whitlam that he was contemplating dismissing him, fearing that Whitlam's reaction would be to advise Elizabeth II, the Queen of Australia, to remove him as Governor-General instead - advice the Queen would be compelled by convention to follow. Though this might appear to be an unlikely proposition, it was constitutionally possible, and in the peculiar circumstances of the crisis could not have been ruled out."
Canadian constitutional scholar and former Liberal MP Ted McWhinney writes on its application to Canada in his excellent book, The Governor-General and the Prime Ministers: The Making and Unmaking of Governments. He concluded that if the PM requested the governor-general's dismissal:
"With the Queen's role reduced to a formal ratifying of the choice of governor general made by the prime minister, the Queen would surely have had to take the prime ministers 'advice' without demur. That [this] hypothesis could be seriously advanced by a reputable scholar suggests the need for further work and refinement on the constitutional checks and balances to govern the office of governor general, including the selection, continuance in office and replacement of the governor general."
So, the Governor-General has the authority to dismiss the Prime Minister BUT the Prime Minister may have the authority to dismiss the Governor-General first by requesting the Queen dismiss her.
Mr. Harper could advise the Queen that Ms. Jean should be removed from office, perhaps noting her past dalliance with Quebec separatism as grounds. He would then be free to appoint someone who would agree to call an election or prorogue rather than call upon Mr. Dion to form a Ministry.
The difference is critical here. In Australia, the issue was the Senate refusing to pass supply. Prime Minister Whitlam had a majority in the lower house, which is normally supreme in matters of confidence. But PM Harper does not have a majority in the Commons, has not tested the will of Parliament and an alternative administration enjoys a majority of support.
To call this option risky is a grave understatement. Not only would it threaten the role of the monarchy in Canada, but parliamentary supremacy back to the Magna Carta would be called into question.
2. Reschedule the Vote Again
The Government House Leader could move the date of the opposition motion back, in essence preventing any votes on matters of confidence indefinitely.
The challenge here would be the absurdity of the Commons paralyzed by debate on amendments to every motion attempting to force a confidence matter.
It would likely prove impossible for the Governor-General to not intervene and summon the PM to demonstrate confidence in the Commons.
3. Appoint opposition MPs to the Senate
This option has received some attention, but is unlikely to work.
In theory, the PM could stimulate the resignation of opposition MPs with the lure of appointments to the Senate, ambassadorial posts or other plums.
However, the Prime Minister's powers of appointment are contingent on having the confidence of the House.
Constitutional scholar Ned Franks was clear that it would be within the rights of a governor general to prevent the Prime Minister from exercising normal authority until the will of the Commons was tested, in the same fashion as the PM's powers are curtailed during an election.
4. Caretaker Prime Minister
An interesting option would be attempting to act as a caretaker Prime Minister.
Ned Franks has argued that the Prime Minister cannot use his powers of appointment without proving his enjoys confidence in the Commons. What about turning this weakness into strength?
In essence, the PM would argue that he should let the Governor-General off the hook, voluntarily reduce his powers of appointment and programme, and return to Parliament to work to find a coalition partner.
This has the added benefit of throwing the matter back to Parliament to resolve, and not leaving the decision with an appointed official.
And by reducing his powers, he is acknowledging a lack of a majority, without agreeing that he has lost the confidence in the House irrevocably.
Governors-general are loath to make a decision employing their reserve power, and this maneuver might win GG approval simply by delaying a decision.
5. Prorogue
The option that is getting the most attention is proroguing. This would have the effect of dismissing the Commons until a Jan. 26 Throne Speech, essentially rebooting the Parliament for a second try. As I wrote yesterday, there are risks with Governor-General refusing this option.
6. Apologize, fire Flaherty and reach across the aisle
This is another option I wrote about yesterday, and the one that might have worked if it had been attempted earlier. But each passing day makes it less likely the opposition will be appeased.
7. Request an election
There is an option that the PM first request dissolution and an election prior to the confidence vote, beating the opposition to the punch.
This option could have worked prior to the signing of a formal agreement with a joint programme,
But now there is an obvious alternate governing with the support of a majority in the House. It is unlikely the GG would grant dissolution without first asking Mr. Dion to attempt to form a government.
8. Convince Opposition MPs to Support the Government
There may be Liberal MPs uncertain about entering into a coalition with the NDP, particularly one supported by the Bloc.
There could even be a few New Democrats with apprehensions.
It's very difficult to tell, but there is the outside possibility that the Conservatives could find twelve votes on the opposition benches.
9. Seduce the Bloc to Support Conservatives
This is an extremely unlikely scenario, given the extreme vilification of the Bloc by the Conservatives over the past week.
But one way out of this crisis was to win the temporary support of the Bloc with a low-cost, symbolic gesture to Quebecois. This would be something along the lines of the nation resolution or an additional Quebec justice on the Supreme Court.
With Mr. Duceppe's signature on an accord, this option is now closed.
10. Step Down as Conservative Leader
Little binds the three opposition parties together.
There is a joint programme, but the real glue of this coalition is a unanimous belief on the opposition bench that Stephen Harper must go.
Were Harper to resign as Conservative Party Leader and an interim leader like Chuck Strahl, Jim Prentice or Tony Clement lead the Conservatives, it is entirely possible the coalition would fall apart and that person might be able to receive the confidence of the House.
It is clearly not in the political interest of the Liberals to form common cause with the Bloc or the NDP.
Their motivation is the belief that Stephen Harper must no longer be Prime Minister.
Such a move might avert political catastrophe for the Conservatives and for the Liberals.