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Is the fix in on fixed election law? Add to ...

When Parliament amended the Canada Elections Act to establish fixed election dates every four years, then-government House leader Rob Nicholson insisted it was "an idea whose time has come." And the idea, he said, was to limit a prime minister's ability to dissolve Parliament at a time of his own choice. The change "would help to level the playing field for general elections." The public would no longer face surprise elections; political parties would benefit from a regular electoral timetable; Parliament would be free to plan its business over stable four-year terms; and voter turnout would increase. In future, the prime minister would only retain the power to seek dissolution if his government suffered defeat on a confidence vote in the House of Commons.

MPs from all parties supported the bill, although a few opposition members doubted that it would achieve its purpose. The catch was in the first clause: "Nothing in this section affects the powers of the Governor-General, including the power to dissolve Parliament at the Governor-General's discretion." Since the Governor-General acts only on the advice of the prime minister, if the power of dissolution is unchanged, the prime minister's power to choose an election date short of the new four-year limit also is unchanged. Liberal MP Marlene Jennings put the criticism most bluntly: The bill was "clearly duplicitous"; the government was simply "trying to blow sand in our eyes."

The government responded with vehement denial. The theoretical power of dissolution might remain, but the bill was a solemn declaration of Stephen Harper's intent. "This Prime Minister," Mr. Nicholson insisted, "will live by the law and the spirit of this particular piece of legislation." Another Conservative MP declared that Mr. Harper was giving up a power "that past prime ministers ... have used like a club." Months earlier, the Prime Minister himself told the House that "the government is clear that it will not be seeking an early election. At any time, Parliament can defeat the government and provoke an early election, if that is what the opposition irresponsibly chooses to do."

The government's refrain echoed repeatedly until earlier this year. There is a fixed election date in October of 2009; the Prime Minister is bound to respect that date (in honour if not in law, since the terms of the act seem self-contradictory); meantime, Parliament must get on with its work.

Now, something seems to have changed. Is there a decent way for the Prime Minister to slide away from that commitment? In April, the government whip, Jay Hill, gave warning that if Mr. Harper decides to call an election because Parliament has become "dysfunctional," he will give ample notice. "If Parliament was not functioning well, that would show a lack of confidence in the government. It's a no-brainer that we'd have to go to the people to try and settle it."

Last week, the Prime Minister confirmed that the key to the use of his power would be parliamentary "dysfunction." And who would make that ruling? "Quite frankly," Mr. Harper tells us, "I'm going to have to make a judgment in the next little while as to whether or not this Parliament can function productively."

What frustrates the Prime Minister is that he now wants an end to the life of a tiresome Parliament but can't be sure that the Liberals will join the other opposition parties to ensure it. In Mr. Harper's words, Stéphane Dion "says he doesn't support the government but won't say, you know, whether he will defeat us or not. I don't think that's a tenable situation." As they tease one another in their war of words, both leaders may now see advantage in forcing the other into an election - without quite wanting to say that openly.

So the fixed election law - which the government probably introduced with half-innocent good intent in its early months of power - has become an awkward burden for the Prime Minister. Mr. Dion's erratic conduct on confidence votes has riled Mr. Harper. Does that justify the Prime Minister in violating the spirit of the election law?

The Governor-General, no doubt, is taking fresh advice on that question from her constitutional advisers. Could she reject the Prime Minister's advice to dissolve Parliament without a government defeat? Does the new law make any difference? There is only one answer: Despite the law, she would be obliged to do what the Prime Minister asks. She has no power, in this situation, to challenge the political judgment or the moral subtlety of the Prime Minister. Mr. Harper, like other prime ministers before him, can still wield the big club. The new law is a nullity without prime ministerial self-restraint.

Denis Smith is Professor emeritus of political science and author of "Rogue Tory: The Life and Legend of John G. Diefenbaker"

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