- The legality of Harper calling a General Election 2
I submitted this for the Monahan Webcast, but apparently was not considered:
[Monahan, http://www.theglobeandmail.com/servlet/story/RTGAM.20080829.wlivegg03/BNStory/specialComment/home/
"The first point to recognize is that, under Westminster-style parliamentary systems such as our own, a prime minister has virtually absolute discretion to determine the date of a general election.”]
It seems to me that one must be very careful when comparing our system to the English (“Westminster” systems) since they differ in one very important aspect which is central to the issue at hand. We have a Constitution (and a Charter) which is the Paramount Law of the Land. Tradition does not trump the Constitution in Canada. In England, to my understanding anyway, Tradition is the constitution and there is no “Constitution” to trump it. In Canada, Tradition may be persuasive provided it does not go contrary to the Constitution or the Laws of Canada, both in the letter and the intent, otherwise our Constitution and Laws become ancillary and whole basis for the rule of law collapses into anarchy. Your opinion does not seem to touch on this, essential difference at all.
You assert “a firm constitutional requirement that she will exercise her powers only on the advice of the prime minister”. However, this is the issue. It may be that this tradition may not go against the letter of the Constitution (although this is debatable) but it certainly goes against the application of Bill C-16 in both its meaning and intent. If the provisions of Bill C-16 are to mean anything and there is a presumption that they do, then they must free the GG hands to dissolved parliament under these circumstances. One of the things that the GG ought to determine is if, in fact, the government does not enjoy the confidence of Parliament and this can only, in this circumstance anyway, be determined while Parliament is sitting. It would seem prudent that the Governor general obtain a ruling from the Supreme Court of Canada. Of course, if the government of the day requests that parliament be dissolved and does not co-operate in resolving this issue, the GG could turn to the opposing parties to see if they could form a government, if only long enough to have this issue resolved.
Lloyd MacIlquham
[Monahan, http://www.theglobeandmail.com/servlet/story/RTGAM.20080829.wlivegg03/BNStory/specialComment/home/
"The first point to recognize is that, under Westminster-style parliamentary systems such as our own, a prime minister has virtually absolute discretion to determine the date of a general election.”]
It seems to me that one must be very careful when comparing our system to the English (“Westminster” systems) since they differ in one very important aspect which is central to the issue at hand. We have a Constitution (and a Charter) which is the Paramount Law of the Land. Tradition does not trump the Constitution in Canada. In England, to my understanding anyway, Tradition is the constitution and there is no “Constitution” to trump it. In Canada, Tradition may be persuasive provided it does not go contrary to the Constitution or the Laws of Canada, both in the letter and the intent, otherwise our Constitution and Laws become ancillary and whole basis for the rule of law collapses into anarchy. Your opinion does not seem to touch on this, essential difference at all.
You assert “a firm constitutional requirement that she will exercise her powers only on the advice of the prime minister”. However, this is the issue. It may be that this tradition may not go against the letter of the Constitution (although this is debatable) but it certainly goes against the application of Bill C-16 in both its meaning and intent. If the provisions of Bill C-16 are to mean anything and there is a presumption that they do, then they must free the GG hands to dissolved parliament under these circumstances. One of the things that the GG ought to determine is if, in fact, the government does not enjoy the confidence of Parliament and this can only, in this circumstance anyway, be determined while Parliament is sitting. It would seem prudent that the Governor general obtain a ruling from the Supreme Court of Canada. Of course, if the government of the day requests that parliament be dissolved and does not co-operate in resolving this issue, the GG could turn to the opposing parties to see if they could form a government, if only long enough to have this issue resolved.
Lloyd MacIlquham
posted by wlloydm at
10:26 AM
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