The Executive Power in Canada

 

“The executive power in Canada remains understudied.” That’s Dennis Baker’s opinion. I agree.

At the Canadian Political Science Meetings this year, Baker (University of Guelph), Barbara Cameron (York), and Greg Flyn (McMaster) read papers on the executive’s powers of prorogation, recent Canadian and British attempts to introduce fixed election dates, and executive discretion in the matter of Afghan prisoners and relations with our Afghan allies.

The panel was excellent. But we were left with questions. Are Canadians losing their understanding of the distinction between Government and Parliament? Are we losing our understanding of the distinction between executive and legislative powers?

Canadian textbooks typically argue that Americans enjoy the constitutional “separation of powers” in classic form but Canadians do not. Our Cabinet Ministers sit in Parliament; we thus enjoy – or endure – a “fusion of powers.” I do not know how this misunderstanding of parliamentary government and constitutional history arose. It is now well established; it is taught to every incoming student in political science. It is utterly false.

It is true of course that Canadian Ministers sit in the legislature. But they remain in law a distinct constitutional branch. Consider just this one idea. The Canadian Parliament represents all Canadians, every last one of us.  The Canadian Cabinet does not. The Cabinet speaks for, at best, the majority party in the legislature, or a majority coalition.

This simple fact, that the executive branch of government can never claim to speak authoritatively for all those subject to the law, is the parliamentary constitution’s guarantee of political free speech, within Parliament and “outside.” The executive branch is charged with supervision of the legislative process, and yet every act, every pronouncement, remains constitutionally open to challenge and criticism, in the legislature and in the extra-parliamentary arena. Once laws are passed the citizen must take heed; obedience is required. But complaints, objections and deliberation may continue. And laws and policies can be changed, discarded; they remain open to challenge and deliberation.

That’s the formula, friends. The executive branch of government governs, but cannot claim the legitimacy that attaches to Parliament. The Americans enjoy one version of the ancient British prescription for the separation of powers. Canadians enjoy another. And ours is – ours can be – just as effective in securing us from authoritarian government.

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Throwing the Bums Out

Electoral reform is the hot topic on the Inroads Magazine chatline. Inroaders have always been at home with the idea. Now it’s needed “big time,” say the contributors unhappy with the Conservative majority.

There’s one difficulty, as Gareth Morely notes. The Canadian electorate does not want reform. Professors do. Inroaders do. But not the ordinary voter. In the BC referendum, the Single Transferable Vote lost badly. In Ontario, MMP (mixed member proportional) lost – badly. The British have just rejected the Alternative Vote. Our familiar system, first-past-the-post, retains its appeal and Morely tells us why. It enables the electorate to hold the parties to account:

“FPTP has the merit of rewarding ideological groups that have obtained organizational unity. When the Canadian right was split, it lost elections. Once it was no longer split, it started winning them. If the logic of FPTP prevails and we end up with one party of the left and one party of the right, it will be easier for voters to hold those parties to account.

“If you don’t want Conservative governments forever,” Morely says, “it makes more sense to focus on party realignment – whether in the form of merger or transformation of the NDP into a more electable force – than to chase electoral reform.”

Every undergraduate instructor in Canadian politics spends an hour, sometimes several hours, on electoral reform. Students do not always enjoy the experience. I recommend John Pepall’s nifty volume, Against Reform (University of Toronto Press, 2010). It has five short chapters on the topic, all easy to read and informative about parliamentary politics and the functions of government as well as voting systems.

Pepall’s arguments resemble Gareth Morely’s: first-past-the-post lets voters ‘throw the bums out.’ “The ability to ‘throw the bums out,’ more even than the ability to choose a new government is the most striking practical virtue of our present way of voting.” It’s virtually impossible with alternative schemes.