What happens next if PM loses vote on coming budget?
The Toronto Star Beaulac, Stéphane avec F. Chevrette, K. Benekhlef, R.A. Macdonald, H. Cyr, et quelque 30 autres collègues du Canada
23 janvier 2009
What happens next if PM loses vote on coming budget?
In light of the recent events, it has become clear that many Canadians are unfamiliar with some of the basic rules of our constitutional democracy. In a recent Ipsos Reid poll, 51 per cent of participants mistakenly thought Canadians directly elect their prime minister. We feel it is our duty, as constitutional scholars, to clarify the rules governing the appointment of government.
After a general election, the Governor General of Canada normally asks the leader of the party that has gathered a majority of seats in the House of Commons to become the prime minister and to form a government.
According to the principle of responsible government, the government must enjoy the confidence of the House of Commons in order to govern legitimately.
Our Constitution requires that the prime minister and the cabinet, not being elected directly by the people, enjoy the support of a majority of the elected members of Parliament. In our parliamentary system, it is precisely this support that gives the government its democratic legitimacy. Without this democratic support, the prime minister and his cabinet have none.
When the general election does not return a majority of seats to any one party, the governor general will then have to appoint as prime minister a Member of Parliament who is able to gather enough support to sustain the confidence of the House for a reasonable period of time.
If the person who was prime minister prior to the dissolution of the House has not yet resigned and it is unclear which party or parties could gather sufficient support from MPs to lead a government after a fresh election, the governor general may let that person try to govern until it is made clear he or she does not enjoy the support of the House. In a minority situation, the prime minister cannot claim to have « won » a right to govern. At best, he or she can claim to have the right to try to sustain the confidence of the House.
When a minority government loses the confidence of the House, the governor general is no longer bound by the advice of the prime minister. The governor general must then exercise what is known as her « personal prerogatives. » She may dissolve Parliament and call for a new election or, if the elections have been held relatively recently (opinions range between six and nine months), she may invite the leader of another party to attempt to form a government that would enjoy the confidence of the House.
The same may be true if the prime minister of a minority government were to request a dissolution of the House early after an election. In fact, certain authorities, such as Eugene Forsey, even claim that « (I)f a government asks for dissolution whilst a motion of censure is under debate, it is clearly the Crown’s duty to refuse. »
While in our parliamentary system, as is the case in the Commonwealth in general, the governor general (or the person fulfilling a similar role in other jurisdictions) may offer the opposition leader the opportunity to form the government in such circumstances, other parliamentary systems give the opposition the right to form a new government (i.e. Spain’s and Belgium’s constitutions). In the case of Germany, the constitution even makes it an obligation in certain circumstances.
Such rules are meant to avoid creating an incentive for minority government prime ministers to make successive calls for elections until one party gathers sufficient support to form a majority government. Successive elections can be quite disruptive, if only because without a functioning Parliament to vote on matters of supply, unelected officials are forced to adopt special measures to pay for the operations of government.
When the governor general exercises her personal prerogatives and decides whether or not to dissolve Parliament or call on the opposition parties to form a new government, she must act in a judicial manner, with total impartiality. In such circumstances, she must be guided by her duty to protect the Constitution and, in particular, the principles of democracy and responsible government.
It is our opinion that in the event of a non-confidence vote or a request for dissolution of Parliament after only 13 sitting days of the House of Commons, the governor general would be well-advised to call on the leader of the opposition to attempt to form a government.
This would be most appropriate in the circumstances where that leader has already gathered the assurance that he would enjoy the support of a majority of votes on any issue of confidence for the next year or so. The principle of democracy would be protected insofar as the new government would enjoy the support of a majority of the elected officials.
This would ensure the stability of our political system.
THE AUTHORS
This article was submitted by professors from the following universities: Université de Montréal:
Stéphane Beaulac, law; Karim Benyekhlef, law; François Chevrette, law, honorary dean University of Ottawa:
Denis Boivin, law; John H. Currie, law; Sébastien Grammond, law, acting dean; Martha Jackman, law; François J. Larocque, law; Errol P. Mendes, law; Charles-Maxime Panaccio, law; David Robitaille, law; Sophie Thériault, law Université du Québec à Montréal:
Pierre Bosset, law; Rachel Chagnon, law; Hugo Cyr, law; Lucie Lemonde, law; Jean-Pierre Villaggi, law York University:
Barbara Cameron, political science Simon Fraser University:
Duncan Cameron, political science; Andrew Heard, political science University of Saskatchewan:
Mark Carter, law Université de Moncton:
Michele L. Caron, law Queen’s University:
C.E.S. (Ned) Franks, political science, emeritus professor University of Calgary:
Jennifer Koshan, law McGill University:
Roderick A. Macdonald, law, F.R. Scott, constitutional and public law Dalhousie University:
Dianne Pothier, law University of Toronto:
Denise Réaume, law; Peter H. Russell, political science; ; Lorne Sossin, law Osgoode Hall Law School:
Mr. Brendan Naef, Ph.D. candidate in law, University of British Columbia
Mr. Maxime Saint-Hilaire, Law, Associate Researcher, C.R.E.U.M. and Centre Marc Bloch (Berlin)
Prof. Jeremy Webber, Canada Research Chair in Law and Society, University of Victoria
Ce contenu a été mis à jour le 3 mai 2017 à 20 h 57 min.