Sunday, September 27, 2015

Has Harper given up his “right not to resign”?

"I will resign ..."

It seems that the Governor General has gone on record as saying that the “basic principles” of Canadian constitutional law and conventions starts with a simple one: a sitting prime minister has a “right not to resign”:

Johnston, a constitutional expert himself, advised then Ontario Lieutenant Governor David Onley in 2014 when he looked set to face a similar constitutional problem in the province.

Onley said Johnston told him to “just remember, you stick to the basic principles ... (those are) the sitting prime minister or sitting premier has the right to not resign even though his party may have fewer numbers of seats than one or both of the other parties.”

The G-G’s view about the “right not to resign” is correct, I believe.

However, in his interview with Peter Mansbridge, Stephen Harper said very clearly that he was renouncing this right not to resign should he not win more seats in the House than either the NDP or the LPC did:

SH: No. No.

SH: Yeah. Well I would not serve as prime minister. No I think you – you have to have the most seats in Parliament to go to the governor general and that's – you know, in this country in our system, we have what's called a Westminster style system, um and we don't – we don't, you know, elect a bunch of parties who then as in some countries, get together and decide who will – who will govern. We ask people to make a choice of a government. And so I think that the party that wins the most seats should form the government.

In light of this public renunciation of the “right not to resign”, should the G-G still ask Harper if he wishes to attempt to form a government that has the confidence of a majority of the House (that is, would win the support of 170 or more MPs in a vote of confidence on the Throne Speech and later money bills)?

And should the G-G take into consideration the very public statements by both Mulcair and Trudeau that they will not support Harper’s attempt to remain as prime minister if he has only a minority government on October 20?

If the G-G decides to disregard the current prime ministers clear statement to Canadians before the election that he is renouncing his right to govern even if he wins less seats than either the NDP or LPC do, and to disregard the clear statements to Canadians before the election of their refusal to vote confidence in a Harper minority government, then he could ask Harper if he wishes, despite his statement to the contrary during the Mansbridge interview, to try to form a government that has the confidence of 170 plus MPs?

Harper was party to an agreement in 2004 with the Bloc and NDP  to go to the G-G should Martin try to dissolve the government and have a new election, to advise the G-G to consult with the leaders of the Conservative, NDP  and Bloc parties (Harper, Duceppe and Layton) BEFORE he gave Martin the chance to have a new election.

That 2004 agreement between Harper, Layton and Duceppe was a pre-emptive bid to prevent Martin exercising his constitutional convention to ask for the dissolution of Parliament. Harper is at odds with Duceppe (and it seems Layton) on the purpose of the troika’s letter to the G-G, but what is clear is that the leaders of parties in the House with sufficient total MPs to vote non-confidence in the prime minister took the step to advise the G-G of this fact before the G-G obeyed what Johnston calls “the basic principles.”

Here’s what Harper agreed to do in the 2004 pre-emptive bid letter to the G-G (my underlining):

September 9, 2004
Her Excellency the Right Honourable Adrienne Clarkson,
C.C., C.M.M., C.O.M., C.D.
Governor General
Rideau Hall
1 Sussex Drive
Ottawa, Ontario K1A 0A1


As leaders of the opposition parties, we are well aware that, given the Liberal minority government, you could be asked by the Prime Minister to dissolve the 38th Parliament at any time should the House of Commons fail to support some part of the government’s program.

We respectfully point out that the opposition parties, who together constitute a majority in the House, have been in close consultation. We believe that, should a request for dissolution arise this should give you cause, as constitutional practice has determined, to consult the opposition leaders and consider all of your options before exercising your constitutional authority.

Your attention to this matter is appreciated.


Hon. Stephen Harper, P.C., M.P.
Leader of the Opposition
Leader of the Conservative Party of Canada

Gilles Duceppe, M.P.
Leader of the Bloc Quebecois

Jack Layton, M.P.
Leader of the New Democratic Party

It also seems that Elizabeth May is proposing a similar type of consideration by the G-G before he allows Harper the opportunity to retract his statement to Mansbridge in the CBC interview that he would immediately resign as prime minister should the Conservatives win one or more seats less than either the NDP or LPC does.

The only remaining questions now are:

1.      Will Harper renege on his statement that he will resign and not attempt to form a government if he does not win more seats than any other party does? And

2.     Should Mulcair and Trudeau talk on October 20 about a pre-emptive letter to the G-G to talk to them before he even talks to Harper about the “basic principle”, given the 2004 pre-emptive bid and the Harper/Mansbridge undertaking to voters?

We will know soon enough, if Trudeau does not win a majority of seats.

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