- The legality of Harper calling a General Election

Comment on the G&M article dated 29 August by Patrick Monahan, "The request the G-G can't refuse" (http://www.theglobeandmail.com/servlet/story/RTGAM.20080829.wcoessay30/BNStory/specialComment/home/?pageRequested=2)

With all due respect I can�t agree with your [Patrick Monahan's - see above] assessment of Bill C-16 and the current situation regarding the dissolution of parliament.

It seem that you are suggesting that it is the �letter of the law� that is applicable at the expense of the true intent (as in part expressed, as you point out, by Justice Minister Rob Nicholson, I will refrain from the quote).

If one looks at the letter of the law then, it is submitted:

Clearly Bill C-16 cannot impinge on the Governor-Generals Constitutional powers in this regard and any provisions so purporting would be of no force or effect. It is not required that any piece of legislation have a �saving� provision to assert this. Any legislation is read and applied within this context, as in accordance with the Paramountcy of the Constitution.

However, the above principle of Paramountcy applies to Constitutional powers but not traditions. In other words, the tradition that the Governor General follow the advise of the Prime Minister can be impinged by law.

To give the provision of Bill C-16 that states �Nothing in this section affects the powers of the Governor General, including the power to dissolve Parliament at the Governor-General�s discretion� any meaning whatsoever (and lift it from pre-amble to provision) one ought to interpret it as explicitly freely the Governor-General from such traditions. In other words, had Bill C-16 not had this provision, then, perhaps your analysis would stand on better ground.

On the other hand, if government of the day does not, in actual fact, enjoy the confidence of parliament then the Governor General has no option but to either dissolve Parliament. Or, of course, she may approach the other parties regarding forming a government. In the unusual circumstances as we find them, it seems to me that this latter choice is the appropriate course of action and it would look better for Harper if she did (vis.: the other parties not being able to get it together adds support to his contention that parliament is dysfunctional).

Also, I can�t agree that how long the government in question has been in power is relevant and I am unable to find any basis for your assertion.

And, I can not concur with your conclude that the Harper government still enjoys the confidence of the House. This is very unclear and something that can only be determined when while the House is sitting. You base your conclusion on events during the last session. I don�t think that is valid. Whether a government enjoys the confidence of the House can change in the space of a day, and, obviously does (since Parliament is then forthwith dissolved or changed). I cannot see how one can state that Harper government still enjoys the confidence of the House before Parliament is resumed, especially given the current positions of the various parties.

It appears to me that everything points to having Parliament called and whether the Harper government enjoys the confidence of the House made manifest before Harper should approach the Governor-General to dissolve parliament and if he were to do that before then, not only are the Governor-General�s hands not bound but she ought to wait until the will of parliament is made manifest.


Lloyd MacIlquham, 31 Aug'08, all rights reserved