Question about the Notwithstandning Clause

[August1991]

August, the Governor General is not, never has been, and probably never will be the Head of State of Canada.

Once the Governor-General provides Royal assent (and the GG does this without reference to anyone in the UK), an act of Canada's parliament becomes law. So I would venture to argue that the GG is our head of state, de facto and even de jure.

At issue is possibly the choice of GG. Formally, the British Head of State must approve this choice but it would be a constitutional/international crisis if the British monarch refused the suggestion of the Canadian PM.

Also, in the US, the President already occupies both the posts of head of state (Sovereign) and head of government (prime minister).

That's a simplistic (textbook style) reading of the US constitution.

-----

I am throwing out this hypothetical. What would happen if Harper wanted to name himself GG? What rule would stop him? (Heck, what would stop a federal PM being simultaneously Premier of a province? Does our Constitution forbid this?)

(I doubt Harper would ever accomplish this. The more likely scenario would be an extremely telegenic and charismatic PM would use the argument that Canadians must act in solidarity.)

Edited May 26, 2010 by August1991

[bush_cheney2004]

....You mean the PM couldn't name himself or herself a Queen or King of the United Kingdom of England, Scotland, Wales and Northern Ireland?

Not if they were Catholic (Act of Settlement). LOL!

[BubberMiley]

I'm fascinated by how this conversation flashforwarded 3-1/2 years without skipping a beat.

[Smallc]

That's a simplistic (textbook style) reading of the US constitution.

And also accurate.

Why would Harper name himself GG? Unless something is blatantly unconstitutional, the GG is bound by convention to pass it anyway (as convention is part of our constitution). So, the GG is bound to follow the advice of the government in most cases, and the government serves at the pleasure of the House of Commons. Nothing would be gained by the PM being GG.

[August1991]

In that case they were, from what I remember, pretty strongly steamrolled. I cannot imagine that a majority of English-speaking Liberal MP's would have wanted to vote for the OLa, for example.

The BNA Act of 1867 makes specific official language guarantees. For example, the proceedings of the federal parliament must be made available in both French and English.

[August1991]

Why would Harper name himself GG? Unless something is blatantly unconstitutional, the GG is bound by convention to pass it anyway (as convention is part of our constitution). So, the GG is bound to follow the advice of the government in most cases, and the government serves at the pleasure of the House of Commons. Nothing would be gained by the PM being GG.

If you go back to the OP, smallc, the question is whether the notwithstanding clause allows our PM to become a dictator.

In the spirit of that question, I am wondering how our constitution explicitly safeguards against tyranny. This may seem like an arcane point now but if you were designing a constitution to last for several hundred years, the question is not moot at all.

Simultaneously, you would want a constitution that ensures a functioning State; that is, where the checks and balances do not become costly when the threat of tyranny is low.

[Smallc]

If you go back to the OP, smallc, the question is whether the notwithstanding clause allows our PM to become a dictator.

Then it definitely doesn't.

In the spirit of that question, I am wondering how our constitution explicitly safeguards against tyranny. This may seem like an arcane point now but if you were designing a constitution to last for several hundred years, the question is not moot at all.

Since our Constitution is already several hundred years old, I don't see the problem.

Simultaneously, you would want a constitution that ensures a functioning State; that is, where the checks and balances do not become costly when the threat of tyranny is low.

It seems to do that already.

[August1991]

Since our Constitution is already several hundred years old, I don't see the problem.

Then explain what happened in October 1970.

Or consider what happened in 1916 when a coalition (unionist) government decided not to hold an election.

What would prevent this happening in the future?

-----

I am surprised sometimes how modern Canadians take for granted their society without any knowledge of Canada's past, or how easily one can lose one's liberties or property.

Edited May 26, 2010 by August1991

[Smallc]

Then explain what happened in October 1970.

I doubt given the presence of the Charter that such a thing could happen again. Westminster constitutions are constantly adapting. There are some parts of ours that are now very cemented, but most things are still very fluid.

[jbg]

And also accurate.

Why would Harper name himself GG? Unless something is blatantly unconstitutional, the GG is bound by convention to pass it anyway (as convention is part of our constitution). So, the GG is bound to follow the advice of the government in most cases, and the government serves at the pleasure of the House of Commons. Nothing would be gained by the PM being GG.

Except the ability to "Fuhrer-ize" himself.

[Smallc]

Except the ability to "Fuhrer-ize" himself.

The ability doesn't really exist here, and if it does, it's for a very short period.

[August1991]

The ability doesn't really exist here, and if it does, it's for a very short period.

Smallc, you're so sweet. Canadians would only have a tyrant for a "very short period" because that's all we've had in the past.

And yet, you believe in the British system of precedent.

I doubt given the presence of the Charter that such a thing could happen again.

So, we're back to the Charter and the notwithstanding clause. How well does the Charter restrict the State and protect the individual? How well are minorities protected against the tyranny of a majority?

----

IMV, Canada's best protection against tyranny is the fact that we are a federal state. Our provincial/national governments ensure that no tyrant can arise in Canada. Some Canadians identify more with their national government than with the central government.

Modern Germany, with reason, is a also a federal state.

---

Smallc, I suggest that you go back and look at what happened in 1970, and in 1916. How will our federal politicians behave when a similar crisis happens in the future (and it will)? What if the future federal politician is more cutthroat than Borden or Trudeau?

Edited May 26, 2010 by August1991

[g_bambino]

That is, nothing would formally prevent a sitting PM to name herself/himself as Governor-General.

He can name himself Xzordac of Planet Gremnon if he wishes. It's still up to the Queen to appoint the governor general, though. Duuuh.

t would be a constitutional/international crisis if the British monarch refused the suggestion of the Canadian PM.

It would be a constitutional crisis the minute the PM advised the Queen to appoint him as governor general.

August, you're so mired in the French republican tradition and Quebec nationalist revisionism you forget both that the British government has as much to do with our constitutional affairs as we do with theirs and that much of our constitution is unwritten, though no less enforcable for being so.

Edited May 26, 2010 by g_bambino

[Smallc]

Smallc, I suggest that you go back and look at what happened in 1970, and in 1916.

The Supreme Court, because of the Charter, holds far more sway. There are many more protections than at any time in the past. We have a mandatory electoral system (as in, there has to be elections), a strong Court, a ever vigilant Crown, a federal state, etc, etc, etc..

[August1991]

He can name himself Xzordac of Planet Gremnon if he wishes. It's still up to the Queen to appoint the governor general, though. Duuuh.

IOW bambino, according to you, Canada's civilized democracy rests ultimately on the decision of a foreign monarch.

I would prefer a better basis for Canadian civility: something based on Canadian habit. If we are to create a civilized society that will last for centuries, surely it should depend on the people here; and not on the choice of a single foreigner, chosen by birth.

The Supreme Court, because of the Charter, holds far more sway. There are many more protections than at any time in the past. We have a mandatory electoral system (as in, there has to be elections), a strong Court, a ever vigilant Crown, a federal state, etc, etc, etc..

If you say so...

But according to Bambino above, a foreign monarch has ultimate power, and ultimately protects us.

----

Smallc and Bambino, I have my doubts - in practical terms - about both your viewpoints.

Edited May 26, 2010 by August1991

[Smallc]

IOW bambino, according to you, Canada's civilized democracy rests ultimately on the decision of a foreign monarch.

No, that's how it is according to you. Bambino actually understands how the system works.

[g_bambino]

IOW bambino, according to you, Canada's civilized democracy rests ultimately on the decision of a foreign monarch.

I would prefer a better basis for Canadian civility: something based on Canadian habit. If we are to create a civilized society that will last for centuries, surely it should depend on the people here; and not on the choice of a single foreigner, chosen by birth.

I never said anything about a foreign monarch; do pay attention. Or, is that you working your cutely naïve revisionism again?

Our democracy could rest on the decision of our monarch, depending on who was perpetrating a crisis and the situation surrounding it. It might also rest on parliament, should the problem call for that body's intervention. The stability of our governance - on which our civilization depends - comes from the centuries-evolved equilibrium between elected and unelected, each holding the other in check. Given that the institutions involved in said evolution have been here for more than 500 years, and given that the position of Canadian sovereign exists and is filled according to our own constitution, as supported by majorities of our elected representatives for generations, it's doubly ridiculous of you to imply the people are not involved and thus the system runs counter to Canadian habit. You mistake Canadian habit for your personal preference.

[Remiel]

If you go back to the OP, smallc, the question is whether the notwithstanding clause allows our PM to become a dictator.

Does it really matter? If the Prime Minister tried to use the Notwithstanding Clause to become a dictator, and was succesful, the relevant problem would not be with the what the Constitution said, but with the people of Canada. The Constitution is merely a piece of paper; it is the people of this country who give it authority, and are thus responsible for what comes of it.

[August1991]

Does it really matter? If the Prime Minister tried to use the Notwithstanding Clause to become a dictator, and was succesful, the relevant problem would not be with the what the Constitution said, but with the people of Canada. The Constitution is merely a piece of paper; it is the people of this country who give it authority, and are thus responsible for what comes of it.

Remiel, that is precisely my viewpoint.

We have the institutions in place that would prevent (in theory) a dictator. For starters, we have a federal state and so provincial governments, sovereign in their areas of jurisdiction, would create an automatic counterweight to any central tyranny.

[g_bambino]

Remiel, that is precisely my viewpoint. We have the institutions in place that would prevent (in theory) a dictator. For starters, we have a federal state and so provincial governments, sovereign in their areas of jurisdiction, would create an automatic counterweight to any central tyranny.

Remiel argues that the constitution wouldn't matter if someone tried to become a dictator, you agree with him, but then go on to state your position was always that tyanny would be prevented by institutions and jurisdictions that exist only by the words of the constiution. Surely you see the contradiction inherent in your expressed opinions.

[jbg]

Remiel argues that the constitution wouldn't matter if someone tried to become a dictator, you agree with him, but then go on to state your position was always that tyanny would be prevented by institutions and jurisdictions that exist only by the words of the constiution. Surely you see the contradiction inherent in your expressed opinions.

I personally believe that a country is receptive or resistant to dictators depending on its traditions more than on a written or unwritten constitution. Countries such as Nigeria and Pakistan have had excellent constitutions over the years, for example.

In the United States, Richard Nixon tried rather hard to supercede the constitution. The system worked to expunge that particular cancer. Ditto Australia, where I believe Whitlam had dictatorial ambitions. On November 10, 1975 the GG made short work of him. In one afternoon.

[g_bambino]

I personally believe that a country is receptive or resistant to dictators depending on its traditions more than on a written or unwritten constitution. Countries such as Nigeria and Pakistan have had excellent constitutions over the years, for example.

It's probably a combination of both; both a constitution and democratic traditions are obviously pointless against an individual hell-bent on conducting an armed takeover, but both should also make that insurrection extremely difficult. I mean, it really is quite a hassle to amass a personal army...

[Jack Weber]

I agree.

My point is that an individual or small group would have a problem conducting an armed takeover of, say, Great Britain or Canada, despite the lack of a written constitution. Written constitutions have proven a frail reed in countries such as Nigeria or Pakistan, however.

That's probably because,in both examples you've stated,neither one has been country very long and neither has a tradition of democracy or the rule of law.

[ToadBrother]

That's probably because,in both examples you've stated,neither one has been country very long and neither has a tradition of democracy or the rule of law.

And that's pretty much the size of it. A constitution, written or organic, is only as good as the wider society is at keeping those core elements of the social contract. If a society does not have those key ingredients, or the society agrees or is bullied into abandoning them (like Germany under the Nazis was), then constitutions are meaningless.

The reason why the US Constitution has worked so well, and the more organic English constitution, now inherited all over the world, is because the whole people agreed to abide by the rules. If a society refuses that, or is incapable, often through tribalism, then constitutions aren't worth very much at all. And believe me, it isn't just places like Nigeria. Russia under the Romanov dynasty had the trappings of a constitutional monarchy, but in reality it was anything but, with the Czars behaving, and being permitted to behave, as absolute monarchs. About the only thing Russia's experiments in constitutional law in the 19th century did was to limit the power of the gentry. Unfortunately, the next big experiment in constitutional rule fell afoul of Stalin's machinations, and the USSR's constitution (or constitutions, I believe every constituent republic had their own) were meaningless pieces of paper, what counted was the tripartite governing system of the Party-KGB-Military.

[g_bambino]

That's probably because,in both examples you've stated,neither one has been country very long and neither has a tradition of democracy or the rule of law.

But they inherited the institutions and tradtions of democracy; these had been in place long before the countries' independence.