Separation of Powers: A discussion paper on Democratic/Parliamentary Reform

by Uncle J2 (To all my avid readers: sorry for not posting in such a long time)

Governor-General

Should the role of head of state be reformed in this country? This is a question that provokes much debate. While there is nothing dangerous with the acknowledgement of our British history via this position, there are various other (i.e. ‘more democratic’) models that Canada can follow, including:

No Governor-General (GG)
-Abolish the role of the appointed G-G as it is a merely symbolic remnant of our colonial past, and retains no real power
-All GG’s powers would be vested to Parliament as a whole [enactment of laws would proceed immediately after approval by the two chambers of Parliament]

Consequences:
-Continuous elections: The GG’s most significant role has been played in the King Byng Affair where the GG refused to call an election, when there was reason to believe that the opposition party could govern [in some sort of coalition, or alliance]. This power was last used in 1917, and it does not seem as if Canadians would be thrilled if an unelected official refused to grant an elected official (PM’s) desire to have an election
-Numerous, and complicated constitutional ramifications – would require practical unanimous consent by the provinces


Adopt a Presidential System

-Replace the GG with an elected, symbolic entity –i.e. a President, or Chancellor
-President could be elected directly by the population, OR appointed by the Prime Minister upon the approval of two-thirds of each chamber in Parliament

Consequences:
-Constitutional ramifications would still exist
-If the GG were to be elected by Parliament or subject to its approval would it give the office that much more legitimacy – and ergo a greater willingness to use its uncircumscribed [at least, in law] powers?


In either scenario, if the position of GG is kept [in any incarnation], there must be clear laws put in place to circumscribe her discretion. Much of the GG’s powers reside in constitutional law that is not accessible to the populace. Therefore, there must be greater delineation of this role (n consideration with applicable constitutional conventions), followed with entrenchment of such role in our Constitution (perhaps, in the form of a White Paper).


House of Commons – Electoral/Parliamentary reform

It is obvious that the central need for the lower house is representation by population, which is not thoroughly achieved through a first-past-the post (FPTP) system. I recommend a modified Mixed Member Proportional Representation system based on the Scottish and German versions.

The voter makes two votes: one for a constituency representative and one for a party. In each constituency, the representative is chosen using a single winner method, typically first-past-the-post (that is, the candidate with the most votes, by plurality, wins). On the national level, the total number of seats in the House of Commons are allocated to parties proportionally to the number of votes the party received in the party portion of the ballot. Subtracted from each party's allocation is the number of constituency seats that party won. The number of seats remaining allocated to that party are filled using the party's list.

If a candidate is on the party list, but wins a constituency seat, they do not receive two seats; they are instead crossed off the party list and replaced with the next candidate down.
In order to be eligible for list seats, a party must either earn at least 5% of the total party vote or must win at least three constituency seat. If neither of the two conditions are met, no candidates from the party list are chosen. Candidates having won a constituency will still have won their seat. Having a member with a 'safe' constituency seat is therefore a tremendous asset to a minor party in such a system

Potential Problems:

1. Because a party can win more constituency seats, than the number of seats allocated via the party vote, “overhang seats can occur”. There are different ways of dealing with overhang seats. In Germany's Bundestag and the New Zealand House of Representatives the overhang seats remain. In some systems the other parties receive extra seats to restore proportionality. In both cases the total number of seats raises. In the British cases (Scottish Parliament, Welsh Assembly, London Assembly), overhang seats are compensated by giving fewer seats to the other parties: the total number of sets remains the same, but at the expense of the other parties.

2. If many subtleties and nuances are chosen, this sytem could be seen as overcomplicated. A massive educative campaign must follow any such reform to avoid misunderstanding that has resulted int eh Scottish populace. Electoral reform is for naught if the population does not know or understand how there vote is counted.



As to Parliamentary reform, I definitely support proposed legislation to limit the ability of MPs to cross the floor. If an MP wants to do so, they must either resign their seat and sit in a by-election, or sit as an independent and wait until the next election. In my proposed electoral system, a problem would result if a "list MP" (a non-riding MP) were to decide to cross the floor, as they would not be able to have a by-election (thus forcing them to sit as an independent until the next general election).


Cabinet/Executive council

Some persons believe that the Prime Minister’s ability to appoint whom s/he desires to Cabinet, leads to an essence of concentrated government of and by the executive council. With electoral reform, however, this would necessarily change, and alliance/coalition governments would become more frequent. The Prime Minister must have the power to choose with whom s/he will work with in the governance of the country in order for government to be efficient.



Senate

As John A. MacDonald said, this institution was meant for “sober second thought”. Is it still relevant today? Is it any more than a chamber of political patronage? The second house must be based, instead of representation by population, on regional representation. Thus, 10 senators (to follow the U.S. model) could be chosen for each jurisdiction, plus a combined total of 10 for the three territories of which a minimum number would have to be aboriginals [thus, 110 members in total].

Senators should still be chosen by the Prime Minister (or, officially, the GG), however there must be a limited term of 10 years. A public nomination process, for transparency purposes, could keep a check on the Prime Minister’s power.

Judicial Branch

Our judiciary is recognized as one of the most impartial, fair and just in the world. No modifications are really needed. The implementation of a multiparty consultation process by the current Conservative government should be retained, with the final power residing in the PMO.


Conclusion

Yes, under the proposed reforms, the Prime Minister would still have many powers, but the pragmatic approach should prevail. One must remember that the Prime Minister is an elected official, and is elected to make decisions on behalf of citizens. If s/he does not do an adequate job, every 5 years there is a constitutionally required election, where the electorate can express their disapproval. Any system that would require constant voting (either through multiple elections for different positions, numerous referenda, etc.) would be time consuming, costly, and unnecessary. While a concentration of powers could lead to abuse of power, such concentration also necessarily leads to a more facile identification of the source of abuse and the solution available to the electorate becomes simple (change the Prime Minister, the abuse will end).

While some may not like that approach, it is in essence the center of any representative democracy, of which Canada is one. No matter how much we don’t want to, a person representing us will be making decisions on our behalf, can use that power in nefarious ways, and can therefore subvert the will of the people. The proper way to stop such excesses is to have an open and transparent system so that if such events occur, the public will be aware, and can act accordingly – doing such would return power to the people... a.k.a democracy


Comments welcome