The Role of the Governor General: Some Lessons from Australia and the Commonwealth

Article excerpt

As Canadians wrestle with issues of prorogation, coalitions, fixed elections and even the nomenclature of their head of state it is useful to look at practices in other Commonwealth countries. Of course each country will have its own tradition and conventions but we can better understand Canadian issues by putting them in a comparative perspective. This paper looks at recent developments relating to the role of the Governor General including his/her role in the making or unmaking of Governments.

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Canada has an ancient, some would say antique, Constitutional charter, which until the Constitution Act 1982, had no autonomous, self-operating amending machinery, and even today has only a very cumbersome and difficult amending process. Thus there is an ever-increasing gap between the Constitution-as-written, the Law-in-Books, and what actually happens under it. It becomes a burden of the constitutional Conventions and many other sensible tolerated informal governmental practices, to try to help fill the gap.

Ever since the passage of the Second Reform Bill of 1867 in the United Kingdom and the resulting sweeping extension of the electoral franchise to the adult male population, the prime arena for constitutional-legal change and for new law-making in the United Kingdom has been the House of Commons.

Since 1867 the Crown in Great Britain has always deferred to the advice of the Prime Minister as to Dissolution of Parliament and new General Elections. This would not prevent or impede the free and frank private exchange of views as to the merits of particular, proposed actions or policies at any time. It is here, on all the evidence, that the role of the present Queen who, after all, has met with more than a dozen successive Prime Ministers, beginning with Winston Churchill, continues to be effective and persuasive within the British constitutional system.

The effectiveness stems from the pragmatic experience and commonsense and realism, coming from a long life in public service and available in friendly persuasion and not through the invocation or menace of constitutional prerogatives, whatever they may have become through developing custom and Convention today. These are the crucial personal qualities to look for in the quest today for a modern Governor General. One should avoid any unnecessary fixation on Constitutional Law expertise, as such. Governor General Clarkson happened to have it too, but it was the other, personal qualities that guaranteed her success in the exercise of her office.

A Word about Nomenclature

The term Head-of-State is not a constitutional-legal term-of-art in Canada. It is not mentioned in the original British North America Act of 1867 or in any of its subsequent Amendments, including the last major constitutional reform project, the Constitution Act of 1982. Employed, lower case, as "head-of-state", whether with or without the polite prefix of "titular", it is merely a convenient political science term to differentiate the office and its functions and powers from that of head-of-government under the Westminster-model dualist executive system.

By way of comparative Constitutional Law experience under other Westminster-style Constitutional systems which, like Canada and Australia, had past historical, connections with the old British Empire and later Commonwealth, the Republic of Ireland has had its most recent heads-of-state, styled under the Constitution of 1937 as President under a dualist (head-of-state/head-of-government) executive system, directly elected by nation-wide popular vote. The Republic of India, operating also under a Westminster-style dualist executive system, has followed course, with its President, as head-of-state, also elected, though under an indirect electoral system including all the Members of both Houses of the federal parliament, but also Regional bodies.

The Prorogation Debate

Prorogation, an arcane legal process, with English historical roots going back to the Wars of the Roses, that notionally had been "received" in Canadian law with the adoption of the British North America Act of 1867, was hardly known to Party leaders and their MPs generally at the time it became the focus of so much angry public argumentation in the last days of November, 2008. …