Constitutional Conventions and Election Campaigns
Heard, Andrew, Canadian Parliamentary Review
Parliamentary government is based on a number of important but unwritten constitutional conventions often overlooked both in public debate as well as in academic circles. In the October 1993 general election, the Conservative Government was defeated. Shortly thereafter, a question was raised by the new Liberal Government as to whether the previous administration violated any constitutional convention by signing, just three weeks before the election, an agreement to turn over Terminals 1 and 2 of the Lester B. Pearson International Airport to the private sector. This article provides one view about the general nature of constitutional conventions and discusses the kinds of constraint that face a government in its last days. Another perspective on this issue will be published in the winter issue of the Review.
Constitutional conventions are a very important set of informal rules which regulate political behaviour. They are laws which essentially ensure that legal powers work in some fashion other than the way the letter of the law requires or stipulates. They arise principally through political practice but rely essentially on a level of general agreement upon them. This is the fundamental characteristic of constitutional conventions. They are informal rules, but their obligatory character arises from the degree of agreement in the general political community on those rules.
Some conventions are very important. They shape the character of our Constitution. The very basis of responsible government comes from convention. The transfer of the vast legal powers of the Governor General to the elected politicians of the day is achieved by convention and convention only. It is important that we understand that these rules have a fundamental role to play in the political system. We must be careful in what we describe as conventions because they have such an important role to play.
As an example of how important conventions can be, even though the Constitution Act of 1867 stipulates that the Governor General shall send copies of every law passed in Canada to the British government, a constitutional convention now nullifies that obligation. We have an obligation in the supreme law of the Constitution which is nullified by convention That is an idea of the strength of these political rules.
The Traditional Approach
The traditional method of viewing constitutional conventions is one which is based on historical precedent. This approach was most explicitly formulated by Sir Ivor Jennings, a British constitutional writer. However, his views were adopted by the Supreme Court of Canada in the Patriation Reference Case when they endorsed the three-step test for conventions posed by Jennings. Sir Ivor Jennings said that when we look to see whether a convention exists, there are three questions we must try to answer. "First, what are the precedents; secondly, did the actors in the precedents believe they were bound by a rule; thirdly, is there a reason for the rule?" (1)
These are three steps which place precedence at the top of the line. Was there a precedent? Did the actors in those precedents believe themselves to be bound by a rule? Is there a reason we can root in constitutional principle that would support this rule as a convention?
Precedents are the absolute foundation of this approach. The late Senator Eugene Forsey embraced Jennings' approach and underlined the necessity of precedent. He wrote: "A constitutional convention without a single precedent to support it is a house without any foundation ... indisputably, at least one precedent is essential. If there is no precedent, there is no convention." (2)
Using this approach to look at the matters surrounding the signing of the contracts with the Pearson Airport, we need to search for a relevant precedent. This is the key to establishing whether there was a convention regulating the behaviour. …