Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Thursday, December 04, 2008

Turmoil in Canada

The Canadian conservatives just won a very narrow election, slightly improving their position from a few years ago but nonetheless being forced into running a minority coalition government. Stephen Harper last week proposed a set of responses to the financial crisis that involved cutbacks - including cuts to public financing of campaigns - but nothing much in the way of economic stimulus. As a result, the Liberals, New Democrats, and Bloc Quebecois have decided to form a new coalition government to oust Harper and the conservatives (the largest single party in the parliament) and establish a new prime minister without a new election to rule for another 18 months, at least. It is apparently unprecedented in Canadian politics for this to happen without an election intervening. To avoid a no-confidence motion that would have brought down the government, Harper got approval from the Governor General to suspend parliament for a couple of months.

This is one of those "wow" moments. Suspend parliament? Replace the Prime Minister without election? BOTH sides are claiming there is an attempted coup d'etat by the other.

The Governor General is the acting head of state in place of the Queen, and is technically appointed by Queen Elizabeth II and is her representative and serves at her pleasure -- although in practice she is appointed by the Canadian govt and approved by the Queen and apparently by custom serves approximately five years. The current occupant of that post is a black woman named Michaëlle Jean.

It is interesting to think about how this sort of parliamentary system contrasts with the American system of fixed times for elections with its planned long interregnum between election and taking office (see other posts on this blog). There are clearly pluses and minuses to both systems.

45 comments:

Dr. Strangelove said...

Why on Earth would the Governor General agree to adjourn parliament until Jan. 26? The shift in coalition indicates there is a strong desire for urgent action now and there is no way to interpret the suspension as anything but a stalling tactic. The New York Times notes, "There is broad consensus among constitutional scholars that Ms. Jean should allow the opposition to govern."

Raised By Republicans said...

The suspension of parliament without holding an election is pretty surprising. Many parliamentary systems allow the PM to suspend parliament but in the cases I'm thinking of it leads automatically to elections.

The Conservatives have no basis to claim that a vote of no confidence is a coup d'etat. Governments can be brought down and replaced by votes of no confidence without elections in most parliamentary systems. In Germany, there have been a couple of government changes without elections conditioned only on majority support in parliament for the new government.

The proposed coalition however does seem to have a serious beef or beouf depending on the party in question.

The Law Talking Guy said...

RBR - it sounds like Canada has different traditions than Germany. If so, then an action that might be perceived as legitimate in Germany could be perceived as illegitimate in Canada. This may be the case.

The other issue is the Bloc Quebecois. Conservatives are screaming about putting them in power, calling it a "separatist coalition."

ng2000 said...

Valuable resource of canadian parliament news summaries: http://www.ng2000.com/blog/2008/12/05/canadian-parliament/

Raised By Republicans said...

Traditions aren't the issue. Laws are. Canada seems to have different laws with regard to government formation and parliamentary dissolution than most other parliamentary systems - in particular, the GG can dissolve the parliament without calling new elections.

The Conservatives claiming that any coalition including the Bloc Quebecois is a "separatist coalition" is also hypocritical. The Conservatives have a minority government. That means that they depend for votes from other parties to govern. So the Conservatives were counting on getting votes from the same Bloc Quebecois on occasion.

That can only work if the opposition is divided. The problem seems to be that the financial crisis has unified the opposition along an important policy dimension. I doubt very much that Quebec is going to be given independence if this coalition takes power.

Spotted Handfish said...

It does seem odd. Bloc Quebecois have recently given up on separation so I wouldn't have thought that was an issue. The Governor General could have gotten advice from the Supreme Court Chief Justice (or whatever the equivalent body is). Does anyone know if that happened?

In 1975 in Australia the GG used his reserve powers to dissolve parliament after the Government was unable to pass the Supply Bill through the Senate, thus allowing the government to function. The Opposition had control of the Senate and had blocked the Bill. There was a lot of debate afterwards given that the reserve powers are not actually documented but assumed. The GG is appointed by the Prime Minister of the day to undertake the functions of the Queen in her place. My understanding is that the only difference between our system and Canada is that we elect Senate members, whereas they are appointed in Canada.

The NY Times article indicates the GG thought the action would be less disruptive, but it does seem to be interfering with the political process. A minority government should be able to be overturned...

The Law Talking Guy said...

Traditions do matter, not just laws. That's a very American comment, RBR, that anything is acceptable so long as it is legal.

The UK, of course, doesn't even have a written constitution - it is all about custom, tradition, and a few parliamentary acts - and Canada is a direct descendant of that system. I have blogged before that the GOP systematically undermined years of tradition in government (funding for minority party seats, impeachment, filibusters in the Senate, certain recess appointments) and those breaches of tradition have made Democratic legislators VERY angry even though they are technically legal.

International law, to use another example, considers tradition (what they call "custom") a formal part of the system, only slightly less important than actual treaties and covenants.

The reason is that the particpants' expectations about how a system will behave is not tied to what a lawyer understands as the outer bounds of the law. As a lawyer, I can tell you that even the law has much unwritten custom and tradition built into it. Breaches of that tradition are often more outrageous than technical legal slip-ups.

Vancouver real estate agent said...

The opposition has unified - for how long? Dion is an antiseparatist from Quebec, so I don't think their relation can be very happy. And NDP criticized Liberals very often in the past, so it wouldn't be an ideal marriage too.
Harper did this because he knows his opponents are not united very firmly and wants to have some time to cope with the situation. Anyway, with this move, he has created (more) enemies...
Regards,
Jay

Dr. Strangelove said...

The stalling tactic might just work. But it still staggers me that conservatives dare to call it "treasonous" for other parties to make a coalition with the Bloc Quebecois. It's a classic strategy of distracting and changing the subject.

The real issue is that the conservatives so clearly failed to meet Canada's needs that everyone--even these highly fractious opposition parties--united against them. When you govern so badly that you unite all your enemies and actually provoke a constitutional crisis, that's George W. Bush level incompetent!

The Law Talking Guy said...

SH - I'm sure Australia and Canada have very similar systems, but there are probably significant differences too. The province/state distinction is unlikely to be merely semantic. Also, the Canadian electoral rules resemble the American system more (single member districts ("ridings") with plurality rule) so there is a different relationship between elected officials and their constituents going forward.

Raised By Republicans said...

LTG, good point about the UK and traditions. But in Canada's case they have a written constitution in place and I'd only admit that traditions are driving this if any of these players had taken actions that are prohibited by the constitution and gotten away with it.

The law allows this stuff and it is happening. That it hasn't happened before is something for people to get upset about but the events are being driven and constrained by the institutional arrangements and the laws governing them. That's all I meant.

Spotted Handfish said...

Actually, LTG, the Australian system is closer to the American than the Canadian: Aus and US both have Senate and Representative houses which are elected in a similar manner (reps by single district, senate by state), whereas the Canadian system is almost a combination of the two in their House of Commons. I believe the US system was a great influence on the development of the Australian parliament. We can't help it if we have a better voting system...

What I was referring to in my comment is that in the Westminster systems (UK, Australia, New Zealand, Canada) the GG has reserve powers that are not often stated, but relate to the functioning of the parliament. Usually these do not influence the formation of governments and they shouldn't given that the GG is simply a non-elected representative of the Queen. The last time in any Westminster system that the reserve powers were used in a manner that could be called political was in 1975 in Australia.

Raised By Republicans said...

I say establish a Republic! Why do Canada or Australia need a GG to represent a Monarch thousands of miles away anyway?

TLLL said...

Tradition, custom, and history are getting the short shrift from you, Raised by Republicans. Your'e looking at this from the cultural perspective of a citizen of the United States where citizenship is primarily a legal abstract construct, as opposed to being based on blood and birth, a process which itself had to be produced by the evolution of cultural traditions and customs that is still ongoing. Your legalistic attitude seem to overlook the fact that that which is legitimate is not just that which is legal in a de jure sense, but that which is accepted in a de facto informal sense. Successful laws are a product of custom and tradition and thrive as such. Prohibition, a constitutional law no less, failed in the United States not because it offended abstract legal libertarian sensibilities as upheld in some court, but because everyone chose to become scofflaws as it offended the cultural context, customs, and traditions of the vast majority of the American people. Ask any outcaste in India any women suffering from sexual harrassment in in an office in Japan and ask them whether their excellent abstract legal protections outweigh the far weighter power of cultural context and customs. Perhaps Canada should become a republic in spite of its past and historical traditions. After all, we could certainly follow the advice of many Europeans from systems with proportional representation who view the electoral college as an obsolescent anarchronism and eliminate it, couldn't we? What's stopping us other than inertia and socially situated rationalizations about how it allegedly helps smaller states matter more in elections?

Raised By Republicans said...

Wow, TLLL where do I start?

First, my "legalistic" approach is not a result of my "cultural perspective" but my scholarly one. I'm a professional political scientist trained to study and compare political systems. My years of study have convinced me that situations like the one we are seeing in Canada now are driven by the institutional relationships and the laws that constrain them. Sure culture can matter for things like how people see the legitimacy of these events but that's so subjective that it would be grossly inaccurate to say that there is a "Canadian" point of view on this. I recently heard a Canadian radio broadcast on this and the callers were deeply divided based on their political affiliations. Supporters of the Conservatives backed the GG's move and were vehemently critical of the coalition. Just about everyone else had the opposite view. This is why I think that using aggregated concepts of "culture" or "tradition" are so misleading.

Second, you are incorrect in your stereotypes of the meaninglessness of the rule of law in places like Japan and India. These kinds of pejorative views of other countries with different "cultures" is another reason to be wary of cultural explanations of political phenomena.

Third, you are also incorrect about what is prevent the abolition of the electoral college in the USA. I was recently a member of my county Democratic Party's platform committee. One of the things we debated was whether we should move at the state convention that our state party advocate for the abolition of the electoral college. Not one person who argued either for keeping it or abolishing it made a cultural appeal. All of them made arguments about how abolishing it would influence the chances of getting Democrats elected vs how abolishing it would degrade our state's influence in presidential elections (I live in a largely rural state with a small population, exactly the kind of state that is over-represented by the electoral college).

When you say that the electoral college "allegedly helps smaller states matter more" you just don't understand how the electoral college works. California has 55 electoral votes representing just under 37 million people. Wyoming has 3 electoral votes (the minimum possible) representing just over 520,000 people. This means that each Elector in California represents about 673,000 people. But each Elector in Wyoming represents about 17,000 people. There's no alleging involved here. There is a huge overrepresentation for small states. If Wyoming's citizens were represented at the same rate as California's they have to share a single electoral vote with citizens from other states!

The Law Talking Guy said...

RBR, I do disagree with you that the rules governing institutions are all written down. That seems to be your baseline assumption. Unwritten rules are still rules. And written rules can be broken almost as easily. Why exclude tradition as a constraining factor on institutions just because it is not written down. There is a cost to violating tradition just as there is a cost to violating institutional rules. But both happen. For example, in the USA, treaties require Senate ratification. Since the 1790s, however, we have permitted international agreements to take place by executive arrangement only, or with votes in both houses of congress on simple majorities (see NAFTA). As long as both leg and exec agree, the judiciary has stated that this is a "non-justiciable question" and left it alone. This despite the fact that it is pretty obviously a violation of the constitution. Similarly, the constitution prohibits multiyear appropriations for the army, only for the navy. Nobody complains about that either. In 1863, West Virginia was illegaly carved out of Virginia in a plain violation of the constitutional prohibition about erecting states within other states. The rationale was civil war and it just happened. Same with Lincoln suspending habeas corpus during this period and arresting state legislators en masse in border states. Other examples abound. The constitutino does not require that the president say "so help me God" at the end of the oath of office. Every president since Washington has done so, however, and to not do so would be a huge cost. Traditions do change, though. Until presidential inaugurations were regularly televised (whereupon the visual was considered to be unfortunate and weird) every president after taking the oath of office would open the bible to a random page and kiss it. An official woudl then note the passage he kissed for posterity. The bible is still frequently opened to a random page, and a website has the results:
http://www.eadshome.com/OathScripture.htm

So if Canada has a tradition that electinos must intervene before changing ruling coalitions, that is regarded at least by some as an institutional rule. And what is happening in Canada now is a fight over what the institutional rules really are. Institutional rules for lower bodies can be just looked up in a rulebook, but where there is no higher authority to provide an authoritative interpretation, examination of the written constitution is the beginning of the analysis, not the end.

Raised By Republicans said...

"RBR, I do disagree with you that the rules governing institutions are all written down."

Actually, I never said that. I said that in this case in Canada, the rules are laying out the boundaries of what is happening. The coalition proposed a vote of no-confidence and a new government because it was allowed. The GG suspended the parliament because it was allowed.

Rules can be broken. Lord knows Bush has ignored the Constitution repeatedly. But his ability to that do that was almost entirely dependent on his party's control of all three branches of government (i.e. not a function of "tradition" or "culture").

With regard to Canada's tradition that elections must intervene between changing governments: How binding you think that tradition is depends entirely on which of the two rival political blocs you support. Conservatives are up in arms about using the vote of no confidence to bring down a recently elected government. The other parties are less loyal to tradition. Given that the majority of the MPs supported a break with tradition and were thwarted by an institutional maneuver by the PM and GG, I'm standing by my statement that institutions rather than traditions are driving the political crisis up north.

Pombat said...

RbR:

TLLL said: "Ask any outcaste in India any women suffering from sexual harrassment in in an office in Japan and ask them whether their excellent abstract legal protections outweigh the far weighter power of cultural context and customs."

And you replied: "Second, you are incorrect in your stereotypes of the meaninglessness of the rule of law in places like Japan and India. These kinds of pejorative views of other countries with different "cultures" is another reason to be wary of cultural explanations of political phenomena."

Could you expand on that please? I'm curious to know your views, and the reasons behind them, on issues such as entrenched sexism in Japan, regardless of the laws there.

Raised By Republicans said...

Pombat,

Thanks for asking...

I think that there are a lot of people who make "cheap talk" statements about how places like India and Japan don't follow their own laws. And people who normally think they don't engage in negative stereotypes nod their heads sagely and say "yes, that's certainly so."

The reality is more far more complex than a sweeping cultural stereotype can account for. First, I doubt any of us really know what the laws on the books actually say. We could be surprised by some of the ways that protection for women slip through the cracks in the legal system because of the way the laws are written. For example, even in countries like France, women were banned by law from many public jobs (like police officer) until shockingly recently and it took ECJ intervention to fix it. I could imagine that similar laws apply in Japan let alone India.

Second, my argument was never limited exclusively to the black letter law (this was a straw man set up by TLLL and LTG). Rather I am making an argument about how the laws constrain the institutional relationships and the resulting politics. This can include situations like local implementation - or failure to implement - laws regarding protecting women. Especially in a federal system like India with lots of parties at both the local and national levels (often different combinations of parties at these different levels), central control of local policy implementation can be lax leading to enormous variation from region to region and even with region based on social class, wealth and access to lawyers etc.

As for culturally entrenched sexism, if we are to change the subject from the political legitimacy of a particular decision in Canada to a general discussion of sexism, we don't need to pick on the Asians to do it. There is plenty of sexism in places like Europe, the US and Australia. That TLLL seemed ready to accuse places like India and Japan of being culturally deficient it rubbed me the wrong way.

A lot of people may not be aware of it, but the move in the social sciences away from cultural explanations towards more rationalist explanations was motivated by a desire to get away from the implicit Euro-centrism and racism in cultural theories that saw economic "modernization and development" and democratization as being culturally driven and therefore out of reach for certain cultures that simply weren't capable of making these improvements. You see a lot of this in folk theories about the prospects for democracy in the Arab/Muslim world. "Of course, Arabs can't have democracy because their culture won't support it." These kinds of statements are things that otherwise open minded and liberal people will say without blinking. But I contend that this kind of thing is profoundly racist.

The Law Talking Guy said...

RBR uses the phrase: "the move in the social sciences away from cultural explanations towards more rationalist explanations." I think this is a bit overstated. Cultural explanations can be plenty rational. Indeed, it would be unscientific to assume that culture is irrelevant to decisionmaking. The trick, of course, is to frame culture as a set of preferences rather than a set of innate personal capacities, as RBR noted.


RBR also says in a different context, "I'm standing by my statement that institutions rather than traditions are driving the political crisis up north." I also think this either/or thing is overstated. I am arguing that traditions are part of institutional rules, plain and simple. RBR seems convinced that institutional rules and tradition are distinct.

RBR wrote that I was creating a straw man argument by saying that he only accepted black-letter law. That is, itself, a straw-man argument, since I assume that RBR accepts judicial decisions and the like. The issue I raise is not the extent of black-letter law versus other kinds of law, but the whether custom and tradition are part of institutional design. RBR seems to be arguing that, in this case, the "tradition" asserted by Conservatives in Canada is not well attested. That may be so, but that just means this is a bad example, not that it is a bad argument.

Raised By Republicans said...

LTG, you can't change your criticism in mid thread and pretend you didn't. Earlier you said, "RBR, I do disagree with you that the rules governing institutions are all written down." I took that to meant that you thought I was making the argument that ONLY written laws mattered which I was not arguing (what I called "black letter law" perhaps I misused the jargon).

As for tradition and institutions. My complaint about the "traditions" argument IN THIS CASE is that exactly which tradition any given Canadian thinks matters is almost entirely determined by which party they supported in the recent elections. Conservatives think the traditions support their course of action. The opposition thinks the traditions support their coalition's attempt to form a new government.

When you have a "tradition" that is so divisive within a single community (in this case Canadians) so highly correlated with partisan identification, it is worth asking if that "tradition" has any causal relevance in this case.

I'll try to make my point another way: If there were no GG in Canada and no line in the constitution saying the PM could suspend parliament without calling elections, would we be in this situation? If we think the answer to that question is "no." Then the institutional relationships and the constitution that constrains them are a necessary condition for the current situation and that is what I mean by "drives the current situation."

I don't mean to argue that institutions are fully determinative. But I do argue that they are the factor that more than others is driving the general direction of this crisis.

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