Has Harper violated the fixed election law? Will it mattter?

By Tom Bateman on Sep 9, 2008

Have the Conseratives violated the fixed election date law passed by Parliament in 2007?

No. The Canadian Constitution requires that the Governor General retain the prerogative to dissolve Parliament at her pleasure. Yes, she takes advice on this from the Prime Minister, but the decision is still hers. Any law depriving the Governor General of the legal capacity to dissolve Parliament would be unconstitutional. Patrick Monahan in the Globe and Mail on Saturday August 30 was very good on this point.

The fixed election date law does allow the Governor General to exercise this reserve power. So no legal problem with the election call.

Is there a political problem? Have the Conservatives violated the spirit, if not the letter, of the law by calling the election only two and a half years into their term of government? Generally, yes. The Conservatives did violate the spirit of the law, in my opinion, and some will criticize them for it. It is generally understood that the point of the law was to remove from the Prime Minister's basket of powers the capacity to dictate the timing of elections. This is what Mr. Harper criticized in Mr. Chretien's cynical moves. But things look different when one crosses the aisle, apparently.

The Conservatives argue that the opposition parties signalled their willingness to pull the plug on the government this fall. So the end was imminent. Also, Mr. Harper argued that Parliament has been dysfunctional and will continue to be so until the next election.

Both arguments are relatively weak. The Liberals have ducked confidence votes consistently. They are still in poor financial shape and Mr. Dion still has miles to go to improve his image in the country. Can Mr. Harper be so sure the end was nigh? In the alternative, if an election is coming why flout the spirit of the election date law to hasten what is coming anyway?

As for the second argument, there is ample evidence that the Tories were running the table for the last couple of years. Now they must manage a contradiction: "We did a lot for Canadians in the last two years; on the other hand, Parliament is impossible and we cannot get anything done."

Will the Conservatives' desire for an early election matter? Not too much. If someone says an election is unnecessary, then that person must mean things are going pretty well in the country at the moment under the CPC's stewardship. So no need to punish the Tories at the polling booth. If someone says we need an election to boot the Tories out, that person can hardly complain that an election is being held now and not later.

And no party leader can complain about an election campaign, no matter how conflicted he or she may be in private.

So the Conservatives will take some heat for violating the spirit of their own fixed election date law, but not much. They may be punished for other things they have done, but not this one. 

So why did they do it? Likely to get re-elected before unpalatable events unfold later this year and next, and to take advantage of weaknesses in other parties' ranks. Politics done the old way.

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