Tuesday, September 08, 2009

Harper in Court Over "Fixed" Election Dates Law - Was the Last Election Illegal?

This turn of events show just how strange politics can be. Democracy Watch is a watchdog group that monitors ethics in government., They are suing the Harper government in Federal Court and the arguments are being heard today. The issue is if Prime Minister Harper's last election call was illegal.

Harper had a campaign promise in the prior election of 2006 to set fixed election dates, and his law was passed unanimously by Parliament, if memory serves. Under the law of the land the next election was supposed to be October 19, 2009, pretty much as it looks like it will be, give or take a month.

The then Minister of Democratic Reform, now Minister of Justice, Rob Nicholson, said, according to CBC reports, the fixed election date law restricted the Prime Minister from calling an election unless a vote of no-confidence in the government occurred before October 2009. Ouch!

Democracy Watch says the fixed election date law was intended to stop the kind of actions Mr. Harper took last year in asking the Governor General to dissolve Parliament and call an election. Of course Mr. Harper's lawyers say nothing in the law prevents the Prime Minister from making such a request of the Governor General.

An interesting challenge of what is the appropriate statutory interpretation of Harper's fixed election date law will ensue in the Federal Court today. Does it mean a minority government can only be defeated by a non-confidence vote? With Harper proroguing Parliament he managed to duck out of facing such a vote. Is that good for democracy?

Technically the Governor General calls an election not the Prime Minister. So what does it matter if we have an election based on a non-confidence vote or a voluntary submission of a minority government to dissolve and go to an election.

In this case, the opposition parties formed a coalition and were prepared to do two things. First defeat the Harper government in a non-confidence vote. Then go to the Governor General as a majority coalition and ask the Governor General for permission to form a new government.

If she agreed to the coalitions request they would form a government and we would not have had the last election forced on bu by Mr. Harper's tactics. We did not want an election then either but Harper forced it anyway, and he still won anyway. Almost looked like a majority there for a few days too.

So what will happen? Will the court decide that last election was illegal? If so what does that do to the legitimacy of the Harper's right to govern? Do we go back into an election now by court order? Or will the courts wait out the forth coming non-confidence vote, see the next election through and then announce its decision? I think so. The courts do not want to get that deeply into the political thrust and parry of validating or invalidating an election if they can avoid it.

Or will the courts do what the RCMP did in 2006 and proceed and announce their decision, even if it is in the middle of an election. Remember in the middle of the 2006 election the RCMP announced a criminal investigation into possible income trust leaks by the government. that investigation later proved baseless except for one civil servant who used the insider information for personal gain.

Many believe that ill-advised and ill-timed investigation led to the defeat of the Martin Liberal government. I don't think the courts will do that but there is nothing to stop them. In fact there is much to be said for them proceeding on their own timetable and to ignore the political implications. After all many do not like what they call judge made law.

Just as the state does not belong in the bedrooms of the nation, so too the courts do not belong in the election campaigns of the nation. However, that principle could cut either way. Staying out of the election campaign may be interpreted by the court as just delaying releasing its decision until after the next election is over. That is one way to stay out of the election process. It could also mean that the courts decide that the election timing and process has nothing to do with them and what ever they do is irrelevant to the election process. They would then choose to ignore the election process entirely and release their decision whenever they are ready. To do otherwise is a de facto involvement in the election process.

Then of course, this all depends on what the final court decision is. If Harper is off the hook and did not act illegally, should that decision be released in the middle of an election campaign? Will that not be the courts having an impact of the final result? If Harper is off the hook and the decision can be announced before the election starts but knowing we are headed for an election; should it be announced?

What if the courts wait, Harper wins the next election but loses in court? Does that destabilize and undermine the the legitimacy of his government? These potential scenarios are all real issues that could have been avoided simply by Harper facing the House of Commons non-confidence vote and challenging the coalitions legitimacy to govern and forcing an election in 2006.

Democracy Watch is saying if they win, then Canadians could start a class action against the Conservative Party for the $350,000,000 of costs for the last election. What a tangled web our Prime Minister weaves by the kinds of political choices he makes.