Democracy Gone Astray

Democracy, being a human construct, needs to be thought of as directionality rather than an object. As such, to understand it requires not so much a description of existing structures and/or other related phenomena but a declaration of intentionality.
This blog aims at creating labeled lists of published infringements of such intentionality, of points in time where democracy strays from its intended directionality. In addition to outright infringements, this blog also collects important contemporary information and/or discussions that impact our socio-political landscape.

All the posts here were published in the electronic media – main-stream as well as fringe, and maintain links to the original texts.

[NOTE: Due to changes I haven't caught on time in the blogging software, all of the 'Original Article' links were nullified between September 11, 2012 and December 11, 2012. My apologies.]

Friday, July 20, 2012

Harper’s agenda does not include federal-provincial conferences

There has been considerable discussion in the media about Prime Minister Harper’s continued unwillingness to meet with the Premiers in a formal federal-provincial conference. His behavior provoked an editorial in the Globe and Mail on 11 July 2012 in which the writer pleaded that Harper and the premiers need to talk.

Of course the Prime Minister and the Premiers need to talk. Yet, I suggest that Canadians not hold their breath any longer since any formal multilateral talks are unlikely to occur. The boisterous, yet at times productive, federal-provincial conferences that dominated Canadian politics over the past half-century – often characterized as “cooperative/competitive executive federalism” – are now all but dead and buried.

Why? There are several reasons but two will suffice. First, Stephen Harper will not resuscitate the longstanding practice of inter-state federalism because the process threatens to undermine the very expansive conception of his executive powers. Public federal-provincial conferences allowed prominent premiers, such as Peter Lougheed, René Lévesque, Alan Blakeney, and Bill Davis, to help fashion the national agenda. Most assuredly, PM Harper will have none of this!

Second, Harper is a devotee of “Viscount Haldane, ‘The Wicked Step-father of the Canadian Constitution’” – to shamelessly borrow the title of Frederick Vaughan’s brilliant book – and of Lord Watson’s diabolical conception of the Canadian federation.

Under the long tutelage of Lord Watson and Viscount Haldane, the Judicial Committee of the Privy Council made a series of rulings that totally gutted Prime Minister Macdonald’s centralist conception of federalism embedded in the British North America Act, 1867.

These august Lords, most of them Scottish nationalists and strong advocates of a decentralist Imperial Federation conception of the British Empire, replaced the centralist Macdonaldian conception of a quasi-federal system with their concept of a watertight compartments classical federal system of equal and sovereign states within their respective jurisdictions.

The JCPC ‘Lawmakers,’ as John T. Saywell rightly characterized them, constructed this rather dubious conception of classical federalism. Canadian and provincial governments are completely sovereign within their assigned constitutional powers as per the BNA Act, 1867, now called the Constitution Act, 1867. The JCPC judges then reinforced their wholesale support for expansive provincial rights by demolishing the residual power embedded in the central government’s s. 91, the ‘Peace, Order and Good Government’ clause and s. 91(2), the Regulation of Trade and Commerce clause. Meanwhile the JCPC expanded the reach of the provincial governments’ property and civil rights clause, s. 92(13).

Harper and his Conservative Party and government, strong supporters of provincial rights, are totally committed to restoring the theory and practice of watertight compartments classical federation that was put into place by the JCPC. This form of decentralized and asymmetrical federalism dominated federal-provincial relations during the Laurier, Borden, and King eras until the late 1930s.

The economic and social devastation of the Great Depression, followed by the transformation of Canadian society during and after WW II, enabled a transformed Liberal Party and government – with the backing of some premiers and a large majority of Canadians – to challenge successfully the outmoded classical federalism. Liberal and then Progressive Conservative governments replaced the old model with a long era of cooperative and then competitive executive federalisms that endured until the election of the Harper Conservative government in 2006.

The Harper government has consistently told the premiers to mind their constitutional responsibilities and Ottawa will do likewise. Between 2006-2011 Harper’s government made slow progress in its efforts to re-establish classical federalism of sovereign and separate governments.

With his majority government, Harper has speeded up the transformation of Canadian federalism. The omnibus Budget Bill, passed into law using closure techniques, has demolished a large number of federal statutes that deal, in part or in whole, with what Harper considers to be matters of provincial jurisdictions, especially those dealing with the regulation of the environment and other sensitive matters.

Harper will continue to transform Canada’s federation without engaging in any discussions with what he considers the pesky premiers, a majority of whom most certainly disagree with the excessive decentralization and asymmetry inherent in a watertight compartments classical federation.

Some of the premiers will argue correctly that Harper’s classical federalism will undermine quite rapidly the equality of citizenship and a sense of shared community from coast to coast to coast. Other premiers, like those of Quebec and Alberta, will back Harper’s executive revolution because it puts into place an essential element of the Meech Lake Accord – wholesale decentralization – which was rejected by two premiers and a majority of citizens in June of 1990.

Original Article
Source: ipolitics
Author: Michael Behiels

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