By Bruce Hicks August 1, 2014
The prime minister recommends to the Queen who should become governor general in Canada and, in the modern era, the Queen accepts that name without question. Upon appointment, the governor general is delegated all of the Queen’s powers, including the ‘reserve powers’ which he or she may, in certain circumstances, exercise with discretion, including appointing or dismissing the prime minister and dissolving or proroguing parliament.
The qualifications that one should have in order to become governor general and the process involved in choosing the best candidate with those qualifications is deserving of an open discussion and examination. Having a competent governor general, given the occasional though rare role as umpire with respect to unwritten constitutional conventions, is essential.
During the negotiations around the Meech Lake Constitutional Accord, I proposed that the governor general be given a fixed five-year term (while it is the practice for the governor general to serve five years, in law the governor general serves at pleasure and can be removed by the Queen at any time on the advice of the prime minister). I also proposed that at the end of the five-year term, the chief justice of the Supreme Court of Canada should become the next governor general and that this elevation in office occur every five years and be placed in the Constitution.
At the time, my idea received the support of the then Chief Justice Antonio Lamer, but it did not get the support of the Mulroney Government so it did not become part of the first ministerial discussions surrounding the Accord.
I had a number of reasons for making this proposal:
1. The chief justice is already the deputy governor general;
2. Canada was just coming to terms with the new Charter of Rights and Freedoms and I believed speeding up turnover on the Supreme Court would be healthy as younger more ethno-racially diverse (especially aboriginal) jurists could be added to the court as it struggled with balancing the rights of minority groups;
3. The chief justice already has respect among the Canadian people and would bring gravitas to the office of governor general from day one, something that might be important if he or she ever needed to be a counterfoil to a ruthless prime minister; and,
4. In the rare instances when the governor general is called upon to use the reserve powers, having a person knowledgeable about the Constitution and its conventions would ensure these were used ‘judiciously’.
I no longer feel that this is the right mechanism for choosing a governor general. Not because this person wouldn’t be the best candidate for the job, because she would be, but because of the impact it might have on the Supreme Court. There is reason to be concerned that the appointment of judges could be driven by ideological considerations. Absent a change in the way judges and Supreme Court justices are chosen, the last thing Canada needs is greater turnover on the high court. But the merit of having a jurist in the role of governor general is still valid.
In New Zealand, when they changed electoral systems in 1996 and knew they would have divided parliaments from then on, they began appointing distinguished jurists to the post of governor general. The governor general appointed to deal with the first divided parliament, Sir Michael Hardie-Boys, was a former New Zealand Court of Appeal judge. He undertook a public speaking campaign to educate politicians and the public about the constitutional rules surrounding government formation that made a difficult transition easier and protected the Queen’s representative from the partisan fray in their parliament. His appointment was followed by Dame Silvia Cartwright, a former High Court judge, and in 2006, by Sir Anand Satyanaud, a former District Court judge and the country’s ombudsman.
Due to these first three appointments, New Zealanders have confidence in their parliamentary democracy, even after a rocky start with short-lived governments, and are better informed about their constitution than Canadians are of ours. Most importantly, the politicians, including the prime minister, weren’t able to play games with the constitutional rules during the lengthy learning curve on how to form stable governments in a divided legislature.
So while I still believe that a distinguished jurist or constitutional scholar would be the ideal candidate for the post of governor general, the second part of the equation is how best to select such a candidate if it isn’t automatically the chief justice.
I won’t review here the way Canada has appointed governors general in the past due to lack of space and fear of impugning the office or any specific office holder. Instead I discuss the system that has been put in place, in 2012, for future appointments.
There is now an ‘Advisory Committee on Vice-Regal Appointments’ that was established by Prime Minister Harper. This body is already advising on the appointment of lieutenant governors and territorial commissioners. It is supposed to advise on the replacement for His Excellency the Rt. Hon. David Johnson in 2015.
The advisory committee is chaired by the Canadian secretary to the Queen and has two permanent members appointed for six-year terms, one of whom is a Francophone and one an Anglophone. An additional two temporary members are appointed from the province, territory or federally as vice-regal vacancies arise. A member of the Prime Minister’s Office sits on the committee as an observer.
The basic structure of this committee is valid, and I have suggested it could be a template for other non-executive branch appointments, such as to the senate, with some tweaks. Here are just a few:
§ There should not be a member of the PMO on the committee in any capacity, and administrative support for the committee should come from Rideau Hall – not even from the Privy Council Office. While the prime minister is responsible for recommending these appointments, it is not a government appointment (i.e. an appointment within the executive branch).
§ With respect to the two temporary members, these persons should not just come from the province or territory but they should be appointed by the province or territory.
§ The prime minister should announce publically when the committee is struck what criteria he is setting for this particular posting (a distinguished jurist or constitutional scholar, a former military leader, someone with a disability, an aboriginal person, a woman, a Francophone, etc.).
§ After the prime minister announces the criteria, the committee needs to have complete control of its work from beginning to end. It needs to be free to draw-up its long-list with no input from the government and to come-up with a short-list through an unrestricted consultative process.
§ When the short-list and recommendation is submitted (and the committee should be free to indicate its preference) the prime minister would have the opportunity to (i) appoint from the list, (ii) send the list back or (iii) start the process again with a new committee, but the prime minister’s reasons for sending it back or starting the process again should be made public.
These aren’t major changes, but they are significant. They will ensure the process is more transparent, the committee will be more independent and it will be seen to be fully non-partisan; and it keeps the prime minister personally accountable before Parliament, and then before the electorate, for the appointment first in publically setting the criteria and then in defending his choice or his refusal to make a choice based on this committee’s impartial advice.
This is the openness and transparency that governments are adopting in other jurisdictions while ensuring prime ministerial accountability, which is an essential principle of responsible parliamentary government.
Dr. Hicks is the BMO Visiting Fellow and an adjunct professor at the Glendon School of Public & International Affairs of York University. His research is on institutions and he has published extensively on the Canadian constitution and its conventions. During the Meech Lake Constitutional negotiations and ratification period he was Editor-in-Chief of The Financial Post’s ‘Directory of Government’.
From : http://constitution.ca/