The Federal Parliament of Canada - Essay Example

Bill C-7 The senate is part of the federal parliament of Canada. Its role is technically similar to that of the House of Commons. All bills are passed by the senate before they can become laws. It is a house that poses the veto power over all bills emanating from the House of Commons. The members are appointed by the governor general through the prime ministers advice. It is a house that is undemocratic, full of patronage and retains residual powers of an age that has long passed-a phenomenon that has made the public to loathe it (Thompson 26). According to proponents of reforms, the way in which the system operates now. With twenty?four senators per region plus six assigned to Newfoundland and Labrador; does not reflect the political reality of contemporary Canadian federal relations. Of these one is for the Northwest Territories i.e. Yukon and Nunavut. These senators are appointed by the prime minister to serve until the age of seventy?five as per the current constitution. This arrangement of the upper house has never gone down well with Prime Minister Harper and together with the conservatives has always wanted to reform the senate in order to make it more efficient. These he advocates through the policy of the triple E that stands for equal, elected and effective. However, Harper keeps following the tradition of patronage that he so criticized while in the opposition. His government has tried severally to pass bills that do limit the tenure of senators to between 8 and 12 years through the introductions of bills that also provide a legislative frame work for the election of senators. These efforts were to form the basis for the governor general appointment of new senators on the advice of the prime minister. These bills were unsuccessfully introduced by his government seven times in the 39th and 40th parliament but did not sail through as the conservatives were a minority in the house at the time. In the 41st parliament, Mr. Harper had a majority in the house hence the agenda to reform the senate was introduced through two previous bills that were now introduced as one i.e. Bill C-7, the senate reform act. This bill sort to reform the selection of senators and set there were term limits by amending of the constitutional act of 1867. The assumption was that since the conservative had now a majority in the house this bill will surely pass. Note that the Canadian parliament has powers bestowed to it to amend parts of the constitution that exclusively fall within its jurisdiction. The bill intended to achieve this through legislation and both parts of the bill were indeed inline with the Constitution Act of 1982. It was therefore constitutional in principle (Thompson 64). The bill however did not pass into law due to pertinent issues that were raised by the opposition and this goad the prime minister through the governor general to seek guidance from the court concerning the matter. There were two contentious issues, one relating to the framework to be used for electing nominees for senate appointments from the province. This concerned matters relating to recommendation for senate nominees to the governor general from a list from the provinces or territories. This list is for those who will have been elected through an election held inline with the provincial or territorial laws drawn in accordance with the framework. The second was the pertinent issue about the tenure of the senators to a one off nine year limit. The nature of the Canadian parliament from the past is that senators have generally been in office for an average period of between 9.7 years since 1975. Therefore, the provision in Bill C-7 was to limit the tenure of senators to a one term of 9 years would in a real sense have no political or constitutional effect per see (Thompson 96). Thus, the character of the parliament would roughly remain the same. However section 29A right up to 31 of the constitution states that a person referred to in subsection (1) whose term is interrupted may be summoned again to fill the remainder of the term (Malcolmson 35). This was shown by the appointment of Josee veneer and the re-appointment of Fabian Manning to the senate after they had lost the 41st elections to Prime Minister Harper. This created a bad precedent that literally turns these actions into law. A careful look at this section of the bill indicates a political oscillation between the rests of would be elected senators and the Prime ministers appointees. This literally makes senators appointed before 14 October 2008 to retire at the age of 75 while those appointed after the legislation comes into force to serve nine years in office. This is and will be unconstitutional. The bill C-7 indeed attempts to circumvent the normal process of changing the constitution. The conversion of Canada’s senate would require the 7/50 formula. A phenomena that are difficult to achieve in the current political temperatures that Canada is experiencing. The proposal by Harper will definitely lead to a political deadlock that will definitely be brought about by the prime ministers prerogative powers viz a viz the relationship between House of Commons and the senate. It was a scenario that the conservative government flatly turned a blind eye to. If passed, the bill would effectively create two types of senators. Those who will be nominated after winning a provincial election will consider themselves more legitimate than the ones appointed before the coming into force of the legislation. A second problem will be the fate of the legislation that has been passed by the house of common. There might be a tendency to block this bill by the senate especially in a scenario where a government is formed by the New Democrats who always favor the abolition of the senate. Such an action might create a social upheaval by the masses against a democratically elected upper chamber. The constitution of Canada Act, 1982 contains five amending formulas contained in sections 41, 42, 43, 44 and 45. Section 41 requires the consent of the Canadian parliament plus all the ten provincial legislatures. Section 42 concerns the 7/50 formula i.e. the support of the Canadian parliament and 7 provincial legislature representing 50% of the population. Section 43 applies to one or more, but not all of the provinces such that the Parliament of Canada and the relevant provincial legislatures must give their consent. Section 44 allows the Parliament of Canada to exclusively make laws that amend the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons. Section 45 allows the legislature of each province to exclusively make laws amending the constitution of the province (Malcolmson). Bill C-7 is indeed a constitutional amendment under section 44 that has been tabled by the government of Prime Minister Harper. A number of aspects of the bill however do fall under section 41 and42 of the constitution. Section 42 that is the general amending formula concerns itself with the powers and method of selecting the senators as well as the number of members by which a province is entitled to be represented in the senate and there qualifications. Section 41 deals with the senate floor rule i.e. the right of a province to a set the number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented. This clearly shows that the Canadian parliament falls under three different amendments laws. A critical analysis of bill C-7 shows that the bill does not affect the senatorial powers or the number of senators from the province effectively making it not to fall under section 42. The bill also leaves the senate floor rule intact thus it does not fall under section 41. The bill however falls under section 44 albeit with heavy political consequences (Smith 16). Conservatives hold majorities in both the House and the Senate, and if passed it will entrench the constitution with the challenge of crown prerogative and unwritten practice. These brings out the true nature of a two chamber parliament as in Canada, the senate acts as the house of review and making it an elective house will make it redundant as there will be two elective houses. It is indeed better for the government to concentrate on an electoral system that best secures the proper function of the senate as a house of review. Bill C-7 true nature was to amend the methodology that was to be used in the selection of senators and the powers bestowed to them without amending the constitution. This is what the opponents of the bill were against stating that the bill would be unconstitutional without involvement of the majority of the provinces in line with subsection 38(1) of the constitutional Act 1982 as the true nature of the bill was to circumvent the whole process. This contentious issue is what pushed the governor general at the behest of the government to petition the court on the matter. It filled a reference motion in May 2012 with the Quebec court of appeal requesting the court to offer guidance on the best way to reform the upper house or to abolish it. Nevertheless to the government the verdict that counts is at the Supreme Court. The conservative’s agenda of reforming the senate has always been one of the biggest courses since they took over power in 2006. The Quebec court of appeal in its twenty page ruling argued that the bill was indeed unconstitutional as it threatened to affect the functioning of Canadian federalism hence harming certain regions of the country. These reforms have been on hold since then with massive debate over the upper chamber. The need to reform the upper chamber has largely been driven by claims of; corruption, spending scandals, residency situations, political interference and bribery. This has made the conservatives have different proposals on the best way to go by it. This approach has been dubbed as a significant contradiction to the spirit of Canada’s founding constitutional fathers. Bill C-7 would have set a nine year term limit for senators and create elections in provinces that want them. The verdict by the courts made Prime Minister Harper to state that the courts together with the legislature have teamed up to block the reforms agenda. One aspect of these reforms is that it unilaterally seeks reforms by the federal government. The courts stated that these kinds of amendments require the approval of seven provinces that hold fifty percent of the Canadian population. Critics of the court however ought to note that the court has no jurisdiction to rule on the usefulness of senate reforms or its abolition as these are purely political matters (Malcolmson 73). It is important to note that it is only the courts as a ‘referee’ that can determine the constitutional rules that do apply to the senate reforms. Hence, it is the prime minister who should be the loudest defender of the courts impartiality. The events of the courts ruling made the Prime Minister to be unapologetic and openly state that the courts are among the institution that are standing among his efforts for reforms( Thompson 154). The Court understood the federal bargain and Canadian federalism as a consensus among the constituent units. In these to the Senate, securing and ensuring regional representation at the centre is a key feature (Smith 89). The Court’s ruling as such recognized the fundamental role played by the provinces in the original composition of the Senate and the procedure of senators’ selection. To the courts there was a role to be played by the provinces if the provisions of the original contract were to be changed. The Supreme Court found that provinces ought to be consulted and their consent obtained, if fundamental changes are to be made to the Senate. It concluded that the federal government as a concerned party was not authorized to unilaterally amend the selection procedure of senators. The core issue in this debate is the need to secure equal and effective regional representation in Canada’s federal centre. Proponents of Senate reform view the need to transform the institution into one that offers regional perspectives on federal policies. The Supreme Court’s opinion is the idea that the Senate continues to play an important role in the federation as it secures regional representation at the centre. As such, any changes to the makeup of the Senate cannot be effected unilaterally by the federal government. By doing so would counteract the idea of conspicuously regional voices that are being expressed independently of the central government. In order to change the Senate then, the federal government must acknowledge that the provinces need to be consulted, and their consent obtained. Though Harper’s proposal does not directly change the selection process – as senators will continue to be appointed by the Governor General on advice from the Prime Minister ? it does so covertly by introducing elections into the selection process. In effect then, Bills C?19 and C?20 do affect the constitutional provisions relating to the Senate. Bill C?19 by limiting the tenure of senators to eight years, and Bill C?20 by ultimately transforming the Senate from an appointed upper house into an essentially elected one. Canada’s first Prime Minister Sir John a Macdonald while arguing for the creation of the senate. Stated that an appointed senate would serve as a protection of the minorities of who were the rich. The rich have always been a minority in a capitalist society. That the Senate is an anti-democratic body used is indisputable. The idea was to protect the upper class from the masses and to prevent the unruly masses (who are democratically represented at the House of Commons) from getting out of control. This was achieved by creating an upper house of aristocrats that can veto a bill from the House of Commons even by not interviewing anyone. It is important to note that they senators were originally appointed from an Old Boys Club (Malcolmson 94). Harpers government chagrin to the court's ruling is that over 95% of the senate appointees do owe allegiance to the Prime Minister of the day. Once appointed, they use their status to engage in by partisan fundraising, election campaigns and party politics. Pundits argue that an appointed senate does not mean it is less powerful than an elected one. Take note the constitution, the senate and the entire democratic system belongs to the people (the masses) and not to unelected politicians. The work of a politician is to represent the people who voice what they want through the politicians that must transform these voices into action. This is done by finding a way out and not running away from the task. Therefore in a democracy like that of Canada, an appointed politician is an oxymoron. The senate is supposed to provide regional representation at a federal level, something the Canadian senate does not do but just swears allegiance to the one who appointed them. Appointed for life, they are not accountable at the ballot box (Smith 16). Contrary to the norm world over, countries that have senates elect them apart from Canada and the United Kingdom. Prime Minister Harper might face a re-election and what the reformers need to do is to call the question of the senate reforms to a referendum. Let the people vote to decide if they want to reform the senate or do a way with it altogether as Canada is a country a democratic country. Critics have stated that democracy is slow, inefficient, complex and messy form of government that is slow at decision making. This to them is an obstacle to a ‘go getter’ government. The senate has the constitutional powers to block the wishes of the House of Commons. But it does not have the legitimacy to do so. If it does not its sleeping on the job and if it acts it is accused of being by partisan. This is what has confused the Canadians. It is important to note that an elected senate would have the legitimacy to tackle the government. This might bring issue pertaining to the efficiency of the government. Canadians need a vision of what a new and improved senate can do. Hence the need to shift the current focus to the democratic reform potential rather than the tactical issues such as term limits. This might be achieved through improving federal policies, representing diversity, balancing power from the Prime Minister and the central government and by strengthening federalism. Works Cited Malcolmson, Patrick N, and Richard Myers. The Canadian Regime: An Introduction to Parliamentary Government in Canada. North York, Ont: University of Toronto Press, 2012. Print. Smith, David E. The Canadian Senate in Bicameral Perspective. England: U OF TORONTO PR (NY/CN, 2003. Print. Thompson, Wayne C. Canada 2013. , 2013. Internet resource. Read More