A few days before the election of 2006, when the polls showed he was about to end 13 years of Liberal government, Stephen Harper told reporters that Canadians shouldn't be uneasy at the prospect of "absolute power" for a Conservative government because it would be kept in check by senators, civil servants and judges appointed by the Liberals.
"We have no alternative but to accept the checks," he said. "They're part of our system. Judges are named. Judges can't be removed except under extraordinary circumstances."
Seven years later, the Senate and the senior ranks of the civil service are full of Harper appointees, but judges are acting as a stubborn check on Harper's absolute power, just as Harper predicted.
Indeed some of the arguments put forward to the supreme court by the government side would seem to indicate that he has little regard for due process as set down in our constitution and would prefer to simply change thing to his liking without any consultation or agreement with the provinces or the people.
It will be interesting to see how Harper reacts when the Supreme Court justices eventually tell him that he can't reform or abolish the Senate without a deal with the provinces.
Some of the presentations to the court were indeed as this observer notes rather outrageous.....So the Stephen Harper government complains to the Supreme Court that the Senate is too partisan. This is the most outrageous legal argument since the fellow who killed both his parents asked for mercy on the grounds he was an orphan. Sound and fury, signifying nothing.
I have said in these pages a number of times that simply asking the provinces to submit a list of candidates to the PM and him committing to choosing from that list would eliminate much of the problem with partisan and unqualified individuals and enhance the regional representation that is the basis of the senate selection process. I am not alone in seeing this simple solution!
There is no more reason to elect senators than to elect judges. The purpose of the courts is to interpret the law. The purpose of the Senate as conceived by the framers is to act as a chamber of advice and consent. It is the House of Commons that has the unique task of representing the popular will, for which purpose that body does indeed need to be elected.................
How to choose them? We can look at how we select Judges. These worthies are also appointed by the PM (in effect – the Prime Minister’s Office passes on every name) but the problems are few because in almost every case the choice is made from lists drawn up by the legal communities in the various provinces – lists of people with a known and respected track record.
Let us choose senators in the same way. Let some great Prime Minister (will Mr. Harper step forward?) establish the precedent that with few exceptions, he/she will choose only from such lists. The provincial nominating bodies might be made up of members chosen by the governing and opposition parties in the local Legislature, by the municipalities, business and unions, the bar, universities and perhaps a few others. As with the court nominations, their work could be private and only for the eyes of the PM (which makes it easier for some to put forward their names), or it could be public.
This process would yield a truly respectable Senate. Yes, it would mark a diminution of the Prime Minister's patronage powers, but that would happen under the alternative of abolition in any case. We would be better to preserve and improve a truly useful advisory body.
Even Mr Harper has floated this idea but has said that he would not necessarily select from such lists which totally negates the whole idea but would of course allow the PM to continue to appoint partisan flacks. I think we all know where this one is going....absolutely nowhere, any major change will need constitutional change and that requires broad provincial support. Lets face it the Harper regime is not exactly renown for building broad support for anything and a PM that refuses to even meet with his provincial counterparts is unlikely to get a lot of cooperation in that regard.
The Senate and the House of Commons will continue to be a partisan war zone for the foreseeable future and we can but hope that a more 'cooperative' government can and will find a way to get consensus on bringing in Electoral, Parliamentary & Senate reform that will better serve the Canadian people than that which exists now.
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