TIME TO CHANGE UNNECESSARY ELECTION LAW

Guest Post by Kelly Populous

Imagine a law so badly misunderstood that politicians and parties tolerate an unwanted, unpopular premier in order to avoid an election. A government without the political capital to change important public policy becomes trapped with unwanted leadership and winds up paralyzed. The public grows more apathetic or, worse, angry... and the whole province suffers as a result.

The scenario would seem crazy if Newfoundland and Labrador hadn't already suffered through it under Kathy Dunderdale. Now, with Dwight Ball flailing badly as the province’s First Minister, it seems that we have lost the ability to determine a course to provide renewal of the province's political leadership. 

It does not have to be that way.

The law everyone doesn’t understand is the one that requires an election within a year of changing Premiers, unless the timing of a general election makes the requirement irrelevant.  

Danny Williams

The current law has its roots in events starting in February 2001 when Roger Grimes won the leadership of the Liberal party and became premier of the province. In April 2001, Danny Williams won the leadership of the PC party and, two months later, took a seat in the House of Assembly becoming Leader of the Opposition. 

For the next two years, Williams taunted Roger Grimes and raged that he was an illegitimate premier. Williams justified his attack on Grimes because he had not won a mandate in a general election. In the ensuing 2003 campaign, Williams defeated Grimes and became Premier.

No precedent of any kind existed for William’s proposition that Premier Roger Grimes was an illegitimate leader, or to suggest he was not the lawful premier of the province. In fact, the Canadian Constitution and historical precedent, if any were needed, confirmed that Roger Grimes had every right to govern as Premier until the Legislature was dissolved by His Honour, the Lieutenant- Governor, who — alone — signs the writ of election.

That fact wasn’t good enough for Danny Williams and, as Premier, he sought to create new rules by legislative means. On November 29, 2004, the Williams government tabled an amendment in the Legislature to the Elections Act, 1991. 

The new legislation essentially made three changes: first, it set the date for the provincial general election to the second Tuesday in October every four years; second, it required an election if the sitting Premier resigned more than a year from the fixed date; and, third, it required that a by-election be called within 60 days of a member having resigned, replacing the previous 90 day limit.

The new rules have served to create several misconceptions about the permanence of fixed date elections in this province. The easiest short-cut through them is to understand that there is no way to permanently “fix” an election date, short of an amendment to the Canadian Constitution.

A provincial Statute by itself cannot immutably restrict the actions of a future government. Indeed, this very fact is acknowledged in the Act’s first clause which states that “the Lieutenant-Governor may, by proclamation in Her Majesty’s name, prorogue or dissolve the House of Assembly when the Lieutenant-Governor sees fit.”

This is not a theoretical point; indeed, there is nothing theoretical in our Constitution about the role of Her Majesty, in whose name the Lieutenant-Government serves.

A similar Statute exists under federal legislation. Changes to the Federal Elections Act require that each general election takes place on the third Monday in October in the fourth calendar year after the previous poll, starting with October 19, 2009. Since November 6, 2006, there have been elections on October 15, 2008, May 2, 2011 and October 19, 2015 — based on precisely the same provision invoked in the case of this province’s Elections Act.

Perhaps the point has already been made. The “fixed” election date is, in fact, not fixed at all. Governments have the ability to change any Statute. Any time a government prefers a different election date or some new rule, it can occur as long as the maximum constitutionally prescribed period between elections is honoured. The only other requirement is the approval of the House of Assembly.  

Public misconceptions about the election of a new premier also derive from the notion that the fixed election date is inviolate. In this case, too, the idea that an election must be called within a prescribed period after a new First Minster has been sworn-in has no constitutional underpinning. Such novelties can be altered or obliterated — as long as the House of Assembly concurs. 

I would argue further that the election rules promulgated under the Williams Government have no value, and that they actually work against the best interests of the province.

In fact, a likely unintended consequence of the requirement for an election when a Premier has been replaced mid-term, is that it encourages unwanted or unpopular premiers to stay in Office longer than they should. In so doing, they prevent much needed Party (and possibly wider political) renewal.

Politicians are not optimists; they are opportunists. If a government caucus — one having political difficulties — thinks that replacing an unpopular Premier will trigger an election they may lose, they will have no incentive to hasten their own defeat. They will endure the unwanted leadership, and take no action to replace the failing incumbent. The Members will stay in office for as long as possible, rather than for just the one year period current legislation affords.

Roger Grimes

Many, possibly including Danny Williams, have forgotten that under the British parliamentary system premiers are not elected. The electorate votes for individual MHAs. The selection of a leader is the role of the political party. The party that has the confidence of the House of Assembly — often but not always the one with the largest caucus — becomes the government. Its leader, in turn, becomes the Premier. 

Since the public doesn’t directly elect premiers, the legislation promulgated in the Williams era is a peculiar solution to what is essentially a non-problem. 

The people, having voted in an election, select their party of choice. As long as that party retains the confidence of the Legislature, it ought to govern for the period to which it is constitutionally entitled. The idea that the departure of one MHA — who happens to be the Premier — should force an entirely new general election is presumptuous, unnecessary, and inconsistent with the processes of parliamentary government.

And the practice is not in the best interests of the province.