Constitutional Shadowboxing

Amid sinking poll numbers and RCMP investigations into his government's conduct, Paul Martin decided to use the debate to announce an impromptu constitutional amendment. He is now proposing to amend the constitution so as to remove the notwithstanding clause from the Charter of Rights.

Call me old-fashioned, but I'm not one who thinks that constitutional amendments should be taken lightly, let alone that they should be concocted in desperation in the late stages of an election campaign. Besides, what grand principle is Paul Martin purporting to uphold here? He accuses Stephen Harper of harbouring a secret plan to use the notwithstanding clause to overturn gay marriage, despite the fact that Harper already unequovically ruled this out in the first English debate in December. The fact that both leaders agree that the notwithstanding clause should not be used in this instance is not enough of a reason to keep Paul Martin from picking a fight.

Needless to say, the proposal is completely nonsensical, as is often the case with improvised policy decisions made by over-caffeinated politicians in late-night strategy sessions. One of the biggest problems with Canadian democracy today is that too much power is centralized in the Prime Minister's Office. In between elections, the Prime Ministers can rule almost like an autocrat. The Prime Minister has the personal power to appoint the Governor General, members of the Senate, and Supreme Court justices. Moreover, his power is not constrained by the will of the House of Commons, the only elected branch of government. One would think that in order to modernize our democracy, now would be the time to start electing senators and submitting nominees for Governor General or Supreme Court justices to the approval of Parliament. Instead, Paul Martin's proposal would diminish the Canadian electorate's control over its government.

The notwithstanding clause allows a government to override a ruling by the Supreme Court to strike down a law that it had previously passed. But the Prime Minister does not have free reign to invoke the clause by himself; he requires the support of the majority of Parliament. Compare this to the Prime Minister's judicial appointments, which requires no such scrutiny. The notwithstanding clause is therefore important because it gives Parliament, the elected voice of the Canadian people, some oversight over the unelected judiciary.

It is starting to look like "Mr. Dithers" is becoming an outdated nickname for Paul Martin. How about "Mr. Seat-of-the-Pants" instead?

Addendum, January 10th
The notwithstanding clause would perhaps outgrow its usefulness if the judicial process was updated so that judicial nominees required the support of a large majority (e.g. 66%) of Parliament. Requiring a broad consensus for any nomination would help ensure that court nominees are not politicized and would thus limit the need for any further Parliamentary oversight of the judiciary in the form of a notwithstanding clause. Barring that reform, my criticism stands.