guest blogger: matthew furlong

another piece by matthew furlong:

"A few days ago I wrote a piece called “Why you should care about the 2010 prorogation of Parliament”. I want to pick up on a point I made and unfold it further, because I think it’s at the heart of what’s occurring right now, and because it reveals the true seriousness of current events.

The claim I made then was that the current controversy is fundamentally about sovereignty, and that, within a political system, sovereign power is defined by who is in a position to decide on policy. At the time, I didn’t make that claim strong enough. I’ve gone back and amended the piece in order to connect it more strongly to what’s about to follow, but what I didn’t say then was that, fundamentally, sovereignty refers to the power to institute, preserve, suspend, or destroy the constitution itself. This aspect of sovereignty has everything to do with what’s going on right now, and understanding it will help us understand what it means to say that Prime Minister Harper has fomented a constitutional crisis.

The concept and practical reality of sovereignty has a rich history that we should pick up by thinking about monarchical rule. Under the rule of a monarch, whether or not a law remains in force depends on the king’s command. Today, we are reminded of this power when we hear that someone has been remanded to custody at “Her Majesty’s leisure”. If we go back to earlier times and consider famous kings, queens, princes, lords, and so on, we have no trouble finding scenarios in which the question of whether or not a monarch’s subjects can expect to live under consistently applied policies and rules depends on, precisely “His/Her Majesty’s leisure”.

The difference between that and the kind of political society that we live in today is that the rule of law is founded on a decision called the “social contract,” in which a social body comes together and agrees to institute a political order. The decision doesn’t belong to any one person, but to a constantly changing group of people. So the maintenance of the decision is embodied in a symbolic entity that replaces the monarch. In Canada, the Crown remains in place, represented by the Governor General, to symbolize the social contract and to guarantee our political order. Supreme executive power concerning the state of the constitution rests there. And, as such, the seat of sovereign power rests outside of the confines of the constitution, since it can’t be displaced from within the constitution itself, that is to say, according to any of the statutes currently in place. Only an appeal to the Crown itself could transfer sovereign power to, for example, Parliament itself. In other words, the Crown is the entity that contains and maintains the force of law itself in our political order. In the United States of America, the Constitution is meant to play that role; our constitution differs from it in that way.

But the point is this: the source of constitutional legitimacy doesn’t exist entirely inside a political order like ours. And now, Prime Minister Harper has politicized the Governor General by using prorogation politically, to directly disrupt the workings of our political institutions. In doing so, he’s created a situation in which the Governor General has effectively become an arm of the PMO, and has collapsed the distance between the PMO and the Crown, which is to say sovereign power, itself. In other words, the PMO now exists outside of the constitution; it has not only extra-parliamentary but also extra-constitutional power. This is one sense in which Harper has provoked a constitutional crisis.

Another way that we’re currently going through a crisis can be considered according to the question of whether or not this prorogation is constitutional. Critics of the anti-prorogation movement have argued that it is constitutional, because no laws were broken. And that’s true, but as long as we keep circling around that debate we’re missing the target. The correct answer is that we’re now at a place where the question of constitutionality can’t be answered affirmatively or negatively. This prorogation hasn’t broken any statutes, but because it’s been used to suspend constitutionally routine procedures, it’s put the constitution itself into question. So far, nobody in this debate has emerged to show any provisions that give us a way to deal with this situation; the constitution itself doesn’t cover it. We’re in a place where the next move is a dice-throw no matter what we do; it’s a pure decision. And that qualifies this situation as a crisis.

That brings us to an interesting and crucial point: I said above that decision in a political order, ultimately, is a function of sovereignty. And decision on the constitution itself is always a crisis moment, where the outcome is uncertain and not guaranteed by any statutes. That means that sovereignty and crisis are always bound together, and whoever wields sovereign power has the authority to foment crisis. What we’re embroiled in now is a struggle over that relationship.

This is why I think we need peaceable but forceful demonstration right now; if there was ever a time to care, this is it. We’re still in a position to get a lid on this institutionally, before institutional access is severed and we get into deeper and deeper games of brinksmanship between whatever government happens to occupy the PMO and the citizens of this country. I don’t really want to get into espousing values here because I want to insist on the importance of the institutional perspective. But let me just indicate a few possibilities. If your worst fear is fiscal irresponsibility, you should be concerned about a PMO that can bankrupt the country without any effective control apparatuses to rein it in. If you’re concerned about civil liberties, you should be equally concerned about the possibility of a social project being pushed through legislation in the same circumstances. That’s why this is really a non-partisan issue, because this power is available to whichever party acquires the PMO. That’s why this is so serious: right now, we're at a point where the position of Prime Minister is at risk of transforming into a figure that's more like a monarch.

I’ve noticed a lot of the sneering going on involves some shaming tactics; for instance, I’m seeing statements that go a little like this: “How dare you be so ungrateful and whiny, look at what those people in Iran are going through,” and so on. The Iran example is actually great, because in truth it’s an absolute affront to what they’re fighting for to not close this down right now, while it’s institutionally within our grasp. Iranians have been caught up in that struggle for as long as I’ve been alive; after all this time, people are still willing to go out in the hundreds of thousands and bleed and die to push back against an oppressive regime, whether it’s a monarchy or a theocracy that emerged out of associations forged in the revolutionary struggle of the late 1970s. Given the effort that they’re willing to put in, we should be ashamed if we consent to let this slip away while it’s still within our grasp. That’s why I’m going to be marching on January the 23rd. If we don’t do this now, there’s no telling what kind of social unrest we risk bequeathing to our children.

We need to pressure Prime Minister Harper into rescinding the prorogation, and we need to convince every single MP or Parliamentary hopeful that they have to implement constitutional reform if they ever want to see another vote. We’ll always have to face new dangers, but I believe that this is appropriate today.