Subzwari: Senate Reform – A Constitutional Crisis Looming

By Adnan Subzwari

Now armed with a majority government, Prime Minister Stephen Harper has vowed to enforce the reforms that his party has been calling for years. One of these reforms pertains to the Senate. The Conservatives firmly believe that the Senate should be instilled with what they call the three E’s: Equal, Elected, and Effective. But while the idea of a reformed and elected Senate certainly is appetizing, there could potentially be some serious constitutional ramifications to a major shake-up of the Senate.

First, the reforms will be shaking the very foundations on which our system of government is based. Our system is based on the Westminster model, one that heavily relies on slow and gradual progress. The institutions that we have in place gradually evolved through centuries in the United Kingdom and continued to evolve in their own unique way within Canada. One part of this evolution has been the understanding that the Senate should always take a back seat to the House of Commons. The evolution of this understanding may have arisen from the idea of democratic legitimacy, which stipulates that only those who are elected by the people in free and fair elections should have the right to legislate laws.

But what if the Senate were to suddenly become an elected body, as the Conservatives propose? If that were to be the case, then the Senate would have the same democratic legitimacy as the House of Commons. One cannot seriously believe that Senators would be willing to take a backseat in government once they can proudly proclaim that the people have also elected them. The consequence will be that they will be more willing and able to meddle in government business and challenge the will of the House of Commons. A scenario without precedence may appear where there may be a sustained struggle between the lower and upper house as each part tries to stake out its powers, always preferring to have more than the other. A whole series of new rights, responsibilities, and conventions will have to be drafted to satisfy the two competing houses. If we are to learn anything from the partisan wrangling that occurs on even the most trivial issues in Parliament, a redrafting of parliamentary powers cannot be expected to be convivial, taking away precious time from things of more pressing importance.  The argument against this prediction is that Senators may be informed in advance of their election that they will be restricted to the established parliamentary conventions and are not to challenge it. But then why get elected to the Senate? If a person is going to spend many months and many thousands of dollars to run a campaign for a Senate election, then that person will want it to mean something.

Having an equal Senate is also bound to bring up quite obvious problems. As part of the evolution of the Westminster system in Canada, regional sensitivities have ended up taking quite a firm hold in most political institutions. The appointment of Supreme Court judges and cabinet ministers are always conducted with regional representation in mind. The Senate was designed to specifically cater to this sensitivity. I agree that the supposed regional representation it provides is a joke, a façade. However, the fact that there is a federal institution specifically designed for regions does give some formal legitimacy to the issue of regional representation. Calling for an equal Senate would completely undermine this and degrade regional representation to mere conventions, which can be changed or altered per the Prime Minister’s wishes.

But while the Conservative plan for reform is anything but robust, the opposition parties have hardly come up with any useful alternatives. The New Democratic proposal to abolish the Senate is either a blatantly partisan move to entice voters or a policy of sheer constitutional ignorance. Abolishing the Senate is going to require major constitutional amendments. In all probability a constitutional accord will have to be held once again, which is not at all desirable and may leave Canada even more divided; previous constitutional accords have shown how damaging they can be and if politicians have any sense they would do well to stay away from it until absolutely necessary.

The Liberals have also not arrived at a firm policy on the Senate. For the most part they have focused on trying to maintain the status quo. While it certainly would be the rational thing to do, I understand that this is not politically feasible anymore. The Senate has fallen far from the hearts of most Canadians and leaving it as a graveyard of partisan deadweights will damage it even further. A change will have to be brought.

Some within the Liberal Party have suggested that the Senate be returned to how it was originally founded. Sir John A MacDonald had filled his first Senate with respected figures from society, including well-reputed doctors, lawyers, and academics. It is indeed from those appointments that the term “chamber of sober second thought” emerged. At some point blatant partisanship infected the Senate and reduced it to what it is today. A reform based on returning to the appointment of well-respected people rather than partisan carcasses would certainly be the best form of change since it would not require any constitutional amendments but simply a change in attitude. But whether the Liberal Party, or any other party, is capable of suspending partisanship in that department remains to be seen.

Needless to say, Stephen Harper has done more than any other Prime Minister to try and undermine the Senate by appointing the most questionable candidates, probably with a goal of undermining the house enough to convince more Canadians that the Senate needs to be injected with the three E’s. But the serious constitutional ramifications of these major changes must be kept in mind as the government embarks on their reforms. The rational thing, or dare I say, the responsible thing to do would be to leave the Senate as it is for the time being and perhaps focus on raising the rhetoric within the chamber to try and placate Canadians that their tax dollars are not being wasted. But to enforce a major shake up of the senate will open foreseeable and unforeseeable constitutional issues that will do more harm than good. The problem of the Senate is great and not something that can be solved overnight, but sometimes the best remedy for a nagging problem is to just leave it alone.