Thursday, August 02, 2007

Saskatchewan

I am, I know, the last person "on the draw" on this one, but the government of Saskatchewan has announced its intentions to take Prime Minister Harper's government to court over what it sees as a broken election promise to exclude non-renewable natural resources reveneue from the federal equalizataion formula. This decision seems, at least in part, in response to the Prime Minister's goading of recalcitrant premiers who argued that Harper had broken election promises made to at least some "have not" provinces with regard to the way in which federal equalization grants to provinces were to be calculated. In my neck of the woods, most attention has been directed to the "Atlantic Accord" and whether or not the new equalization formula breaks with the letter or the spirit of the accord. Far more interesting, in my view, is Saskatchewan's decision to go to court. Nova Scotia and Newfoundland have followed tried and true methods of provincial protest with the federal union: calling in regional government MPs to vote against the budget, use of media, etc. The courts have, of course, been used by provinces in the past (the Clarity Bill, Patriation) and clearly these instances expressed -- in some measure and in combination with other things -- degrees of provincial protest. I could be wrong -- and someone can please correct me if I am -- but to the best of my knowledge Saskatchewan in making an innovative use of the courts. Rather than challenging federal jurisdictional authority (a traditional use of the courts), Saskatchewan is taking the Conservative government to court over what it sees as a broken promise.



There might be some temptation to view Saskatchewan's action as political grandstanding. I have, in fact, little doubt that there is some measure of that in its government's decision. What is interesting about Saskatchewan's court challenge, however, is not the degree to which this is grandstanding, but what it might signify about electoral politics. Partisan politics to one side, one could argue that the Saskatchewan court challenge represents an effort to hold a government accountable for election promises. Canadians frequently complain about broken promises and we know that there is a great deal of popular distrust of "politicians" "out there." What the government of Saskatchewan is, in effect, saying is that a particular political party and leader made a promise in order to win an election. That promise contributed to their win and they are not bound to honour it. The promise has, in effect, the status of a law that that political party imposed on itself (as it were). If this case is successful -- and, I don't expect it to be -- it could help create a very powerful tool to force political parties and leaders to honour commitments they made in the election process. Broken promises could not be subject to legal action.



I hasten to add that I am not suggesting that every single promise is somehow the equivalent of a commandment. There are good reasons why a government might not honour a particular promise. For instance, I would accept a "the cupboard is bare"-type of argument as a reason to delay or revise an election promise. Opposition parties that win elections often discover that the public budget is in a lot worse shape than the former governing party let on. Because I'm no fan of Liberals, I'll use them as an example just to be fair. Dalton McGinty's Liberals in Ontario discovered that the provincial budget was in much worse shape than the former government had let on when they assumed power. In effect, their promises were based on someone else's deception and I don't think a party or a leader can be held accountable for someone else's deception. I know all new governing parties tend to claim the budget is in worse shape than they anticipated but the fact that some leaders might exaggerate this claim does not mean that the basic principle lacks legitimacy.



A political party might also discover upon assuming office that a promise they had made is not longer "on the table" because the context has change. For instance, a promise made to re-make Canadian foreign policy might need to be re-thought if the international situation changed. It seems to me that an effective and honest government would need to take the context of policy into account. A coup in another country, a new war, a natural disaster (requiring higher levels of emergency relief be directed somewhere), could all be legitimate reaons to reconsider promises. And, they are good reasons and there are undoubtedly others.



Finally, a new government or leader might discover that a promise they had made runs against the grain of the public good. In this case -- and while some people might not like it -- keeping the promise for the sake of keeping that promise would be tantamount to putting political good ahead of public good. In that case, the best the new government could do would be to apologize for its error, explain it, describe their new course of action and trust to Canadians as thinking and reasonable people to understand. The Harper government's slow backtrack away from any serious reconsideration of gay equality in Canada is a case in point. It is simply against Canada's national interest to promote inequality for some of its citizens. Harper would not put it in those words but my bet is that if he did, most Canadians would accept what he said.



What is interesting about the Saskatchewan case is that none of these possible reasons to break a promise apply. The federal treasury is not bare. In fact, it has more in it than the Conservatives thought was there. The context has not changed and it would be difficult to argue that honouring this election promise to Saskatchewan was somehow destructive of the public interest. I can understand why Harper's government does not want to honour this promise. They are afraid (as Paul Martin's government discovered) of a provincial run on federal resources: if we meet Saskatchewan's demands ... what about Ontario's? BC's? etc. Yet, this is a "might be" rationale. In effect, this rationale states: we will not keep our promise to you because someone else might ask for something else. It is shaky logic.



The final argument that can be used against legal sanction employed to force governments to keep election promises is the "you can always vote them out" argument. This is the standard government-in-power argument. There is something to recommend this argument but I think it falls short of the mark in a couple of respects. First elections are not fought on single issues. The approach taken by the government of Saskatchewan provides a means to address a single issue. Second, and perhaps more importantly, the "you can always vote them out" argument deploys an after the fact logic. Using the Saskatchewan case as an example, one could argue that Conservatives made a promise and obtained the reward on the basis of a that promise. They won seats because of it (or, at least let's assume this for the sake of argument). Having already obtained their reward on the basis of a particular promise, voting someone out of office several years down the road after they have already benefitted from a broken promise does not seem right. Governments must be accountable. Retrospective accountability can be useful but it also has its drawbacks.



Consider the issue of a contract by way of comparison. If I promised to mow someone's lawn for $10.00 and they pay me the $10.00 and I then refuse to mow their law, I'm in breach of contract. I have already benefitted from my promise. If we follow the "you can vote them out later" argument, the person I have cheated of $10.00 (owing to my broken promise) has only the recourse of not hiring me the next time their lawn needs to be mowed. Legally, they should -- and do! -- have the right to get their $10.00 back if I fail to fulfill my promise. Should voters have any less of an option?



Finally, it is also possible that holding governments legally accountable for promises could restore some measure of faith in "the system." Voters could know that they have recourse other than waiting for the next election which might be fought on other issues. In addition, knowing that they can be held legally accountable could stop some of the wilder promises made by parties during elections and force them to think about and speak to what they can and will actually do.



None of this is to say that such a measure should be flippantly used or implemented. I have tried to argue that there can be good reasons why a particular government might not be able to fulfill a promise made during an election. Public finances, considerations public good, shifting contexts, and perhaps other matters can all make it impossible for a government to fulfill a promise. In that instance, the government should still have to explain why it has not fulfilled its promise. Some form of formal proceeding might make that communication clearer. It does not mean that a government will have to act against the public good or recklessly fulfill a promise that is not longer consistent with the context in which they govern. What it could do is open up a form of dialogue between governments and citizens in which such matters are subjected to reasoned discussed and evidence. I am not, therefore, saying that any old person should launch a law suit for any old reason (such a situation would almost certainly be open, as well, to partisan abuse).



What I am saying is that if different tests are met (public good, financial capacity, context), I see no reason why governments should not be held to account. I am. The legal process may not be the best place to do that but, in a democracy, it is one site where it can be done. We should not dismiss he possibility of holding governments to account through this mechanism out of hand. The Saskatchewan challenge provides an opportunity to debate this issue. Collectively, we should do so.
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