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A Moral, But Not Constitutional, Obligation to Hold a Referendum

The Huffington Post The Huffington Post 4/01/2016 Richard Albert
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The Liberal government made a bold campaign pledge to reform the country's first-past-the-post electoral system, an antiquated set of rules used in a declining number of parliamentary democracies around the world. Now, with its surprising majority in the House of Commons, the Liberal government confronts a question that even its most enthusiastic supporters did not expect the Party would have to answer when it made its pledge earlier this summer: should Canadians vote in a referendum to approve the new electoral system, whatever it might be?

The short answer is yes. But the Liberal government does not have a constitutional obligation to consult Canadians before changing the electoral system. It does have a moral one, though. It is a happy obligation, however, because it brings with it an opportunity to finally give Canadians our long overdue democratic moment.

First, why no constitutional obligation? Canada's founding constitution tells us that we possess "a constitution similar in principle to that of the United Kingdom," a phrase the Supreme Court of Canada has interpreted to incorporate constitutional principles and conventions sourced in the United Kingdom. One of those conventions governs the way we elect our Members of Parliament: the candidate who earns the most votes in a riding, and not necessarily a majority, wins the contest. In a tight race, a candidate could well win with 30 percent of the vote, or even lower, as one candidate did in October with only 28.5 percent of the vote.

We inherited this tradition from the British, who continue to use the first-past-the-post system. It is precisely because changing our electoral system would give us a constitution no longer "similar in principle" to the United Kingdom's own that it would be a momentous constitutional change.

None of the intricate rules of constitutional amendment in the Constitution of Canada makes any mention of a referendum. As a matter of constitutional law, the Liberal government could indeed introduce the new electoral system as an ordinary act of Parliament, just as the Conservative government did in 2007 to introduce fixed election dates.

But in this case the minimum is not enough. The Liberal government has a moral obligation to consult with Canadians despite there being no constitutional requirement for it to do so.

For one, few constitutional changes are more fundamental to democracy than the way we elect our representatives. Whether the changes ultimately proposed are big or small, the fact that they could be the first truly significant departure from our inherited traditions of electoral rules makes it appropriate to validate them with some similarly significant measure of popular approval.

We missed an important democratic moment in 1982. Federal and provincial elites negotiated and ratified the new constitution, leaving the people on the outside looking in. Then-prime minister Pierre Trudeau had wisely considered pushing for Canadians to approve the constitution in a referendum but in an act of statesmanship to salvage the deal he ultimately relented to provincial opposition against it.

Yet there is a recent precedent for consulting the people in constitutional change. In 1992, the government of the day sent the Charlottetown Accord to Canadians for their approval even though it was under no constitutional obligation to hold a referendum. In the aftermath of the failed 1987 Meech Lake Accord that had been written and agreed-to in secrecy, federal and provincial elites rightly thought it important to signal to Canadians that their views mattered, and they prudently sought their consent to the transformative changes proposed in the Accord. Canadians ultimately voted no in an extraordinary act of informed, deliberative and democratic self-government.

The Liberal government should follow the Charlottetown precedent to give Canadians the opportunity to finally approve a major constitutional reform, in this case one that is long overdue.

Though not legally necessary, a referendum on the new electoral system would align squarely with the spirit of the new government, which was elected on hopeful promises of openness, inclusion and greater participation in the hard work of making Canada even better.

Of course, a referendum comes with the risk of defeat. But so did the daring campaign of the Liberal Party--a campaign that was built on the possibilities of collective action. A referendum on the proposed electoral system makes sense as the next step for this new government to take.

Richard Albert, author of a forthcoming book on "The Democratic Values of Constitutional Amendment" (Oxford University Press), is a Visiting Associate Professor of Law and the Canadian Bicentennial Visiting Associate Professor of Political Science at Yale University. Twitter: @richardalbert. Email: richard.albert@yale.edu.

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