Paul Martin has yet to prove he's our prime minister

Is Paul Martin the prime minister? The question might seem absurd; it says he is on government websites and if you pick up the newspaper it will say "Prime Minister Paul Martin" (or, in the National Post, "Paul Martin, the Prime Minister"). And I have no doubt he was prime minister prior to June 28 and for some time thereafter. But it is increasingly in doubt. It may seem that the purpose of modern Canadian elections is to give supreme executive power in the form of the prime ministership to a particular individual and that Parliament has atrophied into a functional equivalent of the U.S. electoral college. But it is not so. The prime minister is not whoever got the most votes in the last election, or the leader of the party that elected the most MPs. It is whoever can reliably control Parliament. If anyone can.

A country must have a government; hence the medieval cry ,"The king is dead. Long live the king." But our constitution knows nothing of the post of prime minister. Formal executive power resides in the Crown; the Privy Council is Her Majesty's, not Mr. Martin's. And our democracy was achieved not by the drastic American choice to elect the head of state but by the subtle development of a requirement that the Queen select as her "first minister" whoever dependably commands the allegiance of the Commons, that is, can routinely bring money bills to a vote and get them passed.

In a moment of grave crisis, with the cabinet dead or otherwise unable to act, the Governor General would unquestionably possess moral as well as legal authority to direct the defence of the nation and the restoration of order, but only with the clear purpose of returning effective control of public affairs to the people's representatives as quickly as possible. And in settled times, we must always have a prime minister. So when a Parliament is dissolved we retain whoever commanded a majority in that Parliament not only until an election is held but until a new cabinet is sworn in. In this caretaking capacity, he or she would obviously possess full legal and moral authority to act decisively if, say, the nation were suddenly attacked, but not to act of his or her own accord to undertake major initiatives. That right depends upon demonstrated control of Parliament.

Which brings me to Mr. Martin. Liberals do not possess a divine right to rule that the populace are gracefully permitted to endorse pro forma. Rather, he was prime minister prior to June 28 because he did command a majority in Parliament and afterwards as a caretaker until the new cabinet was sworn in. He was then the new prime minister but, given the complexion of Parliament, only provisionally. He seemed most likely to be able to command a majority in the new Parliament on money bills. But he has to do so, and the longer he waits the less authority he holds.

On routine matters it diminishes slowly. But regarding new initiatives, from missile defence to appointing Supreme Court justices with the consent of a parliamentary committee (or on the basis of aboriginal or for that matter Scottish ancestry) or indeed filling the two existing vacancies the old way, he has no authority unless and until he successfully meets the House. Sir John A. Macdonald waited a record 264 days in 1882, but as he had a comfortable majority there was no question of his ability to do so and he governed with full legal and moral authority. It was quite a different matter when Charles J. Clark waited 127 days to meet a House he then proved ignominiously unable to master.

An advantage of our apparently somewhat baroque political system is that, should Mr. Martin attempt to govern as if he had met the House when he has not, the legally formidable but morally and practically limited power of the Crown would suddenly become formidable in these dimensions as well. As early as 1784, A.V. Dicey noted, the English king was able to dismiss a prime minister who did enjoy the confidence of the House because, but only because, he disputed that the House itself commanded the confidence of the nation. (An election vindicated his judgment in 1784, but not in 1834, in both cases conclusively.) But it is a potential weakness of our system that nowadays, in practice, the prime minister appoints the Governor General and the Governor General appoints the prime minister. And lately, as political philosophy and public morality decay in Canada, many potential weaknesses in our system have become real.

So we face an important test here. Unless Mr. Martin can win money votes in the Commons he is not prime minister and the Governor General should not let him act like one.

[First published in the Ottawa Citizen]