Tuesday, January 10, 2006

The notwithstanding clause gamble

Prime Minister Martin Proposes Constitutional Amendment to End Federal Ability to Invoke Notwithstanding Clause

I pundit that Martin's notwithstanding idea backfired. Listening to CKNW this morning, it was clear that it wasn't a popular idea. I did not hear one person come out and outright support it. In fact, many undecided voters swung to the Tories over it. It is surely a wedge issue. A wedge issue that backfired I reckon. People saw it for what it was - a desperate "hail mary" as I (and Peter Mansbridge) had called it.

There are conflicting ideas about how this would work.

1. Andrew Coyne suggests this: "In fact, I've argued for much the same thing: let the federal government formally forswear its use, and challenge the provinces to do likewise -- by moral example, rather than constitutional amendment"

What is the point? You can invoke s.33 of the Charter by majority vote, and easily overturn the formal forswearing with a simple vote. Both carry political consequences - what makes anyone think that a formal forswearing will add much to the weight? The fact is, such an act is not entrenched. It would be like asking future governments to ensure a formal act that the Prime Minister appoint elected senators. It is useless.

2. Official Liberal plan:
“I would like to ask Mr. Harper if he would join with me in supporting a constitutional amendment to remove the federal government's ability to use the notwithstanding to overturn the Supreme Court of Canada and take away Charter rights,” the Prime Minister said."

The provinces would still have to agree to this. They won't. The Liberals can say this all they want: "The Prime Minister’s proposal would amend the clause to deny Parliament this power while leaving the ability of provincial legislatures to invoke the clause unaffected." But amending the Charter still requires provincial support. I can't see them being impressed.

Further, even die-hard Martiniac partisan Jason Cherniak doesn't like it. Talk about abandoning your bread and butter base.

UPDATE - Monte Solberg's take on the notwithstanding ban:

I think Paul thought that the notwithstanding thing was supposed to be the big Hail Mary pass but instead of throwing it into the end zone he threw it into the concession stand. Didn't he say he would use it to protect religious freedom if the Supremes went ga ga. So which way is it Paul?

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