To codify or not to codify? That is the question!

Some readers might have noticed a debate going on in the pages of the The Weekend Australian and the letters page. The debate centres on whether we should codify the reserve powers of the Governor-General, as Quentin Bryce has suggested, or leave them to be unwritten (based on conventions and precedents).

In this article, I explain why we should codify the reserve powers, while noting that codification can be just as flexible as the unwritten convention. At the very minimum, I suggest that if we do not have codified powers, we at least put limits on the scope of such powers. I am not here to argue for a Republic or for a Constitutional monarchy; rather, I am commenting on the strengths and alleged deficiencies of codification.

First, what are reserve powers? Reserve powers are powers that the constitutional Head of State can exercise without anyone’s consent. This includes appointing or dismissing the Prime Minister and his Cabinet or dissolving Parliament for an election.

No codification!

Proponents of an unwritten constitution argue codifying the reserve powers is an impossible and even pointless task. David Flint argues codification is inflexible as one can never know the possible scope the reserve powers which are required. Christopher Pearson also quotes Gareth Evans that codifying all the powers would be “a task of Hercules”.

These arguments are spurious. Reserve powers are not difficult to articulate. Most constitutional-law textbooks have done it. Even Wikipedia has done it. Several countries have successfully codified the powers of their Governor-General (GG) and their President in their Constitutions.

Let us examine the Constitutions of both Jamaica (which is a part of Her Majesty’s own realm) and Trinidad and Tobago (a Republic). Both these documents reveal that one can codify the GG’s or President’s reserve powers in a few pages. Both systems start with a simple premise that the constitutional Head of State should consult and be informed by the Prime Minister of the day. The Jamaican Constitution stipulates that when appointing the Leader of the Opposition and then the Prime Minister:

The [GG] ... shall appoint the member of the House of Representatives who ... is best able to command the confidence of a majority of members of the House and shall, acting in accordance with the advice of the Prime Minister, appoint Ministers.

Both constitutions discuss how the PM ought to be appointed even under a multi-party system in the House of Representatives. Nevertheless, this clause alone is broad enough to cover the 1926 King-Byng Affair. Here, the Canadian GG needed to make a “workable government” when the “Progressive party”, once a coalition with the Liberal government of the day, turned against the government and joined the Conservative opposition. Arthur Meighen, leader of the Conservatives, was appointed PM as he could “command the confidence of a majority of Members in the House”. The clause is also broad enough to deal with Leadership challenges and hung parliaments.

Interestingly, both Constitutions include a constitutional convention known as the “caretaker convention”:

If occasion arises for making an appointment while Parliament is dissolved, a person who was a member of either House immediately BEFORE the dissolution may be appointed Prime Minister ...

And include the provision:

Accepting or rejecting the advice of the Prime Minister, [the GG or President] may at any time prorogue or dissolve one or both Houses of Parliament.

Both clauses are broad enough to deal with the corrupt Jack Lang and the 1975 the 1975 Constitution crisis (by appointing Fraser as caretaker Prime Minister so he can order his party members in the Senate to pass the budget before the GG dissolved both Houses of Parliament). Both these Constitutions were written before, or around, 1975 and yet were able to deal with the “unforeseeable” crisis. Indeed, conveniently, the Jamaican Constitution even contains a provision which says the Senate shall not block a budget bill for more than one month, meaning under their Constitution our 1975 Constitutional crisis would never have occurred!

These clauses are also broad enough to deal with the 1977 Fijian Constitutional crisis (where a caretaker Prime Minister was appointed to appease a potentially violent minority) as well as the 1984 New Zealand Constitutional crisis (as the GG would appoint the PM “as soon as practicable” after any election results to deal with a pending financial crisis).

Trinidad’s and Jamaica’s Constitution even states the GG’s or President’s power during a state of emergency and what would happen following a motion of no confidence:

Where the House of Representatives ... [declares] that it has no confidence in the Prime Minister and the Prime Minister does not within seven days of the passing of such resolution either resign or advise the president to dissolve Parliament, the President shall revoke the appointment of the Prime Minister.

There are more codified conventions. You can read them yourself. My point is both these Constitutions cover all your typical and esoteric political escapades.

Of course, critics of codification would argue (1) you cannot codify the reserve powers and scope of application and (2) written conventions are subject to legal scrutiny, prolonging a Constitutional crisis.

Both these arguments are painfully misleading.

The first argument ignores the fact that the existence and scope of reserve powers were settled way back in 1689. The Crown cannot create any new reserve powers or prerogatives: Burmah Oil Co Ltd v Lord Advocate. For the last three or more centuries the monarch has had exactly the same reserve powers, plus or minus the prerogatives Parliament or courts delegated to other official bodies. Therefore, the issue here is not really what these ancient reserve powers are. Rather, the issue is the limitless scope which the monarch’s, and by extension GG’s, power can be applied: for instance, the GG sacking Cabinet due to their policy decisions or Parliament extinguishing the GGs reserve powers for some sinister purpose (as statue, if it makes its intention clear enough, can rob the GG of his or her executive powers: Barton v Commonwealth).

Codification would not have these disadvantages. First, even though unlikely to happen here, Jamaican Parliament, unlike ours cannot extinguish the GGs reserve powers during a state of emergency and hand them over to a dictatorial Prime Minister by a simple act of Parliament (unless the High Court, supposing it is not stacked by the PMs "allies", finds a provision which says elections must always occur every few years). Unlike common law reserve powers, constitutional reserve powers overrides statue. Second, as we saw with Jamaica and Trinidad and Tobago codified powers have an extremely broad application i.e. their codified conventions cover all the contingencies needed for the PM to “command control” of the House of Representatives minus arbitrary Prime Ministerial appointments. Finally, reserve powers are applied and evolve just like now.

The second argument is also flawed. First, I doubt it would take long to resolve whether a reserve power has been exercised appropriately. The history of Jamaica reveals, given the broad and crystal clear nature of the codified powers, any judgment on the use of reserve powers would be instantaneous and in favour of the person exercising them. Second, the High Court (or perhaps, a Constitutional court) could, prior to the exercise of any reserve powers, declare these are perfectly constitutional; thus rendering the issue not subject to legal review after the power is exercised. After all, Kerr did have the advice of Chief Justice Garfield in exercising his reserve powers. Third, it is absolutely silly for the High Court, as constitutional guard dog, to lie idle as a constitutional crisis unfolds. It is their job to clarify constitutional disputes!

History also falsifies Flint’s assertion that unwritten constitutions are more flexible than codified Constitutions. A codified constitution would have probably avoided the 1991 Papuan New Guinea constitutional crisis if the constitution stated “the GG shall dismiss any Minister declared guilty for any stated misdemeanour by Parliament or any Corruption Tribunal no more than a week after such a declaration is made”.

The Papuan GG, Vincent Eri, did not want to dismiss the countries Deputy Prime Minister for the 81 charges of corruption he was found guilty of because they were “good friends”. It took five months for this crisis to be resolved. The GG ultimately resigned. Convention failed. If, however, the provision was codified, and catalogued as a non-discretionary power or obligation, the High Court would make sure the law was instantly enforced perhaps within the same fortnight the commission declared the deputy PM corrupt.

Here, codification would have created Constitutional clarity and precision without losing the scope at which the powers could have been applied. For geographic reasons, codification might even state that in times like these the High Court or a two-majority Parliament, not the Queen, should dismiss the GG who fails such a simple Constitutional obligation.

Clearly, codification does more than signpost the broad options available to the GG to resolve a crisis and ensures executive accountability. Rather, it can cope with “unforseen scenarios” just as efficiently, if not more so, than as unwritten convention.

Political systems like ours have already done what Professor Flint said was “impossible”: they have articulated in a lucid format the powers of the GG. As for Christopher Pearson, he should be reminded that Hercules was able to complete all his labours. Codification is hardly a task of Hercules, especially considering all the labour has already been done for us.

Why should we codify?

Proponents of codifying the GGs powers argue even if the system “ain’t broken” (yet) that doesn’t mean it “can’t be broken”. Some would point to 1975, where several conventions were indeed broken. Convention dictated that the Senate should not block a money bill or the GG should not dismiss a PM who has confidence in the House. As noted above, under the Jamaican Constitution the Whitlam dismissal would have been dealt with the caretaker convention or simply would never have happened.

David Flint also overlooks that with evolution often comes a (near) revolution. Unlimited reserve powers can be abused.

First, William V dismissed the Whig PM of the day because the PM wanted to give power to Parliament rather than him, the King. In 1913 George V wanted extend this power to sack the PM of the day as conservative members of Parliament advised him to do so. There was no crisis. The conservatives wanted to win an election. A dismissal would give them an incredible election advantage. Luckily for that PM, World War I broke out. The dismissal forms were prepared but not signed. In Australia, imagine what would have happened our GG sacked the PM and acted below and not above politics! Codification would have occurred instantly.

Interestingly, the 1977 referendum hinted at codification when it declared that a deceased Senator would be replaced with a person of the same political party as the deceased member. This was a direct response to the 1975 dismissal, where a Senator who had the balance of power was replaced with a person of a different political persuasion.

Even when King Christian X of Denmark, perhaps deservingly, dismissed his entire Cabinet in 1920 because he disagreed with their policy decisions the result was instant codification. The end of the King’s power to dismiss his or her Cabinet. That’s what you get for not being above politics.

Think what you may about codification, codification is an inevitable part of this country’s future if not by our own initiative, retrospectively after another constitutional crisis.

Nevertheless, the purpose of codification is to prevent, rather than await future Constitutional crises and deal with them reasonably and transparently if and when they occur.

Conclusion

The advantages of codification far outweigh the disadvantages (if there are any). Codification would identify the precise, but extremely broad, powers of the GG In fact, codification can be equally, if not more, flexible than unwritten convention while keeping a tab on abuses of executive power, like arbitrary politically motivated dismissals. It would promote the rule of law, not the rule of men. Nevertheless, instead of codifying powers, I advise that, at the very least, we place limits on where and when reserve powers can be applied and for what reasons. After all, if in the unlikely event the GG abuses these reserve powers; that would be a one-way ticket to codification. Why risk it?