Good afternoon, colleagues, and welcome. May I ask you to take your seats.
It is a pleasure to see you again after our approximately two-week break. As you know, we are starting a phase in our work that will be a little more intense. We are going to have four sessions this week. Next week, we will continue with four sessions with witnesses present. Thereafter, around the middle of September, we will travel across the country for three weeks so that we can consult with Canadians where they live.
I would like to welcome Mr. Dubé, who joins us for the first time, and Mr. Ste-Marie, with whom, I believe, Mr. Thériault will be sharing his time in the period set aside for questions.
Today we have two esteemed witnesses: Professor Arend Lijphart, who is joining us from San Diego via video conference; and Professor Benoît Pelletier,
who, of course is well known both in Canada and in Quebec.
We will start with Professor Lijphart, but first, let me give you some details about himself, his work, and his interests in the context of his university work.
Professor Lijphart is a political scientist specializing in comparative politics, elections and voting systems, democratic institutions, and ethnicity in politics. He holds a Ph.D. in political science from Yale University and is currently research professor emeritus of political science at the University of California, San Diego.
Dr. Lijphart served as president of the American Political Science Association from 1993 to 1996, and in 1999 published his well-known book, Patterns of Democracy. Dr. Lijphart has won many notable awards in the field of political science and holds honorary doctorates from a number of universities, including Leiden University, Queen's University Belfast, and Ghent University, in addition to being an honorary fellow of Coventry University.
Professor, as a witness, you will have 20 minutes to present to us, and then we'll go to Professor Pelletier for 20 minutes. We'll then have two rounds of questions. Each member gets to ask one question in each round, and the question and answer period for each member lasts five minutes, including the answer. The question and answer have to fit into five minutes.
Without further ado, the floor is yours, professor. Thank you for being here via video conference.
Thank you very much, Mr. Chairman. I appreciate being here.
I am speaking from San Francisco rather than San Diego, but I don't think that makes any difference to you. It is far away from Ottawa, and I very much appreciate, Mr. Chairman, being able to speak by teleconference to your committee. It is a great honour for me to be invited to speak to your committee.
I am happy to share with you my findings and conclusions about the advantages of proportional representation, or PR, and the kind of democracy it creates. On a personal note, I have to confess that when I was a graduate student and young instructor in the 1960s, many decades ago, I was an admirer of the British system of government and its electoral system of first past the post, or FPTP. I think that's also what that electoral system is called in Canada, and I will keep referring to it as FPTP.
I've gradually come to the conclusion that proportional representation, or PR, is the better option. This has also been the trend among political scientists generally. The empirical evidence is now overwhelmingly strong in support of this conclusion. PR is a crucial ingredient in what I have called “consensus democracy”, especially in combination with a parliamentary system of government. It tends to lead to a multi-party system, which in turn tends to lead to coalition cabinets, and also leads to parliaments that are stronger and cabinets that are less dominant than in majoritarian systems. In addition, it tends to be associated with a more co-operative system of interest groups.
Typical examples of consensus democracies are Switzerland, Germany, Finland, and also New Zealand after the introduction of PR in 1996. These characteristics are in contrast to those of majoritarian democracies like Great Britain and also New Zealand before it shifted to PR in 1996. These characteristics of majoritarianism include FPTP, two-party systems, one-party majority cabinets, cabinets that are dominant vis-à-vis their parliaments, and a more competitive interest group system. Consensus democracies aim to rule by broad consensus instead of narrow majorities.
Democracies do not all fit the two perfect models of majoritarian and consensus democracy. They fit on a continuum between the pure types. For instance, Canada is on the majoritarian side, but not in an extreme position. One reason is that Canada has occasionally had minority cabinets that deviated from the one-party majority ideal of majoritarian democracy.
I need to add three footnotes at this point.
One is that there is a second dimension of the difference between different types of democracy. The main contrast here is between unitary and centralized versus federal and decentralized systems. Canada is obviously an example of the latter. I don't need to say more on this subject because it is not related to the electoral system and, hence, not relevant to your discussions. In any case, I assume that Canada is not about to change its federal system.
Second, as I have already indicated, the advantages of PR depend a great deal on its combination with a parliamentary system of government. Canada is fortunate in already having a parliamentary system. Political scientists are virtually unanimous in their dislike of presidential government, which has many serious weaknesses. I assume that few Canadians favour the adoption of a federal system, and it is great that we do not have to worry about this particular issue.
Third is a quick comment on the term “consensus democracy”. It should not be interpreted to imply that it is a kind of democracy in countries that are highly consensual and homogeneous. Rather, PR and consensus democracy are suitable for any country, but especially for countries with religious, linguistic, and ethnic divisions in which consensus needs to be created. It is significant that PR was first adopted in the 1890s in countries like Belgium, with its deep religious and linguistic differences. Some of my political science colleagues have also called consensus democracy “negotiation democracy”, “compromise democracy”, “pacification democracy”, and “proportional democracy”. This last term is especially appropriate because it emphasizes the crucial role of PR.
For a long time the prevailing view was that PR might have slight advantages in terms of having more accurate political representation and more accurate and faithful minority representation, and that FPTP and one-party cabinets had a much greater advantage in terms of effective governments. One-party cabinets were said to be more decisive and capable of making both quicker decisions and more coherent policies than coalition cabinets. This looks like a logical argument, but it overlooks some logical counter-arguments. For one thing, as we all know, fast decisions are not necessarily wise decisions. Also, a great deal of coherence in policy is lost in the alternation between governments of the right and governments of the left, and then back again to governments of the right. This was the main reason why the famous British political scientist Samuel Finer, who had been a strong supporter of FPTP, changed his mind and advocated PR in an influential book published as early as 1975. Finally, policies supported by a broad consensus are more likely to be successful and to remain on course than policies made by a so-called decisive government against the wishes of important sectors of society.
Fortunately, we now have very good methods to settle these competing arguments, especially since reams of excellent data on effective government and the quality of democracy have become available since about the year 2000. I have relied on official government sources, international organizations like the United Nations and the Inter-Parliamentary Union; The Economist Intelligence Unit; and the Worldwide Governance Indicators project, led by experts at the World Bank and the Brookings Institution. The evidence shows that consensus democracy is superior to majoritarian democracy in terms of effective government and policy-making, and that it is vastly superior in terms of equality of democracy.
In order to emphasize how strong this evidence is, I'd like to make several points about the findings in my book, Patterns of Democracy, which was first published in 1999, and a second and updated edition that I published in 2012. It is the evidence from that 2012 edition of my book that I present here.
First, the 36 democracies that I compared in my book are not just a sample of democracies, but all of the democracies that satisfy the definition of continuous democracy for a period of at least 20 years, from 1990 to 2010, according to the widely used criteria of Freedom House.
Second, I test both effective government and democratic quality in terms of not just a few indicators, but a wide variety of indicators. For effective government, I look at performance with regard to such basic and obvious measures as economic growth, inflation, unemployment, and budget balance, and also the Worldwide Governance Indicator measures of government effectiveness, regulatory quality, the rule of law, and control of corruption. For measuring the quality of democracy, I look at voter turnout, women's representation in parliaments and cabinets, gender inequality, economic inequality, and survey responses with regard to satisfaction with democracy. I also look at the overall Democracy Index by the Economist Intelligence Unit, in addition to the separate categories that make up this index, like the quality of the electoral process, political participation, and civil liberties.
Third, I find positive correlations between consensus democracy and effective government with regard to 16 of my 17 indicators. They are so strong as to be statistically significant for nine of the measures. For democratic quality, I have 19 indicators, and without exception all of these show that consensus democracy works better. Moreover, all 19 correlations are very strong and statistically significant.
Fourth, a legitimate question is, could this good performance of consensus democracy be caused by other factors instead of by consensus democracy? There are in fact two such factors that affect both effective government and democratic quality. These are the level of economic development and population size. Richer countries tend to do better than less well-to-do countries, and small countries, that is, less populous countries, tend to do better than large countries. But these factors can be controlled for in the statistical analysis, and the results that I have reported already control for them. This means that the positive correlations remain strong even after the effects of economic development and population size have been taken into consideration.
Let me turn to three specific issues with regard to the possible introduction of PR in Canada. First, it is important that supporters of PR agree on the kind of PR they want to introduce. One sure way of wrecking the chance of PR is for its advocates to split into hostile camps with regard to which form of PR they prefer.
Second, which form of PR would be best? I am basically an agnostic on this subject. My native country of the Netherlands uses list PR, and I think it has worked quite well there for now almost a whole century. Most continental European countries also use list PR. But for Canada, it is probably best to follow the example of other mainly or partly English-speaking countries. That means either the MMP system or mixed-member proportional system introduced in New Zealand in the 1990s and also adopted by the legislative assemblies of Scotland and Wales; or as a second alternative, STV, a single transferrable vote, used in Ireland for, I guess, almost a whole century now, in Malta, and in Australia for its senate elections since 1949.
Third, make sure that the system is actually reasonably proportional and that it avoids too high a barrier for small parties. For MMP in New Zealand, the minimum threshold is 4%, which I consider reasonable. For STV, no formal threshold is needed because it uses relatively small election districts. In Ireland, the districts elect between three and five representatives each. In Malta, each district elects five members. In Australia, the six states serve as the principle election districts, and each elects six senators. Occasionally, when there is a so-called double dissolution, as happened recently, this number is increased to 12, but six is a reasonable number. Five five or six is indeed a reasonable number to adopt if one has STV.
Finally, let me address the question of whether PR is suitable for a country like Canada that is geographically very large and has a linguistically, ethnically, and religiously diverse population. The answer is certainly yes. In fact, as I have already emphasized, PR is especially appropriate for heterogeneous countries. How about Canada's large geographical size? Canada is unusual in this respect, but not unique. Australia is comparable, and Australia has used PR and senate elections since 1949. I do not see any logical reason either to believe that PR could not work well in a large country like Canada. Perhaps the most important fact to consider is that PR is the rule and FPTP the exception among contemporary democracies.
Of the 36 democracies in my book, there are four that are neither pure PR nor pure FPTP. The breakdown for the others is 10 FPTP versus 22 PR. This still exaggerates the use of FPTP, because six of the countries with FPTP are very small ones like the Bahamas, Barbados, and Botswana. There are some very small countries with PR too, of course, like Iceland, Luxembourg, and Malta. Excluding all of these tiny countries, the breakdown becomes four countries with FPTP, namely Canada, United States, United Kingdom, and India, versus 19 with PR. The breakdown is four with FPTP and 19 with PR.
However one counts it, PR has the clear majority. In addition, and finally, I think it is significant that in these four FPTP countries, there are important organizations that strongly advocate a shift to PR. In sharp contrast, there are no similar organizations advocating FPTP in any of the PR countries.
I thank you for your kind attention.
Thank you, Mr. Chair. My thanks to the members of the committee for inviting me to appear today.
I'll be speaking mainly in French today, but my first words will be in English.
I would like to point out the fact that I'm not an expert on electoral reform, although I have examined electoral reform from a constitutional perspective. What I have done is to try to see how far Parliament could go without a constitutional amendment with regards to electoral reform in Canada. My perspective is that of a constitutional expert on electoral reform, not that of an expert on electoral reform per se.
This said, I was minister for the reform of democratic institutions in Quebec from 2005 to 2008, and in particular from 2005 and 2007, when electoral reform was the most debated in Quebec.
I would like to mention the contribution at the time of one of your MPs—also a member of this committee—Luc Thériault, who was then the critic for the official opposition when I was on the other side of the National Assembly.
I have prepared a synopsis of my presentation, which I think has been distributed to you. I hope it has. I did it in both official languages. I will be making my presentation in French, but the English-speaking members of this committee will be able to follow most of my presentation through the English version of my synopsis.
Let me start the formal presentation.
Mr. Chair, for my analysis, I examined various constitutional provisions. I mention them here because those I am going to discuss are probably, in my opinion, the most significant constitutional provisions in determining the extent to which Canada can move to reform a method of voting without a constitutional amendment.
In the Constitution Act, 1867, the sections I examined include section 37, dealing with the constitution of the House of Commons, section 40, dealing with electoral districts, section 41, on the continuance of existing election laws, section 51, on electoral readjustment, section 51A, on the right of a province to have a number of members in the House of Commons that is not less than the number of senators it has, and section 52, dealing with the increase of the number of members of the House of Commons.
In the Constitution Act, 1982, I specifically examined section 3, dealing with the right to vote, and with subsection 52(2), which provides a definition of the Constitution of Canada. This is not an exhaustive definition that—and this should be specified right now—makes no mention of the Canada Elections Act. I will be coming back to this. I also examined the entire part V of the Constitution Act, 1982, which contains the procedure for amending the Constitution of Canada.
I also examined paragraph 41(a) of the Constitution Act, 1982, which deals with the office of the Queen and the Governor General. This office cannot be changed except by the unanimous consent of federal and provincial levels. I also examined paragraph 41(b), dealing with the right of a province to a number of members in the House of Commons not less than the number of senators it has. Unanimous consent is also required to make amendments to that. I also examined paragraph 42(1)(a), dealing with the principle of proportionate representation of the provinces in the House of Commons. That is subject to the 7/50 procedure, meaning the consent of the House of Commons and the Senate, subject to the Senate having only one suspensive veto of 180 days, and at least seven provinces representing at least 50% of the population of all the provinces.
Of course, I also examined section 44, which attributes a power to Parliament to exclusively make constitutional amendments. However, these amendments must be in relation to the executive government of Canada, the Senate or the House of Commons. There are, however, some important exceptions that apply in the case of section 44. What is interesting in this section is that Parliament alone can amend the Constitution of Canada. As I just mentioned, it can also make amendments in relation to the executive government of Canada, the Senate or the House of Commons, subject, of course, to sections 41 and 42 that I mentioned previously, among others. They require unanimity and the 7/50 procedure respectively.
As I examined the jurisprudence, the cases that seemed to me to be the most relevant are the following: Figueroa v. Canada; the Reference re Senate Reform; Ottawa (Attorney General) v. OPSEU; the decision of the Judicial Committee of the Privy Council in In re Initiative and Referendum Act; and the Reference re Secession of Quebec.
In the light of all that I have read, my analysis leads me to say that, in the eyes of the Supreme Court of Canada, the single member simple plurality system, the “first past the post system”, is constitutional, despite its weaknesses.
It's good to know that the current system is in conformity with the Canadian Constitution, although it has weaknesses, as we all know.
Second, and what I am saying here is still essentially from the perspective of the Supreme Court of Canada, the Constitution does not require any democratic electoral system in particular and does not view the system as immutable. In other words, the Supreme Court has shown itself to be open to a change in the way we vote and has mentioned that our Constitution does not require any particular voting method.
So, the first past the post system conforms with the Constitution, but it's not the only system that could conform with the Canadian Constitution and with Canadian values.
Canadians are committed to a democratic form of government. Democratic principles therefore must be observed. The Supreme Court has said that Canadians are politically and constitutionally committed to a democratic form of government. In other words, maintaining a democratic form of government is constitutionally protected in Canada without the Court specifying what form of government that might be.
The Supreme Court also seems to mean that the choice of one method of voting over another is a matter of choice between competing political values. The government has a fairly wide latitude in the matter and it is not for the Court to intervene when it comes to reforming the method of voting, or at least, it is not for the Court to intervene too much.
This is, in my view, something that is fundamental. What the Supreme Court says is that electoral reform is something that belongs to elected representatives, to Parliament, to the government. It's not something that the Supreme Court of Canada would like to intervene in.
Maybe, if the court ever had to, if ever some of the main principles that I will be speaking about in a couple of minutes are affected, it would, but the first desire of the Supreme Court of Canada is not to intervene. Its first reflex is not to intervene. And the Supreme Court, in fact, confirmed that all of this is mainly a question of political decisions instead of judicial decisions.
So what are the main conditions that Parliament must fulfill in terms of reforming the method of voting? As I list those conditions, I am saying that Parliament can act alone to reform the method of voting, providing that it does not affect any of the principles that I will mention in a moment.
The first principle is well established in jurisprudence. This is the concept of effective representation. The Supreme Court mentions a relative equality between voters. This is not therefore total or perfect equality. But there must be relative equality in terms of the weight of each vote in Canada's overall political system. If the principle of effective representation were overstepped, it would probably lead the Supreme Court to intervene.
But as long as the principle of relative equality is respected, the Supreme Court of Canada is not interested in intervening.
Here is the second principle. Reform must not change the office of the Queen or the Governor General. As I said before, the office of the Queen and the Governor General are subject to the rule of unanimity, the procedure that requires amendment by unanimous consent.
Is it possible to have an electoral reform that does not affect the office of the Queen, or that of the Governor General? The answer is yes. The main functions of the Governor General and the Queen have to be respected if there ever is electoral reform, whatever it is, in Canada.
Parliament cannot infringe on the right of the provinces to have a number of members of the House of Commons that is at least equal to the number of senators.
This is a very interesting limit. At this moment it only applies to very small provinces that don't have many MPs and that have more senators than MPs. It allows them to have as many MPs as the number of senators they have. But if ever there is a change in the number of seats in Canada, we have to make sure there is no change that goes below the number of senators attributed to each province at this moment under the Canadian Constitution.
Of course, Parliament cannot affect the principle of proportionate representation of the provinces in the House of Commons because that it covered by the 7/50 formula. But here we come up against something much more delicate, probably as a result of the jurisprudence. I believe that the preamble to the Constitution Act, 1867 protects a British type of parliamentary system and the principle of responsible government.
There is jurisprudence from the Supreme Court of Canada that says that the preamble to the act of 1867 entrenches or protects the Westminster model of government and entrenches and protects the principle of responsible government.
Here the question is, how far does that go, first of all? How far does that protection go? I cannot say, to be frank, and no one could say. It would be for the Supreme Court of Canada itself to specify what it really means eventually, if ever there were litigation, a problem, or a reference, on this subject.
The first question therefore is to find out how far that protection goes. It comes from the preamble of the Constitution Act, 1867, but not explicitly so. It is implicit.
because the preamble says that we want a constitution that is based on the same principles as the constitution of the United Kingdom. The jurisprudence took that affirmation and found in it some kind of protection for the Westminster model of government and responsible government.
The first question therefore is to find out how far that statement of the courts goes and the second question is to find out what is the content of—
Westminster model of government. What's the content of that concept?
There is a risk in wishing to define a concept like that, but it seems to me that the Westminster type of government involves a certain number of principles.
The first principle is that executive powers are officially and theoretically conferred on the head of state and that they are concentrated under his purview.
Under the second principle, those executive powers are exercised in practice by the prime minister and the ministers.
Under the third principle, executive power is part of the legislative assembly. In other words, not only does the executive contribute to the exercise of legislative power, but it is also an integral part of the legislative assembly.
According to the fourth principle, executive power must be accountable to the legislative assembly. It must answer for government policies before the legislative assembly.
The next principle says that the democratic legitimacy of the executive power depends on, and is granted by, the legislative assembly.
Under the final principle, which goes back to the principle of responsible government, the prime minister must tender the resignation of his government to the governor general or must ask for the House to be dissolved if he does not enjoy the confidence of those the people have elected.
In my view, this is the definition of British parliamentary democracy that I give. Clearly, of course, other experts may wish to refine or add to this definition.
One final constraint on the Parliament of Canada results from a 1919 decision of the Judicial Committee of the Privy Council. This is In re Initiative and Referendum Act. It was referred to in 1987 by the Supreme Court of Canada in Ontario (Attorney General) v. OPSEU. The Judicial Committee of the Privy Council was referring to the provinces and the same principle probably applies to the Parliament of Canada. Parliament cannot bring about profound upheaval by introducing political institutions that are foreign to and incompatible with the Canadian system. In English, we would say that—
Parliament could not introduce political institutions foreign to and incompatible with the Canadian system.
You are going to ask me what that exactly means. Now, it is worth redefining it through jurisprudence. What we know is that Parliamnet could not, for example, entrust the people with all the legislative powers. Referenda could not become the only way in which laws are passed. The fact is that, beyond that, we do not know what the expression means.
I repeat that the Judicial Committee of the Privy Council was talking about provincial legislatures and referred back to subsection 92(1) of the 1867 act. The parallel also holds true for former subsection 91(1) of the 1867 act and the Parliament of Canada.
Finally, I would say that maybe there will be some experts saying that Parliament cannot affect the fact there are electoral districts in Canada. Section 40 of the Constitution Act, 1867, refers to electoral districts. Some experts may say that electoral districts are entrenched and cannot be affected by Parliament unilaterally, but I don't share that point of view. I think that Parliament can abolish or diminish the number of electoral districts unilaterally by virtue of section 44 of the act of 1982.