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.