We Need a Constitutional Convention

by David Kilgour

Eugene Forsey, a leading constitutional authority, says that the first ministers agreement of last June on the Meech Lake Accord is "almost totally worthless".  Many Canadians appear to be deeply troubled by the top-down first ministers process which produced it. It is therefore desirable that the next stage in altering our constitutional arrangements in a perestroika era must have more democratic legitimacy. A good model might be the Federal German Republic Convention of 1948, adapted to Canadian circumstances.

One of its appeals for provincial governments is that the West German Basic Law established a federal system of government which entrenched effective protections for the rights of the eleven German landers.  These include a constitutional court, half of whose members are appointed by ministers of the lander governments who comprise the upper house or Bundesrat.  The Federal Republic of Germany consequently continues today as a genuinely federal state; the states have not been reduced to being subordinates of the central government in Bonn.

Canadians everywhere can be impressed by the distinctive guarantees of individual rights and freedoms in the Basic Law and the fact that the Federal Republic is today manifestly one of the most successful democracies established since the second world war.

The West German constitution making process in fact began in early 1948 when the Russian withdrawal from the four-party occupational government of all Germany prompted the British, American, and French military governors to renew earlier plans for a constituent assembly to draft a constitution for the western zone.  When they met with the elected heads of the already formed eleven lander governments, their ministers president were unenthusiastic, fearing that a separate legal status for West Germany would render permanent partition of their country more probable.  The blockade of Berlin by the Russians not long afterwards ended most resistance as public opinion moved quickly to the view that West Germans must administer their own affairs.

Events then moved quickly. The military governors agreed to accept the term "Parliamentary Council" as the designation for a constituent assembly.  The lander leaders accepted that the Basic Law would be a full constitution in all but name.

By mid-summer of 1948, the ministers president had agreed among themselves to have a committee of constitutional experts prepare a working draft.  One expert with authority to bind the land was appointed by each land government and West Berlin.  The committee held an astonishing forty-six meetings during two weeks in a main committee and three subcommittees.  It produced not merely "guiding principles" but a draft of a complete constitution which to a large degree was later approved in both form and substance by the Parliamentary Council as the Basic Law.

The sixty-five delegates to the Parliamentary Council were chosen on a rep-by-pop basis:  one for every 750,000 of a land's population with an additional delegate for any remainder of more than 200,000.  The legislatures of the eleven lander chose their own delegates; most, but not all, appear to have been sitting members of the various legislatures.  The delegations mirrored the political complexion of each land legislature.  The Christian Democrats (CDU) and Social Democrats (SPD) had received almost the same vote in the land elections of 1946 and 1947; each sent a total of twenty‑seven delegates to the Council.  Minor parties, including the Free Democrats (FDP), held the balance of power with the remaining eleven voting delegates.

An early act of the Council when it assembled in September, 1948 was to elect Konrad Adenauer, the CDU leader, as president; Adolf Schonfelder of the SPD as first vice-president; and Herman Schafter of the FDP as second vice-president of its executive.

A council of elders were formed from the executive and ten representatives of all party factions to assist the president with the conduct of assembly business.  There was also a 21-member main committee (8 CDU, 8 SPD, 2 FDP, and 3 others) to review the work of special committees and to make major political decisions.  Special committees of 10 or 12 members were mandated to consider basic rights, distribution of powers, finance, government organizations, constitutional court and judiciary, electoral questions, and rules of procedure.

Two ad hoc committees were also appointed as the sessions proceeded.  One, a three-member group, reviewed the texts of successive drafts of the Basic Law, although in fact its influence went further than an editorial function in that a number of its substantive proposals were accepted by the main committee over objections by special committees.  The other, an all-party "Committee of Five", was formed after the second reading of the Basic Law by the main committee to resolve outstanding points of disagreement between the various political parties.  It was able to negotiate most of the final compromise agreements.

During the first two months, the special committees completed a first revision of the experts' earlier draft.  In the next month, the main committee completed its first reading of the draft Basic Law.  Some of the special committees then sat again, followed by another month-long session of the main committee.  The committee of five then negotiated compromises on the remaining points of disagreement.  About five months after the Parliamentary Council had begun to sit the main committee completed its third reading of the Basic Law.

Following reconciliation of minor differences with the occupation powers, the plenary session of the Parliamentary Council approved a final version of what was a complete and fully autonomous constitution for West Germany.  All lander legislatures except that of Bavaria subsequently approved it, and the Basic Law of the Federal Republic of Germany came into effect on May 23, 1949.  The first national elections for the federal assembly (Bundestag) were held and on September 15, its deputies elected Konrad Adenauer as federal chancellor under the provisions of the new constitutional law.

There had been neither a general election to elect delegates to the Parliamentary Council nor a popular referendum to ratify the Basic Law.  Delegates had been chosen by lander deputies, but with few exceptions had regarded themselves as representatives of the entire West German people, not of the respective lander.  On the grounds that the Basic Law was a creation of representations of the entire West German people, the refusal of the Bavarian legislature to approve it was considered unfortunate but not determinative of anything.  Bavarians, in fact, have participated as fully as anyone else in the Federal Republic since its inception.

The West Germans, with a population of 45 million in 1948 and a territory about one-half that of our Yukon, chose 65 persons to draft their new constitution.  The Canadian people and our governments might also agree that 65 is a workable number of delegates for a Canadian constitutional convention despite our size and regional differences.

Allocating sixty-five positions will be difficult to resolve to everyone's satisfaction, but with good will on all sides it can be achieved.  Canada, unlike many other democracies has never had a true constituent assembly so it would be healthy to have our citizens elect directly a majority of the delegates.

Thirty-three delegates could be elected on a province-wide basis in elections held on the same day across Canada using voters' lists compiled at the previous federal election.  In larger provinces, it might be more practical to elect, say, one delegate from each of a number of districts.  Candidates could campaign either as independents or with the endorsement of a political party.  No tax monies would be available to subsidize election campaigns, although modest daily allowances could be paid to successful delegates for their time at the convention.

The remaining thirty-two delegates might be chosen by federal and provincial legislatures according to rules worked out by a federal-provincial conference of first ministers.  If all thirteen governments (including the two territorial ones) could not agree to direct election of thirty-three delegates perhaps for reasons of cost at a time when many taxpayers are rightly wary of any proposal involving more spending of their money  the two levels of government could each appoint thirty-two delegates on the same basis as was done by the lander legislatures to provide proportional representation for all elected parties.

The Canadian convention could adapt the basic structures and systems of the Parliamentary Council for the best of all possible reasons:  they worked.  There would be little need for a draft constitution prepared by experts because we already have the BNA Act and many other modern federal constitutions, including the West German Basic Law, as departure points.

A major issue would be whether a new constitution adopted by the constitutional convention would be binding without ratification by Parliament and all ten provincial legislatures.  The West German experience indicates that it might be realistic not to require approval by a majority in any.  The premise would be that a majority-approved constitution should not be a reconstitutive act of Parliament and the legislatures, but rather an enactment of the whole Canadian people as the real source of both federal and provincial authority.  The constitutional convention would represent the Canadian people as a whole.

A condition could be that unless a majority in each of the eleven legislatures subsequently ratified the proposed constitution in a free vote, our existing constitution and conventions in their entirety would continue unaltered.  This would encourage all delegates to reach compromises thought to be acceptable to a majority in each of the legislatures; but, in providing a veto to a slim majority of politicians in every legislative assembly in the land, the whole process might become a huge waste of time, money, and national goodwill.

It is inevitable that whatever new constitution is developed by a constitutional convention will be unsatisfactory in part to each of the federal and provincial governments, a minority of delegates, and to some of the Canadian people.  Some of the dissenters will much prefer the constitutional status quo to continue.

Unfortunately, national events, including the indicated present mood of public opinion in Quebec, indicate that unless our existing arrangements are updated to reflect the realities of the 1990s the political and constitutional status quo after what happened this June could result in the eventual dismemberment of our country.  Like the West Germans in 1948, Canadians do not     really have much choice but to proceed to entrench all the features of a truly federal national of which Canadians, wherever they live, will for once feel themselves truly to be full partners.

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