Wednesday, May 18, 2011

How Does the Liberal Party Rebuild When It Starts by Having Illegit Meeting?

The "Special Convention" : It's not Extraordinary. It's Unconstitutional.
par John J. Lennard, mardi 17 mai 2011, 10:55

There has been some talk over the past few days about the constitutionality of holding an "extraordinary convention" on June 18 to make certain changes to the Liberal Party of Canada's leadership selection process. I believe that the extraordinary convention is unconstitutional. I will try to explain my reasoning step by step so people can better understand the conclusion at which I, and many other Liberals, have arrived.

Section 61(2) of the party's constitution requires the National Board to call a biennial convention within 30 months of the previous biennial convention, and in any case, at least once every two calendar years. Liberals may recall that the last biennial convention began on April 30, 2009. That means that the next biennial convention technically has to happen in 2011, in theory no later than October 30. Accordingly, late last year the Liberal Party's National Board called the biennial for June 17, 2011 in order to meet this requirement.

Section 65(5) of the constitution allows the National Board to delay a scheduled biennial in the case of an an imminent or ongoing election for up to six months. Since the original biennial was scheduled to be held on June 17, and an election was called in the interim, the National Board decided to delay the convention pursuant to section 65(5). The latest they could possibly hold a delayed biennial convention is December 17, 2011. Alfred Apps, the President of the Liberal Party of Canada, publicly committed to respecting this requirement in a letter he sent to the party membership in early April announcing the delay.

Now here is where things get interesting. On May 3, 2011 Michael Ignatieff decided to resign as leader of the Liberal Party. His resignation triggered a series of rules with respect to the selection of an interim leader and a new permanent leader. The National Board, for a bunch of reasons (some of which I suspect they will not admit) want to delay a leadership vote, which the party constitution mandates must happen no later than October of this year, and change some other leadership rules. The only way for them to delay the vote and change the rules would be to modify the constitution through a party convention. However, since they previously decided to delay the next scheduled biennial convention to sometime in the fall (and in any event, no later than December 17), they fear they will not have enough time to change the rules as they would like to. As a result, they are relying on section 61(3) of the constitution, which allows the National Board to call an extraordinary convention in extraordinary circumstances, to get around this dilemma.

The Board decided to call this special convention for June 18, 2011. The special convention is to be held by teleconference, with thousands of delegates presumably debating and voting over the telephone on the amendments being suggested by the National Board. How the party proposes to ensure the integrity of this process is still up in the air. I am not convinced it can be done in a fair and transparent way, but that is a separate issue. The constitutional issue at play is section 61(3). This section is problematic for the National Board, because it states that extraordinary conventions are possible at any time "except within six months of a biennial". The National Board knows this. That is why, in addition to the leadership rule changes, they are proposing an amendment at this special convention to shift the biennial to January 13, 2012. However, the scheme cannot work because the special convention is itself unconstitutional: A biennial has been called for June 17, 2011, and while the delayed date has not yet been set, it could not, in any event, be held past December 17 of this year. No matter how you look at it, this special convention would come within six months of a biennial, and is thus unconstitutional.

Simply put, the National Board is trying to put off the calling and holding of a biennial convention to satisfy the holding of an extraordinary convention, one of whose stated purposes is to alter the constitution so as to move said biennial to a date which would satisfy the calling of the special convention to begin with! Pretty circular, isn't it?

Now people might say, "Wait a minute, John, that's just a bunch of legal mumbo jumbo. What's the big deal, anyway? What's wrong with holding a consultation of party members on an issue of such fundamental importance as a leadership race?" My response is sixfold:

1.What is being suggested is not a "consultation of party members". It is a delegated convention. Theoretically, delegates will be selected by their local riding association membership, but in practice, because of the timing and confusion of this whole process, they will more likely appointed on a first-come, first-served basis.
2.This delegated convention will be held by teleconference. That means that delegates will not be in each others physical presence. Debates, discussions and votes will presumably be held over the telephone, with upwards of 6,500 delegates lining up at a "virtual microphone" to have their say. How the party proposes to make this process work from a logistical perspective is anyone's guess. As I mentioned earlier, I seriously doubt that it can be done fairly and transparently, but I guess we will just have to trust the National Board when they tell us it is technically feasible.
3.The goal of this delegated convention is not to measure the opinion of party members with respect to when a leadership race should be held, and on what terms. The goal of this convention is to approve a number of pre-packaged amendments concocted by the National Board.
4.The National Board has not released their proposed amendments yet. But from what has been publicly reported, they will be suggesting that this special convention grant the next National Board the ability to call and hold a leadership race at any point between May 1, 2012 and June 30, 2013. In other words, rather than have a leadership selection process governed by the Constitution of the Liberal Party of Canada, we will have a leadership selection process governed by the National Board.
5.If this amendment passes, the game immediately shifts to who can control the next National Board, because the candidate who controls the Board controls the rules. That means that rather than spend the next two years participating in "rebuilding and renewing" the Liberal Party, leadership candidates will be jostling over control of the party apparatus, just as the candidates of the day did in the lead up to the 1990 and 2003 leadership races. If history has taught us anything, it is that party renewal almost always takes a back seat to leadership ambition.
6.In any event, by demonstrating through this farcical "extraordinary convention" process that the constitution is not worth the paper it is written on, this current Board is indicating that rules can be changed on a whim by the next Board. Who's to say there won't be some "extraordinary circumstance" that "forces" us to delay a leadership election beyond June 30, 2013?

My point, in this not-so-short note, is to raise some alarm bells in the minds of Liberal Party members. What appears to be an innocuous "consultation of party members" may, in fact, have far more serious ramifications for the party than one might think. Liberals should not, in the name of "rebuilding and renewal", overlook the fact that our party executive is deliberately playing around with the rules to try to force through a number of changes that could not otherwise be made--changes that may in fact lead to greater concentration of discretionary power in the hands of the very executive claiming to stand up for the membership.

Don't be fooled, Liberals. This "special convention" is not only extraordinary. It is unconstitutional.

par John J. Lennard, mardi 17 mai 2011, 10:55


Craig Chamberlain said...

Thanks for the post. It gives me more to think about on this issue... Sounds as though it could be the kill shot for the party.

Anonymous said...

It's no wonder the party is a basket case.

Brandon said...

James Curran, I think that its no wonder people voted NDP. The longer this deceit of the membership goes on, the more support the Conservatives and NDP will get. Unfortunately, we may be imploding the party by voting for or against the changes, but only time will tell.

Jack Siegel said...

Jim, I just posted the following to John's original Facebook posting:

Although you make some interesting points, I have more than a little difficulty with the notion that a convention that HAS NOT BEEN CALLED can result in the invocation of the six month limit, particularly in the face of Article 61(3), which gives an unlimited authority without time constraint for the National Board to call an extraordinary convention at any time.
Plainly the intention in drafting these provisions was to allow important problems to go to the highest authority of the Party - National Convention - for a decision, with a safeguard to prevent precipitous action when a biennial convention has just - or is just about - to have an opportunity to speak. Surely the drafters of these provisions could not have anticipated the unusual juxtaposition of events that we must now address. The cold reality is that a biennial convention cannot possibly be convened at such a time unless you are suggesting that National Board should have called one for this spring or summer on an accelerated timetable.
Please also keep in mind that many potential delegates to such a convention will be Laurier club members who have already in 2011 given the maximum $1,100 to LPC and quite possibly an equivalent amount locally. The Party cannot economically afford to do what it did in 2009 and give the Laurier Club members a built-in delegate fee. So what am I supposed to do about paying my way to a biennial in 2000? Get my 87-year-old mother to pay my way?
These are “emergency provisions” and to read them narrowly, as “black letter law” is to ignore some pretty fundamental legal principles regarding purposive interpretation in the face of ambiguity. 61(3) and 65(3) create that ambiguity. As Jason Cherniak has pointed out in his post on his own wall, interpretation of the constitution to date has been within National Board’s jurisdiction. The Council of Presidents can override that interpretation tonight, but despite my reservations about the way this has unfolded, my opinion at this point in time, at least, is that it should not do so.
Note the phrase “at this point in time”. Let the dialogue continue!

James Curran said...

So many rules. So little time to respond. And since I'm not a lawyer, I'll have to do it layman's terms to boot.

The biennial convention had to occur before Nov 3, 2011. Towit, it was "called" for June 17, 2011. Because of an "electoral emergency", the Exec gats to break the November 3 date and timline because of another clause that says we can extend "to a maximum of 6 months" from the scheduled biennial. Since in law there are such things as "implied" contracts, this would be taken to mean that the Convention would have to occur no later than December 17, 2011, regardless of whether or not it "has been called". That date puts the "special convention" within the six month restriction, therfore making it null and void.

Other rules to consider. Rule 10.3: any member of the party is entitled to run for any position in the party. Yet somehow the Nat Exec decided that not any member can run to be interim leader.

These goofy rules. Go figure