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Legislative and Executive Term Limits in Alberta  

Richard Albert, Boston College Law School

An important race is underway in Alberta, one of Canada’s ten provinces. In September, paid-up members of the Progressive Conservative Party will elect a new party leader, and the new leader will become the premier of Alberta.

One of the candidates, Jim Prentice, a former federal Cabinet minister and a lawyer by training, has pledged to impose legislative and executive term limits if he becomes premier. Under his plan, provincial members of parliament (MLAs) will be limited to three terms, and premiers to two.

Prentice argues that term limits are good for democracy:

It’s very democratic … it ensures that people stay grounded. There’s no reason someone can’t take a time-out and return to public life but it ensures turnover. It ensures our democratic process remains dynamic, innovative and creative. I’ve always believed in it.

Legislative and executive term limits may be a great idea but they are very likely unconstitutional, at least in Canada. In this short post, I explore why.

There are at least three problems with the term limits proposal: two are constitutional and one is operational.

The Right to Vote

First, term limits in Canada very likely violate the right to vote entrenched in Section 3 of the Canadian Charter of Rights and Freedoms. The Charter states that:

Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

The Supreme Court of Canada has interpreted this provision to protect both the right of citizens to actually vote in free elections and the right of citizens to run for office. Both legislative and executive terms limits would infringe directly on the latter insofar as they would bar otherwise qualified citizens from running for a legislative seat or from serving as premier, which is an indirectly elected position.

Term limits would also infringe on the right to vote for citizens who would be eligible to run but for the imposed term limit.

The strongest counterargument here is that no right is absolute, and that the right to vote is no different. The Charter, in Section 1, expressly recognizes that rights and freedoms are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” One could construct a strong argument that term limits constitute a “reasonable limit” that can be “demonstrably justified in a free and democratic society.” There are very good democracy-promoting reasons to support term limits: they regularize political turnover, they expand the range of potential candidates, they renew political parties, they reinvigorate the legislature, they decrease the costs of incumbency and they frustrate the entrenchment of special interests. All very good reasons indeed.

But given how little latitude the Supreme Court has given to Parliament and the provincial legislatures to restrict the right to vote, it is unlikely, thought admittedly not impossible, that the Court would accept this justification.

One additional point merits mention. The Notwithstanding Clause would not be available to a future Premier Prentice to protect his flank against this Section 3 problem. The Clause, entrenched in Section 33, effectively authorizes the legislature to immunize a law from invalidation by the Supreme Court. But the Clause applies only to legislation affecting discrete sections of the Charter, namely Sections 2 and 7-15. The right to vote, which entrenched in Section 3, therefore falls beyond the reach of the Notwithstanding Clause.

Responsible Government

Second, executive term limits are also problematic for responsible government. (At this stage of my thinking, I do not think that legislative term limits for MLAs pose a problem for responsible government.)

The unwritten principle of responsible government is the most important one for the framework of the federal and provincial governments in Canada.

In the Commonwealth tradition of responsible government, the Government of Alberta survives as long as it retains the confidence of the legislative assembly. By implication, the premier remains premier as long as she or he leads the governing party.

The premier is appointed to that role not by the party, nor by the electorate, but by the Lieutenant Governor of the province, who holds the same powers within the province as the Governor General holds in respect of the federal government.

Implementing executive term limits would affect the power of the Lieutenant Governor to exercise her or his discretion to appoint as premier the person best able to lead a government or a coalition that is in turn able to command the confidence of the legislature. Term limits would therefore be a significant change to the principle of responsible government.

Prentice has suggested that, as premier, he would make this change by normal legislation. Yet altering such a fundamental feature of the framework of government in Alberta cannot be done by simple legislative vote, which requires a bare majority to take effect. This would be an unconstitutional way to amend Alberta’s unwritten constitution, specifically the unwritten principle of responsible government.

It is indeed possible for Alberta to incorporate executive term limits into its framework of government. But such a change requires much more inclusive and participatory procedures than a legislative vote by simple majority. Normal legislation would be insufficient to make a change of such far-reaching consequences for the functioning of government, the allocation of executive power, and the right to vote.

In order to legitimate this change, if indeed it is to be done, the best option is a provincial referendum with a special quorum and threshold. This would create opportunities for a fulsome public discussion about the stakes involved in introducing term limits and thereby transforming Alberta’s unwritten constitution. The referendum process and its outcome would moreover give legal and sociological legitimacy to executive term limits. (Both legislative and executive term limits should be legitimated by a referendum, and not by simple legislation.)

Implementing Term Limits

The third problem is not constitutional but operational: how will executive term limits actually work in a parliamentary system?

Alberta currently adheres to a fixed election calendar, with elections scheduled every four years, starting in 2012 onward. The two-term limit proposed for the premier would work well if elections in fact proceed according to this fixed election calendar. A premier would therefore serve two four-year terms, for a total of eight years, under the current term limits proposal.

But what would happen if the legislature were dissolved prior to the four-year electoral cycle, say in year two of the four-year term? Would the premier be limited to serving a potential total of six years consisting of the two-year interrupted term and the maximum four-year term assuming her or his reelection? Or would that premier be authorized to run for a third-term, but be bound to serve only two of those years, for a total of eight years, which was the original expectation of serving two terms?

The question is therefore whether the two-term limit for the premier is to be interpreted to refer to the maximum number of terms (two) or years (eight). If the former, then it raises problems for minority and coalition governments, or even majority governments, which in the tradition of responsible government are always susceptible to defeat prior to the fixed election date. If the latter, then it raises problems for continuity of government, as demonstrated by the example above of a three-term premier who has served eight years and must resign in the middle of her or his third term.

[As an aside, it is particularly problematic that Prentice has proposed to exempt sitting MLAs from the three-term legislative limit. This would create two tiers of MLAs: the pre-term-limit ones, many of whom will have served for more than three terms; and the post-term-limit ones, who will always be junior relative to the pre-term-limit MLAs.]

These are wrinkles that the process of legislative design can of course readily address, assuming a future Premier Prentice indeed pursues this idea, as he has pledged to do. But it is troubling that such little though appears to have been given to whether and how this idea—admittedly a bold one that may ultimately be good for democracy in Alberta—will actually work.

Presidentialism and Parliamentarism

The proposal to introduce legislative and executive term limits in Alberta raises a larger question: are term limits, which are traditionally associated with presidential systems, incompatible with parliamentarism?

Elsewhere, I have explained how political actors in constitutional democracies have innovated new hybrid forms of government that merge features of presidentialism with parliamentarism. I suggested that the structural differences between these two systems conceal just how similarly they actually operate, and I showed how each can be tweaked both modestly and significantly to operate even more similarly to the other—all without disrupting the fundamental features that have traditionally distinguished one system from the other.

Neither legislative nor executive terms limits are strictly incompatible with parliamentarism. They can fit into the framework of responsible government that defines parliamentary democracy. But inserting term limits into a parliamentary system will require changing our presuppositions about how parliamentarism functions. It will require a reconsideration of the role and powers of the head of state (either an active or ceremonial president or Governor General, or in Alberta’s case the Lieutenant Governor), the prerogative of the head of government to trigger an election outside the term of fixed election dates, and the distribution of rewards and responsibilities in the legislature based on seniority.

These are not insurmountable challenges. But they will require careful attention before taking the step to introduce term limits in a parliamentary system—much more attention than appears to have been given so far in Alberta.

Suggested Citation: Richard Albert, Legislative and Executive Term Limits in Alberta, Int’l J. Const. L. Blog, Aug. 24, 2014, available at: www.iconnectblog.com/2014/08/legislative-and-executive-term-limits-in-alberta

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Published on August 24, 2014
Author:          Filed under: Analysis
 

7 Responses

  1. John in TO

    “In order to legitimate this change, if indeed it is to be done, the best option is a provincial referendum with a special quorum and threshold. This would create opportunities for a fulsome public discussion about the stakes involved in introducing term limits and thereby transforming Alberta’s unwritten constitution. The referendum process and its outcome would moreover give legal and sociological legitimacy to executive term limits. (Both legislative and executive term limits should be legitimated by a referendum, and not by simple legislation.)”

    Are you suggesting that the courts would somehow look more kindly upon this whole proposal if it were endorsed by the people in a referendum?

  2. Thanks for your question, John. To answer it, I think, requires first an answer to this question: what is being amended?

    The obvious answer is Alberta’s unwritten constitution. Term limits would be introduced in Alberta alone, and would therefore transform only Alberta’s unwritten constitution.

    But it could be that this change would in fact affect a change to the Constitution of Canada, not to its written documents but to its own unwritten conventions. On this view, a change to Alberta’s unwritten constitution would by implication also change Canada’s.

    In either case, something more than simple legislation would be required, which is not to say that a referendum would pass the Court’s test. But a referendum would have a greater likelihood of meeting with the Court’s approval than simple legislation.

  3. C Jones

    Section 45 of the Constitution Act 1982 specifically provides that amendments to provincial constitutions shall be done through ordinary legislation. Given the SCC’s holding in the Senate Reference that consultative Senatorial elections are unconstitutional, how could conditioning provincial constitutional changes on a referendum pass muster (without amending the amending formula to permit them)?

  4. Yes, C Jones, that’s another interesting part of this problem. Section 45 of the Constitution Act, 1982 (which replaced the old Section 92(1) in the BNA Act of 1867) authorizes provincial legislatures, acting alone, to make amendments to their provincial constitution. You and I both read the text to mean the same thing, and therefore agree on that point.

    What I am suggesting here, however, is that a change as significant to the framework of government in Alberta as the introduction of executive term limits would not constitute an amendment. It would be a revision. And, for a revision, we require something more than what is provided for in the normal procedures of amendment. An amendment is meant only to fine tune the document within the existing framework of government. But a change that goes beyond such a narrow alteration and instead transforms the actual framework of government, as would be the case with executive term limits in Alberta, is properly described as a revision.

    For more on the distinction between amendment and revision, see John Rawls, Political Liberalism 238 (2d ed. 1996); Thomas M. Cooley, The Power to Amend the Federal Constitution, 2 Mich. L.J. 109, 118 (1893).

    • C Jones

      I think my response would be that there isn’t (or at any rate, doesn’t appear to be) any method to revise, rather than amend, Canadian constitutions. Your article, Nonconstitutional Amendments, in classifying Canada squarely in the textualist camp, would seem to support that position as well….

  5. Thanks for that, C Jones. You may be right.

    But the non-entrenchment of revision rules does not end the argument, though. In a more recent paper on “The Structure of Constitutional Amendment Rules” (available here: http://ssrn.com/abstract=2461507), I explain that we should not “presume that the distinction between amendment and revision does not exist where it is not entrenched.” I illustrate this point with examples, most notably from India, where the Indian Supreme Court has developed the “basic structure doctrine” to enforce unwritten limits to constitutional amendments. The Canadian Supreme Court could conceivably do the same, suggesting that a change is so fundamental as to amount to a revision. If you’re interested in this point, take a look at pages 15-19 and 41-42.

    Relatedly, Vivek Krishnamurthy has developed this point in a paper comparing the “basic structure” of the constitution as it exists in Canada and India: http://www.yale-university.org/yjil/files_PDFs/vol34/Krishnamurthy.pdf.

  6. […] this might not be constitutional. (Prentice says he’s open to pursuing the limits through provincial legislation or the […]

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