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Guest blogpost: The Liberal ‘Special Convention’. It’s not Extraordinary. It’s Unconstitutional.

I saw the following note on Facebook from John Lennard – who is a fellow Liberal, a one-time fellow Liberal blogger, and someone who literally came within a coin-flip last year of winning the presidency of the Young Liberals of Canada. He’s also a student of law, and works at a law firm office. This was a very interesting piece, and whether or not as Liberals you agree or disagree with his reasoning, I felt it should be given a wider audience. He agreed to have it put up here. As always with other guest blogposts, the usual disclaimer that John’s views are his own, and not necessarily mine.

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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:

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. This delegated convention will be held by teleconference. That means that delegates will not be in each other”s 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.

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. 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.

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.

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.

6 comments to Guest blogpost: The Liberal ‘Special Convention’. It’s not Extraordinary. It’s Unconstitutional.

  • Shawn Starr

    @John Lennard: I disagree, if our constitution wasn’t written properly to handle such crises as we face today, it needs to be FIXED BY THE GRASSROOTS. period. The constitution is what the party makes of it and if the grassroots of the party want to change it, we should have the right to, whenever is required. I’m surprised no such clause was ever written into it to allow the grassroots to make our party more dynamic.

  • Ted

    One of the things we’ve clamoured for is more grassroots involvement and say. Not in the operations but the fundamentals. One of the reasons we’ve clamoured for this for years (decades) is because the backroom boys (and yes, almost entirely boys, Toronto boys) keep making fundamental changes and maneuverings without our input.

    And now, when we get an unprecedented chance to have a direct say in when WE want to have a leadership decision, many clamour for the backroom boys to make the decision for us.

    I just don’t get that.

    I do get that it is a bit much (a lot? too much?) coming from a group that has often been accused of torpedoing grassroots involvement at the riding level, at the leadership level, etc.

    But I don’t think it is a good thing to rush into yet another leadership race. I kind of resent Ignatieff for foisting this issue upon us so immediately as I did Martin.

    But we are where we are and where we are is a mess. Almost everyone I read or talk to worries about rushing into a leadership race so soon. The rule requiring it within 6 months is only 2 years old and allowing us all to vote on whether to keep that rule or change it seems to me one of the most refreshingly democratic things they’ve deigned to allow us in years.

  • John Lennard

    I’ve made this point before: If we keep disregarding the rules and overlooking so-called “overlaps”, we’ll find ourselves in a situation in which our constitution isn’t worth the paper it’s written on. It means any time some people don’t like the rules and realize they can’t change them, all they have to do is call a meeting to change them anyway and pretend as though they always had the authority to do so. If it can happen now, it can happen again. And don’t kid yourself: It will.

  • Adrian Ludwin

    As a counterpoint to this, might I suggest Jeff’s post: http://bcinto.blogspot.com/2011/05/on-alf-consultations-and-constitutional.html. Also, no fault of John, but Apps told us two things last night (at the dinner Jeff refers to):

    * The resolutions will be published by this Friday
    * The leadership resolution will now include a specific date (or very short range)
    * Apps also suggested he’d like to use a preferential ballot to allow delegates to choose between four dates (eg Oct ’11, Spring ’12, Fall ’12 or Spring ’13).

    This all sounds quite reasonable to me, and I’m willing to overlook the one-day overlap of the 6mo period especially given that a 2/3 majority is required for any of this to pass.

  • […] flow directly to members, and through public forums. Finally, much talk in Liberal circles about if the extraordinary convention to amend the constitution is even constitutionally legal. I’m not a lawyer so I’ll give it to you in a nutshell: you’re not allowed to […]

  • […] much talk in Liberal circles as to whether the extraordinary convention to amend the constitution is even constitutionally legal. I’m not a lawyer so I’ll give it to you in a nutshell: you’re not allowed to […]

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