News & Election Videos

HL:Harper's vision of how to form a government undermined by constitutional facts@

Heather Scoffield@

OTTAWA _ The claim: According to Conservative Leader Stephen Harper, only the party that wins the largest number of seats is allowed to form government in Canada.

The quote: "You said in your statement that the party that wins the most seats would get to try first. Then you think you'd all get together, vote against it and replace the government. That's not how our system is supposed to work in this country." _ Stephen Harper in a heated exchange with Liberal Leader Michael Ignatieff.

The truth/reality: "That's invented. There's so much cuckoo around this." _ exasperated parliamentary expert Ned Franks from Queen's University in Kingston, Ont.

"The main rule is that Parliament decides." _ constitutional expert Peter Russell from the University of Toronto.

The context: Harper has argued repeatedly that if his party has the most seats, his party should form the government.

But parliamentary democracies don't necessarily work that way _ as Harper himself recognized in 2004 when he met with the NDP and the Bloc Quebecois to offer an alternative to the minority Liberal government.

"I would not want the prime minister to think that he can simply fail in the House of Commons as a route to another general election. That's not the way our system works," Harper said at the time.

A government must have the confidence of the House of Commons in order to remain legitimate. But if Harper's Conservatives have the most seats on May 3, they still need the support of the majority of the House of Commons in order to form government.

If Harper loses that confidence, there are two choices, explains Russell. He can ask the Governor General to hold another election. Or the Governor General can look for another option among the other parties.

"And there," says Russell, "the story gets interesting."

The Liberals would have to show that they could muster up the numbers to maintain the confidence of the House for a reasonable amount of time.

That can happen one of two ways: with a formal coalition government, or by lining up the support of another party or two on a less formal basis.

"But the Governor General needs to have a pretty compelling case" to not force another election, Russell says.

That's where the rules of how to form a government get a bit murkier, says Graham Fox, a former Harper adviser who heads the Institute for Research on Public Policy.

The Governor General needs to weigh whether the second-place party has enough legitimacy and public support to form a government. And there are no hard and fast rules for those decisions in Canada, Fox says.

"We're experimenting."

While politicians may be tempted to look at which party lays claim to the highest popular vote, it is in fact irrelevant when it comes to forming a government in Canada, counters Franks.

"The only rule is, you have to have the majority of the House. Period."

It's no wonder Harper is hoping his party wins the most votes and form the next government, says Franks _ but wishing or "distorting the Constitution" doesn't automatically make it so.

There's a bit of a loophole that Harper could use to hang on to power, warns Russell.

Regardless of who wins the most seats May 2, Harper will still be the prime minister the following day and will officially remain so until he meets the House of Commons.

Typically, newly elected leaders do that within 75 days of an election, but there is no firm rule or convention, Russell says. When Joe Clark won the 1979 election, he dragged his heels for 140 days before recalling Parliament.

"There's something very wrong with that."

The Associated Press