Need a Constitutional Convention
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.