The decision of the deputies of the Parti Québécois and of Québec solidaire not to take the oath to the new King Charles III poses an almost difficult legal dilemma.
Posted at 11:00 a.m.
Indeed, it should be noted that section 128 of the Constitution Act, 1867 provides in particular for the obligation for the members of the provincial legislative assemblies to take and subscribe, before entering into the exercise of their functions, an oath of allegiance to His Majesty King Charles III. However, this article does not provide for the consequences arising from the failure to take this oath.
The question therefore arises as to what is the true force or authority of Article 128 in constitutional matters. For example, it is unclear how it could be amended in such a way as to make it inapplicable to the National Assembly of Quebec. Could the Quebec legislature modify this measure by adopting a simple law, thus acting unilaterally, or should the consent of the House of Commons, the Senate and the nine other provincial legislative assemblies also be required? This last hypothesis may seem excessive at first sight, but the Supreme Court of Canada did indeed hold, in 1979, in the judgment Blaikieremarks which were likely to accredit it.
Some jurists maintain that, in any case, the right to sit in the National Assembly is strictly a matter of parliamentary privileges and that, consequently, the decisions of this assembly on this issue are not subject to judicial intervention.
Other jurists believe that, on the contrary, compliance with Article 128 in question is a sine qua non for the exercise of the right to sit, so that a person could not sit in the National Assembly unless you have taken the oath of allegiance to the reigning sovereign.
We do not share the opinion of one or the other.
In fact, we believe that section 128 escapes the scope of parliamentary privileges, but that failure to comply with it cannot prevent anyone from sitting in an elective assembly.
We rely in particular, in this regard, on the precedent created by George Turner Orton in 1875, a precedent where the failure to take the oath to the monarch only resulted in a retroactive annulment of the votes of the Member of Parliament concerned.
More precisely, Orton was first elected to the House of Commons in 1874, but his election was contested and annulled. He won re-election in a by-election in 1875. Orton had sworn allegiance to the monarch the first time, but did not on his re-election, because he didn’t think it was necessary. When he was seized of the problem, he quickly took the required oath of allegiance. A House of Commons committee seized of the case recommended that his votes be annulled retroactively, from his re-election until his oath.
This precedent is obviously not perfectly applicable in the case of the 14 deputies of the National Assembly who today refuse to take the oath provided for by article 128 of the law of 1867. Among other things, because these deputies cannot not invoke mere misunderstanding, but also because they have absolutely no intention of taking the applicable oath. This precedent, however, guides us as to the fact that it is possible for a deputy to sit even if he has not taken the oath provided for by the Constitution (and to fully assume his functions) and as to the sanctions that may result from the failure to take this oath.
In Quebec, a short-term solution would be, in our opinion, the adoption of a resolution by the National Assembly whereby the latter would recognize the PQ and QS members’ right to sit despite the fact that they did not take the oath of allegiance to King Charles III.
However, the adoption of this resolution cannot amount to a constitutional amendment as such. It should therefore be quickly followed by the enactment of a law aimed at exempting the members of the National Assembly from the application of section 128. This Quebec law, inevitable in our view, would however be subject to possible legal challenges. , which is a grim prospect, let’s face it.
Be that as it may, no one can give a categorical and definitive opinion on the present situation. What seems clear to us, however, is that the constitutional rules should be interpreted and applied in a way that allows the evolution of the country and its constitutional structure as much as possible. In this sense, flexibility, flexibility in the interpretation of Article 128 in question seems to us preferable to all-out rigidity.
We also believe that, in 2022, it is democracy and democracy alone that should normally decide on the right to sit as a parliamentarian. Democracy is, after all, an underlying or implicit constitutional principle. While it is true that democracy coexists in this respect with constitutionalism, the fact remains that the time has come, in our view, to bring the Canadian Constitution itself more into line with the sovereignty of the people and the democratic principle.