Events of recent days in Ottawa have culminated, it seems, in a grand coalition complete with an official signing ceremony as if giving legitimacy to an event somewhat less than legitimate. From a constitutional perspective, the coalition formed between the Liberals and the NDP with the sworn support of the Bloc Quebecois, is in fact entirely legal and based on a precedent, of sorts. Of course, there’s been no vote yet to bring down the sitting government so it does have a slightly premature air to it, but as constitutional experts will assure us, it is valid within the traditions of Parliamentary democracy. And yet, something still stinks. It’s as if all the benedictions of all the constitutional law professors in Canada still can’t remove some overarching stain from this coalition. Why is that?

I believe the answer lies in a disconnect that exists in the heart of the Parliamentary system itself. Constitutionally, which is to say, formally, a government requires the confidence of a majority of the individual MPs to maintain power. Now, I’ve heard some representatives of the coalition parties state quite boldly that Canadians elect 308 individual MPs and the government must obtain their support to stay in power. But if that were the whole truth, it would then follow that there would be 308 Independent MPs running around Ottawa. In fact, there are only two. The reason is simple: Canadians do not elect individual MPs, but representatives of parties. The entire political system relies on political parties to function. The House of Commons’ daily operations are based on party affiliation, the government relies on party loyalty, candidates present themselves to voters as representatives of a party platform, and most importantly, voters register their will through these party candidates. The parties are the very vehicle through which ideas and intentions are communicated between voters and their representatives.

The problem is the constitution knows nothing about parties. As a result, there is a gap between constitutional formality and what we might call political sociology, or how the system actually registers voters’ intentions. Normally, this gap is hidden because normally, the party with the most seats has the confidence of the House, and if not, as in a minority situation, the House votes non-confidence and an election follows.

But, in those rare circumstances where the party with the most seats does not form the government, then the disconnect surfaces with a vengeance. That is what is happening now. While the coalition may be legitimate constitutionally, it is not legitimate politically. However, we have to look at this lack of political legitimacy in the party context more closely, because this is the source of our unease over what is currently transpiring.

As noted, parties are the vehicles by which voters register their intent. In that context, what matters in terms of forming a government in the House of Commons is which party holds the most seats. The overwhelming presumption, whether in a majority or minority situation, is that the party with the most seats will govern. Moreover, during a campaign, including the last campaign, this was how the parties presented themselves to voters. They sought votes as four individual parties even going so far as to deny they would form a coalition government. In response, voters make their choice based upon political party to the extent that the candidates themselves are representatives of a political party. Again, if this were not the case, we’d have a lot more Independents filling the pubs in Ottawa.

The point is that voters make their decision within the party framework and fully expect that the party that wins the most seats will be the government. In fact, since Confederation, this was the case for all but one year, from 1925 to 1926. For that one year, the second place Liberals, only slightly behind the first place minority Conservatives, formed a government with the support of the third place Progressive Party. That government lasted one year. At the federal level, that is the sole precedent for what is about to happen. A similar situation occurred in Ontario when David Peterson and Bob Rae teamed up against the first place PCs to take power.

Now, constitutionally, this was fine, but politically, it always has the air of illegitimacy precisely because voters did not vote for a coalition, the parties did not present themselves as such, and the overwhelming presumption upon which voters rely is that the party with the most seats in the House will form the government. If it is a minority and that party loses the confidence of the House, an election will occur, not a takeover by the smaller parties.

But there’s more to the problem. At the constitutional level, something either is or is not constitutionally legitimate. By contrast, on the political level, there are degrees of legitimacy. For example, when the Conservatives gained seats in the recent election, it was considered that this gave their government more legitimacy despite falling short of a majority. When it comes to minority governments, the closer one gets to majority territory, the more political legitimacy one gains. Conversely, the further the opposition parties fall below the first place party, the less legitimacy they have to make any claims on the government from a political point of view.

In the current situation, we see marked differences between 1925 and today. In 1925, the Liberals, at 100 seats, were just 15 seats shy of the Conservatives sitting at 115: the gap was not particularly large. And when they joined with the 22 Progressive Party members, they had a working majority. Today, the Liberals are 66 seats off the Conservatives. In other words, the Conservatives have almost twice as many seats as the Liberals. And here is where the scale of illegitimacy comes into play. While one can accept with some plausibility the claim made by the Liberals in 1925, as the gap increases, the validity of such a claim shrinks.

But there’s more. In 1925, the Liberals relied on only one other party to reach majority status. Today, even when combined with the New Democrats, the two parties together are 29 seats short of the first place Tories. So, the coalition has to pull in another partner. As the number of parties needed to form the coalition increases, so again does its illegitimacy, precisely because it highlights the wide gap between the clear first place party and the various opposition parties. The intention of the voters becomes less and less effective. At the same time, the reliance that voters placed upon distinct party platforms is destroyed as those platforms dissolve into a coalition no one ever contemplated voting for. Not to mention the fact that there is absolutely no precedent for including an avowedly separatist party in such a coalition.

Some will say this coalition is more representative as a government because a majority of voters cast ballots for these parties. But that’s exactly the point: voters voted for four distinct parties, not a coalition that was never expected and often adamantly disavowed during the campaign, and certainly not against the Conservatives since there is no possible way on a ballot to demonstrate one is voting against anything. As a result, whatever the constitutional niceties of the current situation, this coalition is manifestly illegitimate politically. Of course, the coalition members know this themselves. One has only to look at the show they’ve been putting on to appear legitimate. We’ve seen an official signing ceremony confirming the coalition as if feigned pomp and circumstance will lend credibility to an act fully lacking credibility. We’ve witnessed the three pretenders to the Liberal throne coming out in unison to announce their support for Dion papering over their own ambitions. We’ve seen the act of forming the coalition hastily done, knowing, as do all those committing deeds of questionable plausibility, that such deeds are best done quickly. In this case, a sudden and bold stroke gives infamy the air of inevitability making all public protest irrelevant. Finally, we have the statements from Jack Layton after the signing ceremony when he said Stephen Harper should accept the decisions made by his colleagues and step down. Layton specifically used the word “colleagues,” a strange word for the circumstances. Harper is not a CEO replaced by a board of directors, or a department chairman at a university. He is a prime minister elected by voters. But that is exactly what Layton wants us to ignore. Colleagues are not elected. Mr. Layton was searching for a term that would downplay the fact that what is happening is a recasting of the election. He clearly knows that what is going on is not even remotely close to what the voters decided only six weeks ago, and so he must equivocate, he must engage in sophistry.

Whatever the misdeeds of Stephen Harper leading up to these events, the actions of the coalition, while constitutionally acceptable, fall in the gap between formality and political legitimacy. Try as they might, the three opposition parties cannot bridge this gap. In failing to do so, but pressing on with their agenda, they make a sham of Canadian politics and political freedoms.