The Facebook group opposed to the prorogation of Parliament may bring about a new constitutional convention.

Much has been made of the 200,000 Canadians who have joined a Facebook group in opposition to Stephen Harper’s decision to seek the prorogation of Parliament. But the significance of this online movement goes beyond its impressive numbers. We may be witnessing the birth of a new constitutional convention thanks to the power of social media.

The Canadian Constitution is part legal and part political. Some constitutional rules are grounded in law, namely constitutional texts, their underlying principles, and the common law. An important feature of constitutional laws is that they are judicially enforceable; legislation that violates the Charter of Rights and Freedoms, for example, can be struck down by the courts.

The political norms of our Constitution are different, but no less binding. Usually called constitutional conventions, these rules are based on the consistent practices of government officers and are designed to preserve fundamental constitutional values.

But unlike constitutional laws, the courts can’t enforce conventions. Ultimately, it’s up to the people to ensure that their representatives adhere to these vital constitutional norms through the exercise of their democratic right to vote and freedom of peaceful assembly.

What does all this have to do with Facebook and the recent prorogation of Parliament? In the last two years, the prime minister has used prorogation to avoid the consequences of responsible government – a constitutional convention according to which the government is accountable to Parliament.

In doing so, Harper has undermined one of the pillars of democratic accountability in our system of government. The prime minister has abused his power to ask for prorogation by failing to recognize that it must be exercised in a manner consistent with constitutional values.

Part of the problem though is the absence of a clear convention that prohibits Harper’s heavy-handed tactic. While many, myself included, believe that his actions do violate conventional norms, we must concede that the issue isn’t an easy one. That’s because prorogation in such circumstances is extremely rare (perhaps because it’s abhorrent to our values) and requires us to reconcile several competing constitutional principles.

On the one hand, the prime minister has the right to ask the Governor General to prorogue and the Governor General is generally obliged to follow the advice of the prime minister. On the other hand, the prime minister and his cabinet are accountable to the House of Commons and shutting it down dodges that accountability.

Thankfully, the people have instinctively recognized their role as arbiters of constitutional conventions and are bringing clarity to the controversy. Polling indicates that the large majority of Canadians are opposed to prorogation and support for the Conservatives has plummeted as a result. Protests are planned for this Saturday in over 50 Canadian cities.

What seems to have upset people so much about prorogation this time around is that the prime minister’s motivation to shirk democratic accountability is completely transparent. The first time Harper prorogued, his purpose was obscured by an unpopular (albeit perfectly legal) coalition clamouring to take power less than two months after an election that returned the Conservatives to government. Like law, constitutional conventions must be interpreted in light of the factual circumstances of each case, and last year Canadians, in their wisdom, reserved judgment.

But now they have spoken – a prime minister should not seek to prorogue Parliament in circumstances that allow him to stifle responsible government. In voicing their opposition, the people are arguably participating in the birth of a new constitutional norm, or at least the reinterpretation of existing ones.

The force with which Canadians have expressed their view may well weigh on the minds of future prime ministers and Governors General. The next time a PM is tempted to silence dissent through prorogation, he or she will likely think twice, fearing the backlash and double-digit drop in support suffered by his or her predecessor. And a Governor General faced with a request to prorogue in such circumstances may hesitate to say yes.

If Harper’s second prorogation is the last one of its kind, we may be able to say that a consistent practice of forbearance rooted in the principle of responsible government, i.e. a constitutional convention, has been established.

Canadians have helped spawn constitutional conventions before. The outcome of the 1926 federal election, which produced a Liberal majority in the wake of the King-Byng Affair, contributed to the modern principle of political non-interference by the Governor General. If the opponents of prorogation sustain their pressure, they may play a similar role in 2010.

The Facebook group was the catalyst of public opposition to prorogation, emerging in the days following the prime minister’s call to the Governor General and driving public interest in the story despite its holiday timing. The group fuelled criticism in the mainstream media by serving as a clearinghouse for stories on the issue and funnelling traffic to the websites of large newspapers and television networks. This allowed the story to spill into the offline world and significantly alter the voting intentions of Canadians.

While the Facebook group wasn’t a conscious exercise in constitution making, the nature of constitutional conventions may allow it to serve that very purpose. But the work of Canadians Against Proroguing Parliament isn’t over.

In order to ensure that a new convention is born, they are going to have to come out in huge numbers on January 23. Otherwise, the opposition we’ve witnessed over the last two weeks will be interpreted by future underhanded governments as temporary and will fail to restrain their abuse of power.