Winnipeg Free Press - PRINT EDITION

Yes, they're lying, but they're lying legally

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Political candidates all across Canada are on the hustings, making a slew of promises, none of which they are legally required to keep. Pre-election pledges are limitless in content and scope because there are no legislative mechanisms to hold politicians to account for failing to fulfil promises made to the public at large.

"Politicians are not legally compelled to abide by their platforms in any democratic system," confirmed researcher Barnard Manin at New York University.

"Once citizens elect representatives, they have no institutional devices to force them to adhere to promises," explained researchers Adam Przeworski of New York University and Susan Stokes at the University of Chicago in a recent report. "Citizens' suits against governments that betrayed specific campaign promises have been rejected by courts."

According to one published report, up to 93 per cent of pre-election pledges by candidates for public office are fictitious, fraudulent, impracticable, fabricated or other forms of misrepresentation.

"Some candidates lie more than others," concluded Steven Callander at Northwestern University and Simon Wilkie at the University of Southern California in a recent publication. "Candidates on the campaign stage misrepresent their policy intentions... and the willingness to lie varies across candidates... (but) those more willing to lie are favoured."

Research indicates the prospect of being tossed out of office in a subsequent election is no deterrent.

"The threat of not being re-elected is insufficient to induce governments to act in the best interest of the public," Przeworski and his colleagues concluded.

Researcher Jane Mansbridge at Harvard University calls pre-election promises a "promissory" approach.

But, there is no institutional mechanism to force officeholders to be faithful to their platforms, Manin pointed out.

That is why an electorate should be skeptical of pre-election pledges, researchers caution. Court rulings confirm politicians are not legally bound to follow through on any of their pre-election promises.

Canadian courts have clarified that situation, specifying candidates for office are not guilty of "negligent misrepresentation" for failing to fulfil election pledges.

A 1990 court decision specified "undertakings given as to what the government will or will not legislate in future are without value, do not amount to consideration and cannot form the basis of a contract" between politicians and the public at large.

More recently, the Ontario Superior Court of Justice clarified that "in the case of election campaigns, politicians and their parties present their election platforms to the electorate... (and) they commonly make promises and pledges they will or will not do various things if and when they are elected."

The court added that "such promises and pledges are not "legally binding agreements between the candidate and the elector or electors to whom these promises or pledges were made.

"To allow claims of negligent misrepresentation to be made based on these would raise the spectre of unlimited liability," the court found.

At issue in that case was a pre-election tax-related pledge written in 2003 by Dalton McGuinty prior to his being elected as Ontario premier. That pledge was not fulfilled when he was put into office and the Canadian Taxpayers Federation subsequently launched court proceedings, which were ultimately unsuccessful.

Such rulings are consistent with similar legal precedents in other jurisdictions. In 1982, the U.S. Supreme Court ruled that in pre-election rhetoric, "erroneous statement is inevitable in free debate."

"Citizens are unable to control governments by obliging them to follow mandates," Przeworski and his colleagues concluded.

"(Sometimes) politicians want something different from and costly to citizens, whether just some goals that citizens do not share, re-election or private gains."

 

Robert Alison is a freelance writer.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien and Paul Samyn.

Republished from the Winnipeg Free Press print edition April 2, 2011 J11

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