I’ve mentioned Aniz Alani’s challenge to the constitutionality of the Prime Minister’s apparent and admitted policy of not making any Senate appointments before. The federal government moved to strike Mr. Alani’s application for judicial review, arguing that it had no chance of success, and also that the Federal Court had no jurisdiction to hear it. Yesterday, that Court’s Justice Harrington rejected the motion to strike, thus allowing the application to proceed to a hearing on the merits. It is important to keep in mind that this is not a decision on the substance of any of the multiple issues Mr. Alani’s application raises. Indeed, Justice Harrington is very careful to make it clear, throughout his reasons, that these issues are very much open. Still, these reasons might give us some indications of what the eventual merits ruling could look like.
The issues presented by this case can be sorted in four categories. Logically the first is the question of whether the constitutionality of senatorial non-appointments is justiciable at all. Then there is the procedural question of whether Mr. Alani’s application to the Federal Court is the right way to raise it. Justice Harrington mostly considers a variety of sub-questions that can be grouped under these two headings, dealing with procedure first and with justiciability second.
What I have in the preceding paragraph called the procedural question is actually mostly one of jurisdiction. Justice Harrington briefly considers the matter of Mr. Alani’s standing, but does not really go beyond “grant[ing] him standing on a public interest basis to oppose the motion to have his application struck.”  He also comments on the question of whether there is a “decision” not to appoint Senators which the Federal Court could review. If there is no decision, Justice Harrington suggests when considering some amendments Mr. Alani proposed making to his application, then the application becomes a pure “reference” on a point of law, which the Federal Courts Act does not authorize an individual to pursue. The Federal Court would, in other words, be without jurisdiction to entertain a challenge not focused on a “decision.” For the purposes of a motion to strike, Justice Harrington is prepared to assume that a “decision” has been made, but he seems somewhat skeptical. This is likely to be a problem for Mr. Alani going forward, as I had already suggested here.
The other jurisdictional question Justice Harrington addresses is also one I had pointed at. Even assuming that the Prime Minister has made a “decision,” within the meaning of the Federal Court Act, not to advise the Governor General to appoint Senators, does this decision fall within the scope of the Federal Court’s review powers? More precisely, the government contended that decisions regarding advice do not fall within the scope of Crown prerogative, and are thus nonrenewable. Justice Harrington does not decide this point, but rather says that there is enough doubt about it to leave it open to a hearing on the merits. (It is worth noting, though, that he does not once mention the concept of “constitutional architecture,” which in my view is Mr. Alani’s best hope of bringing the issue of the Prime Minister’s advice within the legal, as opposed to the purely conventional, realm.)
As for the justiciability issues involved in Mr. Alani’s challenge, they all have to do with the role of constitutional conventions in the appointment of Senators. All agree that there is a convention pursuant to which Senators are appointed by the Governor General on the Prime Minister’s advice. The government has argued that, as conventions are not legal rules or legally enforceable, the whole matter non-justiciable. Justice Harrington suggests that this is not so. He notes that the government has not argued that a convention governs “the timing of the Prime Minister’s recommendations” to the Governor General, and adds that
[c]ertainly, at some stage, senators have to be appointed. If there were to be no quorum, (the quorum being fifteen), Parliament could not function as it is composed of both the House of Commons and the Senate. 
Justice Harrington goes on to say that courts can determine whether a convention exists, and that if the government wants to rely on one, it will not only have to establish its existence, but possibly also show that any convention it relies on does not “flaunt” the requirements of the Constitution Act, 1867, “that Senate vacancies be filled” “promptly”  ― though the existence of such a requirement is also left to be established (presumably by Mr. Alani) at the merits stage of the application. Finally, Justice Harrington suggests that, contrary to the government’s contention, the court could make a declaration even if doing so has the effect of making the government follow a convention.
It is good, I think, that Mr. Alani’s challenge will be considered on the merits. It underlying premise, that the timely appointment of Senators to fill vacancies is a constitutional requirement pursuant to s. 32 of the Constitution Act, 1867, seems to me obviously correct, and since the Prime Minister, as well as one of the men hoping to replace him, are committed (the latter perhaps even more strongly than the former) to disregarding the constitution, it would be good if the courts could call them to order. That said, it is still not clear that the Federal Court is actually authorized to do that. Specifically, it remains to be seen whether the Prime Minster’s course of action can be regarded as a reviewable decision and, if so, whether it is the sort of decision the Federal Court has jurisdiction to review. Courts, unlike Prime Ministers, cannot simply ignore pesky legal rules that might stop them from doing what they think is best.