Historic ruling to decide who holds real power in Ottawa

Speaker Peter Milliken addresses the House of Commons after on Oct. 21, 2009. The Canadian Press

Speaker to decide whether Tories are in contempt of Parliament over heavily censored documents on treatment of detainees

John Ibbitson

Ottawa — Globe and Mail  Tuesday, Apr. 20, 2010

Who wields ultimate power: Parliament or the Prime Minister? Canadians are about to find out.

Either Thursday or next week, House Speaker Peter Milliken will rule on whether Stephen Harper’s Conservative government is in contempt of Parliament.

If Mr. Milliken finds in favour of the opposition parties that made the claim, then thousands of pages of heavily censored documents could be made public, showing whether the government and armed forces knew they were sending detainees to be tortured in Afghan jails.

If he rules in favour of the government, an already powerful executive will grow yet more powerful.

“It’s huge,” said Errol Mendes, a professor of law at University of Ottawa and constitutional expert. Centuries of precedent dictate that Parliament is supreme in holding the government to account, he observed.

“If the Speaker rules against the opposition motions, it would not be too hyperbolic to say we have changed our system of governance,” he maintained. “The executive would no longer be accountable to the House of Commons.”

But a ruling for the opposition could force an election.

The opposition parties, which form a majority in the House, passed a motion in December ordering the government to release unredacted versions of documents concerning the treatment of detainees in Afghanistan. The opposition suspects a cover-up in the government’s decision to censor the documents heavily before making them public.

When the Conservatives refused, citing national security, the opposition last month asked the Speaker to find the government in contempt of Parliament.

This is an argument as old as Runnymede. In that meadow in 1215, England’s barons forced King John to agree that he would govern only with the consent of a great council, which would become Parliament.

Kings and prime ministers have struggled with Parliament ever since.

“Our parliamentary privileges are not indefinite, nor unlimited,” Justice Minister Rob Nicholson told the House last month, defending the government’s right to withhold information for reasons of national security.

The government, he said, must balance its obligations to Parliament with “our fundamental duty to protect information for national security, national defence and foreign relations.”

Balls, the opposition replied. “The government’s behaviour is tantamount to contempt for this House,” NDP MP Jack Harris declared.

The opposition MPs are prepared to discuss ways to examine the documents that would prevent a breach of national security, he told the House. But “the order is binding,” and “the government must obey.”

The problem, observed Ned Franks, professor emeritus at Queen’s University, is that “parliamentary committees leak like sieves.”

Mr. Milliken’s word is not the final word. Technically, he will rule only on whether the government appears to be in contempt. If he finds against the government, a parliamentary committee will thrash out the issue, and the matter will be brought back to the House for a final vote.

Rather than release the material, the Conservatives could force an election by making that vote a matter of confidence in the government.

Patrick Monahan, provost of York University and a constitutional scholar, believes that Mr. Milliken’s decision “will be a historic ruling” watched by Westminster-style governments around the world.

But he also finds the whole thing unfortunate. Parliament works best when there is consensus on the proper roles of executive and legislature.

“It’s not productive to have these kinds of confrontations between the government and the House,” he said in an interview.

Mr. Franks agrees. The opposition parties “used to posture,” he said. “Now they’re swinging baseball bats.” Yet the government’s obsession with secrecy leaves little room for compromise.

Seven hundred and ninety-five years after Runnymede, the argument carries on.

Struggle between Parliament and government could reach Supreme Court

April 21, 2010 

Susan Delacourt 

OTTAWA–Will the Supreme Court of Canada have to step in to sort out the power struggle between the House of Commons and Prime Minister Stephen Harper’s government? 

It’s a solution that some parliamentary experts and observers believe is possible after Commons Speaker Peter Milliken issues his historic ruling on whether Parliament or the government have the right to control the documents in the Afghan detainee controversy. 

“On this one, I think that’s something the government certainly could do,” said Ned Franks, professor emeritus at Queen’s University and one of the country’s leading parliamentary scholars. 

Milliken is expected to announce as early as Thursday his verdict in a serious, five-month-old standoff between the Harper government and the opposition, which forms a majority in the Commons. Milliken’s ruling could have significant implications for how power is exercised in parliamentary democracies – not just in Canada, but beyond. 

In December, the three opposition parties banded together and passed a parliamentary order, compelling the government to produce all documents related to Canada’s treatment of detainees captured by Canadian forces in Afghanistan. The order has the force of law, but the government has argued that other laws, protecting national security for instance, weigh against wholesale compliance with the parliamentary dictate. 

In many ways, this is a sequel to another constitutional crisis – specifically, the standoff immediately after the 2008 election, when the opposition parties banded together in a coalition that threatened to unseat Harper’s government. 

The Liberals and New Democrats put together a coalition-government proposal, with tacit agreement from the Bloc Québecois. But the Conservative government, in a massive public-relations campaign, argued that the coalition was undemocratic and a sop to separatists. 

Governor General Michaëlle Jean granted Harper a request to prorogue Parliament, but reportedly made clear, in a two-hour discussion with the Prime Minister, that the government was being granted the stay of execution on condition that it co-operate better with the majority opposition in the Commons. 

Now, a little more than a year later, Harper’s refusal to co-operate with this parliamentary order could be viewed as defiance of the governor general’s instructions. In that case, if this dispute lands in front of Jean again, she may have no choice but to dissolve Parliament, recognizing that it has become dysfunctional. 

The Supreme Court, however, could represent a compromise of sorts. If Milliken sides with the argument that Parliament prevails over government, the Justice Department may well draft a formal reference to the Supreme Court – in the form of a constitutional, not a political question – about which laws have precedence in the case of a dispute. 

In other words, rather than going to the governor general, and almost certainly an election, the problem would head to the Supreme Court, where everyone could buy some time. 

It’s not unheard of. Former prime minister Jean Chretien asked the Supreme Court to sort out the rules of secession in the late 1990s and the current, Conservative government is asking the Supreme Court to issue an opinion on whether the federal government has the authority to establish a national securities regulator. The provinces and Liberal senators have also been urging Harper to put his Senate-reform ideas to the Supreme Court. 

Franks said this isn’t an ideal situation in the current standoff. In a perfect world, Parliament wouldn’t defer to the Supreme Court to sort out its own powers. Franks suspects and hopes that Milliken is able to issue a ruling that treads somewhere down the middle, allowing the government and the Commons to sit down and solve this standoff themselves. 

“I would far rather see the two sides in Parliament sort this out than have it go to the Supreme Court,” Franks said.