Beyond The Commons

Aaron Wherry covers all the goings-on in and around Parliament Hill. Follow Aaron on Twitter: @aaronwherry

Categories: Beyond The Commons, Capital Read

Wider ramifications

by Aaron Wherry on Thursday, December 10, 2009 11:04pm - 64 Comments

The Star covers today’s House debate. Canadian Press reviews the backroom battle. And with the Liberal motion now passed, the Globe considers what could come next.

The Liberals, NDP and Bloc Québécois, which together outnumber the Harper Conservatives in Parliament, passed a motion by a 145-143 vote that seeks to compel the release of thousands of uncensored documents on Afghan prisoners.

If the Conservatives ignore the order, as expected, opposition parties could vote to find the government in contempt, sparking a battle that might result in the courts being asked to weigh the limits of parliamentary privilege.

Ministers or other MPs found in contempt could be admonished and embarrassed by being compelled to appear before the Bar of the House – the floor of the Commons – to face a grilling from MPs.

But this House order-to-produce is a rarely used power and one that is in potential conflict with laws – such as those concerning privacy and national security – that Parliament itself has passed.

Tags: Afghanistan, detainees, documents, house of commons, national security, Parliament, parliamentary privilege, Richard Colvin, torture, transfers

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terren

Parliament has supremacy. Anyone who has taken political science understands this.

http://intensedebate.com/people/Scott_Tribe Scott_Tribe

Apparently, a lot of Conservatives haven't taken political science.. or have, but are going to try and claim otherwise.

Greg

We should call them "Pre-1688 Conservatives".

http://intensedebate.com/people/MaggiesFarmboy MaggiesFarmboy

The excerpt sums up the problem quite nicely.

Parliament passed the laws protecting national security secrets. Parliament is Supreme, but its members and the wirnessses are bound by those laws.

Those laws are in conflict with the motion. So which is Supreme? Parliament, or Parliament?

http://intensedebate.com/people/doug_rogers doug_rogers

The individual is not equal to the group.
http://intensedebate.com/people/sea_n_mountains sea_n_mountains

this is not a question on the limits on witnesses, it is a question of what Parliament can compel others to provide to them. the limits espoused in those other laws to not limit parliament.

http://intensedebate.com/people/Be_rad Be_rad

Ah, but if the laws are clear in limiting parliamentary access, then parliament has spoken on the issue.

http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

I feel my head getting rounder.

http://intensedebate.com/people/SisyphusThis SisyphusThis

Cavalier behaviour does that.

http://intensedebate.com/people/Be_rad Be_rad

It's time for the Levellers to rise again.

http://intensedebate.com/people/futurepm matthew

I dig that.

Darrell

Wells' first rule bound to apply here.
http://eugeneforseyliberal.blogspot.com EugeneForseyLiberal

I choose my words carefully: I can't believe the Cons would go down that path, or even consider it, but were the Cons to ignore and override Parliament in this matter, they would be engaged, in a real way, in the logic of authoritarianism. It never even occurred to me that they might. To do so would be to betray every tradition of Canadian conservatism, overthrow parliamentary democracy, and become an illegitimate authoritarian government. It may fun to joke about Roundheads & Cavaliers but I hope everyone realises just how serious a crisis this would be. In other cases they could buy time against the courts by appealing decisions. But there is no appeal against Parliament in this matter – there is no countervailing constitutional question, as Nicholson recognised. To defy Parliament in this matter would be to say "might makes right" – "we've got the monopoly of the forces of coercion, and they do or don't do what we say, so there, we're above the law". That is an authoritarian revolutionary position. If they think to put themselves above the law, they place themselves outside of it, and lose all legitimacy. I mean that not as empty rhetoric, but in a very real way.They would become illegitimate. At that point, all democrats would have to band against them and employ every and all means to restore parliamentary supremacy, ie. parliamentary democracy, ie. democracy. I cannot believe the Cons would indeed pursue such a dangerous path. If, against every expectation, they do, they must be made to reconsider and submit to Parliament, or be forced to submit, or replaced/overthrown so as to reestablish democracy, whatever that takes. Don't do it Cons, don't even think about doing it, you don't want to live in infamy. I honestly don't believe they are even considering it. It would just be too incredible.

http://intensedebate.com/people/danby danby

As low as it seems, one way out of this is an election. Could SH be angling the opposition towards a confidence matter?

BJB

Harper and his gang have shown nothing but contempt for a Parliament that does not bend to their will. Mr. Forsey is right in his analysis: they travel the road to authoritarianism. Imagine what contempt the public would receive if this bunch got its coveted majority. The two minority governments they've had demonstrate how ill-suited they are to govern. If "SH" is angling for a confidence vote, let's have it. The general election it would precipitate is the only way to toss these thugs out once and for all.

http://intensedebate.com/people/danby danby

But if they get voted back in, then what? What if it's a majority?
Love him or hate him, it is a mistake to underestimate SH – or to expect fair play from him.

wilson

And election doesn't stop any actions.
The RCMP can probe allegations under the Criminal Code,
just like they are 'still' doing
re: Lib government turning a blind eye to Arar torture.

http://www.thestar.com/news/canada/afghanmission/…
BJB

Good points, Danby. Must be careful what one wishes for. On the other hand, unless the electorate is willfully blind, I can't see how the Harper crowd might stay in power. While it wouldn't be wise to underestimate "SH", I give the same consideration to voters. Do we have the government we deserve?
http://intensedebate.com/people/LynnTO LynnTO

As much as I agree with Forsey and Danby here, I don't think enough of the electorate is paying attention to this path to authoritarianism to significantly change the makeup of parliament yet, and even so, if they disagree with the more authoritarian path because it appears to be "getting things done". It's not "voters are dumb" it's "voters aren't seeing what we're seeing".

That – getting the electorate to pay attention – will change if someone (or the government) is cited for contempt of parliament, or a prominent minister forced to resign over an impending torture scandal. But it's going to take something that large to get enough attention Ottawa-ward.

http://intensedebate.com/people/PolJunkie PolJunkie

"I cannot believe the Cons would indeed pursue such a dangerous path. If, against every expectation, they do, they must be made to reconsider and submit to Parliament, or be forced to submit, or replaced/overthrown so as to reestablish democracy, whatever that takes."

True but this would suggest that the Opposition would have the courage to do this. Does Iggy have the stomach for the kind of confrontation this calls for?
http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

I agree entirely with your sentiment: the supremacy of Parliament cannot be questioned.

BUT I would say that there should be no need for a extraordinary confrontation between Parliament and Cabinet (weird to write those words!), such as only the GG could resolve (presumably — hear me, Lord! — upholding Parliament). The regular mechanisms apply. If Parliament is seriously being flouted by the Cabinet, then the Government has ipso facto lost the support of the House and it should fall at once in a confidence vote. The confidence vote is the key test of whether the Government and Parliament are in fact in conflict. As rumour (the commenter here) described it the other day, the mechanism for enforcing Parliamentary subpoenas is to have the committee issuing the flouted subpoena bring the matter to the House, which can vote to enforce Parliamentary authority by force. If such a measure passed the House on the question of Government compliance, it would be hard not to read that as a confidence vote — at least, if all parties (Government included) chose not to regard it as a confidence vote, we'd be on a short trip to Wonderland. Anyway, the key point is that the Government can always be overridden by Parliament, and in this case the GG would definitely not accede to any request from the PM that he be allowed to govern without Parliament: she would dissolve Parliament and we'd have an election. So I can only see this coming to a head after a new election that returned a House of Commons constituted almost exactly like this one (strong CPC minority).

http://intensedebate.com/people/Sir_Francis Sir_Francis

…she would dissolve Parliament and we'd have an election…

…or she'd let Harper prorogue his sorry carcass out of yet another self-made Parliamentary fiasco.
http://intensedebate.com/people/madeyoulook madeyoulook

So I can only see this coming to a head after a new election that returned a House of Commons constituted almost exactly like this one (strong CPC minority).

… that will STILL cite national security and/or operational security of the military mission in its refusal to hand over the documents.

http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

Right. That's when it would get really interesting. Parliament wouldn't have the moral authority to get itself dissolved a second time, but they wouldn't (and shouldn't) accept hubris from PMO and the Dept. of Justice. That's when you polish up your pike.

Out There

Do the Conservatives really believe that opposition MPs are not to be trusted with matters of national security?

http://intensedebate.com/people/madeyoulook madeyoulook

Dunno. Is Denis Coderre still an MP?

tobyornottoby

If Maxime Bernier was trusted with documents then that pretty well means we can let any MP have a go.

wilson

How did the media get ahold of Colvins 'unredacted' memo?

kcm

You mean the one that Christy had…i dunno…maybe you should ask someone at the PMO…sometime when you're over that way.

wilson

Maybe the Harper govt wants to wait to see the outcome of this probe into
''allegations that Canadian government officials turned a blind eye to torture'' re: Arar
(oops, Liberals turned a blind eye to torture,
maybe Sampson will get his revenge too)

”…Project Prism, an investigation into the actions of (LIBERAL) Canadian government officials who might have had knowledge of or were negligent in the torture ordeal of Arar, was launched following a complaint by Toronto-based lawyer Marlys Edwardh.
Edwardh was one of Arar’s team of lawyers.
That investigation is believed to be ongoing.

….O’Connor said that, after a Canadian consular official first visited Arar in Syrian custody on Oct. 23, 2002, “it should have been apparent that Mr. Arar had likely been tortured in the preceding two weeks…”

http://www.thestar.com/news/canada/afghanmission/…

http://intensedebate.com/people/doug_rogers doug_rogers

That would be a classic Harper Conservative technique. Show that they are as vile and stupid as everyone else, so that's okay.

http://intensedebate.com/people/madeyoulook madeyoulook

Dear SCOC: We in Parliament have passed laws on privacy and national security. The House of Commons has also now compelled that the government must break those laws. Can you please tell us what to do?

Ugh…

BJB

The House is not compelling such laws to be broken. Parliamentarians are compelled to respect them, just as the Public Service must in the regular course of government business. Remember as well that House and Senate Committees may sit in camera to ensure privacy and security are protected. The Clerk of the House is right to push back the grasping overreach of the Justice Department.

Maggie's Farmboy

Sit in private?! With no camera or microphone in sight? What would be the point of that?

Surely you must be joking.
http://intensedebate.com/people/madeyoulook madeyoulook

These would be the same reliable MPs and Senators who never, ever leak anything about private caucus meetings to Jane Taber, right?

wilson

And just how did the media get ahold of an unredacted Colvin memo?

kcm

Who in the media has an unredacted copy? Guess i haven't been paying attention.

"These would be the same reliable MPs and Senators who never, ever leak anything about private caucus meetings to Jane Taber, right?"

Oh god! Parliamentary supremacy is now in the hands of Taber!
Dave

No one to my knowledge. Before someone says Blanchard, the only copies she claimed to have were the redacted versions upon which she proceeded to pass judgement because of what the bits she could see didn't say.

At which point the Globe spent two weeks countering every point she made and issuing corrections to her story.

http://intensedebate.com/people/MaggiesFarmboy MaggiesFarmboy

The UK had a similar problem recently:

http://news.bbc.co.uk/2/hi/uk_news/politics/77540…

kcm

And the results of various inquiries were that leaking information that is simply an embarrassment to the govt politically is not a matter of national security, and therefore not worthy of prosecution, since it's in the public interest to know.
We need a similar ruling here…enough with hiding behind NS for purely partisan political reasons…although i doubt any law will ever fully deal with this issue.

http://intensedebate.com/people/doug_rogers doug_rogers

There has been nothing but brinkmanship from Harper since his election. If this is a parliamentary-brinkmanship push back, then let it happen.
wilson

There is a difference. The Liberals left Arar and Sampson to rot, and be tortured.

The Afghan detainees were held longer, rescued or transfers were stopped,
when abuse came to light.
And proceedures were changed.

http://intensedebate.com/people/doug_rogers doug_rogers

If there is a difference, then the comparison is pointless..

wilson

The Lib and Con government actions were different,
but the reason for the probe is identical to what Libs are attacking Cons for over Afghan detainees.

Connnors report (and subsequent RCMP probe):

"Canadian officials should not wait for `verification' or unequivocal evidence of torture in a specific case before arriving at a conclusion of a likelihood of torture,"

"Interactions with countries with questionable human rights records "should be strictly controlled to guard against Canadian complicity in human rights abuses or a perception that Canada condones such abuses."

Officials seemed to "require actual knowledge of human rights violation," the judge noted. In fact, he said, "Most governments that violate human rights by, for example, engaging in torture, do not admit to such practices."

http://intensedebate.com/people/doug_rogers doug_rogers

I must assume then that you stand on the side of the vote in parliament, and the general consensus that there should be a public inquiry into these present allegations?

wilson

If Liberals can round up the Afghan detainee that got whacked with a shoe over the nose,
and a bloody nose is deemed to be torture.

If the Martin Liberals acknowledge that in the face of KNOWN torture and killings in Afghan prisons, they had good reason to draft a handover agreement with the Afghans, and produce documents.
kcm

Are you really that stupid Wilson? No, of course not…just thoroughly intellectually dishonest.

Gayle

I must say I am happy to see you are concerned about Arar. See, while he was imprisoned in Syria, I seem to recall Harper and Day getting up in the House complaining about the liberal government trying to help Arar.

Nice to see you disagree with them on that.

wilson

hmmm, link problem?
http://www.thestar.com/news/canada/afghanmission/…

Gayle

The probe is 3 years old, and no one has heard from the RCMP in 6 months, so it looks like this one is going nowhere. But, the article does raise the question of whether the RCMP should be launching a similar probe on this issue.

wilson

Curious that the Martin govt drafted an agreement with a nation they KNEW tortured their prisoners.

But when Manley and Graham appear in committee, we will find out why.
Why Liberal govt chose Afghan instead of American prisons for Cdn detainees.

Gayle

Do you remember that agreement included safeguards to protect the detainees from torture. It was only after Harper won the election that it became known those safeguards were not sufficient.

You can try, try, try to change the tune here, but nothing that happened to Arar mitigates Harper's complete and utter failure to a) protect the detainees, and b) be honest and accountable to the Canadian people.

kcm

"Canadian officials should not wait for `verification' or unequivocal evidence of torture in a specific case before arriving at a conclusion of a likelihood of torture,"

Yea! Wilson gets the point of the whole ruckus…finally!!

'But when Manley and Graham appear in committee, we will find out why.
Why Liberal govt chose Afghan instead of American prisons for Cdn detainees"

I was too optimistic. An agreement the cons defended.
Abu Ghraib Wilson, Abu Ghraib!…do keep up.

tobyornottoby

We have had elections about much less.
Dakota

Hopefully this will trigger an election, then we will see the last of Ignatieff and the complete collapse of the Liberals under Rae.

Hopefully this time it will be a Harper Majority.

http://intensedebate.com/people/danby danby

I can just imagine how accountable he would be with a majority…..
E.B.

It is truly sad that an issue about the integrity of our government on the world stage is seen purely as an opportunity to destroy the opposition.

This is the heart of the problem. If Harper chose to actually govern the country, he might actually do a credible job. Unfortunately, it is politics, all the time.

Political expediency trumps integrity, accountability, and transparency every time.
http://intensedebate.com/people/doug_rogers doug_rogers

Let's win! To hell with doing what's right!

http://intensedebate.com/people/LoyalSubject LoyalSubject

May be time for an election after all . . .
http://intensedebate.com/people/sea_n_mountains sea_n_mountains

I really think that calling an election now is not in anyone's best interests, besides the CPC's. Calling an election now, whether based on Tories pulling the plug early (again) or based on the withdrawal of confidence by the opposition, would amount to doing exactly the same thing as SH et al are doing in committee: attempting to force decision making in the absence of full disclosure. An election, as an easy solution, ensures that no further information will come to light before Canadians are forced to asses CPC actions.I really think that calling an election now is not in anyone's best interests, besides the CPC's. Calling an election now, whether based on Tories pulling the plug early (again) or based on the withdrawal of confidence by the opposition, would amount to doing exactly the same thing as SH et al are doing in committee: attempting to force decision making in the absence of full disclosure. An election, as an easy solution, ensures that no further information will come to light before Canadians are forced to asses CPC actions.

If the oppositions has its wits about them they will do as they currently are: taking a principled stand that core of our representative democracy is the primacy of parliament, and that it is parliament's duty to hold the government of the day to account. They have been making progress in this regard, and yesterday's motion sets a clear path forward. Eugene Forsey Liberal has cogently outlined where we will stand if the CPC was to not comply with parliament's motion of yesterday. Until we get there (and I, like EFL, am hopeful we will not) thenwe will deal with that when we get there. Until then press forward with parliamentary accountability!
http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

The consequences of doing that would be grave.

http://intensedebate.com/people/Sir_Francis Sir_Francis

I thought (hoped, really) that the consequences of last year's outrage would be grave. Sadly, Canadians appear willing to see constitutional conventions defiled as often as is necessary to keep an election at bay; we are that deeply revolted by the prospect of having to vote, I'm afraid.

http://intensedebate.com/people/Jack_Mitchell Jack Mitchell

The vast majority of Canadians will always be passively against doing anything. Yet I think the post-election Will-of-the-House-as-yet-undetermined thing was simply too difficult for them; they would find it much easier to understand that the PM was bullying Parliament, and Parliament should not be bullied.