This article was originally published in Maclean's Magazine on May 10, 2010
Showdown in the House: Afghanistan Detainee Documents
Before Tuesday's historic ruling by the Speaker of the COMMONS in the matter of the AFGHAN detainee documents, there was much speculation he would come up with some sort of classic fudge of the kind so beloved of this country's political class, one that would allow all sides to claim victory and do little else. You know: PARLIAMENT is right in principle, but the government is right in practice. Parliament has the right to demand the documents, and the government has the obligation to ... treat their concerns very seriously. Can't we all just get along?
There were some attempts afterward to cast it in this light, but let there be no mistake: this was not a compromise. It was balanced, it was judicious, it was fair to all sides, but it was unequivocal: Parliament's right "to send for persons, papers and records," Speaker Peter Milliken ruled, is absolute and unconditional. There are no limits on it, and the government has no constitutional option other than to comply with Parliament's will in such a matter, as expressed in the resolution passed by the Commons on Dec. 10. To accept the contrary notion, that the government may decide by and for itself which documents Parliament may see, and which it may not, "would completely undermine the role of parliamentarians in holding the government to account."
It is of course open to Parliament on any given issue to accept the government's assurances that certain things were better kept under wraps. But that's the point: it is for Parliament to decide, not the government. That remains the case, even with regard to sensitive issues like national security. Parliament's authority is circumscribed by its own discretion, not by the subject matter. Even where the law imposes a ban on disclosing certain types of information, unless the ban is expressly stated to apply to Parliament itself, parliamentary privilege is presumed to hold.
Now, it is certainly advisable, as the Speaker noted, for Parliament to show due caution in how it exercises that privilege, however absolute it may be. As such it is possible to conceive of the compromise ruling he might have rendered. If, say, members of Parliament had been demanding that all documents related to the handling of Afghan detainees by the Canadian military be posted on the Internet, or handed out on street corners, complete and unabridged, it would have been open to the Speaker to gently suggest some more discreet procedure that would address the government's legitimate national security concerns, perhaps restricting disclosure to a committee of MPs, each sworn to secrecy, their hearings held in camera. But as that was precisely the position the opposition parties had advanced, and the government had rejected, his advice to that effect amounted to a ringing endorsement of the opposition's stance, and a striking rebuke of the government's.
Indeed, it is difficult to see how the Speaker could have ruled any other way, or how the government could have imagined he would. The issue, he said, touches upon "the very foundations upon which our parliamentary system is built. In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and, in fact, an obligation." He quoted every acknowledged procedural authority: Bourinot, Maingot, Erskine May, House of Commons Procedure and Practice, the Standing Orders. All were, as he said, "categorical" in asserting the powers of the House to compel the production of any documents it wishes, of any kind. By the end, there was little left of the government's arguments. At one point Milliken recalled the minister of justice had quoted Bourinot to support his case. "Had he read a little further," he noted, dryly, the minister would have seen Bourinot was making the precise opposite point.
So either the Harper government is getting very bad advice, or ... well, what are they up to? What did they hope to achieve by carrying the fight this far? And just how much further are they prepared to take it? The Speaker has given the two sides two weeks to come up with some "mechanism" to safeguard national security concerns, in a way that meets Parliament's demands for oversight, failing which he would authorize a motion to find the government in contempt. But if there were any prospect of that, it seems likely the government would have already agreed to it. Certainly Milliken was unimpressed by its past efforts, such as the hiring of Frank Iacobucci, the former Supreme Court justice, to review the documents - a "separate, parallel process," the Speaker observed, "outside of parliamentary oversight, and without parliamentary involvement." (What is more, "Mr. Iacobucci reports to the minister of justice; his client is the government.") Nor did the government's terse response to the Speaker's ruling, with its vague talk of the "legal obligations" that presumably hinder the documents' release, offer much to suggest it was in a mood to compromise.
Where, then, are we headed? Doubtless there will be a show of negotiations over the next two weeks. The opposition would be well advised to steer clear of the Iacobucci option: the point is not to have some judge decide which documents Parliament may or may not see, or to push the whole business off on a judicial inquiry, but to establish the right of MPs, properly sworn, to see the documents, and to pass judgment themselves on what they contain. Assuming the opposition understands this, the greater likelihood is of some sort of showdown. A Supreme Court reference? Possibly, though it is unclear whether the court would even agree to hear the case: Milliken quotes Erskine May to the effect that "both Houses retain the right to be sole judge of the lawfulness of their own proceedings, and to settle - or depart from - their own codes of procedure."
An election, then? Would the Prime Minister treat the contempt motion, with whatever remedies and penalties it prescribes, as a confidence matter, and advise the Governor General to dissolve Parliament? But what if the motion itself expressly declares the issue is not one of confidence in the government? Derek Lee, the Liberal MP who would likely be called upon to raise the motion, has already written the Governor General to alert her to this prospect. Whose advice would she take in that event: the Prime Minister's, or Parliament's?
It is impossible to believe the government could be so reckless. The means of addressing its national security concerns have always been available to it. That it has refused to engage the opposition on these raises two distinct scenarios. Either it is simply too bloody-minded to give an inch to its political foes, on whatever matter, or the documents contain something truly awful, so scalding to the national conscience that it would be prepared to go to almost any length to suppress them. Either, that is, it is behaving completely irrationally, in a way that can only be harmful to its own best interests, or it is behaving all too rationally.
Maclean's May 10, 2010