Reconfirming Runnymede: Speaker Says Parliament is Paramount in Conservative Contempt Case

Speaker Peter Milliken gave an historic ruling earlier today in the House in Commons. By all accounts, the eyes of the world were focussed on Milliken’s declaration that the Conservative government of Stephen Harper may be in contempt of parliament. While this may seem a mundane event to many, or at best posturing by the Opposition NDP and Liberals to score political points, the fact of the matter is quite different, and the implications of Milliken’s ruling will ring down through the annals of Canadian history, and indeed the history of parliamentary democracies throughout the world.

The only question yet to be answered: will this ruling lead to real reform, or will it ultimately be labelled as one of democracy’s last gasps?

Do you think that I’m overstating the case? Well, maybe so, but then again, maybe not. Let’s speculate for a moment, shall we, about where things might have ended up if Milliken had arrived at a different ruling.

As you know, the Opposition Parties have asked the Speaker to make a ruling on whether the government’s refusal to provide unredacted copies of correspondence related to prisoner transfers in Afghanistan constitutes contempt of parliament. The Opposition says that, because parliament has demanded access to these documents, if the government won’t make these materials available to elected Members of Parliament for their scrutiny, then the government is in contempt. The Conservative government says that there is a bigger picture here to consider, and that releasing these documents will compromise Canadian security, presumably as it relates to Canada’s and NATO’s role in Afghanistan.

Now that Milliken has ruled, you can bet that the Conservatives will begin attacking the Speaker personally. Remember, although Milliken has served in the non-partisan speaker role since his election by parliament to that position in 2001, Milliken is a Liberal. Clearly, today’s decision will be cast in a partisan light. A safer course of action for Milliken would have been to find in favour of the government, however that approach would have flown in the face of parliamentary tradition, and it would have been one of the final nails in democracy’s coffin. Here’s why:

The Conservatives claim that large portions of key documents are not being made public because of "National Security". So, we Canadians, and opposition members of parliament, don’t know what is in those documents. Maybe there are some real state secrets there which need protecting. Maybe there are just skeletons in the Conservatives own closet. Fact is, we don’t know. We have to trust the government that there are greater issues of National Security based only on their word at the moment.

Yes, the Conservatives have appointed retired Supreme Court Judge Frank Iacobucci to review the documents and determine whether or not the contents of these documents should be made public. Stephen Harper and the Cons believe that this approach will be fair and balanced, and that Canadians will accept the findings of the retired judge. And so should the Opposition, according to Harper.

Of course, this approach has no mandate within parliament. Parliament has asked for the documents, and they have not been delivered. The Opposition believes (as do I, and apparently so does the Speaker) that Cabinet must submit to the will of parliament, and parliament has decided that it wants to see these documents. This fact will not change if Iacobucci makes a finding in support of the Conservative position. And if he does, Canadians will never know why; we’ll simply have to trust Iacobucci as an honest broker without the benefit of knowing what’s in the documents.

Yes, but you may be concerned that some MP’s from all parties might go and leak information to the media after seeing the documents, and that these leaks may jeopardize security interests, or worse, put Canadians in harm’s way. Well, these issues have been addressed in the past when making certain secure documents available for parliamentarians, and the release of these documents could also be handled in such ways, as called for by Milliken. Release to a committee in camera, for example, of contentious documents has already happened.

Again, though, this argument does not change the fact that parliament has demanded to see the documents, and the documents are not being made available. And I personally don't buy it. We elected these MP's to look after our best interests. These are our decision makers. To suggest that they can't be trusted, well, that's really inappropriate.

Had Milliken sided with the Conservatives, and deferred to the process currently underway through Justice Iacobucci, he would have dealt a serious blow to our already-stressed democratic processes. In essence, such a decision would have been a slap in the face of parliament, and a declaration that real power lies only in the hands of Cabinet. And we know that cabinets are controlled by the Prime Minister, right from the get-go of appointments, to managing media messages. In essence, had Milliken ruled differently, it would have been a confirmation that the Prime Minister alone decides what all other elected officials can and can not know.

This would have led to a situation ripe for serious abuse. After all, if you can control the flow of information, you’ve set yourself up to be in a pretty position when the information might be somehow detrimental to you. Why share information with the Opposition in Parliament when you don’t have to? What, exactly, constitutes an issue of "National Security" anyway? I guess as the Prime Minister, unaccountable to anyone except the 50,000 or so electors who vote for him every few years, I suppose he gets to make that decision.

Our Prime Minister is already exercising power beyond that ascribed to his "first among equals" position. I often wonder what might have happened had the Governor General refused to prorogue parliament back in 2008. I suspect strongly that parliament would not have been sitting the next Monday afterwards, despite a negative ruling on Harper’s request. Remember that Minister Baird, a member of Cabinet, suggested that the Conservatives were ready to go over the GG’s head, directly to the Canadian people if they had to, in order to achieve the result that they wanted. This despite the fact that there would have been no parliamentary process to do so.

On the recent request to prorogue, well, no one is really sure why the reset button had to be pushed. Harper said it was so that the Conservatives could spend time refining the budget, but when the budget came out, there was no change of course. Pretty much everyone, including members of Harper’s own Party, realize that all of the reasons stated by Harper and his mouthpieces weren’t the real issues. Shutting the door on the detainee enquiry seems the likeliest reason, although we Canadians will never truly know why our parliament was shut down for several months earlier this year. Let’s hope that it wasn’t just so the PM could attend the gold medal hockey games.

Even these past few weeks we’ve seen Harper accept the resignation of one of his own Minister’s on so-called "serious allegations", and refer the matter to the police. We still don’t know why this Minister resigned. From the sounds of things, former Minister Guergis herself doesn’t know why she resigned, despite the fact that Harper indicated that, given the nature of the allegations, he had no choice but to accept her resignation.

And on the Afghan detainee hearing currently going on before the Military Police tribunal, we have a lawyer for the government claiming to have read the unredacted version of Richard Colvin’s correspondence to his superiors, and claiming that there was nothing substantive which Colvin brought to the attention of his superiors regarding the transfer of prisoners being problematic. Colvin can’t answer this accusation, because he’s under a gag order not to discuss the contents of his own correspondence due to "national security", but the government through its lawyer is free to make statements that there isn’t anything there. And to challenge Colvin to show where, in his heavily redacted correspondence, he was sounding the alarm. Of course, Colvin couldn’t point to the locations in the correspondence because they were blacked out. All of which prompted the tribunal chair to question, then, why the correspondence hasn’t been made public, given that there isn’t anything to it. The lawyer’s response was that he should take it up with his client the government. And that other documents would be delivered to the tribunal when the government was "good and ready" to provide them, and not a moment before, despite the fact that the absence of these documents were holding up the tribunal’s enquiry.

This is all truly bizarre. A ruling by Milliken in favour of the government’s position, that it is not in contempt of parliament, would have added fuel to the fire burning away at our democracy. It would have given carte blanche to the Prime Minister to declare matters to be within the purview of "national security" and to shut down on all discussion in parliament on them, aside from speculation. In some ways, that’s exactly where we are at right now, and I would suggest that this is due to the Conservative’s on-going contempt for the institution of parliament; their contempt isn’t confined to the prisoner detainee issue.

Milliken could have given his consent to the business-as-usual approach to governance as practiced by Stephen Harper, our modern day King John. This is the approach which we see in action today. Instead, the Speaker ruled that the Prime Minister and Cabinet is not above the will of parliament, who are after all, individuals whom Canadians have elected to look out for our best interests. MP’s are in Ottawa on our behalf, and Harper needs to remember this. MP’s and government do not work for Stephen Harper; they work for me and all other Canadians. Milliken’s ruling today should cause Harper to do a bit of a rethink, but I’m not holding my breath. Likely we’ll see the Supreme Court asked to intervene, or have an election before this can go much further. My money is on both outcomes.

But at least the supremacy of Parliament was acknowledged today, and that is a triumph for all who care about the state of democracy in this great nation of ours. Had Milliken ruled differently, well, Canadians would be left wondering what good, exactly, are all of these parliamentarians whom we elect, ostensibly to represent our interests, when the Prime Minister and Cabinet get to determine what can and can not be discussed. Likely the conclusion that just about everybody would arrive at would be: not much good at all. Which would please Stephen Harper to no end.

Thank you, Speaker of the House, for shoring up my eroding faith in Canadian democracy.

And now if we can just get Minister Clement to release the agreement the government made with Vale Inco when Canadian mining giant INCO was sold to the Brazilians for the "net benefit of Canada". Yet another example of the Conservatives telling us to simply trust them, in absence of releasing documents for us to make up our own minds.