Constitutional scholars applauded Speaker Peter Milliken’s ruling Tuesday, both for his ability to get the essential issue right — that Parliament is supreme over the executive branch of government — but also for manner in which he laid out a path for some sort of political compromise.
“I think it’s a very historic ruling,” said Errol Mendes, a constitutional law professor at the University of Ottawa. “He’s said, based on centuries of parliamentary tradition, he’s basically nailing down the fact in terms of separations of powers, Parliament is supreme in terms of holding the executive to account. It actually goes much, much farther than just the detainee issue because when you deal with that core privilege, the executive can’t just decide on your own whether or not the House of Commons should see [documents].”
Patrick Monahan, a constitutional scholar and now provost of York University in Toronto, called it “an outstanding ruling” on an important, but not necessarily new, parliamentary principle.
“It’s significant for affirming the right of the House … to hold the government to account,” said Monahan. “And I think it’s significant as well for its recognition of the need for all parties in a political system such as ours to work together and reach accommodations. Our system works best when those types of compromises are found.”
“I thought it was impeccable,” said Ken Dickerson, program manager at the University of Alberta’s Centre for Constitutional Studies. “The government, for as long as it could, was saying, yes, there has to be an accomodation but that it’s up to us — the governnment — to decide how much compromise is enough. And the Speaker came down on the side of the opposition parties which is, no, it’s actually up to a majority of Parliamentarians to decide how much of an accommodation is enough.”
And if, in two weeks, the opposition decides the government has not done what a majority of MPs have asked, the table would be set for a process which could lead a motion of censure of the government and that motion, most believe, would be tantamount to the opposition voting no confidence in the government. At that point, a general election would likely be inevitable.
“What [the ruling] gives the government the opportunity to do is to offer some satisfactory to the opposition that they’ll decide to stop that process,” said Dickerson.
A post at The Torch:
“Afghan detainee docs decision: When the law is no longer applicable
Further to this post,
Afghan detainee docs: Crown privilege rules
well, it doesn't. A key argument in the government's refusal to produce to the Commons unredacted documents on the Afghan detainee matter is that there are statutory provisions against doing so in some circumstances. But Speaker Peter Milliken's has ruled that the House of Commons' right to demand documents is effectively absolute.
To my mind the cornerstone of the ruling is a citation on Australian Senate practice that maintains just one House of Parliament, even one committee, can over-ride a statutory prohibition when demanding the production of documents by the government.
It seems most most odd to me that the Australian citation allows a statutory prohibition–which must be passed by both Houses of Parliament–effectively to be over-ridden by a vote in just one of those houses; indeed it would seem by a vote in just one committee with a relatively small number of members.
I wonder, in that light, whether the Speaker should have placed such importance on the citation…”
Mark
Ottawa
One of the things that gets me about the Government's position; that it is bound by a law passed under a previous Liberal Government, is that they could have at any timed moved a bill to change that law. It is the unspoken elephant. But their reluctance to do so borders on creating, for their own purposes, the impression that the law in question (which did not talk explicitly about parliamentary privilege) is somehow entrenched. Now our traditions began under English parliaments where “no sovereign Parliament is bound by the acts of its predecessors. [17]; and there is no higher authority that can create law which binds Parliament”. But because we were a colony our BNA act did create an exception in that it needed London's approval.
But not all the later BNA amendments required going back for English approval suggesting that only parts of the BNA were de-facto entrenched. And our early attempts at bill of rights were very much not entrenched. But Trudeau realized the value to entrenching the constitution so the American fully entrenched model of constitutions was first proposed and then effectively un-entrenched by the not-withstanding clause agreement. Finally after the public backlash coming to a sort of mixed entrenched-and-not-quite-entrenched form we have today. But all other laws are not entrenched, including those relating to agreements with other governments. Treaties are essentially special forms of contracts and so unbreakable treaties in perpetuity are a nonsense.
And simple thought experiments show why that English principle must apply in a first-past-the-post-system that can return not a single opposition member in a landslide. To prevent that mono-party-legislature passing a silly law to prevent a different party from forming an effective government you have to resort to that English parliamentary principle. And a corollary to that is the next government gets to see very much of the previous government's files (but a few classes of documents are reserved so to prevent gaining such political advantage as to extort the future of the opposition)
And that landslide thought experiment shows (a) 1 reason why the Federal senate has remained after each province eliminated theirs. (2) why the Australian principle mentioned above does not limit matters of privilege to what gets a 50%+1 vote in the legislature. No rather the privilege is held and exercised by each MP (and Senator) individually.