Thursday, March 11, 2010

Legal alternatives on detainee documents

There is a tactic raised in this op-ed that was in the Globe yesterday, that bears consideration as the Afghan detainee document dispute rolls on: "How to tame a PM's prerogative?" A law professor, David Schneiderman, offers the view here that despite the assertions of parliamentary supremacy that we've heard, there is more to the issue. What needs to be done, in this professor's view, is to enact a statute directing the disclosure of the requested documents in order to close off Harper's exercise of Crown prerogative, which is essentially what he's doing by putting up the Iacobucci shield. The statute would be pursued instead of engaging in a contempt proceeding on that parliamentary order because the professor suggests a contempt proceeding alone may not do the trick. Here's the key excerpt, explaining:
What the problem boils down to is an old-time dispute between the Crown and Parliament – between the royal prerogative and parliamentary privilege. The prerogatives of the Crown concern an area of unfettered discretion that has been whittled away by statute and practice to only a handful of things.

These include a few matters that are reserved for a governor-general acting on the advice of a prime minister (such as prorogation and dissolution), and subjects such as treaty-making, diplomacy and the deployment of armed forces – matters concerning the making of war and peace – that have been taken over by prime ministers and by members of the cabinet. Foreign affairs and national security remain, then, subjects for the exercise of Crown prerogative and so seemingly within the exclusive purview of the prime minister and a few select others.

Prerogatives continue to exist, however, only to the extent that they have not been disrupted by statute. Although Judge Iacobucci's advice may be helpful in resolving some aspects of this dispute, what the circumstances require is that Parliament take immediate measures to control the exercise of prerogative power, using statute. This realm of unfettered discretion must be made accountable to the people and their representatives. It is not often that Parliament can acquire this authority in the face of an intransigent prime minister. With Mr. Harper's party in the minority, however, the House of Commons can enact a special statute directing disclosure of these documents, even under certain conditions, and so control the prerogative in this instance.
The only thing standing in the way of controlling the exercise of the prerogative power in the case of unredacted documents is the Canadian Senate, where Conservative loyalists are now in the majority, but in which independent senators hold the balance of power. Were appointed Conservative senators to block such an initiative, it surely would give rise to yet another constitutional conflict, which Mr. Harper would be well advised to avoid.
Whether enacting a law is being considered by any of the opposition parties, unclear, no one is on record, that I am aware of, in stating that they would pursue such a route. There is no opinion being offered here on the merits of this route and whether indeed it should be considered, instead of a contempt proceeding. You can see how this route would "normalize" the issue by moving it toward a legislative solution instead of a more confrontational contempt proceeding.

We seem to be at a logjam on the issue given the repeated reversions to the Iacobucci appointment by the Conservatives in the Commons' daily question periods this week and the opposition pressing the issue while keeping their privilege motions in reserve (assuming they're still on the table). The above proposal is a third way, if you will, so it might deserve some consideration. And it would depend, as well, on the legal opinions that the opposition parties are receiving...are they down with the strong parliamentary supremacy position in law and prepared to run with that to back a contempt proceeding or do they have some doubt along the lines of the above mentioned Crown prerogative argument? If it's the latter, then they might consider the above route. Whether it's possible to get the opposition parties to agree on a unified position, yet another question. Whether we'd just be heading for another confrontation down the road once the above recommended statute's passed by the Commons, if it survived the Senate, one more question.

Questions, questions...