Thursday, December 10, 2009

Democratic struggle in the House of Commons

Kady O'Malley has been chronicling the fight that has now erupted between the House Law Clerk and the Department of Justice over the issue of production of documents to the Afghan Special Commons Committee: "House Law Clerk to DOJ: Right backatcha!" See also: "The DOJ's response to House Law Clerk."

Essentially it comes down to the government's view that it is entitled to withhold evidence from the Commons Committee on the basis of a national security claim. They derive that basis out of sections 37 & 38 of the Canada Evidence Act (whose merit is a whole other story and now has been proven to be dangerous in the hands of a government that does not respect parliamentary conventions). Both the Law Clerk and the Department of Justice, however, seem to agree that sections 37 & 38 of that statute do not legally apply to the House of Commons or its committees. So it is a political argument the Conservatives are making, one grounded in convention that "...injurious information should not be disclosed in a parliamentary setting." So they accept that the statute doesn't apply, it's just the convention underlying it that is connected to national security that nevertheless allows them to block the information. At least, that's how I'm reading the arcane arguments over parliamentary privilege.

The House of Commons has now gained a strong hand by passing a motion by a vote of 145-143 to require the production of the following documents:
That, given the undisputed privileges of Parliament under Canada's constitution, including the absolute power to require the government to produce uncensored documents when requested, and given the reality that the government has violated the rights of Parliament by invoking the Canada Evidence Act to censor documents before producing them, the House urgently requires access to the following documents in their original and uncensored form;
all documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;
all documents within the Department of Foreign Affairs written in response to the documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;
all memoranda for information or memoranda for decision sent to the Minister of Foreign Affairs concerning detainees from December 18, 2005 to the present;
all documents produced pursuant to all orders of the Federal Court in Amnesty International Canada and British Columbia Civil Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada;
all documents produced to the Military Police Complaints Commission in the Afghanistan Public Interest Hearings;
all annual human rights reports by the Department of Foreign Affairs on Afghanistan; and
accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith.
Given the Conservatives' intransigence and the Department of Justice's position that is enabling them, it'll be interesting to see the power struggle that will now play out. The House of Commons and its Law Clerk are on one side, the government and the Department of Justice on the other. They are at legal loggerheads now, legitimately or not, and it's going to take strong political will on the part of the opposition to push this. The government's not moving, to date. We'll see what they do now that they're faced with this Commons indictment of their position. If they don't respect it, we're in dangerous territory.