Canada and the World
Current Events with a Canadian Perspective
Last update
19 November 2010
Canada’s Parliament is Supreme, not the Prime Minister
The Speaker of the House of Commons
has ruled that the Harper government
must hand over documents about Afghan detainees
For months, the Conservative government has stonewalled on delivering documents relating to the transfer of detainees in Afghanistan. The people captured by Canadian soldiers were then handed over to Afghan authorities who almost certainly tortured them.
If those in the chain of command transferred detainees with the knowledge they would be tortured they could be found guilty of war crimes.
Documents Sought to Establish Facts
The House of Commons committee looking into the issue of detainee treatment asked for the government to produce the files relating to the issue. The committee was not asking for the documents to be made public but to be made available to MPs in their entirety.
The government refused, saying there were national security issues involved.
On December 10, 2009, the House of Commons passed a motion calling on the government
to obey to committee’s request and release the documents. The government still refused
to release the material, so the issue landed in the lap of the Speaker of the House,
Peter Milliken (above).
Role of the Speaker
It is the Speaker’s job to rule on matters of procedure in the House of Commons. He or she is politically impartial, making decisions based on centuries of parliamentary practice, contained in the House of Commons Procedure and Practice Manual.
On April 27, 2010, Speaker Milliken ruled, in the words of CBC News, that “The federal government breached parliamentary privilege with its refusal to produce uncensored documents related to the treatment of Afghan detainees and must provide the material to MPs within two weeks.”
The Speaker encouraged politicians to find a compromise.
Joan Bryden wrote (Canadian Press, April 27, 2010): “He gave the government two weeks to work out a deal with the opposition parties, in which MPs would get access to the documents they’ve been demanding for five months while protecting the confidentiality of the most sensitive information.”
The Privilege of Parliament at Stake
Mr. Milliken gave a lengthy ruling in which he said, “It is the view of the chair that accepting an unconditional authority of the executive to censor the information provided to Parliament would, in fact, jeopardize the very separation of powers that is purported to lie at the heart of our parliamentary system and the independence of its constituent parts.”
To untangle the legal language it essentially means that the Prime Minister must
answer to Parliament, not the other way round. In Milliken’s words: “It is the function
of Parliament to hold the government to account.”
He said the power of Parliament is absolute and goes to “the very foundations upon which our parliamentary system is built.” This applies to sensitive information of every kind: “No exceptions are made for any category of government documents, even those related to national security.”
What Happens Next?
Justice Minister Rob Nicholson’s response to the ruling was open-
Behind-
What are the Consequences of a Contempt of Parliament Citation?
Writing in The National Post (March 03, 2010) lawyer James Morton comments: “The punishment for contempt of Parliament is in the discretion of Parliament. It seldom amounts to more than censure for misconduct, but is theoretically punishable by jail time.”
It usually involves a sharp rebuke and a letter of apology, plus a stain on the reputation of the person cited.
However, Prime Minister Stephen Harper could make a vote on the contempt motion a matter of confidence. If he does that, and the government is defeated, Parliament would be dissolved and another general election held.
No consequences will have the gravity of those that befell England’s King Charles I. In 1649, he was found to be in contempt of Parliament, among other things, for trying to levy taxes without Parliament’s consent. On January 30, 1649 Charles was beheaded in public in London.
Image credit: Raul Heinrich
Sources
“Tories Lose Epic Battle over Parliament’s Access to Afghan Documents.” Joan Bryden, The Canadian Press, April 27, 2010.
“Parliament Wins in Showdown with Stephen Harper Government.” Susan Delacourt, Toronto Star, April 27, 2010.
“Afghan Records Denial Breaches Privilege: Speaker.” CBC News, April 27, 2010.
“All Afghan Detainees Likely Tortured: Diplomat.” CBC News, November 18, 2009.
“Contempt of Parliament: a Deconstruction.” James Morton, National Post, March 3, 2010.
House of Commons Procedure and Practice manual
© Canada and the World, April 2010
All rights reserved
“Today the Speaker has issued a serious reminder to the prime minister that he is not a king.”
NDP Leader Jack Layton.
ABUSE OF
AFGHAN DETAINEES
Evidence came to light in 2007 that Canadian soldiers had handed over prisoners to Afghan authorities even though their superiors knew there was a strong likelihood they would be tortured. Doing so is a breach of the Geneva Conventions on the treatment of prisoners of war and opens up the possibility of war crimes charges.
Canada’s senior military leaders and their political bosses denied they had any knowledge of the possible abuse of detainees.
However, on November 18, 2009 Canadian diplomat Richard Colvin testified to a House of Commons committee that he had written numerous reports in 2006 and 2007 on the torture of Afghan detainees. These reports had been sent up the chain of command.
Despite this, senior officials including then foreign affairs minister Peter MacKay,
continued to deny any knowledge of the torture. Mr. MacKay characterized Colvin’s
testimony as “nothing short of hearsay, second-