Torture ruling a victory for Parliament

A great column by Chantal Hébert which says it all:

Torture paper ruling a victory for Parliament

PM who has accused courts of usurping the rights of elected officials could now turn to judges

Peter Milliken’s landmark ruling is not the kind of decision that a governing party hovering at 30 per cent in voting intentions should want to take into a snap election, especially on the heels of losing a significant chunk of support for closing down Parliament for most of the winter.

For the decision issued Tuesday by the veteran speaker of the House of Commons largely reads like a condemnation of Prime Minister Stephen Harper’s take-no-prisoners approach to the minority Parliament.

On the crucial aspects of the case that has been pitting the other parties against the government over the release of the documents pertaining to the Afghan detainee file, Milliken ruled in favour of Parliament and its current opposition majority.

He found little merit to the argument that ministers and their officials should the sole arbiters of what national security allows the government to share with Parliament.

He found no merit at all to the notion that the Bloc Québécois, by the virtue of its sovereignist creed, should not be trusted in the Afghan detainee loop.

And he pointed out that for 140 years, such battles of wills had routinely been resolved without triggering a constitutional crisis.

Milliken’s decision can’t be appealed – at least on the conventional parliamentary front.

The government could always try to buy time by asking the Supreme Court to rule on the proper balance between the powers of the executive and those of Parliament.

But in the past, Canada’s top court has been wary of meddling in the internal affairs of Parliament and the current prime minister has spent his career taking shots at judges for usurping the rights of elected officials.

It would be ironic to have Harper now turn to the courts to protect his government from the will of an elected majority.

He could also try to stare the opposition down, by declaring the issue a matter of confidence and daring the opposition parties to defeat his government over it.

The Liberals in particular have blinked in the past. But if they did in this case, the House could be forced to look for a new referee. Milliken could hardly continue in his current role if a majority of MPs failed to endorse a ruling of yesterday’s magnitude

And even a Conservative election victory would not necessarily make this ruling go away - not unless Harper secured a majority. But while there are those among Conservative strategists who believe he might prevail by wrapping himself in the flag for the duration of the campaign, polls indicate that would be a big gamble.

In a short statement yesterday, justice minister Rob Nicholson left all options open, including that of coming to terms with the opposition.

A start could be to have former Supreme Court justice Frank Iacobucci – who has been hired by the department of justice to vet the documents – report to Parliament rather than to the government, and/or to have legal representatives of the relevant parliamentary committee assist him in his task.

Another would be to allow some or all of the members of the committee that has been investigating the Afghan detainee issue to examine the documents behind closed doors.

But, if this government is true to form, the first order of Conservative business is going to be giving the Liberals a call. They are the weakest link in the opposition chain, by virtue of the party’s greater fear of a spring election.

Dividing the opposition to conquer served Harper well in the last parliamentary crisis and it could do so again in his latest predicament.