A landmark decision, a democratic victory

In a historic decision regarding the battle for access to documents on Afghan detainees, Speaker of the House Peter Milliken ruled in favour of the opposition, reaffirming the notion that Parliament reigns supreme over the powers of Prime Minister and the Federal Government.

"Before us are issues that question the very foundations upon which our parliamentary system is built," Milliken asserted. "In a system of responsible government, the fundamental right of the House of Commons to hold the government to account for its actions is an indisputable privilege and, in fact, obligation."

This was precisely the argument opposition MPs had made in their attempts to obtain uncensored documents containing key information on the reported abuse and torture of Afghan detainees. In December 2009, the three opposition parties unanimously passed a Commons motion which demanded the Harper government provide them access to the confidential detainee files believed to reveal government knowledge of torture. After months of stonewalling by the Conservatives, as well as the Prime Minister's adamant refusal to comply with the December motion, the opposition raised the question of privilege with the Speaker of the House, calling for the government to be held in contempt.

Milliken was tasked with wading through the debate, and in an unprecedented ruling, found the Harper government had violated parliamentary privilege and overstepped their powers in their handling of the request for unredacted documents.

"It is the view of the chair," stated Milliken "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. Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded. Therefore, the chair must conclude that it is perfectly within the existing privileges of the House to order production of the documents in question."

On the decision by Harper to thwart the opposition's motion by appointing former Supreme Court Justice Frank Iacobucci to independently review the documents, Milliken had this to say:

"The (Harper) government has argued that in mandating this review by Mr. Iacobucci, it was taking steps to comply with the Order consistent with its requirements to protect the security of Canada's armed forces and Canada's international obligations. However, several Members have pointed out that Mr. Iacobucci's appointment establishes a separate, parallel process outside of parliamentary oversight, and without parliamentary involvement. Furthermore, and in my view perhaps most significantly, Mr. Iacobucci reports to the Minister of Justice; his client is the (Harper) government."

In a telling observation, the Speaker addressed accusations coming from the Conservative caucus that granting opposition MPs access to confidential information somehow posed a threat to national security.

"There have been assertions," noted Milliken "that colleagues in the House are not sufficiently trustworthy to be given confidential information, even with appropriate security safeguards in place. I find such comments troubling. The insinuation that Members of Parliament cannot be trusted with the very information that they may well require to act on behalf of Canadians runs contrary to the inherent trust that Canadians have placed in their elected officials and which Members require to act in their various parliamentary capacities ... from the submissions I have heard, it is evident to the Chair that all Members take seriously the sensitive nature of these documents and the need to protect the confidential information they contain."

Milliken called for co-operation from all parties involved, and though he acknowledged "finding common ground will be difficult," he urged them to work together to find a solution to the ongoing stalemate.

"Now, it seems to me, that the issue before us is this: is it possible to put into place a mechanism by which these documents could be made available to the House without compromising the security and confidentiality of the information they contain? In other words, is it possible for the two sides, working together in the best interest of the Canadians they serve, to devise a means where both their concerns are met? Surely that is not too much to hope for."

"But the fact remains that the House and the Government have, essentially, an unbroken record of some 140 years of collaboration and accommodation in cases of this kind. It seems to me that it would be a signal failure for us to see that record shattered in the Third Session of the Fortieth Parliament because we lacked the will or the wit to find a solution to this impasse.
The House has long understood the role of the Government as 'defender of the realm' and its heavy responsibilities in matters of security, national defence and international relations. Similarly, the Government understands the House's undoubted role as the 'grand inquest of the nation' and its need for complete and accurate information in order to fulfill its duty of holding the Government to account."

In granting the Government and the opposition fourteen days to break the current impasse, Milliken warned "if in two weeks' time, the matter is still not resolved, the Chair will return to make a statement on the motion that will be allowed in the circumstances."

Having provided a thorough analysis of the events which played out over the past year, explaining in depth the reasoning behind his decision, Milliken rendered his verdict on the conduct of the Prime Minister and the Conservative government.

"Accordingly," ruled Milliken "on analyzing the evidence before it and the precedents, the chair cannot but conclude that the government's failure to comply with the order of December 10, 2009 constitutes prima facie a question of privilege."

Somewhere in the span of his 45 minute address, the Speaker of the House reignited the flame of democracy that Prime Minister Stephen Harper had all but extinguished. Members of the opposition applauded Milliken for his hard work and dedication concerning the matter, and political observers celebrated a rare victory for transparency and accountability in the 'culture of deceit' that embodies the Harper government.

There is much work yet to be done, and it will take an honest effort from all parties involved to agree on a course of action from which to proceed. Nevertheless, with the balance of power between Members of Parliament and the Federal Government restored, Milliken's decision was an unequivocal victory for democracy in Canada.