Speaker Peter Milliken Makes Historic Ruling

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In a speech to the House of Commons that has already been deemed historic, Speaker Peter Milliken declared that the refusal of the federal government to provide uncensored reports about Afghan detainees to a special Parliamentary committee was a breach of the privilege of Parliament. Parliament had the right to ask for those documents, uncensored, and when the government refused to provide them they were overstepping their bounds.

From the CBC:

Milliken ruled Parliament had a right to order the government in December to produce uncensored documents to members of a special committee examining allegations that detainees transferred to Afghan custody were tortured.

He said the order was "clear" and procedurally acceptable but acknowledged it had no provision to protect sensitive information within the material.

"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," Milliken told the House.

"Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded."





Why is this a big deal? Because it is the core of the Canadian idea of responsible government; that is a government responsible to the people. Or as Stephen Maher in the Chronicle Herald declared, with this decision the throbbing heart of democracy reigns supreme.

"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 an obligation," Milliken said.

"Embedded in our Constitution, parliamentary law and even our standing orders, it is the source of our parliamentary system from which other processes and principles necessarily flow."

This was not the decision that many thought would come. C.E. Franks in the Globe and Mail said that Milliken managed to find a middle ground when many thought there wasn't any. Many thought that he had only two choices, to rule in favour of Parliament or to rule in favour of the government.

Reaching a satisfactory compromise will demand that both sides moderate the pur et dur rigidity of their claims. Perhaps even more difficult, it will require that each side recognizes the merits of the other side’s position. The Harper government has not proven itself to be very good at moderation and compromise. But Speaker Milliken is right. That’s the route to go. This is how parliamentary government has evolved, and how it will continue to do so.

It's not as simple as the Speaker just declaring that both sides must to work together. They still have to do it and he's given them a limited amount of time in order to figure out how to work together on this.

Milliken, who is the longest-serving Speaker of the House of Commons in Canadian history, said MPs have two weeks to create a system for viewing the sensitive detainee records.

"Is it possible for the two sides, working together in best the interest of the Canadians they serve, to devise a means where both their concerns are met?" he asked.

"Surely that's not too much to hope for."

Cooperation may not seem like a lot to ask, especially in a minority government where in order to survive the ruling party must form allegiences, no matter how temporary, with it's political opponents. But over the last few years the Conservatives and the opposition parties haven't always played well together. We've been on the brink of an election more times than many of us care to think about. Don Martin in the Calgary Herald declares that this decision may force an election that no body wants.

Prime Minister Harper is ready to reject outright any Speaker order to surrender more unedited documents to this Parliament. If MPs are granted access to the files by the Speaker, they cannot run away from a fight lest their parliamentary precedent-setting victory ring hollow.

That risks turning the prime minister versus Parliament showdown into a no-win tug-of-war where everybody loses in an election nobody wants.

I'm hopeful that Parliament and the government will figure out a way to satisfy all parties. But if they can't I can't think of a better thing to push us to election than something so critical to the core of our democracy.

See also:
David Akin posted full text of Milliken's speech. (Keep in mind, it was a long speech so it's a long post.)
Kady O'Malley
live-blogged the speech. ]
A scholar in the National Post calls it an "outstanding ruling."

Contributing Editor Sassymonkey also blogs at Sassymonkey and Sassymonkey Reads.

Image Credit: Wikimedia

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