Scrupulously fair and non-partisan, the ruling yesterday of the Speaker of the House of Commons, Peter Milliken, should spare this country a futile confrontation between the Cabinet and the Commons over their respective powers. Any disregard for his ruling by either side would be a slap in the face at Canada's system of government, and at Canadians themselves.
Prime Minister Stephen Harper and his Cabinet simply do not have an unconditional right to refuse Parliament's request for documents on the transfer of detainees to Afghan authorities. Such a right "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," Mr. Milliken ruled. "Furthermore, it risks diminishing the inherent privileges of the House and its members, which have been earned and must be safeguarded."
On the other hand, in parliamentary tradition, the House has usually managed to reach an accommodation with government over sensitive material. Somewhat in the manner of a patient teacher dealing with recalcitrant pupils, Mr. Milliken gave them a bit of time to work things out.
The matter at the heart of the dispute should not be forgotten. The treatment of Afghan detainees relates to Canada at war, Canada's relations with other countries, Canada's respect for human rights. Parliament has a duty to hold the government to account for its conduct of the war.
It should not be beyond the ability of both sides to find a way out of this impasse. One possibility would be to swear in to the Privy Council the members of the House Committee on Afghanistan. The United States does something similar with its congressional intelligence committee, providing some transparency and oversight without jeopardizing the nation's security.
Surely, parliamentarians who receive security clearance and understand what is at stake can be trusted to respect their oaths, and not give out defence secrets or harm relations with other governments.
Another possibility raised by Mr. Milliken would be to have an independent arbiter determine what can be disclosed in this dispute and similar ones that may arise in the future. While the government, recognizing the weakness of its position, had asked the former Supreme Court justice Frank Iacobucci to make such a determination, the idea was flawed because he was reporting to the Minister of Justice, said Mr. Milliken.
Another possibility is suggested by the Security Intelligence Review Committee, which has complete access to secret documents in its oversight of the Canadian Security Intelligence Service, a civilian spy agency.
In allowing the government a graceful exit, Mr. Milliken deserves to be praised. A bit of ingenuity, and a will to co-operate, is what is needed now. There simply is no other way out.
This is not an issue for the Supreme Court to resolve. It should not force an election. Canadians do not want to go to the polls to settle the matter (that might not settle it in any event). Some observers have lamented the dysfunctionality of recent minority Parliaments. This is a chance for all parliamentarians to show that they can work in the best interests of our system of governance, the country and its people.