Historic ruling to decide who holds real power in Ottawa

Who wields ultimate power: Parliament or the Prime Minister? Canadians are about to find out.

Either Thursday or next week, House Speaker Peter Milliken will rule on whether Stephen Harper’s Conservative government is in contempt of Parliament.

If Mr. Milliken finds in favour of the opposition parties that made the claim, then thousands of pages of heavily censored documents could be made public, showing whether the government and armed forces knew they were sending detainees to be tortured in Afghan jails.

If he rules in favour of the government, an already powerful executive will grow yet more powerful.

“It’s huge,” said Errol Mendes, a professor of law at University of Ottawa and constitutional expert. Centuries of precedent dictate that Parliament is supreme in holding the government to account, he observed.

“If the Speaker rules against the opposition motions, it would not be too hyperbolic to say we have changed our system of governance,” he maintained. “The executive would no longer be accountable to the House of Commons.”

But a ruling for the opposition could force an election.

The opposition parties, which form a majority in the House, passed a motion in December ordering the government to release unredacted versions of documents concerning the treatment of detainees in Afghanistan. The opposition suspects a cover-up in the government’s decision to censor the documents heavily before making them public.

When the Conservatives refused, citing national security, the opposition last month asked the Speaker to find the government in contempt of Parliament.

This is an argument as old as Runnymede. In that meadow in 1215, England’s barons forced King John to agree that he would govern only with the consent of a great council, which would become Parliament.

Kings and prime ministers have struggled with Parliament ever since.

“Our parliamentary privileges are not indefinite, nor unlimited,” Justice Minister Rob Nicholson told the House last month, defending the government’s right to withhold information for reasons of national security.

The government, he said, must balance its obligations to Parliament with “our fundamental duty to protect information for national security, national defence and foreign relations.”

Balls, the opposition replied. “The government's behaviour is tantamount to contempt for this House,” NDP MP Jack Harris declared.

The opposition MPs are prepared to discuss ways to examine the documents that would prevent a breach of national security, he told the House. But “the order is binding,” and “the government must obey.”

The problem, observed Ned Franks, professor emeritus at Queen’s University, is that “parliamentary committees leak like sieves.”

Mr. Milliken’s word is not the final word. Technically, he will rule only on whether the government appears to be in contempt. If he finds against the government, a parliamentary committee will thrash out the issue, and the matter will be brought back to the House for a final vote.

Rather than release the material, the Conservatives could force an election by making that vote a matter of confidence in the government.

Patrick Monahan, provost of York University and a constitutional scholar, believes that Mr. Milliken’s decision “will be a historic ruling” watched by Westminster-style governments around the world.

But he also finds the whole thing unfortunate. Parliament works best when there is consensus on the proper roles of executive and legislature.

“It’s not productive to have these kinds of confrontations between the government and the House,” he said in an interview.

Mr. Franks agrees. The opposition parties “used to posture,” he said. “Now they’re swinging baseball bats.” Yet the government’s obsession with secrecy leaves little room for compromise.

Seven hundred and ninety-five years after Runnymede, the argument carries on.