Fat's in the fire

Parliament has now exerted its constitutional supremacy, and ordered the Harper government to produce the Torturegate memos: all of them, unredacted. Harper's only recourse now is to defy the order, putting his government in contempt of Parliament.

A fascinating series of exchanges between Robert Walsh, the Parliamentary Law Clerk, and Harper's Department of Justice is well worth the read. It sets out the framework of a legal battle that might well end up in court, intertwining the three separate branches of government in an unparalleled manner.

Via Kady O'Malley:

• First shot across the bows: the House Law Clerk advises Liberal MP Ujjal Dosanjh on October 23 that the government must provide the special parliamentary committee examining the Afghan detainee issue with the documents it has requested. (The letter does not appear to be on-line.)
  
  
• Second warning shot: the Clerk buttresses his legal reasoning in a second note to Dosanjh, taking account of subsequent government moves to suppress the documents in question.
  
  It would appear that providing the documents sought by the Committee without redaction presents concerns for the Government in relation to national security measures. While the Committee might try in some manner to address these concerns, at the end of the day the Government is obliged to supply to the Committee whatever information it requests in the performance of its mandate from the House.
  
  The Special Committee and all House Committees act in support of the constitutional function of the House of Commons of holding the Government to account. In keeping with the principles of responsible government, no part of the Government’s responsibilities can by law be categorically excluded or removed from its constitutional accountability to the House and its committees, otherwise it would soon become only partial accountability and perhaps after some years no accountability at all.
  
  
• Return fire: the Department of Justice reads the Clerk a Civics 101 lecture on the separation of powers, and proceeds to make its case, while possibly undermining one yet to come:
  
  A parliamentary committee is certainly not a court; nor is it a "body with jurisdiction to compel the production of information". Faced with an apparent refusal to provide information, the appropriate recourse for a parliamentary committee is to report the matter to the House for its consideration.
  
  
• The Law Clerk responds with a fresh salvo, noting that the DoJ is addressing "peripheral issues," while avoiding the main question of the supremacy of Parliament. In the Clerk's view, this supremacy is exercised, inter alia, through parliamentary committees.

But this is now moot, because the House has spoken. And the Department of Justice appears, as I suggested, to have painted itself into a corner. If, as it indicates, only the House and not a House committee can exercise parliamentary supremacy, the House has now done so; and it's difficult to see how the DoJ could craft a compelling new argument to the effect that not even the House has the power to order the production of these documents.

To reiterate and emphasize an earlier point made by Walsh, because it needs reiterating:

In keeping with the principles of responsible government, no part of the Government’s responsibilities can by law be categorically excluded or removed from its constitutional accountability to the House and its committees, otherwise it would soon become only partial accountability and perhaps after some years no accountability at all.

A few weeks ago there was a minor flap about the Governor-General: it appeared that she was arrogating to herself the office of Head of State. What we may soon be witnessing, in effect, is an attempt on Harper's part, through his Ministers and their departments, to claim that role for himself. "L'État, c'est moi" politics, however, does not jibe with the notion of responsible government. We may be headed for the mother of all constitutional crises if he tries to tough this one out.
















[H/t Impolitical]

UPDATE: Tough it out he will. And by so doing, he has essentially usurped power over Parliament. If anyone had doubts about Harper's overweening, narcissistic, sovereign ambitions before, this should dispel them forever.