From the Hill Times:
Harper assumes powers of executive privilege, U.S.-presidential style
A dispute that began with stonewalled reports of Afghan prisoner abuse is set to become the crucible that determines if the Prime Minister or Parliament is now supreme.
By JAMES TRAVERS
Published December 21, 2009
OTTAWA—Pierre Trudeau first freed the genie of expansive prime ministerial power. Now an increasingly feeble Parliament is trying to stuff the monster back into the bottle by demanding Stephen Harper release uncensored documents on Afghanistan prisoner abuse.
At stake is the ability to hold the ruling party accountable between elections. Already dangerously diminished, that capacity will shrink to irrelevance if the Prime Minister wins what is fast becoming an annual Parliament Hill showdown.
On the surface, the current clash favours opposition parties. Armed with legal opinion and the majority of seats won in the 2008 campaign, they have the theoretical right and political numbers to insist the government reveals what Conservatives are desperate to keep secret.
Worse still for the ruling party, the defence is porous.
National security concerns can be easily satisfied either by releasing the documents to MPs under the protection of secrecy laws or, by naming a judge—as Ottawa did in the Maher Arar case—to decide what is damaging to the country as opposed to injurious to politicians.
But the opposition's upper hand is deceptive. As the coalition parties learned during last year's Christmas crisis, a cornered Prime Minister is formidable prey.
Facing certain defeat, Harper escaped by persuading the Governor General to suspend Parliament and by convincing a surprising number of civics-challenged citizens that he alone could rule. On balance, Michaëlle Jean was right. By any measure beyond a propaganda triumph, Harper was wrong.
Americans directly choose presidents; Canadians elect Members of Parliament. In the absence of U.S. checks and balances, prime ministers are controlled by the confidence of the Commons.
How loose that control has become was exposed by the Quebec sponsorship scandal. Not only were MPs in the dark about how Liberals were misspending public money, Justice John Gomery couldn't follow the dollars through the maze of "mechanics" up the command chain to a responsible minister.
Conservatives won the 2006 election in part by promising transparency. Since then, Ottawa has become only more opaque as the result of the resolute Conservative effort to mute public watchdogs, pass the buck to civil servants and continue concentrating power among appointed partisans in the Prime Minister's Office.
Those factors are coalescing again in a replay of recent history. Denied vital facts, MPs are lost along the Afghanistan prisoner paper trail. Bureaucrats, most notably diplomat Richard Colvin, are the designated scapegoats. By balking at Parliament's demand for information, Harper is assuming powers of executive privilege normally associated with U.S. presidents, not Canadian prime ministers.
Forcing compliance and re-establishing the democratic balance of power is as straightforward as it is twisted. At the first opportunity, opposition parties can defeat Conservatives in the Commons, forcing election-weary voters back to the polls.
Not an appealing political proposition. The loss of Commons confidence is still the appropriate democratic response if the threat of an unwanted campaign, the possible embarrassment of a court challenge or Parliamentary censure fail to cool overheated heads. If not, a dispute that began with stonewalled reports of Afghan prisoner abuse is set to become the crucible that determines if the Prime Minister or Parliament is now supreme.
James Travers is a national affairs columnist with The Toronto Star. This column was released on Dec. 15.
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