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Parliamentary showdown on torture documents - this will be very interesting

Kady O’Malley informs us that there will be a very interesting vote tonight. The Liberals have put forth a motion calling on the Conservative government to turn over all documents as requested by the Afghanistan committee in uncensored format. No big deal, right? The Conservatives will just ignore this motion like every other motion they’ve lost, you think.

The difference between this motion and other motions however, is that this motion has legal weight behind it that would compel the government to turn over documents as ordered by Parliament if it passes. The motion reads:

That, given the undisputed privileges of Parliament under Canada’s constitution, including the absolute power to require the government to produce uncensored documents when requested, and given the reality that the government has violated the rights of Parliament by invoking the Canada Evidence Act to censor documents before producing them, the House urgently requires access to the following documents in their original and uncensored form;

all documents referred to in the affidavit of Richard Colvin, dated October 5, 2009;

all documents within the Department of Foreign Affairs written in response to the documents referred to in the affidavit
of Richard Colvin, dated October 5, 2009;

all memoranda for information or memoranda for decision sent to the Minister of Foreign Affairs concerning detainees
from December 18, 2005 to the present;

all documents produced pursuant to all orders of the Federal Court in Amnesty International Canada and British Columbia Civil
Liberties Association v. Chief of the Defence Staff for the Canadian Forces, Minister of National Defence and Attorney
General of Canada;

all documents produced to the Military Police Complaints Commission in the Afghanistan Public Interest Hearings;

all annual human rights reports by the Department of Foreign Affairs on Afghanistan; and

accordingly the House hereby orders that these documents be produced in their original and uncensored form forthwith.

Kady explains the significance of that last line:

Matters of parliamentary privilege — in this case, the “absolute power” to demand the production of documents — are dealt with entirely within the aegis of Parliament itself; there is no court of appeal or outside authority that makes the final decision on the legitimacy of an order of the House. If the above motion passes — and there is absolutely no reason to think that it won’t, most likely later tonight — it becomes an order of the House — which, unlike, for instance, that feel-good Bloc Quebecois motion on what Canada’s stance at the Copenhagen conference should be, cannot be simply ignored by a — or, in this case, the — government.

Parliament does have powers, as it turns out, although it rarely uses them, and if the government disregards an explicit order, well — that’s when it gets interesting. With a recalcitrant witness, the ultimate remedy involves the Sargent-at-Arms getting into the act — as we saw during the Mulroney/Schreiber hearings, when the latter was extracted from a Toronto detention facility in order to testify. WIll the House be forced to send a document retrieval squad over to Defence headquarters to pick up the above referenced material? What happens if the departments involved simply refuse to hand it over?

I’ve been pretty hard on the Speaker for not establishing better decorum and such in the House. He made baby steps in that direction with his ruling that the Conservative 10 percenter ads that were sent into Irwin Cotler’s riding went over the line; if this “order” passes and the Conservatives refuse to acknowledge the Parliamentary order, then the Speaker must enforce the order and use his power – and the Parliament’s Sergeant at Arms if necessary – to compel the government to turn over those documents.

If the Conservatives are smart, they’ll do so. Remember, the International Criminal Court will initiate investigations and prosecutions against signatory members and their governments if it is shown they are unwilling to investigate possible war crimes violations, or actively interfering in an investigation. Refusing to turn over documents as ordered by Parliament is clearly an attempt to interfere with an investigation. The Conservative government should carefully consider that before it decides to ignore the proposed (and most likely to pass) Parliamentary Order.

UPDATE @ 12:03 pm: The Conservatives tried to get the Speaker on a point of order this AM to rule this motion to be out of order. The Speaker denied that request, and the rather bitter debate on this motion is ongoing. Catch the highlights at Kady’s liveblogging.

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