Wednesday, March 29, 2006

The Harper secrecy obsession: what's "legal" versus what's "right."

There's an interesting meme spreading through Wankerville North these days -- a legalistic, nitpicky, hair-splitting talking point regarding whether PM Stephen Harper has the right (constitutional or otherwise) to drastically reduce public and media access to official government functions, meetings and so forth.

The overwhelming pedantry of these arguments can be seen at this previously-referenced wanker site, where one can get a flavour of the legalism just by extracting the nitpickery:

... Constitution ... Charter of Rights and Freedoms ... Canadian jurisprudence ... Privy Councillors’ Oath ... section 69 of the Access to Information Act, section 70 of the Privacy Act, and section 39 of the Canada Evidence Act ... Franco-American interpretation of constitutional power ... documentary justification ...

Well, you get the idea -- much arm-waving, blustery legalese and linking, as if any of this had any relevance whatsoever. Because, of course, it doesn't. The people making these arguments have completely lost sight of the real issue here and that is not whether what Harper is doing is legal or constitutional -- it's whether what he's doing is right.

As an example of the difference, one need look no further than the constant badgering by Bible-whomping Christians to be able to spout their religious gibberish at every public event they bother to invade. At least in the U.S., every one of these arguments is buttressed by tortured readings of the Constitution, the Declaration of Independence, writings of the Founding Father and so on; in short, a completely litigious approach to the argument.

But no one bothers to step back and ask the simpler question: "Even if you folks could establish the legal authority to do this, is it really the right thing to do? Even if you were allowed to do this, isn't there something unseemly and just plain rude and bullying about forcing your religious views on those who have very politely said that they just aren't interested and thanks but no thanks?"

Returning to the case of Stephen Harper, everyone seems to be asking him how he (constitutionally, it appears) defends this latest strategy. But that's the wrong question. The right question is much simpler, and can be asked both of Harper and his litigious defenders, and it would be: "Even if the legal right exists, don't you think Canadian citizens have the right to know about the workings of the government they voted into office? Don't they deserve that? Isn't that how democracy works?"

Don't tell me what you think is legal. Tell me what you think is right. That's the more important question here.


Brady said...

Hey. As with your example of American Christians. Of course they -- meaning Harper, et al -- think it's right. They already agree with themselves! I guess making it legal just institutionalizes their (supposed) rightness. Alas, reads kinda like the old "ends justifies the means," excuse. Thusly: right-wing Christians always somehow manage to support their own actions, no matter how transgressive or contradictory (or un-Jesus, if there is such a thing). Harper and crew are just being sneaky bastards, capitalizing on their (hopefully brief) moment in the driver's seat. He's trying out the language of democracy -- to short circuit democracy. After all, isn't the Rule of Law some kinda liberal hang-up? Keep up the good work, you cynic.

CC said...

brady writes:

Of course they -- meaning Harper, et al -- think it's right.

I'm not convinced. If you were to ask these people (or their pompous, pretentious defenders) whether Harper has the right to do what he's doing, they would absolutely be prepared to expound confidently at length about why he does.

On the other hand, if you ask them whether Harper should be doing this or whether the Canadian public deserves to be shut out of the democratic process and treated this way, I'm willing to bet things would get very awkward very quickly.

While they're more than willing to argue the legality, I'm betting they're a lot less keen on arguing the morality. I suspect you'd see a sudden change of subject.

eastern front said...

Anonymous Conservative Source:"Of course we believe in accountability. But, you have to catch us first."
And a pissed off press is going to be looking hard. Pretty slick move for a minority government.
No doubt, the propaganda catapult is being loaded now.
Do we impeach in Canada? I don't know. Can we?
O, please, please, PLEASE!

katrina said...

While, it just so happens that I am sitting here in constitutional law class, so maybe I can use my completely surface and insecure first year legal knowledge to comment on this.
The argument in the phantom observer is poor for several reasons. The first is his assessment of the idea of the 'unwritten constitution' as pertaining to this particular discussion.

There are four main 'unwritten' constitutional principles: Federalism, Democracy, Constitutionalism and the Rule of Law, and Protection of Minorities.

The one that pertains most to this discussion is the idea of democracy, or the unwritten way in which parties are elected and the government is structured (ex. election of MPs, the majority being the government, their leader becoming a prime minister etc.). This principle is founded on the idea of "Responsible Government," which refers primarily to the structural aspects, not the procedural/traditional aspects.

The Phantom observer uses a departmental manual to say the following:
"there are “unwritten” conventions or precedents governing the ways in which Ministers fulfill their responsibilities and account for their actions"
and supports this piece with the Privy Counsellors Privacy Oath. Now if something were a precedential way of behaving, would that not, to the common sense (and the law) be the way in which people have always behaved? That is the meaning of precedent. The ability to discuss the process of democratic decision making is a precedent. The microphones outside of the cabinet rooms have always been there. If one were truly following precedent, one would actually have to DO what was done before. It is difficult to justify something that is precedent breaking with the idea that you are following precendent

At any rate, there is no constitutional RIGHT to limit information given my the cabnet to the public. However, there is also no constitutional protection against it. There is no reason for S-Harp to keep blathering on about how it is constitutional - just because it is not unconstitutional, does not mean it IS constitutional. Levelling a charge of interpreting the constitution in a Franco-American way if one does not believe that there is such as a "unwritten constitutionally protected right to limit media access to (what is supposed to be) democratic decision making" is inaccurate (and stupid).

S-Harp's policies regarding the media are a reflection of his own retraction of open and accountable government promises made during election time. However, what did whomever voted for him expect?

eastern front said...

CC, they wouldn't recognise a moral argument that doesn't include the words abortion, same-sex, etc.
They ARE the right. So, if you ask them if they're right, they'll say:"Why yes, yes we are. Wingnuts, that is."

Annamarie said...

Good work, as always, CC!