Principles:          Democracy cannot exist without the just rule of law;

A just rule of law requires a democracy for its legitimacy; and

Parliament is an expression of democracy.

1. Democracy cannot exist without the rule of law

Operation of our democracy depends on constitutional principles and electoral laws.  Both the principles and the laws are created by a Parliament elected by the people.  The democratic system assumes that the people are free to choose among alternate candidates for Parliament and that their choices (votes) will be counted fairly.  The democratic system also assumes that the people’s representatives will act in the people’s interest.

Proving those underlying assumptions valid is critical to the whole democratic edifice.  With respect to parliamentary elections, voting and election expense rules are taken quite seriously most of the time.  However, with respect to the selection of candidates for election to Parliament, there are very few rules and those rules are seldom enforced.  If there is widely perceived unfairness in constituency nominations, it undermines the foundation of democracy.  Unfair or rigged nominations are not the sins of any particular party, but they do occur and are noted.  Yet political parties fiercely guard their independence in establishing rules (or the lack thereof).  Without compromising their independence, I believe it should be possible for the political parties to agree among themselves on some basic principles, which would be public.

For the most part, it appears that Parliament is endeavouring to act in the public interest; if there are bad policies, there is nonetheless good intent.  So the infrequent occasions when Parliament does not appear to act in the public interest stand out quite sharply.  The parliamentary response to the foreign election interference allegations has been disturbing: tepid at best.  The lack of coherent response to allegations of near treason by members of Parliament shakes trust in the integrity of the institution.  The legitimacy of their representation is on the line here, and a more vigorous defence is required.

The integrity of our democratic process is also being threatened by the insults, threats and intimidation directed towards elected representatives.  The power of the people should be through the ballot box and the courts only.  Parliament should consider a more robust response to anti-democratic attacks.

• A just rule of law requires a democracy for its legitimacy

Canada’s Charter of Rights asserts that “Canada is founded upon principles that recognize the supremacy of God and the rule of law”.  Leaving God out of it, the supremacy of the rule of law is an essential part of Canada’s identity as a democracy.  But it was Parliament that agreed to adopt the Charter of Rights, with the required approvals of all but one provincial legislature.

Although Parliament created the Charter, it is nonetheless bound by its precepts.  Those precepts have restricted provincial autonomy – at least in the view of some provinces – so Charter precepts can be set aside through the use of the Notwithstanding Clause.  Let’s be clear: in all recent cases, use of the Notwithstanding Clause restricts Charter Rights.  That said, the supremacy of the legislature must be respected, with the (self-imposed) requirement that the Notwithstanding Clause be re-invoked every five years.  Politicians are free to identify as an election issue the use of the Notwithstanding Clause to limit human rights.

In English constitutional history, it was the ‘group-of-nobles’ precursor to democracy that established the principle of ‘habeas corpus’ – there needs to be a specific charge in relation to a specific law – which stepped toward the principle that no person was above the law.  A democratic constitution requires the need for rules to be subordinate to agreement on who sets the rules.  Democracy sets the rules.

• Parliament is an expression of democracy.

Although Parliament is supreme, it is capable of limiting its own powers.  The Charter of Rights, enacted by Parliament, limits the rights of Parliament to the freedoms specified in the Charter.  Other limitations on the power of Parliament are specified elsewhere in the Constitution: the boundaries of federalism, for example, or the requirement to seek electoral approval every few years.

In constitutional theory, there are no limits on the parliamentary privilege of absolutely free speech.  In the 1689 English Bill of Rights, Parliament made it clear:

“the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

The provision is intended to allow free debate.  It imposes very large responsibilities on Members of Parliament, especially when they are in possession of information relating to national security. 

A recent redacted report of an ad hoc parliamentary committee identifies former or current Members of Parliament (possibly including Senators) of wittingly collaborating with the agenda of a foreign government, in return for some form of electoral or nomination support.  The ‘T’ word – Treason – has been uttered.  Who specifically was wittingly collaborating or what was the witting collaboration were identified in the report, but names and activities redacted by the Prime Minister, to whom the report was delivered.  If a Member of Parliament wished to share information about witting collaboration, they could do so with impunity.  At this point, no committee member has broken the secrecy ranks. 

As a political and moral question: should parliamentary privilege eclipse considerations of national security?  As a matter of constitutional rights, of course parliamentary privilege is primary.  But as a matter of small ‘p’ politics, there would be no Parliament without a state to govern.  So the practical solution must be to preserve the integrity of the state, but it is a messy and ugly solution.  Measures are required to assure parliamentarians and the people that the political administration takes national security seriously.  Leaving the matter to law enforcement is quite inadequate without specific information about the names and activities.  Punting the question to an Inquiries Commission is a step in the right direction, but only one step.  Political leaders must ensure that sitting Members of Parliament are challenged and held accountable if they are named in the report.

In order for leaders to hold accountable members of their own caucus, the leaders must know the names of those identified in the report.  To know the names of those identified, the leaders must obtain security status, which would prevent them from revealing the names, or asking detailed questions about either the names or the activities.    The dilemma faced by the Leader of the Opposition is, in my view, parallel to the privilege vs. security debate.  And the messy solution is the same: national security must come first.  Agreed that swearing an oath of secrecy will compromise the ability of the Leader of the Opposition to ask questions of the Government; however the Leader will know the names of those compromised in his own caucus and the caucuses of other parties.

Leaders who know the names of those compromised in their own caucus can take measures to protect caucus integrity and national security.  If the compromising activity was serious (e.g., if it had a material impact on electoral results), the leader could quietly or publicly remove that person from caucus, and could refuse to sign that person’s nomination papers.  That is indeed rough justice, but it is far superior than the alternative of doing nothing.  Given uncertainties about election timing, leaders need to act sooner rather than later.

Conclusions

If decline and decay are to be avoided, constitutional democracy must be directed and defended.  This requires political parties to discipline themselves:

• parties need to ensure that their candidate nomination processes are understood to be fair and transparent.
• leaders must be prepared to act to preserve the integrity of caucus even if such measures do not meet judicial standards.

Parliament must be prepared to defend its privileges and its integrity against those who would substitute intimidation and coercion.  And the people must be prepared to participate, as legitimate power flows from them: the power of the people must be stronger than the people in power.