Democracy Gone Astray

Democracy, being a human construct, needs to be thought of as directionality rather than an object. As such, to understand it requires not so much a description of existing structures and/or other related phenomena but a declaration of intentionality.
This blog aims at creating labeled lists of published infringements of such intentionality, of points in time where democracy strays from its intended directionality. In addition to outright infringements, this blog also collects important contemporary information and/or discussions that impact our socio-political landscape.

All the posts here were published in the electronic media – main-stream as well as fringe, and maintain links to the original texts.

[NOTE: Due to changes I haven't caught on time in the blogging software, all of the 'Original Article' links were nullified between September 11, 2012 and December 11, 2012. My apologies.]

Monday, April 08, 2013

Federal Court could take another six months to decide on PBO

The Federal Court could take another six months to make a decision on the Parliamentary Budget Office’s high-profile battle with the government over its legislative mandate, but some are concerned that the interim PBO, Parliamentary Librarian Sonia L’Heureux, could withdraw the Federal Court application before then, killing the unprecedented reference.

“It’s a very real concern that the current chief librarian or the interim PBO might not see any ambiguity in their mandate in which case the reference to the Federal Court wouldn’t be necessary. That’s a real legitimate concern because if she doesn’t see her mandate the way Kevin Page saw his, then we’re no further ahead than we were in 2005,” said NDP MP Pat Martin (Winnipeg Centre, Man.).

The Parliamentary Budget Office asked the Federal Court to clarify its mandate after now former budget officer Kevin Page asked the government, on behalf of the requester NDP Leader Tom Mulcair (Outremont, Que.) for its 2012 federal budget documents on its spending, savings, planned personnel reductions for every government department and agency, but many refused and some Cabinet ministers said the PBO was overstepping the legislated mandate. So the PBO took the government to court. Mr. Mulcair is involved in the Federal Court case as an interested party.

Lawyers for both the Parliamentary Budget Office and House Speaker Andrew Scheer (Regina-Qu’Appelle, Sask.) were in Federal Court on March 21 and 22 to argue their respective cases.

Joseph Magnet, a constitutional lawyer and professor at the University of Ottawa’s law school, represented the PBO at the Federal Court, arguing that Mr. Page was a “scapegoat” between the federal government and the opposition parties whose only goal by making the reference application was to settle once and for all what the office can and cannot do when asking for information from the government.

“Only the court can settle this dispute,” he said in court.

Steve Chaplin, principal Parliamentary counsel and deputy law clerk for the House, who represented the House of Commons, said, “The House is responsible for deciding what the mandate of the Parliament budget officer is.”

He noted that getting the courts involved in Parliamentary affairs is unconstitutional.

At the end of the two-day hearing, Federal Court Justice Sean Harrington reserved his judgment, stating that because of the high-profile nature of the case, he wanted his decision to be released simultaneously in English and French.

Mr. Magnet said he wouldn’t be surprised if the decision takes up to six months to be returned.

In the meantime, however, Parliamentary Librarian Sonia L’Heureux, who the government appointed on an interim basis to succeed Mr. Page, is within her legal rights to withdraw the case if she wishes before a decision is made. Because the position is not an independent officer of Parliament but rather an employee of the Library of Parliament under the current legislation, the PBO reports to the Speakers of the House and Senate.

In response to whether Ms. L’Heureux intends to withdraw the application, the Library of Parliament said, “The case has been argued before the court and the judge reserved his decision.  As PBO on an interim basis, Ms. L’Heureux will await the decision before deciding whether any further action is required.”

If Ms. L’Heureux does not intend to withdraw the application, she could be instructed to do so by one or both Speakers.

Mr. Magnet said he was not concerned that could happen.

But Senate Speaker Noel Kinsella has already indicated in a ruling that he believes that seeking a judgment from the Federal Court infringes on Senators’ privilege.

Independent Ontario Senator Anne Cools raised the question of privilege in February stating that Mr. Page’s Federal Court case oversteps his mandate. She noted that the PBO’s mandate is clearly spelled out in the Parliament of Canada Act, and that if Mr. Page had an issue with the mandate, he should have first raised the issue with either or both the House and Senate Speakers as an employee of the Library of Parliament and not an independent officer of Parliament.

“These actions seem to arise from the mistaken and false notion that he is a watchdog of Parliament, with a mandate to oversee and monitor the government’s activities in the realm of the public finance. He is not. His mandate includes no such powers, and is confined solely to Library functions, that is, research and independent analysis. This misunderstanding is widespread and publicly cultivated by the officer himself,” Sen. Cools said in her question of privilege. “It is clear that this officer’s independence flows from the Library of Parliament’s undoubted independence from the government to perform Library and research functions, but it is limited to that—no more, no less. There is great misunderstanding on that point.”

 She said in the Senate that Mr. Page’s actions “are so shocking that the Senate may well have to consider an order to this officer to withdraw his frivolous and vexations application to the Federal Court of Canada.”

Mr. Kinsella agreed with her and ruled that there was a prima facie case for a breach of privilege. He noted in his ruling that the PBO serves the Library of Parliament and operates under both the Senate and the House’s authority. Mr. Page therefore should have worked with in the organizational structure of the Library of Parliament, Sen. Kinsella said.

“By asking the courts to decide the question of his mandate, the Parliamentary Budget Officer has disregarded the established authority and organizational structure of which he is a part. The question of his mandate is solely for Parliament to determine. The officer’s actions run contrary to the constitutional separation of powers between the branches of government,” he said.

After the ruling, Sen. Cools moved a motion to study the issue at the Standing Committee on Rules, Procedures and the Rights of Parliament but was later amended to be studied by the Senate Committee of the Whole and reported back by March 31, 2014. The motion has yet to be voted on.

Mr. Martin said it’s a possibility that the application could be withdrawn, but he also did not foresee the Conservative government wanting that to happen.

“I don’t know if they can afford that kind of a hit on their credibility,” Mr. Martin said. “I think even if they were able to withdraw the reference to the court, I honestly doubt they would because the reference from the court might not tie their hands to any great extent anyway. Even a sympathetic opinion from the court to Kevin Page’s reference wouldn’t really change that much if there was an unwillingness to comply. All it takes is enthusiasm to grind that office to a halt. Kevin Page came to it with a little gang busters enthusiasm and he was going to enhance the accountability and transparency of Ottawa, well that same office with the same mandate and a different person at the head could be quite a toothless affair if they didn’t have that real missionary zeal we saw in Kevin Page.”

Meanwhile, advocacy group Democracy Watch is planning to challenge Ms. L’Heureux’s appointment as the interim PBO at Federal Court because it believes the government did not follow appointment rules outlined in the Parliament of Canada Act.

“The federal Conservatives were negligent in not ensuring the appointment of a new Parliamentary Budget Officer before Kevin Page’s term finished last week, and the law does not allow for the appointment of an interim PBO,” said Tyler Sommers, coordinator of Democracy Watch.

Under the PBO’s legislation, the PBO “may” be appointed “from a list of three names submitted in confidence” through the Government House Leader, by a committee formed and chaired by the Parliamentary Librarian. The act does not state that the government cannot appoint an interim, and the legislation does not say “shall” be appointed through that appointment process, leaving some room for the government’s discretion.

Mr. Sommers said the challenge will likely be finalized this week to submit to court. He noted that Democracy Watch’s goal is to force the government to move quickly on appointing the permanent PBO and doesn’t believe that the PBO’s current reference application will be withdrawn. “I think it would be terrible optics at the very least because it would basically show that the interim appointment is what we feared, which is an attempt by the government to weaken the office and they’re dragging their heals instead of putting a new PBO in place and ensuring that the office continues to work for Canadians,” he told The Hill Times.

The Library of Parliament is currently conducting a search for the next PBO through search firm Renaud Foster. The vacancy notice states that the next PBO “should possess experience in negotiating and achieving consensus on complex issues among a variety of stakeholders with competing objectives.” The ideal candidate will also “possess strong leadership and managerial skills as well as have the ability to provide impartial and authoritative advice and support to Parliamentarians on matters relating to the state of Canada’s finances, the estimates of government and trends in the national economy.  The ability to respond to complex situations with multiple competing interests arising in a partisan environment is required.” In addition, the person should be “decisive, impartial, tactful and discreet” and “possess integrity and high ethical standards.”

 Liberal MP Carolyn Bennett (St. Paul’s, Ont.) asked during Question Period last month when the Library of Parliament Joint Committee would be meeting to review the appointment process for the PBO.

“While the Prime Minister is mired in controversy over the failed appointment process for the Parliamentary Budget Officer, the Standing Joint Committee on the Library of Parliament has not even met. During this 41st Parliament, the committee has had only three substantive meetings. The Prime Minister has clearly ordered the House co-chair not to convene the committee because he fears the budget officer,” she said. “When [will] the committee be meeting to review the appointment process for the PBO?”

Conservative MP Royal Galipeau (Ottawa-Orleans, Ont.), a co-chair for the committee, replied: “The co-chairs of the committee will call a meeting of the committee at the appropriate time.”

After being appointed, Ms. L’Heureux sent a letter to all Senators and MPs stating she is “committed to delivering” on the PBO’s mandate “in support of Parliamentarians and the important work they do.”

In her “temporary stewardship role,” she said, “Parliament has always been able to count on the expertise and dedication of Library employees; the team supporting PBO operations is no exception. Senior executives from the PBO team are collaborating closely with me during this interim period to ensure that we continue to deliver excellent products and services to Parliamentarians and Parliamentary committees.”

Original Article
Source: hilltimes.com
Author:  BEA VONGDOUANGCHANH

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