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View from the Reichstag

In Berlin, I was told German history offers a lesson for Canadian democracy.

By Michael Byers 26 Jan 2012 |

Michael Byers holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia and serves on the board of the Salt Spring Forum.

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Inside the Reichstag, seat of Germany's parliament.

The glass dome above the Reichstag provides spectacular views of Germany's capital city. But British architect Norman Foster designed the structure to highlight another view: looking down from the edge of the spectator platform, one can see directly into the Bundestag -- the German Parliament.

The symbolism is powerful: the people are above the politicians, and the workings of Parliament are transparent to them.

After the unification of East and West Germany in 1990, a grandiose new parliamentary building could have been constructed. But returning to the Reichstag provided a unique opportunity for psychological closure on six decades of dictatorship, war and division.

Adolf Hitler was elected and sworn in as chancellor of the Weimar Republic in 1933. Four weeks later, after the Reichstag was set on fire, Hitler blamed the opposition Communist Party, declared an emergency and seized absolute power. New laws eliminated opposition parties, trade unions, and the freedoms of speech, association, assembly and habeas corpus. The death of German democracy was sealed by the "Enabling Act," which gave Hitler's cabinet the power to legislate without parliamentary or presidential approval. The Act even allowed explicitly for the enactment of laws that were contrary to the constitution.

Nothing on this scale has ever happened in Canada, and this country is free of the institutionalised racism and violence that dominated and defined the Nazi regime.

But as I discovered at a workshop at Berlin's Humboldt University earlier this month, the dismantling of the Weimar Republic has made Germans unusually attentive to undemocratic developments -- including overseas.

Who's accountable to whom?

During a coffee break, a constitutional law professor quizzed me about Canada: "Is it true that your government has been shutting down Parliament?"

"Only temporarily," I replied, explaining that Canadian prime ministers are entitled to ask the Governor General to prorogue Parliament. Stephen Harper first did so in Dec. 2008, in order to avoid losing a fiscal vote and thus his government. He did so again in Dec. 2009, in order to avoid parliamentary scrutiny of documents relating to the practice of transferring detainees to possible torture in Afghanistan. In both instances, the Governor General granted his request.

Nevertheless, Harper's actions caused concern at home and abroad. As The Economist magazine observed on the second occasion, "The danger in allowing the prime minister to end discussion any time he chooses is that it makes Parliament accountable to him rather than the other way around."

My German colleague seemed to share that view: "Didn't the Canadian Parliament respond by declaring the government in contempt?"

"Not exactly," I replied. The contempt of parliament ruling came later, in March 2011, after the government refused to provide MPs with detailed cost estimates for its crime bills. And while no other government in the Commonwealth had ever been found in contempt, Harper cavalierly downplayed the importance of the ruling, saying: "You win some, you lose some."

Indeed, his Conservatives won a majority in the election that followed, which suggests that most Canadians were not particularly bothered by the finding of contempt.

"The real surprise," I explained, "is that Harper does not appear satisfied with the extensive powers that are normally available to a majority government."

I tell my German colleague about the government's practice of invoking closure, with a frequency never before seen in Canada, to prevent elected MPs from debating major legislation such as the omnibus crime bill and a bill that will add dozens of new seats to the Commons.

About how, increasingly, the government moves the business of parliamentary committees behind closed doors, so that it can conceal embarrassing documents and reject witnesses proposed by opposition parties without fear of public censure.

Warning, with a smile

Finally, I explain how the Federal Court ruled in Dec. 2011 that a bill to abolish the Canadian Wheat Board was illegal because it violated a statutory requirement to poll wheat farmers first. No matter: the government adopted the bill anyway.

This led Peter Russell, the doyen of Canadian constitutional law, to warn: "Canadians should understand that at stake here is not just a technical point of law, but the integrity of parliamentary government."

At this point, a wry smile crosses the German professor's face.

"Professor Russell is right," he says. "It's all about understanding. Here in Germany, we sometimes learn our lessons too late."  [Tyee]

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