On the rule of law

It's for the best that the Cons' use of secret orders-in-council is drawing some further attention. But the problem goes further than the Libs' response seems to suggest - even if it's obvious why they're pretending otherwise.

Here's the Libs' complaint about secret laws:

Dion likened the secret OICs to omnibus bills — another legal procedure which he said has been abused by the Harper government.
...
While he said a Liberal government would overhaul Canada’s access to information law — applying it to the prime minister’s office and ministers’ offices — Dion would not say what the Liberals would do about the 25 secret or unpublished orders-in-council that iPolitics discovered have been adopted by the Conservatives.

But there's an obvious contrast to be drawn between laws which are rammed through Parliament but at least subject to some meaningful public scrutiny, and those which are applied without even being known to the people bound by them. And as it happens, we can point to a recent example of exactly that distinction, as Craig Forcese and Kent Roach recognized the fact that C-51 did receive Parliamentary scrutiny...

First, we applaud the overarching fact that security issues in Canada continue to be addressed by law, and not through use of extrajudicial government power. Not so long ago, this would have been a peculiar thing to acknowledge. But in light of developments elsewhere in the world —such as the post-9/11 United States, where many anti-terror measures have not been specifically authorized by democratically enacted legislation—it is an important aspect to note. Whatever else may be said about Bill C-51, its provisions are all laid out in black and white for pundits and opposition politicians to scrutinize.

...while rightly criticizing the reality that once passed, it would set up a new legal regime which wouldn't even be subject to public awareness, let alone any prospect of a legal challenge:

When the RCMP breaks the law in the course of a police investigation designed, ideally, to result in criminal charges, that behaviour will be tested in open court. When the system works as intended, everything comes to light, and police misconduct scuttles prosecutions.

CSIS, however, faces no such prospect. Its activities come to light only when something goes seriously wrong, or when its investigations morph into criminal processes led by the RCMP.

In effect, Dion and the Libs are trying to treat secret orders-in-council as falling into the first category dealing with the adequacy of parliamentary debate and knowledge. But in fact, they're properly classified under the much-more-worrisome second one, as they involve the exercise of unknown and unaccountable authority which was never subject to the possibility of debate or knowledge in the first place.

That attempt to muddy the waters might make sense strategically in light of the Libs' acquiescence in the abuses provided for by Bill C-51: having complained about omnibus bills but not extrajudicial authority in the past, the Libs might see that line of argument fitting better into their existing themes. But it should serve as a red flag for voters who actually recognize a problem with governments claiming secret inherent powers for which they can never be held to account.