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Emergency Powers and Civil Liberties*

Published online by Cambridge University Press:  07 November 2014

H. McD. Clokie
H. McD. Clokie*
Affiliation:
The University of Manitoba
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Extract

No apology need be offered for continuing the discussion of either civil liberties or emergency powers, exhausting and exhausted as the topics may now seem to have become. The very fact that such wide interest has been aroused by the agitation conducted by defenders of civil liberties in recent months indicates a growing realization that there is something at stake here requiring careful consideration and alert watchfulness. Whether one views civil liberty as flowing from numerous aspects of a well-balanced constitutional system of government, as the present writer does, or as the special area of distinctively designated fundamentals laid out to-protect individual rights, as many of the most vocal libertarians seem to do, every person must recognize the peculiar and intimate relation subsisting between civil liberty and constitutionalism. The preservation of the liberty of the subject is the distinguishing feature of all systems properly called constitutional and marks them off quite definitely from all forms of arbitrary government, no matter how the latter may be designated politically, socially, or economically. And at the present time no one can fail to observe that the unregulated and uncontrolled exercise of emergency powers constitutes one of the most serious threats to civil liberty as long understood and that it poses a most difficult problem for the constitutionalist.

It is unnecessary to enter here upon any consideration of the nature or elements of civil liberty; still less is it necessary to embark on a defence of liberty or to ask why freedom matters. Liberty has been claimed on so many grounds —religious, rational, economic, national, and ethical—and has spawned such a volume of defences, from Milton's Areopagitica to Laski's Liberty in the Modern State, that one is entitled to assume that adequate exposition has been made and the goal denned in general terms acceptable to all sharing the historic concepts of western civilization. Nevertheless, it ought to be noted that the very same sources from which libertarian doctrines emanate are also quite frequently the springs of its repression, namely, some religious dogmas, some economic doctrines, some national cults, and social gospels of various types.

Type
Articles
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 13 , Issue 3 , August 1947 , pp. 384 - 394
Copyright
Copyright © Canadian Political Science Association 1947

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Footnotes

*

This paper was presented at the annual meeting of the Canadian Political Science Association in Quebec, May 29, 1947.

References

1 Phillips, L. H., “Canada's Internal Security” (Canadian Journal of Economics and Political Science, vol. XII, no. 1, 02, 1946, pp. 18–29 CrossRefGoogle Scholar).

2 Clokie, H. McD., “Democratic Possibilities in a Totalitarian World” (Canadian Journal of Economics and Political Science, vol. VII, no. 2, May, 1941).Google Scholar Reprinted in Problems of Modern Government (Toronto, 1941).Google Scholar

3 Clokie, H. McD., “The Preservation of Civil Liberties,” (Canadian Journal of Economics and Political Science, vol. XII, no. 3, 05, 1947).Google Scholar

4 A comment may be permitted on the noted espionage inquiry, if only because the commission made some reference (Report, p. 683) to a volume with which the author of this paper was concerned ( Clokie, H. McD. and Robinson, J. W., Rayal Commissions of Enquiry, 1937 Google Scholar). There is no intention of joining the chorus of utter condemnation raised against that inquiry as the height of tyrannical conduct. The very fact that twelve interrogated persons were brought to trial in the ordinary courts makes it a far more just proceeding than the internments and evacuations that were carried through with no judicial process. Nevertheless it seems a perversion of the use of commissions to employ them as a mode of determining whether prosecutions should be pursued. The primary constitutional function of a commission of inquiry is the investigation of a subject on which the government requires considered advice in the formulation of policy. It certainly should not be turned into an inquisition into private conduct for the purpose of acquiring evidence under duress of one kind or another on which prosecutions can be based. Unfortunately, however, this is a peace-time Canadian practice; parliament has given similar powers to commissioners to build cases against wrongdoers of various types (monopolists, for example) whose offences are, one may add, often stated in the vaguest terms.

The commissioners in the espionage inquiry seemingly took an exaggerated, though legally correct, view of their status as an independent prerogative body. Constitutionally speaking, a commission of inquiry is today a ministerial device in no way differing from other executve inquiry bodies. Since the Glorious Revolution of 1688-9 royal commissioners have not been entitled, of right, to encroach upon any private rights or judicial functions without parliamentary authority. The critical question is the compulsive power over witnesses; this rests, not On prerogative but on the Inquiries Act, which sadly needs revision. There is much merit in the British tradition that compulsive power is extended to inquiries only by parliamentary vote after careful consideration. The Canadian tradition, which is shared by some other Dominions, apparently dates back to pre-Confederation times. (Cf. my introduction to Cole, A. H. (ed.), A Finding List of Dominion Royal Commission Reports, 1939).Google Scholar

Whether Canada's Communist Plot will take the same status in future as England's Popish Plot may be left to historians of the future to debate as interminably as they have the Popish Plot. On the face of it, it does not seem that the commission did more than the police, security services or attorney-general's department could have done under standard procedures. What they failed to do was to stimulate the government with wise advice as to what changes should be made in law or administration. Apart from the publicity and propaganda involved, it is difficult to see that they did anything more than lower public respect for judicial and legal processes.