Winnipeg Free Press - PRINT EDITION

$150,000 to prove the obvious

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Manitoba Conservative Leader Brian Pallister says he did not know he would lose the court challenge to the NDP's decision to raise the PST without holding a referendum, as required by a law imposed by a previous Tory administration.

If true, he may be the only informed Manitoban who didn't know the case was hopeless. In fact, it is fair to describe it as a frivolous waste of the court's time, motivated entirely by political considerations.

Mr. Pallister is not required to disclose the legal advice he received before launching his suit, but he might consider sharing that opinion if he wants to convince anyone the Conservatives had even an outside chance of persuading a judge the government's PST legislation was illegal.

Mr. Justice Kenneth Hanssen of Court of Queen's Bench cited several legal opinions and precedents outlining what is obvious to most Canadians. "Parliamentary sovereignty," Judge Hanssen ruled, "prevents a legislative body from binding future legislative bodies as to the substance of future legislation."

If the opposite was true, political parties could theoretically use their majorities to ensure their policies were never changed by future governments. The idea is clearly preposterous, or at least it is to everyone but Mr. Pallister.

The Manitoba Court of Appeal, moreover, had ruled in a previous case (way back in 1917) that it would be unconstitutional "for a legislature to transfer its authority to the electorate by imposing a binding referendum requirement."

Governments, of course, are always free to consult the people through elections or referendums.

Mr. Pallister obviously did not read any of the case law or extensive jurisprudence on the issue. In fact, a week after the ruling, he said he still had not read the 15-page judgment.

The Selinger government is now considering if it should ask a court to cover some of the $150,000 in costs carried by the taxpayer to contest the case.

The price tag seems rather hefty considering the relatively simple nature of the matter, which raises some questions about the NDP's own understanding of the case. Were the finest legal minds in the land really necessary to establish the supremacy of elected legislatures?

A government lawyer would easily have won the case, at no extra charge to the public purse. The judge does not seem to have needed much convincing.

That should be taken into consideration if the NDP decides to recoup costs.

The court challenge was not without its virtues, however.

It establishes that legislated requirements for referendums are merely political gimmicks, with no force in law. They are propaganda tools, which both the Conservatives and the NDP have used to manipulate public opinion.

The NDP has legislation that precludes the privatization of Manitoba Hydro or Manitoba Public Insurance without referendums.

In addition to the balanced budget legislation introduced by former premier Gary Filmon, the Tories promised in 2007 Hydro would not be sold without the unanimous consent of the legislature, another meaningless political gesture without force in law.

Governments should be held accountable for breaking their promises, not for breaching dubious laws passed by a previous administration.

As such, the NDP will have to answer for breaking its election pledge not to raise taxes. The Selinger government was elected on a falsehood, which should be the real issue in the next election, not whether they failed to hold a referendum as required by a previous Tory government.

The NDP has shown legislated referendums are legally meaningless and wrongly tie the hands of future governments, however, it should move quickly to strike down its own legislation.

That, at least, would put it in compliance with the verdict in the case it just won.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition July 23, 2014 A8

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