US Secretary of State Hillary Clinton informed the Afghan government last Friday that the US and Britain agree that Karzai will continue as the President of Afghanistan, regardless of the fraud and corruption that was endemic in his re-election campaign, and regardless of what international observers conclude about the legitimacy of the election.  This became known on the same day that the Afghan government let out word that Karzai’s new Cabinet will include two of the most notorious and violent warlords in the country – Fahim and Dostum. Both are well known for the use of murder and armed militias to impose their will on their tribal areas and both have been deeply involved in drug dealing and past internal armed conflicts. Most knowledgeable external observers are convinced both should be locked up and tried for crimes against humanity, not appointed to high government office.

This is a disastrous turn in events.  It signals that the two western nations setting the agenda in Afghanistan have resigned themselves to old style Afghan politics dominated by war lords, drug dealers and corrupt officials who use government office to enrich themselves.  It entwines the western effort into the practices of the hopeless Karzai regime, which has taken the country down the too often trod path of failed states dominated by corrupt and incompetent governments that enrich themselves at the expense of national development.

Britain and the US have done this notwithstanding the obvious dependence of Karzai on drug dealers and warlords to get re-elected, his well established use of corruption to win, and evidence that up to 20 per cent of ballots cast for Karzai were fraudulent.  If these ballots were removed from the count a run-off election would be required under Afghan law.

No doubt this decision is based on what is thought to be real-politik.  An acknowledgement of Karzai’s failures and support for a run-off election would create resentment among Karzai supporters and would be used by Karzai to blame the US and the west for increased instability in the country.  Not having learned from past experience elsewhere, the governments embraced rather than challenged this failed despot who will almost totally discredit any efforts to bring about real change.

The country is as a result being steered into a crisis with an almost certain outcome.  Warlords and drug dealers will not save the country from collapse. Only a western supported program based on security, development and good governance can do that.  The US abandoned that under Bush when it headed off on its reckless invasion of Iraq.  Afghanistan was left with far too little help and support. The effort largely focused on outmoded counter insurgency fire-fights with the Taliban in the south, a retreat into small security zones in cities and some towns, and no comprehensive strategy to secure the continuing support of the general population.

And it is not as if there is no alternative.  Obama has talked convincingly of correcting past military failures and of placing a priority on stabilization and development  The smart, experienced and charismatic Abdullah Abdullah ran a strong reform minded campaign free of warlord support, and promised the kind of government that is essential if Afghanistan is to realize an effective program of development and security that is supported by a broad base of the people.

But hopes for a meaningful change in direction are now all but dead. Afghanistan deserved better.  For many years after 9-11, the vast majority of Afghan people supported western efforts and welcomed military, security, developmental and governance assistance.  That support has eroded through time, but the west had a real opportunity to rebuild it by redefining the commitment and supporting change. However as time passes the US program appears little different from that of Bush. The vote of confidence given to Karzai, including the warlords and drug lords, confirms that the bad old ways under Bush are not going to fundamentally change.

Which is a shame.  It also makes one wonder what the future holds for Afghanistan. No one should doubt that it is still coveted by al Queda as a base for mounting long term and continuing attacks on the west.  Is an old style western military occupation next?  And how can that work?  The Russians proved it can’t.  It is all very depressing.  It is a good thing Canadian troops are leaving soon.

In a little more than 48 hours, or less, we in Canada will know for sure whether we are to have another unnecessary and unwanted federal election.  Fortunately Jack Layton signaled late today, Monday, September 28th, that his party is likely to support the government.

A trumped up case has been constructed stating that the government’s stimulus package is not getting out fast enough.  The Liberal Opposition claims that the infrastructure projects, which are to a large extent implemented by municipalities, could have and should have moved much more quickly in getting shovels in the ground.

The truth is that economists have always known that less then 50% of the actual work on projects could take place in 2009.  The rest must wait until 2010, given the reality of planning, engineering and construction in a harsh winter climate.  This is no to say the planned expenditures for 2010 will have no affect in 2009.  One of the larger impacts of the stimulus spending is that it has shifted expectations, which in turn has had a major impact on asset values including stocks and houses.  These in turn have added to consumer confidence and generally improved expectations.  The stimulus here and in other countries is working, in no small part because it has reversed the downward slide in economic expectations, in turn encouraging investment and spending.  It is also increasing jobs and the production of construction equipment and materials, but not all of that was ever expected to happen as quickly as suggested by Mr. Ignatieff and his party.

A non-confidence vote will be held on the implementation of the stimulus during the Official Opposition’s day in Parliament this week, when a vote will be held on its motion of non-confidence.  This is scheduled for two days after the government tables its update on the stimulus’s implementation.  Assuming the report is tabled in Parliament tomorrow, Tuesday, September 29, the vote will take place on Thursday October 1, 2009,

The Bloc Quebecois will support the Liberals, voting against the government.  It has nothing to lose.  The Conservatives will of course vote for the package although it is not obvious that they would regret losing the vote.  Most indicators suggest that the Conservatives will increase their seats in the House of Commons and perhaps even win a majority in an election this fall.  The Liberals appear to be caught in a trap of their own making, their leader not being able to take responsibility for keeping the party’s powder dry until election conditions are more favourable.  His inflated ego is unable to withstand the invidious comparisons with Dion and the growing perception that he is not up to the job.

The NDP and Jack Layton were thus left to decide whether we have an election.  Voters do not want an election and think correctly that one is unnecessary.  But the media, and particularly columnists, have tried very hard to reduce Layton’s little wiggle room.  They have brutally bullied him over his decision to support the vote on the home improvement tax credit.  They have repeatedly claimed that Parliament is dysfunctional, even though it has passed new bills at a pace of about one per sitting week.  At one time this would have been seen as an excess of Parliamentary fervour.

Therefore Layton was to be given  no choice politically.  The press has already done its best to  make him pay a huge price for voting with the Conservatives, even if it is the right thing to do.  This is a case where the media have seized the agenda.  They are playing it out to fit their short sighted dislike of the two smaller opposition parties and their preoccupation with minor parliamentary events. The game and how it is played out is the full reach of the media’s grasp.

There is no need for an election.  It is unwanted by the wisest of all – the people.  Parliament is working fine, providing a check on the potential excesses of the Conservatives while providing a chance for the party with the largest number of seats to prove itself.  While it involves far more integrity than should be expected, we should all be appreciative that Layton is willing to stand up to the media bullying.  Unfortunately the media will try very hard to make him to pay an electoral price for doing so.  Ignoring the rationale for maintaining Parliament, they will say he did it out of self interest, which is hardly an unexpected thing for a national political party.  But he is also doing something good for the country.  That is no small thing.

Many people hoped for a conviction in BC Supreme Court on the charges against Winston Blackmore and James Oler, two Mormon men who admit that they have numerous wives, putting them in contravention of the Criminal Code.  However the Court refused to let the case proceed because the provincial government acted outside the law in pursuing the prosecution.

The offence of polygamy was written in to the Canadian Criminal Code in 1892 to keep Mormons and former Mormons out of Canada, on the assumption that they would stay in the US where the practice was more or less accepted.

As the Globe and Mail reported, the ruling Wednesday stunned those who wanted to see these polygamists tried and convicted in Canada.  ‘ “I’m absolutely devastated. I’ve been crying so hard. I can’t find words to describe how I feel,” said Nancy Mereska, co-ordinator of a group called Stop Polygamy in Canada.  The polygamists will see this as a great victory. … My God! My God! My God! My heart is broken!” she wrote in a blog posting.’ (Globe and Mail, September 26, 2009).

In fact this is not so much a victory for polygamy as a failure of the government to follow the law rather than politics in the exercise of the government power to charge people with crime.

Wally Oppal is the real author of this decision. As Attorney General he failed to take into account two important legal considerations:

1. In British Columbia the decision to prosecute a particular case rests not with the Attorney General but with the Assistant Deputy Attorney General responsible for prosecutions or with a special prosecutor appointed by the Assistant Deputy Attorney General (ADAG).  This requirement, unique to BC, was legislated in the late 1980’s in response to concerns about political interference by the Attorney General in prosecutions.  If the Attorney General or Deputy Attorney General wishes to issue a directive respecting a prosecution to the assigned prosecutor or a special prosecutor either can but that directive must, if requested by the ADAG, be in writing and be made public.  But the act states “the decision of a special prosecutor with respect to any matter within his or her mandate is final”.
2. In Canada, all laws, including the Criminal Code, are subject to the Charter of Rights and Freedoms, and prosecutors must not proceed with prosecutions if they conclude there is little likelihood of a conviction because criminal law is in conflict with the Charter.

In the face of these important considerations Oppal nevertheless decided to give way to a more important political consideration – pressure from the Liberal Caucus and the Cabinet to go after the men.  There has for a number of years been public concern from certain quarters about male Mormon leaders entering into multiple marriages with young women from the tightly knit and highly controlled community of Bountiful.  With a provincial election drawing near and his Assistant Deputy having decided it would be impossible to successfully prosecute the two most powerful leaders of the community for polygamy because of the Charter, the Attorney General asked for a special prosecutor to try to get a different result.  The first decided not to proceed directly with a prosecution.  Not happy with that, Oppal sought another special prosecutor who recommended the same thing, suggestion that the Charter issue first be addressed by a reference to the BC Court of Appeal..  Concerned that political critics would not be satisfied with this, Oppal went shopping for a third, this time finding one willing to prosecute.  But the Court found that since his own legislation requires the first special prosecutor to carry any prosecution, neither of the following two, including the one who did prosecute the case, had the power to do anything.

The basic lesson here is that the Attorney General and the government cannot put politics before the law.  At the very least he had an obligation to go the legislature and have the law changed.  He did not want to do that.  That would be bad politics as well.  So to give the political impression that he was vigorously acting, he recklessly proceeded as he did.  It was all a charade, and seriously undermines any possible future prosecution of allegations of sexual exploitation against these two men.

What next? The Government could repeal the legislation and return the power to direct prosecutions to the Attorney General.  Or the Government could make a reference to the Court of Appeal asking for a decision on the constitutionality of the criminal code prohibition on polygamy and ask for guidance on how a law might be drafted to prohibit the practice where it involves young vulnerable women.  Or it might prosecute the two men on charges of sexual exploitation and abuse of vulnerable underage women.

Whatever it does the government must recognize that freedom of religious practice is protected in the Charter.  Arguably the practice of polygamy is part of this protected freedom, since polygamy is recognized as part of Mormon beliefs and is a sanctioned practice in that religion.

However, contrary to popular belief, Charter freedoms are not absolute.  They can be interfered with or infringed by laws if the exercise of the freedom negatively affects others, provided the infringement is reasonable and the least intrusive way to deal with the problem.  The courts frequently accept reasonable efforts to protect others as a justification for infringements of freedoms.  However the practices in and of themselves must be the cause of the harm to others. The question any court will ask is whether the practice of polygamy in this particular Mormon sect causes the harm to young dependent women, or are the harmful practices in this case multiple sexual relations with underage and vulnerable women?  If the latter the courts are likely to say that there is no justification for banning polygamy on this basis.  This is referred to as the justification test.  And it appears reasonable. After all, having multiple sexual partners is not illegal generally, however much people may disapprove.

If the problem is sexual relations with young and vulnerable women, then the government is most likely to be successful by charging the men with sexual offenses under the Criminal Code.  In 2006, the RCMP recommended that charges be laid under the sexual exploitation provision of the Criminal Code, which prohibits an adult from having sex with someone between age 14 and 18 when the adult is in a position of authority.  The government did not follow that advice.

The government says that it is still considering further action.  Let us hope that now it proceeds in accordance with the law and with an understanding of the Charter.  It is time to stop playing politics with this case.  It is time to be serious about prosecutions.  The power and resources of government and the courts should not be used to pursue anyone just to satisfy political pressure.  That brings both the law and the government into disrepute.  That is exactly what Mr. Oppal has done.   Shame on him.  And shame on the members of the BC Legislature.  There was not one criticism of this reckless behavior of the government in the legislature last week, even though it threatens to free these two men from any potential punishment for their alleged behavior.