Chances are that by the time you read this, the would-be Canadian censors will have tasted yet another version of the Zundel style of legal combat.
The for Ernst Zundel so important Gauthier decision rendered by the UN will now force the lawyers for the lobby ***to argue against themselves.*** And they will squirm like eels while trying to keep the disgrace of their own crumb trails out of the legal records.
Will they succeed? That outcome will be directly proportional to the degree to which the judge, who is to hear the case, is willing to risk his career and reputation, and is willing to uphold the sacred concept of equality before the law.
The parallels between the Gauthier case and the Zundel case could not be more apparent. Mr. Gauthier, a French-Canadian publisher, was denied his right of access to the Press Gallery. After a protracted battle over many years, where he tried to find justice and couldn't before Canadian bodies and courts, given the politicisation of large segments of the Canadian legal system, he marched his case to the UN.
The Human Rights Committee of the International Covenant on Civil and Political Rights, in a ruling during the Sixty-fifth Session which lasted from March 22 to April 9, 1999, the UN ruled in favor of the plaintiff, Mr. Gauthier.
Here are the relevant parts, according to this UN document:
Mr. Gauthier is a publisher of the National Capital News, a newspaper founded in 1982. He applied for membership in the Parliamentary Press Gallery, a private association that administers the accreditation for access to the precincts of Parliament. He was provided with a temporary pass that gave only limited privilege. Repeated requests for equal access on the same terms as other reporters and publishers were denied.
Mr. Gauthier claims that the denial of equal access to press facilities in Parliament constitutes a violation of his rights under Article 19 of the covenant.
Under state party's observations,
* the state party recalls that the author runs an Ottawa based
publication, the National Capital News, which is issued with varying degrees of regularity
* The Canadian Parliamentary Press Gallery is a private, independent,
voluntary association formed for the purpose of bringing together media professionals whose principal occupation is the reporting, interpreting and editing of news about Parliament and the Federal Government
* The Speaker of the House of Commons is the guardian of the rights and
privileges of the House and its members, and as such, by virtue of Parliamentary privilege, has exclusive control over those parts of the Parliament precincts occupied by the House of Commons. One of his responsibilities in this regard is controlling access to these areas.
* The State party explains that all Canadian citizens enjoy access to
Parliament, which is obtained by means of a pass, of which there are different types. The press pass provides access to the media facilities of Parliament and is issued automatically to accredited members of the Press Gallery
* The State party explains that there is no formal, official or legal
relationship between the Speaker and the Press Gallery. The Press Gallery has been accommodated by the Speaker by maintaining the media facilities of Parliament, such as working space, telephones, access to the Library and Restaurant and the provision of designated seating in the public galleries.
The Speaker has no involvement in the day-to-day operations of these facilities, which are independently run by the Press Gallery.
* The State party points out that most of the Press Gallery's
facilities are located off Parliament Hill and thus outside the Parliament's precincts. The State party also notes that live television coverage of all proceedings in the House of Commons is available throughout Canada and many journalists thus seldom actually use the media facilities of Parliament.
* The Press Gallery knows several categories of membership, the most
relevant being the active and temporary membership. Active membership allows access to all media facilities of Parliament for as long as the member meets the criteria, that is for as long as he or she works for a regularly published newspaper and requires access to the media facilities as part of his or her primary occupation of reporting Parliamentary or federal Government news. To those who do not meet these criteria the Press Gallery grants temporary membership which is granted for a defined period and provides access to substantially all of the media facilities of Parliament, except for access to the Parliamentary Restaurant.
* According to the State party, the author has applied several times
for membership in the Press Gallery since founding the National Capital News in 1982. His request for active membership has not been granted, because the Gallery has been unable to ascertain whether he satisfies the criteria. Temporary membership was given to him instead, which was renewed on several occasions. In this context, the State party points out that the author has been uncooperative in providing the Press Gallery information about the regularity of his newspaper. Without such information necessary to see whether the author fulfills the criteria for active membership, the Gallery cannot admit him as a full member.
* The author has requested that the speaker of the House of Commons
intervene on his behalf. The position of the Speaker's office being one of strict non-interference with Press Gallery matters, the Speaker declined to intervene. The State party emphasizes that at all times the author has enjoyed access to the precincts of Parliament, and access to the media facilities of Parliament during the periods of time when he had a temporary membership card of the Press Gallery. (...)
* According to the State party, the suggestion that the speaker should
override the Press Gallery's internal affairs would undermine freedom of the press. (...)
* Moreover, the State party argues that the communication is
inadmissible for failure to substantiate the allegation that the failure to grant the author full membership of the Press Gallery amounts to a denial of his rights under article 19 of the Covenant. In this context, the State party recalls that the author has never been denied access to the Parliamentary precincts, and that he has had access to the media facilities of Parliament whenever he was in possession of a temporary press pass. The author has not shown any instance in which he has been frustrated in his ability to gain access or to disseminate information about Parliament. (...)
* The State party adds that the Speaker of the House of Commons has
"good reasons to expect individuals to follow the normal channels for obtaining access to the Parliamentary Press Gallery premises located on the Parliamentary precincts. In order to make access to Parliamentary precincts meaningful, the Speaker needs to ensure that access to any location on the precincts is controlled. For this purpose, in the particular case of the Parliamentary Press Gallery premises located in the Parliamentary precincts, the Speaker has chosen, as a matter of practice, to condition such access on membership of the Canadian Press Gallery." The State party submits that the Speaker's practice is reasonable and appropriate and consistent with the freedom of expression and of the press.
(...)
* With regard to the relationship between the Speaker and the Press
Gallery, the State party explains that this relationship is not formal, official or legal. While the speaker has ultimate authority over the physical access to the media facilities in Parliament, he is not involved in the general operations of these facilities which are administered and run entirely by the Press Gallery.
* Press passes granting access to the media facilities of Parliament
are issued to Gallery members only. The State party reiterates that the determination of membership in the Press Gallery is an internal matter, and that the speaker has always taken the position of strict non-interference. It submits that as a member of the public, the author has access to the Parliament buildings open to the public and that he can attend the public hearings of the House of Commons. <end of excerpts>
Under "Committee's examination of the merits" of the arguments above, the Human Rights branch of the United Nations ruled as follows:
The issue before the Committee is thus whether the restriction of the author's access to the press facilities in Parliament amounts to a violation of his rights under article 19 of the Covenant, to seek, receive and impart information.
In this connection, the Committee also refers to the rights to take part in the conduct of public affairs, as laid down in article 25 of the Covenant, and in particular to General Comment no 25 (57) which reads in part: "In order to ensure the full enjoyment of rights protected by article 25, the free communication of information and ideas about public and political issues between citizens, candidates and elected representatives is essential. This implies a free press and other media able to comment on public issues without censorship or restraint and to inform public opinion." General Comment No 25, paragraph 25, adopted by the Committee on 12 July, 1996. Read together with Article 19, this implies that citizens, in particular through the media, should have wide access to information and the opportunity to disseminate information and opinions about the activities of elected bodies and their members. The Committee recognizes, however, that such access should not interfere with or obstruct the carrying out of the functions of elected bodies, and that a State party is thus entitled to limit access. However, any restrictions imposed by the State party must be compatible with the provisions of the Covenant.
In the present case, the State party has restricted the rights to enjoy the publicly funded media facilities of Parliament, including the right to take notes when observing meetings of Parliament, to those media representatives who are members of a private organization, the Canadian Press Gallery. The author has been denied active (i.e.full) membership of the Press Gallery. On occasion he has held temporary membership which has given him access to some but not all facilities of the organisation. When he does not hold at least temporary membership, he does not have access to the media facilities nor can he take notes of Parliamentary proceedings. The Committee notes that the State party has claimed that the author does not suffer any significant disadvantage because of technological advances which make information about Parliamentary proceedings readily available to the public. The State party argues that he can report on proceedings by relying on broadcasting services, or by observing the proceedings. In view of the importance of access to information about the democratic process, however, the Committee does not accept the State party's argument and is of the opinion that the author's exclusion constitutes a restriction of his rights guaranteed under paragraph 2 of article 19 to have access to information. The question is whether or not this restriction is justified under paragraph 3 of article 19. The restriction is, arguably, imposed by law, in that the exclusion of persons from the precincts of Parliament or any party thereof, under the authority of the Speaker, follows from the law of Parliamentary privilege.
The State party argues that the restrictions are justified to achieve a balance between the right to freedom of expression and the need to ensure both the effective and dignified operation of Parliament and the safety and security of its members, and that the State party is in the best position to access the risks and needs involved. As indicated above, the Committee agrees that protection of Parliamentary procedure can be seen as a legitimate goal of public order, and an accreditation system can thus be a justified means of achieving this goal. However, since the accreditation system operates as a restriction of article 19 rights, its operation and application must be shown as necessary and proportionate to the goal in question and not arbitrary. The Committee does not accept that this is a matter exclusively for the State to determine. The relevant criteria for the accreditation scheme should be specific, fair and reasonable, and their application should be transparent. In the instant case, the State party has allowed a private organisation to control access to the Parliamentary press facilities, without intervention. The scheme does not ensure that there will be no arbitrary exclusion from access to the Parliamentary media facilities. In the circumstances, the Committee is of the opinion that the accreditation system has not been shown to be a necessary and proportionate restriction of rights within the meaning of article 19, paragraph 3, of the Covenant, in order to ensure the effective operation of Parliament and the safety of its members. The denial of access to the author to the press facilities of Parliament for not being a member of the Canadian Press Gallery Association constitutes therefore a violation of article 19 (2) of the Covenant.
In this connection, the Committee notes that there is no possibility of recourse, either to the Courts or to Parliament, to determine the legality of the exclusion or its necessity for the purposes spelled out in article 19 of the Covenant. The Committee recalls that under article 2, paragraph 3 of the Covenant, States parties have undertaken to ensure that any persons whose rights are violated shall have an effective remedy, and that any person claiming such a remedy shall have his right thereto determined by competent authorities. Accordingly, whenever a right recognized by the Covenant is affected by the action of a State agent there must be a procedure established by the State allowing the person whose right has been affected to claim before a competent body that there has been a violation of his rights.
The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 19, paragraph 2, of the Covenant.
Under article 2, paragraph 3(a) of the Covenant, the State party is under the obligation to provide Mr. Gauthier with an effective remedy including an independent review of his application to have access to the press facilities in Parliament. The State party is under an obligation to take measures to prevent similar violations in the future.
Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not, and that, pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforcable remedy in case a violation has been established. The Committee wishes to receive from the State party, within ninety days, information about the measure taken to give effect to the Committee's views. The State party is also requested to publish the Committee's views.
This is the backdrop against which the following content will be argued today, September 8, 1999.
Here is what transpired in the Zundel case:
"On or about June 4, 1998, the respondent Members of Parliament, the Canadian Jewish Congress and Moshe Ronen conspired amongst to injure the appellant by banning him from the precincts of Parliament, thereby preventing him from holding a press conference in the Canadian Parlimanetary Press Gallery's press conference rooms."
Skipping over the details of this charge, as outlined in this motion that will be argued on Wednesday, 8 September '99 we come to the following telling paragraphs:
"Later in the day on June 4, 1998, (the Government House leader) Don Boudria rose in the House of Commons and said:
"Mr. Speaker, I rise on a point of order pursuant to an issue raised earlier this afternoon and well put by all House leaders. ***Pursuant to discussions held subsequently*** (emphasis in the legal document) I now offer the following motion to the House and ask for unanimous consent that it be passed immediately without debate. I move:
'That this House order that Ernst Zundel be denied admittance to the precincts of the House of Commons during and for the remainder of the present session.'
The motion passed with the unanimous consent and agreement of the respondent party leaders, house leaders and members."
They can waste the Canadian taxpayers' money and burn up Zundel's savings for another few years. They can continue to make him a pariah with their one-sided, politically expedient "hate Zundel" rulings. The fact is that Canada is a signatory to the United Nations. The UN ruling is basic and clear. Even Canadian dissidents have rights. Period.
Now watch 'em squirm out of this one!
Ingrid
Thought for the Day:
"A hero is no braver than an ordinary man, but he is braver five minutes longer."
(Ralph Waldo Emerson)
Back to Table of Contents of the Sept. 1999 ZGrams