On loyalty in the public service

An important op-ed article in today's Ottawa Citizen, by Amir Attaran and Gar Pardy,  reminds us what duty means in public service. This paragraph, taken from a 1985 Supreme Court of Canada ruling, leaps out:

“The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant’s criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability.”

Comments

[Catherine]

A good reminder.

But, the guys there now are leaving pretty heavy foot-prints, or carbon foot-prints, or both.

[Sarann]

It's a brave public servant that would challenge this vicious government. Thank God for those who do.

[MJH]

Deputy Ministers and Assistant Deputy Ministers stay loyal to the Party that appointed them in the first instance. It should be standard practice to change them out when there is a change of government. Not to do so makes it very difficult to introduce new policy and practice.

[Gabe]

Unless said government is one led by Stephen Harper.

[MyThought]

Changing public servants every time there's a new government? What a ridiculous idea. It takes years to get the right experience, especially to make changes when a new government changes policies.

Public servants work for the public, not the government. Otherwise, they'd be called government servants.

[Gabby in QC]

It’s too bad the esteemed Professor of Law Amir Attaran decided to quote only part of the Supreme Court case he quoted in the Ottawa Citizen op-ed.

Here is the paragraph he quoted, with the part that he conveniently omitted:
“As the Adjudicator indicated, a further characteristic is loyalty. As a general rule, federal public servants should be loyal to their employer, the Government of Canada. The loyalty owed is to the Government of Canada, not the political party in power at any one time. A public servant need not vote for the governing party. Nor need he or she publicly espouse its policies. And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability.

Here's the end of the paragraph that Professor Attaran left out:
"But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government.”

There is more nuance in the paragraph Professor Attaran uses to justify his argument than he allows. Of course, Professor Attaran has already decided, i.e. he has already formed his opinion, that the Government was engaged in illegal acts in transferring detainees. He and the co-author also categorically state that the Government “slandered” Colvin. So much for due process.

Also, it is very peculiar that Professor Attaran would include a link that encourages leaks, as if he were trying to encourage some concerted anti-government action.

Strange as well that Mr. Pardy, a retired Canadian diplomat, would agree to sign his name to this op-ed, which uses quite a bit of undiplomatic language. Here are some examples:

Swiftboated
character assassination and bullying
slandered Colvin
infuriated the Harper government and sycophantic civil servants
loathing of Colvin
they bully
Complicity in torture
a war crime

Professor Attaran may be a favourite “expert” of the CBC, but personally, I find his raw hostility towards the government of the country that welcomed him as a citizen very disturbing. From one naturalized Canadian to another, I would appreciate it if he were to tone down both his anger and his rhetoric. I hear Iran has a few problems with human rights. Maybe he could address those with the same conviction?

[Wascally Wabbit]

Thanks for posting this Susan - and thanks to the two authors for pulling back the curtain

[dillon]

Attaran is not a credible authorty on detainee abuse. His knowledge is suspect. As is his knowledge of the law.

[Ozy3]

@ Gabby. I find it interesting that you focus on seemingly irrelevant trivialities rather than address the central issue of loyalty to Canada over and above to the present government.

First, a diplomat doesn't have to use diplomatic language all the time, just as lawyers don't use legalese to order pizza. Pardy said what he needed to say in a column reflecting his privately held views in clear and concise language. What's the point that you're trying to make when you express surprise that he didn't use more "diplomatic" language? That form is more important than content?

Second, the Supreme Court's decision in Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455 (http://csc.lexum.umontreal.ca/en/1985/1985scr2-455/1985scr2-455.html) was very clear in its description of loyalty. In fact, paragraph 41 of the judgment provides the crux of the Supreme Court's logic, as follows:
"And indeed, in some circumstances a public servant may actively and publicly express opposition to the policies of a government. This would be appropriate if, for example, the Government were engaged in illegal acts, or if its policies jeopardized the life, health or safety of the public servant or others, or if the public servant's criticism had no impact on his or her ability to perform effectively the duties of a public servant or on the public perception of that ability. But, having stated these qualifications (and there may be others), it is my view that a public servant must not engage, as the appellant did in the present case, in sustained and highly visible attacks on major Government policies. In conducting himself in this way the appellant, in my view, displayed a lack of loyalty to the Government that was inconsistent with his duties as an employee of the Government."

For examples of the "sustained and highly visible attacks", the honourable court provided the following samples of Fraser's criticisms in paragraph 49:
"[Fraser] began to impugn and attack the character of the Prime Minister and the integrity of the Government. He did this on a local, then a national, and finally an international basis. He said in Kingston:
- 'We have sold the rights of English‑speaking Quebecers down the drain.'
- 'The Federal Government never had any mandate from the people.'
- 'We are not killing Jews as they did in Nazi Germany, but Canadians are up against that same insidious mentality today from their government.'
- He telexed Sir Francis Pym, Leader of the British House of Commons: 'You are dealing with a federal government that has a record of broken promises to the Canadian people.'"

At para 50, the Court provides the test for lack of loyal behaviour:
"When one examines the substance of the criticisms (two major government policies and the character and integrity of the Prime Minister and Government), the context of those criticisms (prolonged, virtually full time, in public meetings, on radio, on television, in newspapers, local, national, international), and the form of the criticisms (initially restrained, but increasingly vitriolic and vi­tuperative) the Adjudicator's conclusion that Mr. Fraser's ability to perform his own job and his suitability to remain in the public service were both impaired was a fair conclusion." [....] "Put simply, although there is not an absolute prohibition against public servants criticizing government policies, Mr. Fraser in this case went much too far."

I seriously doubt that Colvin conduct can be equated to that of Fraser's. Colvin was summoned to give his remarks to the Parliamentary committee, he did not volunteer them personally to the press; Colvin was pointing out that the government had been involved in illegal activities that put the lives of others in danger, and it's clear by his promotions since 2007 that Colvin's behaviour and views did not impair his ability to perform his job.

In short, your interpretation of Fraser is inaccurate and misleading. And why does Iran always enter into discussions when Harper is criticised? What possible relevance could Iran have to *our* violation of the Third Geneva Convention and the Convention Against Torture? Give it a rest, already.

[Wascally Wabbit]

Ah Gabby - to quote your hero it seems...."there you go again..."

[Gabby in QC]

• “First, a diplomat doesn't have to use diplomatic language all the time, just as lawyers don't use legalese to order pizza.”
Umm … I don’t think anyone mistook the Ottawa Citizen op-ed for a pizza order. It was something to chew on, though ...

• “I seriously doubt that Colvin conduct [sic] can be equated to that of Fraser's.”
And I seriously doubt that I equated the two, i.e. Fraser’s and Colvin’s. I assume you read my previous comment. I mentioned Mr. Colvin’s name three times, all three instances in the context of quoting the authors of the op-ed, Messrs Attaran and Pardy. It is an enormous leap of logic on your part that led you to that wrong conclusion.

• “In short, your interpretation of Fraser is inaccurate and misleading.”
I did not “interpret” Fraser. I merely pointed out that Professor Attaran had been highly selective, if not downright misleading, in quoting from the Fraser decision. Stopping the quote where he did, he leads the reader to assume that the Supreme Court decision encourages and sanctions the openly expressed opposition of government policies by government employees. However, the part Professor Attaran decided to omit clearly states there are limits to the kind of opposition a government employee can express without some kind of repercussion. In Fraser’s case, it resulted in his suspension and eventual discharge.

I did not argue the same fate should befall Mr. Colvin. My comment dealt with the op-ed and the arguments presented therein, not with Mr. Colvin’s testimony.

If you want to fault the use of the Fraser case, you should take it up with professor Attaran, not with me. As far as I know, no one has accused Mr. Colvin of being disloyal, so I question the Professor’s use of the Fraser case to argue the legitimacy of Mr. Colvin’s case.

• “And why does Iran always enter into discussions when Harper is criticised?”
Umm … always? As in …
1. every time; on every occasion; without exception: He always works on Saturday.
2. all the time; continuously; uninterruptedly: There is always some pollution in the air.
3. forever: Will you always love me?
4. in any event; at any time; if necessary: She can always move back with her parents.
Mentioning Iran once = always? A slight exaggeration on your part, don't you think?

• “*our* violation of the Third Geneva Convention and the Convention Against Torture”
There are differences of opinion on whether the Third Geneva Convention even applies in the case of the Afghan detainees, since they are not identifiable members of an army or the like. But I’ll leave that to the lawyers and Supremes - when they won’t be busy ordering pizzas.

As for “our” so-called violation of the Convention Against Torture, that is an assumption on your part, i.e. that our military knowingly and willingly transferred detainees into torture. You, like Professor Attaran, have already decided that is what actually happened.
I, on the other hand, want to withhold judgment until more facts are known, although I do readily confess I lean towards believing our military and our government rather than Professor Attaran’s invective and accusations.
I am still allowed to have my own thoughts and opinion on the matter, am I not?

[Ozy3]

Sigh! I thought about leaving this alone but it needs to be said.
Gabby, you're not intellectually ethical. It's as simple as that.
On the one hand, you fault Attaran for not quoting the entirety of paragraph 41 of the Fraser decision, and imply that the omitted part somehow undermined the point he was making. Hence, you *were* endorsing the Fraser decision as being pertinent to Colvin's situation. When shown that you left an inaccurate impression of the Supreme Court's findings in Fraser, you pretended that you never intended to apply Fraser to Colvin's situation. How can you claim that you were only targeting Attaran's writing without making any connection to Colvin? He was writing about Colvin and his truncated quote from Fraser was accurate because the omitted part didn't apply to Colvin. So, what exactly was your point in mentioning the omission if it didn't apply to Colvin and you weren't commenting on Colvin? That's some bizarre logic you're straining to employ here!
Second, you state: "As far as I know, no one has accused Mr. Colvin of being disloyal, so I question the Professor’s use of the Fraser case to argue the legitimacy of Mr. Colvin’s case."
Good grief! Do you just type to hear the sound of your nails on the keyboard? Colvin was threatened with prosecution for breach of national security if he testified! That's the definition of disloyalty or even treason! Department of Justice lawyers threatened Colvin with prosecution on the grounds that he was being "disloyal" through revealing confidential "national security" matters. Do you just make up your own facts? Is it easier for you to see Harper as a hero in this make-belief world you create?
And Gabby: take my word for it, we committed refoulement and violated the Convention Against Torture. You can deny it as long as you want but the facts are more than sufficient to establish the infraction. Just read the application for judicial review filed by Amnesty International and the BC Civil Liberties' Association in February 2007. The fact that the Harper government scrambled to suspend transfers and renegotiate the transfer agreement before the injunction motion was heard should demonstrate how frightened they were of a court review of their actions. I have the training and experience to tell you that you don't need to wait for any further evidence or findings - it's clear as day to anyone who has any experience in this field. And it sure as hell should have been clear to the DFAIT and DND lawyers who drafted up the garbage 2005 agreement, and the lawyers who reviewed said agreement once Colvin started filing his warnings.
Nevertheless, your *choice* to believe otherwise is sacrosanct, and I leave that to your conscience. I just don't hold out much hope for any objective application of the latter.

[Gabby in QC]

“Sigh! I thought about leaving this alone but it needs to be said.”
Ozy3, if as you state, I am
• “not intellectually ethical”
• I engage in “bizarre logic”
• “make up” my own facts for my own “make-belief world”
• and you doubt whether my conscience is in proper working order - “any objective application of the latter”
why do you waste your precious time on replying to my posts? After all, with all your “training and experience” you must have other much bigger and more important fish to fry, so why spend time on someone who is clearly morally corrupt and beyond redemption, in your considered opinion?

The part about my conscience is especially laughable. How does one’s conscience conform to “any *objective* application”?
Definitions of conscience:
1. the *inner* sense of what is right or wrong in one's conduct or motives, impelling one toward right action: to follow the dictates of conscience.
2. the complex of ethical and moral principles that controls or inhibits the actions or thoughts of an *individual.*
3. an inhibiting sense of what is prudent: I'd eat another piece of pie but my conscience would bother me.
My conscience should conform to some extraneous “objective application”!?!
Hmm, I wonder what kind of “training and experience” you’ve had.

[Ozy3]

@ Gabby: You know, you pose an excellent question: why do I respond to your posts?
I've rationalised to myself that you express a popular point of view that requires a response to widen the debate but I've ignored many other people's posts that could warrant similar responses.
The truth is, I don't know why I respond to you in particular. Despite the considerable gulf in our opinions (we're practically polar opposites), I do find your posts to be eloquent, polite and intelligent. I don't agree with your conclusions or even your logic but my disagreement doesn't deny the existence of your intelligence.
So, you're right. I did go overboard in questioning your morals, and you certainly deserve more civility than I demonstrated. I'm sorry.