The Cabinet must present a united front

  • Reflecting On The Law
  • Thursday, 03 Jan 2019

IN a letter to the editor published on Jan 1 (Friendly fire is killing the optimism of 2018), a Star reader lamented “the ferociousness and frequency of friendly fire from within the ruling political coalition”.

The learned reader was referring to the long-standing constitutional convention of public unanimity within the Cabinet – a tradition which has been brazenly breached by some ministers in the last few weeks.

Public unanimity is part of the broader doctrine of ministerial responsibility. In England, the doctrine is founded not on law but on customs of the Constitution. Over the centuries, the doctrine has developed two related aspects – individual responsibility and collective responsibility.

Individual responsibility: This refers to a number of wholesome rules the proper enforcement of which embellishes the quality of governance in a parliamentary democracy.

During parliamentary debates, motions and question time, a minister is required to answer questions, supply information and justify his ministry’s policies.

A minister is vicariously responsible to parliament for the acts of his civil servants and for the formal acts of the Monarch in which the minister participated.

In many developed democracies, ministers often resign to accept responsibility for dereliction of duty by their departments. Regrettably, this aspect of constitutionalism is unknown in Malaysia.

The minister must introduce and pilot all legislation relating to his portfolio and reply to comments from the floor.

The minister must resign if a vote of censure is passed against him for his private conduct or the goings-on in his ministry. Such votes of censure are, however, almost unknown.

Unless the minister’s conduct is so reprehensible that it will dent severely the government’s standing with the electorate, the government tends to stand behind a beleaguered colleague. Collective responsibility hinders individual responsibility.

Collective responsibility: In Malaysia, collective responsibility is provided for both by the Constitution and long-standing conventions.

Under Article 43(2), the Prime Minister and his Cabinet must belong to Parliament – the PM to the Dewan Rakyat – in order to ensure answerability, accountability and responsibi­lity to Parliament.

The government must maintain the confidence of the Dewan Rakyat as a condition of its survival. Article 43(4) provides that if defeated on a vote of no confidence, the Prime Minister has two choices.

First, he may tender the resignation of his Cabinet. Second, he may advise the Yang di-Pertuan Agong to exercise royal discretion to dissolve the Dewan Rakyat and call for fresh elections.

All ministers must observe the convention of public unanimity. They must speak with one voice.

They must present a united front to the public, to Parliament and to the Yang ­di-Pertuan Agong so that the principle of the “indivisibility of the executive” is preserved. If a minister is attacked in Parliament, it is the duty of his colleagues to defend him.

If a minister does not agree with a Cabinet decision, he has three options: keep quiet about it, resign, or have his dissent recorded in Cabinet minutes.

This rule of public unanimity applies even if the minister did not participate in or concur with the decision in question.

Violation of this duty can result in political sanctions as in 2005 when Deputy Natural Resources and Environment Minister Datuk S. Sothinathan criticised the government’s decision to refuse recognition to Ukranian medical degrees and was suspended by then PM Datuk Seri Abdullah Ahmad Badawi (now Tun) for three months.

Cabinet ministers, even if belonging to different political parties, should work as a team and respect each other.

It is improper for a minister to make critical observations that bear upon matters falling within another minister’s responsibilities.

Though frank discussions and differences in Cabinet meetings are allowed, public ­bickering should be avoided. It is a serious breach of convention for a minister to condemn another minister publicly or to ask for his resignation.

A public attack on a ministerial colleague (as opposed to a confidential representation to the Cabinet) is a challenge to the authority of the Prime Minister and a sign of disunity within the government.

Ministers in a coalition government must forsake narrow political or sectarian interests. Instead, they should act unitedly and speak with one voice.

Many observers have noted that despite Pakatan Harapan having been in power for seven months plus, the advocacy and actions of some ministers still reflect the narrow confines of race, religion or region.

Both under law and conventions, ministers have a duty to observe secrecy in relation to all deliberations of the Cabinet. This is a lifelong duty and a minister is bound by it even after he leaves office for whatever reason.

In England, a Ministerial Code exists to guide ministers’ speeches. The Code provides that “ministers cannot speak on public affairs for themselves alone... They speak as ministers; and the principle of collective responsibility applies. They should ensure that their statements are consistent with collective ­government policy and should not anticipate decisions not yet made public”.

Observations on someone else’s portfolio must first be cleared with the other minister. The PM must be consulted on matters that affect the conduct of the government as a whole or are of constitutional character.

Like England, Malaysia too needs a Ministerial Code to guide ministerial conduct and to reduce the serious violations of the doctrine of ministerial responsibility that have been taking place lately.

It is also necessary for Cabinet ministers, parliamentarians and senior civil servants to acquaint themselves with the core principles and procedures of constitutional and administrative law so that the Constitution can become the sail and anchor of all governmental conduct.

Emeritus Professor Datuk Dr Shad Saleem Faruqi is holder of the Tunku Abdul Rahman Chair at Universiti Malaya. He wishes all readers health and happiness in the new year. The views expressed here are entirely the writer’s own.

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