Constitutional Law Assignment

FACULTY OF LAW Constitutional Law 1 UCL 1612 Ministerial responsibility to Parliament is an important principle under the parliamentary system of government.

How effectively is this doctrine operating in Malaysia?

No.

1

Name

Student ID

Raja Muhammad Shahreez 1142700025 Bin Raja Kamarul Zaman (L)

Tutorial Section

Signature

T1

2

Chan Cindy

1142700031

T1

3

Maharizan Bin Mohamad Chee

1142700032

T1

4

Nora Enira Binti Sahharil

1142700041

T5

5

Julita Junius

1142700120

T1 Received by ....…....................... Gary Ng Kit Min

Abstract This assignment is to study an application of the Ministerial responsibility to Parliament and its principle under the parliamentary system of a government in Malaysia. Ministerial responsibility is a type of constitutional convention using the British parliamentary system, known as Westminster system. The minister or the members of the cabinet bears the full consequences or responsibility of their own department actions. Usually the countries that practice this system practice the federal constitutional monarchy. There are two types of ministerial responsibility being discussed in this assignment; individual responsibility and collective cabinet responsibility. The definition of the ministerial responsibility will be explained throughout the assignment. The purpose of studying this topic is to test the theory of the parliamentary system and the role of the minister in Malaysia. Examples of the real life experience are given to support the application of the theory. It is hoped that this assignment will help Malaysian to gain a better understanding on the concept of the ministerial responsibility.

Table of Content TOPICS

CHAPTER Chapter 1

Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6

Introduction Individual Ministerial Responsibility  2.0 Individual Ministerial Responsibility  2.1 Policy Culpability  2.2 Vicarious Liability  2.3 Responsibility for Monarch’s Acts  2.4 Legislation  2.5 Vote of Censure  2.6 The Real Life Examples of Individual Responsibility Collective Cabinet Ministerial Responsibility  3.0 Collective Ministerial Responsibility  3.1 Parliamentary Executive  3.2 Unanimity  3.3 Maintaining Confidence  3.4 Secrecy  3.5 Answerable To Monarch  3.6 The Real Life Examples of Collective Cabinet Responsibility Concept of Ministerial Responsibility in Malaysia  4.0 Practice of Ministerial Responsibility in Malaysia  4.1 Moral Duty of the Ministers  4.2 Refusal to Answer During Question Time  4.3 Ministers Responsibility on Behalf of Civil Servant’s Action  4.4 Maintaining the Confidence of the Lower House  4.5 Unanimity in Malaysia Parliament  4.6 Executive Branch Usurpation of Power Recommendations and Guidelines Towards Ministerial Responsibility  5.0 What Can Be Done?  5.1 Increasing the Power of the Parliament  5.2 The Role of the Press and Media  5.3 Increasing the Opposition’s Strength  5.4 Limit the Power of Prime Minister  5.5 Public Opinion Conclusion References Appendixes

PAGES 1-2

3-5

6-8

9-12

13-14

15-16 17-18

1.0 Introduction The Constitution is the central of the doctrine of ministerial responsibility as it plays a fundamental role between the executive and the parliament. The ministerial responsibility plays an important convention role in the parliamentary system of government. Thus, the convention is needed in order to maintain a united public face and also confidence and public support for the government.1 The definition of ministerial responsibility can be described as a constitutional convention where it is hard to define the certainty of circumstances depending on the person’s case. The doctrine of ministerial responsibility is the backbone of the cabinet system and ministerial responsibility needs to maintain a relationship of check and balance between the executives and legislative because it is the primary aim for this doctrine. 2 According to Marshall and Moodie, where they describe ministerial responsibility as a general conduct of government which includes exercising various powers of the Monarchy, Parliament and electorates.3 In the doctrine of ministerial responsibility can be divided into two parts, individual

responsibility

and

collective

responsibility.

Individual

and

collective

responsibilities are two examples of important conventions sources of the constitutional law. In individual responsibility, ministers are basically responsible for their own actions or even an action which is not known to him. In other words, the ministers have to accept every responsibility for any failures that happen in administration because any injustice action from the individual or any aspect of policy will be criticized in the parliament whether it is personal problem or not. In collective responsibility however, it requires all the ministers to take equal responsibility of their decisions towards other ministers. In Lord Salisbury’s classic theory, where he stated that every member of the Cabinet has an absolute responsibility as a team to the Parliament and whatever discussions made by the Cabinets are confidential. Therefore, if 1 Simpson, M. (2013, 14th May). Tutor2u. [Weblog]. Retrieved 5 September 2015, from http://beta.tutor2u.net/politics/blog/revision-update-executivecollective-individual-ministerial-responsibility

2 Faruqi, S.S. (2008). Document of Destiny. Petaling Jaya, Selangor Darul Ehsan, Malaysia: Star Publications 1 (Malaysia).

3

Barnett, H. (2006). Responsible Government. In Administrative Law (6th ed., p. 281). Routledge-Cavendish.

Constitutional

and

there are any Ministers who unable to support a decision or refuse to obey the confidentiality rule is required to resign.4 In our parliamentary system consist of the Yang di-Pertuan Agong, the House of Representatives and the Senate. Thus, the Yang di-Pertuan Agong is basically the head of the executive branch. Although he may be the head of the state but he is not the head of government. The head of government would be the Prime Minister. According to article 55 of the Federal Constitution shows that the King can summon Parliament to be in session. Moreover, the King can also dissolve Parliament. As for the House of Representative, there are 222 members which represent a Parliament Constituency. Normally, the general election is held every 5 years in order to elect new members of the House of Representatives and the parties with the most votes will be the new government to rule the country. However, in order to be a member of the House of Representative, the person must be a Malaysian citizen, must be at the age of 21 years old and above, must be sound mind, not a bankruptcy, and must not be in the member of both Houses.5 Other than that, the Senate consist of 70 members that can be divided into 26 members and 44 members. Basically, 26 members were elected to represent 13 states by the State Legislative Assembly. However, 44 members were appointed by the Yang di-Pertuan Agong on the advice of the Prime Minister, which includes the members from the Federal Territory of Kuala Lumpur, Federal Territory of Labuan and Putrajaya. In order to be a member of the Senate, basically you must be a Malaysian citizen, must be above 30 years old, and must be sound mind and not a bankruptcy. Thus, the terms of the office are 3 years for a maximum of two terms.6

4 Masum, A. (2012). The Doctrine Of Ministerial Responsibility In Malaysia: THEORY AND

PRACTICE IN A NEW REGIME OF PARLIAMENTARY ACCOUNTABILITY. Malayan Law Journal Articles, 4(5), . Retrieved 2 September, 2015, from https://www.academia.edu/5393475/Malayan_Law_Journal_Articles_2012_Volume_4_The_Doctri ne_of_Ministerial_Responsibility_in_Malaysia_Theory_and_Practice_in_a_New_Regime_of_Parliam entary_Accountability_THE_DOCTRINE_OF_MINISTERIAL_RESPONSIBILITY_IN_MALAYSIA_THEORY _AND_PRACTICE_IN_A_NEW_REGIME_OF_PARLIAMENTARY_ACCOUNTABILITY

5 Harding, A. (1996). Law, 2 government, and the Constitution in Malaysia (p. 91). The Hague, London: Kluwer Law International.

6 See Article 45 of the Federal Constitution.

Individual Ministerial Responsibility 2.0 Definition An individual ministerial responsibility is a constitutional convention in governments practicing the Westminster system. The responsibility of an individual minister for their own conduct and that of their departments is a vital aspect of accountable and democratic parliamentary government. Individual responsibility can be found on unwritten conventions and political norms while collective ministerial responsibility can be found in the Malaysian Federal Constitution in Article 43(3). The individual responsibility underlines the elective nature of the office of a Minister. Individual responsibility can be divided to two for necessary purposes; individual responsibility for personal conduct and individual responsibility for policy and administration7. As of the personal conduct, for example, Ministers are liable when they are faced with any sex scandal or a matter has been brought to him but he completely ignores it. Individual responsibility for policy and administration shall be elaborated below. The theory of individual ministerial responsibility comprises of policy culpability, vicarious liability, responsible for Monarch’s acts, legislation duties and vote of censure. 2.1 Policy Culpability Every Minister from its own department is required to practice its policy culpability. Policy culpability is known, as the ministers shall take responsibility or problems that arrive in his department. Whether they are of good opinions in the parliament or administrative errors in his department that is not of his doing, the Minister must take all responsibility in his department. A given example is when a question arises and a Minister is unable to answer questions that he faces or any sort of mismanagement in his department, he shall face the Parliament whether he is to be dismissed from the Cabinet. He is expected to apologize and admits his error for any actions done by his department and must take appropriate measures 7 Masum, A. (2012). The Doctrine Of Ministerial Responsibility In Malaysia: THEORY AND

PRACTICE IN A NEW REGIME OF PARLIAMENTARY ACCOUNTABILITY. Malayan Law Journal Articles, 4(5), . Retrieved 2 September, 2015, from https://www.academia.edu/5393475/Malayan_Law_Journal_Articles_2012_Volume_4_The_Doctri ne_of_Ministerial_Responsibility_in_Malaysia_Theory_and_Practice_in_a_New_Regime_of_Parliam 3 entary_Accountability_THE_DOCTRINE_OF_MINISTERIAL_RESPONSIBILITY_IN_MALAYSIA_THEORY _AND_PRACTICE_IN_A_NEW_REGIME_OF_PARLIAMENTARY_ACCOUNTABILITY

to correct his department. However, in Malaysia, the practice is not necessarily accurate. The questions brought up in Parliamentary meetings are not answered due to insufficient time. The number of questions that can be asked by a Member of Parliament is 20 questions per meeting with a given time of thirty minutes a sitting. When the Minister regarding his department answers questions, there are inaccurate and the topic of the answer will differ from the question given, leaving the questioner unsatisfied. Ministers can choose to not answer a question when it concerns any issues of public interest. Sometimes, the scope of the question may be too wide or it concerns the secrecy of the government, which they wish to uphold. 2.2 Vicarious Liability Vicarious liability is a doctrine also known as “respondeat superior”, translated from Latin, which is known as “let the master answer”. This doctrine is based on employeremployee relationship.8 Continuing from the first point above, a minister is responsible for the acts of his civil servants below. When they have caused dissatisfaction to the people and have been brought to the attention of The Cabinet, the Minister shall be required to answer the ‘attacks’ thrown by the Members of the Parliament. This convention is not actually practiced in reality, as the administration of the department cannot be brought upon the parliament. A Minister cannot be held responsible for the acts of every civil servant in his department. Furthermore, every parliamentary meeting would deem unreasonable if they were to give comments for every civil servants act. 2.3 Responsibility for Monarch’s Acts A Minister is deemed to be responsible for the formal acts of the Monarch. Article 40(1) of the Federal Constitution discusses the Yang di-Pertuan Agong shall seek the advice of the Cabinet or a Minster acting under the provisions of the Cabinet. The Yang di-Pertuan Agong can also ask any Minister requesting information of a specific Ministry. For example, if the Yang di-Pertuan Agong wanted to know home affairs of the State then he would ask the Home Minister. However, if anything goes wrong, the Minister shall be liable for the acts of the Monarch as he was in charge of advising his Majesty. 4

8

Definition of vicarious dictionary.thefreedictionary.com/Vicarious+liability

liability

http://legal-

2.4 Legislation Next, a Minister shall always open debate concerning the affairs of his department. He recognizes the formation of his department, as he should represent the department during the meetings of a Parliament. His fellow workers shall bring issues concerning the department and he must start a debate in Parliament discussing the issues that he has faced. 2.5 Vote of Censure If a vote of censure has been posted against a Minister, he must resign. In reality, this has never happened. The Cabinet will have to cast a vote of censure to a Minister only when he is involved in a personal and irresponsible act that brings shame to the government. Whether the Minister publicly faces humiliation by the Members of Parliament, when he still has the support of the Prime Minister, then he shall continue his duty. In practical terms, a Minister usually resigns when his wrongdoings have affected the government so greatly that he is ashamed to further continue his duties. 2.6 The Real Life Examples of Individual Responsibility For example, former Malaysian Health Minister, Datuk Seri Dr. Chua Soi Lek resigns from Cabinet due to the sex scandal he was involved. He announced his immediate resignation in a press conference after he admitted he was the man involved in the video 9. This would be an example that individual responsibility has no effect on Ministers. They choose to resign immediately rather than taking responsible for all of his actions.

5

9 Thestarcommy. (2008). Chua resigns after sex scandal. Retrieved 2 January 2008, from http://www.thestar.com.my/story/?file=%2f2008%2f1%2f2%2fnation %2f20080102155121&sec=nation

Collective Cabinet Responsibility 3.0 Definition Collective cabinet responsibility or also known as cabinet collective responsibility

10

is a fundamental constitutional convention in government using the British Westminster parliamentary system according to which ministers are responsible to the parliament for the conduct of their ministry and government as a whole and must support all governmental decisions made in Cabinet, even if the members does not agree with them. In other words, a cabinet is collectively responsible towards people by a process through the parliament, for deciding and implementing policies for the government. In Malaysia, collective responsibility is acknowledged in Article 43(3) of the Federal Constitution which stated that “ cabinet shall be collectively responsible to Parliament”. 3.1 Parliamentary Executive Malaysia is a country, which practices federal constitutional monarchy or Parliamentary Democracies 11where the head of the Country is the Yang di-Pertuan Agong and the head of the government is the Prime Minister. The Prime Minister of Malaysia must be the member of the parliament and the leader of the cabinet. The parliamentary system in Malaysia is based from the British Westminster system. It is a system of democratic governance of a state in which the executive branch derives its democratic legitimacy from and is held accountable to, the legislature (parliament); thus the executive and the legislative are interconnected. The Parliamentary Executive is stated under Article 43(2), the Prime Minister and his Cabinet must belong to Parliament (the former to the Dewan Rakyat) in order to ensure answerability, accountability and responsibility to Parliament.

10

Britannicacom. (2015). Encyclopedia Britannica. Retrieved 5 September, 2015, from http://global.britannica.com/topic/ministerial-responsibility

11 Lawteachernet. (2015). 6 Lawteachernet. Retrieved 5 September, 2015, from http://www.lawteacher.net/free-law-essays/administrative-law/malaysianpractices-of-parliamentary-democracies-administrative-law-essay.php

3.2 Unanimity Unanimity12, in general, is an agreement by all people in a given situation. Under the collective responsibility, unanimity means that all ministers must speak in one voice. They have to agree with the cabinet at all matters. In Malaysia, the ministers must show that they are unified to the public and to the Yang di-Pertuan Agong. This is to show the government is strong and to maintain the confidence level towards the people. If the government is not united, it will lose the peoples’ confidence. It's also stated by Lord Salisbury: “ For all passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no right afterwards to say he agreed in one case to a compromise, while in another he was persuaded by his colleagues… it is only on the principle that absolute responsibility is undertaken by every member of the cabinet, who, after decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the essential principles of parliamentary responsibility established. [Official Report, HC Cols 833-34, 8 April 1878]” If the Minister does not agree with a Cabinet decision he or she has three alternatives; firstly he keep quiet about it; secondly the minister can decide to resign and; or have his dissent recorded in Cabinet minutes. 3.3 Maintaining Confidence It is crucial for the government to maintain the confidence in the lower house and nation in order to rule the country. If the vote of no confidence being passed towards the Prime Minister, he will have to options; the first option is to resign and the second option is to advise Yang di-Pertuan Agong to dissolve the parliament. Another example is that if a vote of no confidence is passed in parliament, the government of the day is responsible collectively, 12 Faruqi, S. S (2008). Document of Destiny: The Constitution of the Federation 7 of Malaysia . Petaling Jaya, Selangor Darul Ehsan, Malaysia: Star Publications (Malaysia).

and thus the entire members of the government should resigns. There is differences between the Cabinet collective responsibility and individual ministerial responsibility, in which ministers are responsible and, therefore, accountable of their departments.

3.4 Secrecy When a person becomes Minister, he or she has to vow both under the law and conventions to keep the secret in relation to all deliberations of the cabinet. This secrecy is a life long for the minister even after they leave the office. 3.5 Answerable To Monarch In general meaning, the minister remaining legally answerable to the monarch but politically answerable to the parliament. In Malaysia, the members of Cabinet owe a political responsibility to the Yang di-Pertuan Agong in terms of the conduct of the government. Under Article 40(1) of the Federal Constitution, the monarch has the right to all information about the government. Yang di-Pertuan Agong has the right to

enquiry, advice and warn the

members of the cabinet if the policy that being passed by parliament will bring more harm than good to the nation. 3.6 The Real life Example in Collective Cabinet Responsibility An example of the collective responsibility is in the United Kingdom. The issue is based on The Iraq War13 in 2003 where two members of the cabinet resigned from their position. The members are from the Leader of the House of Commons and former Foreign Secretary on a basis of disagreement to support the government decision to go war. Another example is that Lord Palmerston resigned in 1853 due to the Lord John Russell’s Reform Bill. He could not agree with that Bill. Another example is that General Peel and three others resigned in 1867 because they could not support Disraeli’s Reform Bill 14. That bill

13 Barnett, H. (c2013). Constitutional and Administrative Law. (Tenth Edition ed.). USA and Canada: Routledge. 8 14 Jennings, I. (1959). Cabinet Government . (3rd ed.). England: The Cambridge University Press.

enfranchised part of the urban male to vote. This doubles the number of a male who can vote on that time. In 1957, Lord Salisbury resigned after the release of Archbishop Makarios. Situation in Malaysia, the case of the corruption in Port Klang relating to Port Klang Free Zone

15

(PKFZ), the transport minister back then was Dr Ling Liong Sik where he took the

responsibility and resigned although he was proven innocent. However, It should have been collective cabinet responsibility where all the cabinet members should resign due to this controversial issue. It shows that the government is incompetent to handle the country.

9

15 Mageswari and Tariq, M. & Q. (2013). Thestarcommy. Retrieved 5 September, 2015, from http://www.thestar.com.my/News/Nation/2013/10/25/Ling-foundinnocent-in-PKFZ-cheating-case/

Concept of Ministerial Responsibility in Malaysia 4.0 The Practice of Ministerial Responsibility in Malaysia In Malaysia, the concept of ministerial today is sort of different as comparing from paper to reality. Firstly, the collective responsibility tends to block the individual responsibility 16. According to the doctrine of ministerial responsibility which concerns in the individual responsibility, in case where a Minster receives a vote of censure which is passed against him due to personal impropriety, he must resign. However, in Malaysia, this situation is hardly being seen. The reason is, when a Minister is being criticized by the Parliament by passing a vote of censure, the government will usually rally behind the Minister, and thus, at the end the Minister gets rid of the responsibility to resign. This is contradicted to the doctrine of ministerial responsibility as a Minister’s act of omission or commission may escape the parliamentary censure. For example, in 2004, Works Minister Datuk Seri S. Samy Vellu who was under the shoddy construction project, had been criticized.17 However, he was able to rebuff the calls for resignation because the cabinet protected him. In the recent exception case of Datuk Chua Soi Lek, because of his personal scandal, he resigned from his post. Compare to UK, there were 125 resignations happened in the 20th century. 14 cases of resignation were due to personal scandal or private financial affairs.18 Hence, unlike UK, resignation from Ministers is rarely to be seen in Malaysia. 4.1 Moral Duty of the Ministers Minsters are bound to the collective responsibility and indeed they have the moral duty to protect the integrity of the cabinet and the government, but it does not mean that they can simply excuse the personal wrongdoings of their fellow ministers. According to Mavis 16 Faruqi, S.S. (2014, 30th October). The Star Online. [Weblog]. Retrieved 2 September http://www.thestar.com.my/Opinion/Columnists/Reflecting-On-TheLaw/Profile/Articles/2014/10/30/Revisiting-ministerial-responsibility/

2015, from

17

Puthucheary, M. (2015, 30th July). The Malaysian Insider. [Weblog]. Retrieved 2 September 2015, from http://www.themalaysianinsider.com/sideviews/article/who-has-contradicted-theconcept-of-collective-responsibility-mavis-puthuch 10

18 Parlgcca. (2015). Parliament of Canada. Retrieved 2 September, 2015, from http://www.parl.gc.ca/Parlinfo/Compilations/FederalGovernment/MinisterialResign ations.aspx

Puthucheary, he said that in fact is the Prime Minister who has the responsibility to take action on those who does something which is contradicting the doctrine of collective responsibility. 19Therefore, if the Prime Minister does not take any action against a Minister who has been found to have misconduct a serious personal offence, the country might have to bear the risk of having the whole government fall. In Malaysia, the Prime Minister is also the Minister of Finance. But what if the Prime Minister directly involves in a financial scandal yet does not resign? In fact, the cabinet as a whole may revolt against the Prime Minister. If there is no action to censure taken by the cabinet, it will be brought up in Parliament where it is probably to result in a vote-no-confidence against the Prime Minister. 4.2 Refusal to Answer During Question Time Second, in the matter of individual responsibility, Ministers tend to refuse to answer during question time by Parliament, by giving reasons of security or other grounds. 20This shows that the widespread of the secrecy in government, and thus the Parliament is unable to get clear and accurate information from them. For instance, when comes to questions on grounds of national security, foreign relationships and other aspect of public interest, Ministers have the rights to not to answer. Furthermore, less time is given to the opposition Parliament to question the Minister, and plus, Parliament is limited to only 20 question per meeting21. Sometimes, the questions which are answered by the Ministers are inadequate and not satisfactory. 4.3 Ministers Responsibility on Behalf of Civil Servant’s Action

19

Puthucheary, M. (2015, 30th July). The Malaysian Insider. [Weblog]. Retrieved 2 September 2015, from http://www.themalaysianinsider.com/sideviews/article/who-has-contradicted-theconcept-of-collective-responsibility-mavis-puthuch

20 Faruqi, S.S. (2008). Document of Destiny. Petaling Jaya, Selangor Darul Ehsan, Malaysia: Star Publications (Malaysia).

21 Masum, A. (2012). The Doctrine Of Ministerial Responsibility In Malaysia: THEORY AND

PRACTICE IN A NEW REGIME OF PARLIAMENTARY ACCOUNTABILITY. Malayan Law Journal Articles, 4(5), . Retrieved 2 11 September, 2015, from https://www.academia.edu/5393475/Malayan_Law_Journal_Articles_2012_Volume_4_The_Doctri ne_of_Ministerial_Responsibility_in_Malaysia_Theory_and_Practice_in_a_New_Regime_of_Parliam entary_Accountability_THE_DOCTRINE_OF_MINISTERIAL_RESPONSIBILITY_IN_MALAYSIA_THEORY _AND_PRACTICE_IN_A_NEW_REGIME_OF_PARLIAMENTARY_ACCOUNTABILITY

Thirdly, when comes to the usual practice that a Minister is vicariously responsible to Parliament on behalf of his civil servant’s action, it may not be effective in today’s system. This is because size of the department has been increasing as well as the complexity of this modern government have made the doctrine unworkable. Therefore, a Minister cannot really take the responsibility for every action of the civil staff which is under his department. In addition, government today has become so powerful until the administration of departments of the state cannot be scrutinised. In the case of questioning about the vicarious responsibility of Minister for the acts of his civil servant, Parliament has not given enough time to scrutiny thoroughly. 4.4 Maintaining The Confidence of The Lower House Fourth, in the doctrine of collective responsibility, there is a rule which requires the government to maintain the confidence of the Lower House by virtue of Article 43(4). The situation where government had lost their confidence is never happened before in Malaysia at its federal level. But however, there were 3 resignation happened at state level since Merdeka. Those who resigned were Stephen Kalong Ningkan in Sarawak in 1996, Datuk Harun Idris in Selangor in 1976 and Datuk Mohammad Nasir in Kelantan 1977. However in the incident of 1976, a defeated Menteri Besar who should leave his post was not resign because his exco (Ministers) did not pass his resignation. This presented that the doctrine of collective responsibility had been partial breached by our ministers. Therefore, it can be said that the efficacy of the doctrine is declined because what amounts to “a matter of confidence” is not very clear to be seen in Malaysia. 4.5 Unanimity in Malaysia Parliament Fifth, the doctrine of collective responsibility requires that the Prime Minister and his cabinet must come from either Houses of Parliament, for the sake of upholding the public unanimity. In reality, however, somehow this convention can be avoided when there is a situation where political disagreements within Cabinet are of such extent that the Prime Minister finds it more practical to put aside the convention rather than having the convention broken by the members of Cabinet. However, people today have treat this issue of public contradiction between the members of Cabinet as something that is normal in our country. 12

But in theory, the convention should not be operate that way. Furthermore, Malaysia is under the system of Westminister as based upon UK. Therefore, the executive must come from both Houses of Parliament, which are the Dewan

Rakyat and Dewan Negara.22 Executive must come from Parliament so that the executive is accountable and answerable to the Parliament. But, somehow in reality, the executive is not doing their obligation, this is because there is a secrecy in the doctrine of ministerial responsibility which is considered paramount. Sadly, this convention has been used as a weapon to avoid from giving information to the Parliament when comes to the parliamentary scrutiny through procedures like question time, debates and select committee system. This is hard for Parliament to uphold the concept of check and balances under the separation of powers and to collect information from the government since the power of secrecy so widespread in government. Certain areas like foreign policy, national security, management of “Non-Financial-Institutions”, and economic strategies are difficult to be enforce in Parliamentary scrutiny. For, instance, in Malaysia, some “Non-Financial Institutions” like Petronas that are not require to hand in their accounts to the Auditor- General and to the Dewan Rakyat’s Public Accounts Committee. Compare to UK, the ministerial responsibility is subjected to a number of enquires, such as the Nolan Committee, the Scott Report and the Public Service Committee. 23The importance of this ministerial responsibility is not to seek for resignation of the minters, but is for the purpose of providing satisfactory answer to parliamentary question so that parliament can recapture its role as the grand inquest of the nation. Thus, by right, Ministers should be answerable and the Parliament should be able to get to know the information clearly from the minister during question time before it can successfully hold the government accountable. 4.6 Executive Branch Usurpation of Power Lastly, in Malaysia, the Prime Minister is very powerful as he can control the cabinet, and he even control Parliament. In our system, it supposed to be the Parliament to control the executive. But in reality, executive ended up control Parliament. One of the reasons is our current system encourages the bigger party to get more seats in Parliament and that is why the ruling party normally have big majority seats of Parliament. Another reason is the electoral

22 Agora-parl.org. (2015). Malaysia - Parliament’s constitutional role | Agora Portal. Retrieved 2 September 2015, from http://www.agoraparl.org/news/malaysia-parliament%E2%80%99s-constitutional-role 13

23 Santiago, J. (2009, 5th February). What's Your Problem?. [Weblog]. Retrieved 2 September 2015, from http://justin-santiago.blogspot.com/2009/02/ministerialresponsibility.html

system in Malaysia always favours the bigger party. Hence, today, it can be said that the Parliament is no longer able to control executive.

14

Recommendations and Guidelines Towards Ministerial Responsibility 5.0 What Can Be Done? Ministerial responsibility involves more on the political side than the legal. If the ministers could not be accountable for their actions on the actions of their department, then democracy will not work. There are few recommendations for the operation of our doctrine of ministerial responsibilities. 5.1 Increasing the Power of the Parliament Firstly, the power of Parliament to scrutinize and investigate the Minister should be increased. By increasing Parliament’s power, it would be able for the Parliament to reveal the veil of secrecy that hides most government activities from the public. 24 This for sure will maintain the relationship of check and balance between the executive and the legislature. At the same time, Parliament is able to become the “grand inquest of the nation” which is similar with UK’s Parliament system. 5.2 The Role of the Press and Media As for the second recommendation, the press or media has an important role in our country especially when it comes to ministerial responsibility operations where the media should be pro-active of bringing up such issues. For example, media can sometimes be forceful to make a Minister to resign or at least to take responsibility for what they had done. Let us take Datuk Seri Dr Soi Lek’s case as an example, where he had quitted his position as health minister in the year 2008 over a sex video that he had appeared in 25. Due to that issue, it became headlines of the public view because of the wide coverage by the media. In another way of saying it is that, the media should play an important role of bringing up such matter to 24 Masum, A. (2012). The Doctrine Of Ministerial Responsibility In Malaysia: THEORY AND

PRACTICE IN A NEW REGIME OF PARLIAMENTARY ACCOUNTABILITY. Malayan Law Journal Articles, 4(5), . Retrieved 2 September, 2015, from https://www.academia.edu/5393475/Malayan_Law_Journal_Articles_2012_Volume_4_The_Doctri ne_of_Ministerial_Responsibility_in_Malaysia_Theory_and_Practice_in_a_New_Regime_of_Parliam entary_Accountability_THE_DOCTRINE_OF_MINISTERIAL_RESPONSIBILITY_IN_MALAYSIA_THEORY _AND_PRACTICE_IN_A_NEW_REGIME_OF_PARLIAMENTARY_ACCOUNTABILITY 15

25 Faruqi, S.S. (2014, 30th October). The Star Online. [Weblog]. Retrieved 2 September http://www.thestar.com.my/Opinion/Columnists/Reflecting-On-TheLaw/Profile/Articles/2014/10/30/Revisiting-ministerial-responsibility/

2015, from

be discussed in forum. Thus, the government should always be ready to deal with whatever circumstances that is going to happen in respect of the press freedom. Basically, the government should face the fact instead of criticizing the issue by being accountable to the Parliament and the electorate. 5.3 Increasing the Opposition’s Strength For the third recommendation, the opposition in Parliament is needed to increase their strength by increasing the resources of back-benchers and opposition parties plus giving them access to official information. When a ruling party is strong in Parliament, minister will tend to hide their charges of misconduct by “stifled under the blanket of party solidarity. 26Hence, it should be possible to equip the role of opposition Parliament so that they have the sufficient opportunities to make proper criticisms and scrutinizes. 5.4 Limit the Power of Prime Minister Fourth, the Prime Minister should not abuse his power. At the end of the day, we have to have Prime Minister who practices “Prime Ministerial Government”. By right, the Prime Minister should practice the “Cabinet Ministerial Government 27”. 28Since the Prime Minister is so powerful, he can control the whole cabinet himself, and is difficult for the Parliament to control them. Therefore, the system of “Cabinet Ministerial Government” ought to be practiced as it would make it easy for the government to be accountable to the Parliament. 5.5 Public Opinion Lastly, the role of public opinion is also significance in seeking for an accountable, answerable and responsible government. The state of public opinion should be increased, 26 Masum, A. (2012). The Doctrine Of Ministerial Responsibility In Malaysia: THEORY AND

PRACTICE IN A NEW REGIME OF PARLIAMENTARY ACCOUNTABILITY. Malayan Law Journal Articles, 4(5), . Retrieved 2 September, 2015, from https://www.academia.edu/5393475/Malayan_Law_Journal_Articles_2012_Volume_4_The_Doctri ne_of_Ministerial_Responsibility_in_Malaysia_Theory_and_Practice_in_a_New_Regime_of_Parliam entary_Accountability_THE_DOCTRINE_OF_MINISTERIAL_RESPONSIBILITY_IN_MALAYSIA_THEORY _AND_PRACTICE_IN_A_NEW_REGIME_OF_PARLIAMENTARY_ACCOUNTABILITY

27

Bari, A.A. (1999). Cabinet Principles in Malaysia: The Law and Practice. Retrieved 2 16 September, 2015, from http://journals.iium.edu.my/intdiscourse/index.php/islam/article/viewFile/497/443

28

especially on matters such as maladministration and misadministration which involve the government. This can be done through the mass media by giving necessary information to the public. Thus, public opinion can help enforce the doctrine of ministerial responsibility from ministers by supplying the public with necessary information which the public requires in their quest for a responsible government.

17

Conclusion Based on the Westminster System which is being practiced in Malaysia, every ministers, deputy ministers and parliamentary representatives are committed to publicly support every government decisions made in Cabinet, even if they do not agree with it. By having a cabinet collective responsibility, if there is a vote of no confidence being passed in parliament, it means that the government will be responsible collectively, and thus the entire government must resign. Cabinet collective responsibility is not the same as individual ministerial responsibility, in which ministers are responsible and therefore responsible for the running of their departments. Apart from that, most political scientist were inclined to criticize the practice of the separation of powers in the Federal and state government and to stressed out instead on the cabinet or parliamentary form of organization. According to Woodrow Wilson, former President of the United State, “federal government lack strength because its powers are divided, lacks promptness because its authorities are multiplied, lacks wieldiness because its processes are roundabout, lacks efficiency because its responsibility is indirect and its action is without competent direction.”29 The separation of powers works hand in hand with another principle known as responsible government, to guide the way law is made and managed and protected. Responsible government means that a single party, or coalition of parties, must maintain the support of the majority of members of the House of Representatives in order to remain in government. This provides another check on the Executive, ensuring they are accountable to the Parliament and do not abuse their power. This is where check and balance comes into the frame. Having an absolute separation of powers will undeniably slow down the decision-making process of the government whilst the lack of separation of power will turn the country into corruption and tyranny. By having check and balance, done by a non governmental agencies can help to bring the perpetrators of such unlawful acts to the courts and be prosecuted justly by an impartial judge. Accountability must take precedence over everything. This is however non existence within the Malaysian system of law and order, and of fair and responsible governance. 18

29 Haines, C.G. (1922). Ministerial Responsibility Versus the Separation of

Powers. The American Political Science Review, 16(2), 194-210. Retrieved 2 September, 2015, from http://www.jstor.org/stable/1943959

However, although this doctrine has been incorporated into the Federal Constitution of Malaysia, it can be argued that it is on the basis of mere constitutional convention thus cannot be enforced by legal (as opposed to political) sanctions 30. This arguments is incorrect because without a ministerial responsibility, the nation would end up in corruptions and under dictatorship. Parliamentarians, ministers, and public servants all have a critical role to play in supporting and strengthening the accountability of the government. To the greatest extent possible, for the public good, they need to work together effectively in fulfilling their specific responsibilities, respecting the roles of others. The doctrine and practice of ministerial responsibility is the way to our national political foundations. Getting it right is crucial, and agreement on fundamental principles is needed in order for that to happen. Specifically, in improving the application and practice of the doctrine of ministerial responsibility, certain core principles of the accountability framework must remain constant. Even in the complex and changing environment within which government operates, they remain relevant and will guide the government as it moves forward to strengthen accountability.

30 Masum, A. (2012). The Doctrine Of Ministerial Responsibility In Malaysia: THEORY AND PRACTICE IN A NEW REGIME OF PARLIAMENTARY ACCOUNTABILITY. Malayan Law Journal Articles, 4(5), . Retrieved 2 September, 2015, from https://www.academia.edu/5393475/Malayan_Law_Journal_Articles_2012_Volume_4_The_Doctri 19 ne_of_Ministerial_Responsibility_in_Malaysia_Theory_and_Practice_in_a_New_Regime_of_Parliam entary_Accountability_THE_DOCTRINE_OF_MINISTERIAL_RESPONSIBILITY_IN_MALAYSIA_THEORY _AND_PRACTICE_IN_A_NEW_REGIME_OF_PARLIAMENTARY_ACCOUNTABILITY

References  Simpson,

M. (2013,

September

14th

2015, from

May). Tutor2u. [Weblog]. Retrieved 5

http://beta.tutor2u.net/politics/blog/revision-

update-executive-collective-individual-ministerial-responsibility  Faruqi, S.S. (2008). Document of Destiny. Petaling Jaya, Selangor Darul Ehsan, Malaysia: Star Publications (Malaysia).  Barnett, H. (2006). Responsible Government. In Constitutional and Administrative Law (6th ed., p. 281). Routledge-Cavendish.  Masum, Malaysia:

A. (2012). The THEORY

PARLIAMENTARY

Doctrine

AND

Of

Ministerial

PRACTICE

IN

A

Responsibility

NEW

ACCOUNTABILITY. Malayan

Articles, 4(5), . Retrieved 2

REGIME

Law

September,

In OF

Journal 2015, from

https://www.academia.edu/5393475/Malayan_Law_Journal_Articles_201 2_Volume_4_The_Doctrine_of_Ministerial_Responsibility_in_Malaysia_Th eory_and_Practice_in_a_New_Regime_of_Parliamentary_Accountability_ THE_DOCTRINE_OF_MINISTERIAL_RESPONSIBILITY_IN_MALAYSIA_THEO RY_AND_PRACTICE_IN_A_NEW_REGIME_OF_PARLIAMENTARY_ACCOUNTA BILITY  Harding, A. (1996). Law, government, and the Constitution in Malaysia (p. 91). The Hague, London: Kluwer Law International.  See Article 45 of the Federal Constitution. 

Definition

of

vicarious

liability

http://legal-

dictionary.thefreedictionary.com/Vicarious+liability  Thestarcommy. (2008). Chua resigns after sex scandal. Retrieved 2 January

2008, from

http://www.thestar.com.my/story/?file=

%2f2008%2f1%2f2%2fnation%2f20080102155121&sec=nation 20

 Britannicacom. (2015). Encyclopedia

Britannica. Retrieved 5

September, 2015, from http://global.britannica.com/topic/ministerialresponsibility

 Lawteachernet. (2015). Lawteachernet. Retrieved 5 2015, from

September,

http://www.lawteacher.net/free-law-essays/administrative-

law/malaysian-practices-of-parliamentary-democracies-administrativelaw-essay.php  Barnett,

H. (c2013). Constitutional

and

Administrative

Law. (Tenth

Edition ed.). USA and Canada: Routledge.  Jennings,

I. (1959). Cabinet

Government . (3rd

ed.). England: The

Cambridge University Press.  Mageswari and Tariq, M. & Q. (2013). Thestarcommy. Retrieved 5 September,

2015, from

http://www.thestar.com.my/News/Nation/2013/10/25/Ling-foundinnocent-in-PKFZ-cheating-case/  Faruqi,

S.S. (2014,

30th

Online. [Weblog]. Retrieved 2

October). The

Star

September

2015, from

http://www.thestar.com.my/Opinion/Columnists/Reflecting-On-TheLaw/Profile/Articles/2014/10/30/Revisiting-ministerial-responsibility/  Puthucheary,

M. (2015,

30th

Insider. [Weblog]. Retrieved 2

July). The

Malaysian

September

2015, from

http://www.themalaysianinsider.com/sideviews/article/who-hascontradicted-the-concept-of-collective-responsibility-mavis-puthuch  Parlgcca. (2015). Parliament

of

Canada. Retrieved 2

September,

2015, from http://www.parl.gc.ca/Parlinfo/Compilations/FederalGovernment/Ministe rialResignations.aspx  Agora-parl.org. (2015). Malaysia - Parliament’s constitutional role | Agora Portal. Retrieved 2 September 2015, from http://www.agoraparl.org/news/malaysia-parliament%E2%80%99s-constitutional-role  Santiago,

J. (2009, 21

5th

February). What's

Your

Problem?. [Weblog]. Retrieved 2 September 2015, from http://justinsantiago.blogspot.com/2009/02/ministerial-responsibility.html

 Bari,

A.A. (1999). Cabinet

Practice. Retrieved 2

Principles

in

Malaysia:

September,

The

Law

and

2015, from

http://journals.iium.edu.my/intdiscourse/index.php/islam/article/viewFile/497/4 43  Haines, C.G. (1922). Ministerial Responsibility Versus the Separation of Powers. The

American

210. Retrieved 2

Political

Science

September,

http://www.jstor.org/stable/1943959

22

Review, 16(2), 1942015, from