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The Doctrine of Ministerial Responsibility in Malaysia

Constitutional Law II (Universiti Teknologi MARA)

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The Doctrine of Ministerial Responsibility in Malaysia: Theory and Practice

in a New Regime of Parliamentary Accountability [2013] 1 ILJ cxvi
Industrial Law Journal Article (ILJA)

THE DOCTRINE OF MINISTERIAL RESPONSIBILITY IN MALAYSIA: THEORY AND PRACTICE IN A NEW

REGIME OF PARLIAMENTARY ACCOUNTABILITY

Ahmad Masum1

Ministerial responsibility to Parliament is an important convention of the parliamentary system of government.

The doctrine of ministerial responsibility is central to the Constitution, and plays a fundamental role in the
relationship between the executive and Parliament. For example, Ministers inform and explain, apologise, take
remedial action or resign in support of the doctrine of ministerial responsibility. Hence, for the doctrine of
government under the law to be observed, it is essential that the government be both accountable to Parliament
and to the electorate, and that the government be conducted in a manner sufficiently open, subject to the
requirements of national interest, to inspire public confidence. There are two separate but related parts to the
doctrine; there is, first, the individual responsibility of each Minister to Parliament, and second, there is
collective responsibility of the Cabinet to Parliament. In Malaysia, it is important to note that collective
responsibility is explicitly acknowledged in art 43(3) of the Federal Constitution whereas individual
responsibility is founded on unwritten conventions and political norms: for example, Ministers’ question-time is
set aside in Parliament as a regular part of proceedings. The primary aim of the doctrine of ministerial
responsibility is to maintain a relationship of check and balance between the executive and the Legislature.
This paper offers an introduction to the constitutional convention of ministerial responsibility as practiced in
Malaysia bearing in mind that the government is part of Parliament and is thus responsible to it for the way it
steers the ship of the state. The paper concludes that in Malaysia, there is indeed a need for reforms as far as
the operation of the doctrine of ministerial responsibility is concerned. This is due to the fact that there is a
wide gap between the theory and practice of ministerial responsibility in Malaysia. One thing for sure that
needs to be pointed out is that, the effectiveness of ministerial responsibility depends on the effectiveness of
Parliament itself.

Keywords: Ministerial responsibility; collective responsibility, individual responsibility; convention;

parliamentary system; parliament; executive; Legislature; cabinet; unwritten conventions.

INTRODUCTION

The doctrine of ministerial responsibility antedates the modern party system. It was developed at a time in the
nineteenth century when the role of the government was limited and a competent minister could be assumed to
have personal control of a department. The growth of mass parties, and the welfare state have changed the
nature of the convention, but it remains an important aspect of the United Kingdom political system and the
uncodified constitution. Hence, in England, this doctrine is not founded on law but on conventions of the
constitution.2 Over the centuries, the doctrine developed two related but incompatible aspects that are the
convention of individual ministerial responsibility and the convention of collective ministerial responsibility.3

Although the explanation given above represents the position in the United Kingdom, it is of paramount importance
to note that a cardinal principle of the parliamentary system of government that we inherited from Britain is that the
government is part of Parliament and is answerable, accountable and responsible to it for the way it steers the
affairs of the state. It would thus be wrong to suggest that Malaysia with its written constitution does not subscribe
to such doctrine. This doctrine has been accepted at least in form as part of the parliamentary system of
government which Malaysia adopted when it achieved its independence.4 For example, collective ministerial

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responsibility is explicitly acknowledged in the Federal Constitution,5 whereas individual ministerial

responsibility is founded on unwritten conventions and political norms.

The doctrine of ministerial responsibility underlies a very important aspect of parliamentary democracy: it means
that ministers are answerable to Parliament for their actions or inactions in relation to their ministries. Ministers who
act improperly or unsatisfactorily are liable to parliamentary censure. If they lose the confidence of the public and
their parliamentary colleagues, they must resign.6 Ministers in the government must accept responsibility for the
policies, decisions and actions of the government, even if they did not personally develop or take them, and even if
they personally disagree with them. This doctrine is important as it stands at the very heart of the Cabinet system.
It is the doctrine that keeps the Cabinet together so as to make it easy for Parliament to make the government of
the day accountable as the people’s representatives.7 It would suffice to note that the primary aim of this doctrine is
to maintain a relationship of check and balance between the executive and the Legislature or Parliament. However
for the sake of this study, it would be equally important to point out that putting theory aside and going by practice,
there could be situations where the doctrine of ministerial responsibility could be hampered. For example,
collective responsibility hampers the working of ministerial responsibility to Parliament when the doctrine is
used to defend the government from embarrassment citing public unanimity as a scapegoat ie they have to speak
with one voice; they must present a united front to the public, to Parliament and to the Yang di-Pertuan Agong.

This paper examines the doctrine of ministerial responsibility from a Malaysian perspective, by focusing on the
theoretical as well as practical aspects surrounding its operation as a mechanism employed by Parliament in
holding the government accountable for its actions, decisions, policies, etc. Being aware of the fact that the
doctrine of ministerial responsibility could in practice be hampered by the government of the day, one is left to
wonder on how the doctrine plays the role of a check and balance between the executive and the Legislature or
Parliament. Hence, by focusing on the theory versus reality aspects of the doctrine, one would be able to address
the issue on how effective the doctrine is in playing the role of a check and balance between the two organs of the
state.

MEANING OF MINISTERIAL RESPONSIBILITY

Ministerial responsibility is often described as a constitutional convention, yet it is a convention that is difficult to
define with certainty and which, to a large degree, depends on the circumstances of each individual case. Thus,
the doctrine of ministerial responsibility has been given different meanings by different constitutional law
jurists. For example, Marshall and Moodie describe ministerial responsibility as: ‘Ministers are responsible for
the general conduct of government, including the exercise of many powers legally vested in the Monarch; and
ultimately, through Parliament and parties, to the electorate’.8 On the other hand, Prof Wade Bradley defined the
doctrine as: ‘Within a democratic state, those who govern should be accountable, or responsible, to whom they
govern’.9

The doctrine of ministerial responsibility has two limbs and they are: individual and collective responsibility. In
other words, ministerial responsibility consists of two pillars, namely individual responsibility and collective
responsibility. Despite the existence of these two limbs, the author would like to point out that there is vagueness
on occasion as to the distinction between the two limbs which are both closely related and also complimentary of
one another. This in return has made it really difficult to address or deal with the issue of effectiveness of
ministerial responsibility. Take for instance the convention that a Minister who is seriously criticised in Parliament
must resign, has not taken hold because the government usually rallies behind a Minister who is being criticised in
Parliament. On such an occasion, collective responsibility seems to defeat the notion of individual responsibility.
The convention of collective responsibility thus becomes important in achieving party solidarity but it tends to
prevent the full operation of the convention of individual responsibility. Perhaps in order to have a better
understanding of ministerial responsibility in the context of this study, reference should be made to the two limbs
mentioned above ie individual responsibility and collective responsibility.

Individual responsibility

The convention of individual ministerial responsibility provides that Ministers are individually responsible to

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Parliament for their policies, decisions and actions, and that of their departments.10 In other words, individual
ministerial responsibility states that a Minister is responsible for every action of his department. Lord Morrison
viewed the doctrine strictly by stating that:

… a Minister is accountable to Parliament for anything he or his department does or for anything he has powers to do,
whether he does it or not. That is to say, if the action or possible action is within the field of ministerial competence, the
Minister is answerable to Parliament.11

From the statement echoed by Lord Morrison above, it would suffice to note that the rationale behind the operation
of this doctrine is based on the reasoning that it is the Minister who represents the public face of the department
and who speaks for the department in Parliament. Thus, the doctrine is underpinned by Parliamentary Question
Time and in debates in Parliament and in committees. It is, therefore, important to note that a Minister as a political
head of his or her ministry is answerable for all the ministry’s acts or omissions.

Individual responsibility underlies the elective nature of the office of a Minister. As public servants are not
elected, they could not be made responsible to Parliament. Hence, a Minister does not discharge his or her
accountability to Parliament merely by acknowledging a general responsibility and, if the circumstances warrant
it, by resigning. Accountability involves accounting in detail for actions as a Minister. This may result in support for
the decisions or actions in question, perhaps even if contrary to the views of a departmental or independent
inquiry into them. It would thus appear that ‘responsible’ in this context has a rather stronger meaning than in the
context of collective responsibility.12 In that context, it amounts to little more than an obligation to defend and
support government policy.13

In addition to the above, perhaps in trying to understand the doctrine of individual ministerial responsibility better
in the context of this study, reference should also be made to the two types of responsibility ie individual
responsibility for policy and administration and individual responsibility for personal conduct. The divisions are
necessary while faced with questions such as: should Ministers resign simply because ‘something went wrong’ in
their departmental area or ‘on their watch?’ Should he or she resign on the basis of her personal behaviour like a
sex scandal? Individual responsibility for policy and administration would mean that the Minister is responsible for
every action of his or her department since it is a Minister who is the head of the Ministry, who speaks in Parliament
on behalf of his or her department. Thus, he or she is accountable regardless of whether he or she was directly
involved in the process. On the other hand, individual responsibility for personal conduct would mean that a
Minister shall be responsible for his or her personal conduct such as sincerity and honesty.

With all due respect to the primary aim of the convention of individual ministerial responsibility, it is of paramount
importance to take note of the fact that in a Malaysian context, individual ministerial responsibility is founded on
unwritten conventions (inherited from Britain) and political norms and is thus considered as a non-legal rule implying
that it is not comprehensively and authoritatively written down in the Federal Constitution, it cannot be enforced by
legal (as opposed to political) sanctions, and may be ignored, amended or reinterpreted by those involved. Though
this may be the interpretation taken in the context of a non-legal rule, the author is of the view that this contention is
obviously incorrect because if that is the position, then the entire notion of responsible government would be
frustrated.

Collective responsibility

The convention of collective ministerial responsibility emphasises on the unanimity of government and its
accountability to Parliament. The classic expression of collective responsibility remains that of Lord Salisbury:

For all that passes in Cabinet, every member of it who does not resign is absolutely and irretrievably responsible and has
no right afterwards to say that 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,

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after a 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.14

From the above statement echoed by Lord Salisbury, it would appear that the convention requires that all Ministers
be jointly responsible as a team to Parliament. This means that individual Ministers may not in public, express views
that contradict or criticise a government policy or vote against a government policy. Thus, if a vote of no-confidence
against the government is carried in Parliament, the whole Cabinet must resign en bloc. In other words, this
convention requires that all Ministers are bound by the decisions that are taken or endorsed in Cabinet, and that
Cabinet discussions must remain absolutely confidential. Any Minister who is unable to support a decision or who
flouts the confidentiality rule is required to resign.

The rationale for the convention lies in the need for government to present a united front to Parliament and the
public in order to maintain confidence. A government which exhibits public disagreement over policy matters is one
which will be regarded as weak, and will be subjected to challenges to its authority to continue in office. On this
basis, that is why the convention of collective responsibility means that all Ministers in the government must
accept responsibility for the policies, decisions, and actions of the government, even if they did not personally
develop or taken them, and even if they personally disagree with them.

In addition to the above, it is equally important to note that two principle sub-rules underlie collective
responsibility. The first rule is that, once an agreement is reached in Cabinet, all members of Cabinet and many
outside Cabinet are bound to speak in support of the decision. There should be no criticisms or dissent from the
decision in public, irrespective of whether or not the particular member of Cabinet was party to the discussion.15
Equally, if a decision is reached by the Prime Minister in the Cabinet Committee or the Inner Cabinet when only a
handful of members are present, the decision binds all.16 On the other hand, the second supporting rule is that
records of Cabinet discussions are absolutely secret. The knowledge that Cabinet records are protected by
confidentiality enhances the opportunity for members of Cabinet to discuss matters freely, secure in the
knowledge that their personal point of view, whatever the decision may be, will be protected from the public
gaze.17

All in all, in a Malaysian context, collective responsibility is explicitly acknowledged in art 43(3) of the Federal
Constitution.18 Hence, whatever the origin of the doctrine of ministerial responsibility, the doctrine has been
incorporated into the Constitution. Thus, ministerial responsibility especially in the context of collective
responsibility could not be treated lightly in Malaysia as a mere convention and thus has no binding effect ie it may
or may not be enforced in Malaysia.

THE THEORY OF INDIVIDUAL MINISTERIAL RESPONSIBILITY IN MALAYSIA

Much as we inherited this convention from Britain, it has to be acknowledged wholeheartedly that the convention of
individual responsibility precedes the notion of collective responsibility. In a Malaysian context, individual
responsibility (in theory) refers to a number of rules and practices.

First, the convention advocate for policy culpability during parliamentary debates, motions and question time rests
on the Minister’s shoulders.19 A Minister is required to answer questions, supply information and justify his
department’s policies. He must accept responsibility for all policy and administrative errors in his department, even
if he himself was not involved in the administrative bungling that is the subject of parliamentary scrutiny. For
example, it is during question time that information is obtained on the work of ministries and grievances ventilated
about alleged mismanagement, unfair treatment or administrative bungling. A Minister who does not answer
questions satisfactorily faces possible censure from Parliament and may even be forced to resign. As a Minister, he
or she has to inform and explain his or her actions and policies to Parliament, and inform Parliament of events or
developments within his or her sphere of responsibility. A Minister is also expected to apologise. Here it is
important to note that a Minister, who admits to an error, of whatever kind, either by him or her personally or on

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behalf of his or her officials, will usually be expected to apologise to Parliament, as part of a full explanation,
whether or not a resignation or dismissal is involved.

Still on the issue of policy culpability, a Minister who is responsible for an unsatisfactory state of affairs (whether
identified by himself or herself, by Parliament or by some form of inquiry) will be expected to take appropriate
remedial steps to correct it and to ensure that it should not happen again. This applies whether or not any
resignations or dismissals are involved, although in some cases, the remedial action may be promised and carried
out by a successor in cases where the responsible Minister has left office.

Second, a Minister is vicariously responsible to Parliament for the acts of his civil servants.20 This convention
preserves the anonymity of civil servants and shields them from political attack on the floor of the Houses of
Parliament. This convention is based on a sound rationale that is, it is the Minister who represents the public face of
the department and who speaks for the department in Parliament. We have to bear in mind that individual
responsibility underlines the elective nature of the office of a Minister. As public servants are not elected, they
could not be made responsible to Parliament.

Third, a Minister is politically responsible for the formal acts of the Monarch in which the Minister participated in.21
Being aware of the fact that a Minister may invoke the name of the Monarch in the performance of his or her duty, it
thus becomes inevitable for such a Minister to be made responsible if in case, things were to go wrong. As
mentioned earlier, Parliament has devised certain procedures to allow time for matters involving the work of
Ministers to be brought up for discussion. The most important procedure is the period allotted in each session to
allow members of Parliament to put questions to Ministers about matters for which they are responsible to
Parliament.

Fourth, a Minister must open debate on departmental legislation.22 This is due to the fact that as a Minister, he or
she is the one representing the face of the department in Parliament and is thus expected to be well versed with the
legislation in question. In other words, civil servants in his or her department will provide the Minister concerned
with all the necessary information regarding the legislation and in return, he or she is expected to open up the
debate in Parliament. For example, a Minister is expected to defend the legislation in Parliament if in case the
House raised some pertinent issues like the relevance or importance of the legislation in question.

Fifth, a Minister must resign if a vote of censure is passed against him or her.23 This is the ultimate accountability
action and sanction a Minister is likely to face from Parliament. In other words, resignation from office is the ultimate
sanction that Parliament can force on a Minister who breaches the convention of individual responsibility. The
author would like to reiterate that resignation is the most difficult to categorise and explain. For example, should
Ministers resign simply because ‘something went wrong’ in their departmental area or ‘on their watch?’ Or need
they resign only when something went wrong because of something they, or their officials, did wrong? While the
other actions noted above are essentially, in constitutional terms, administrative, executive actions of Ministers
carrying out their ministerial duties to account in a substantive way to Parliament, resignation cases including
those where resignation was successfully resisted, at least for some time, and cases of ‘sideways’ or other reshuffle
can develop into essentially political battles, often, but not always, of a partisan nature.

Still on the issue of resignation, from a Malaysian perspective, one of the earliest cases of a Minister having to
resign in unusual circumstances was in the sixties when the then Education Minister, Abdul Rahman Talib
submitted his letter of resignation after he was unsuccessful in a defamation suit. People’s Progressive Party
(‘PPP’) leader, DR Seenivasagam accepted the challenge to repeat the remarks outside Parliament and was
unsuccessfully sued by Abdul Rahman.24 The other Minister who resigned was Datuk Seri Chua Soi Lek who quit
as Health Minister in 2008 over a sex video featuring him. Perhaps his case explains the notion of personal
responsibility of Ministers in the context of their personal conduct in relation to their private lives. This would
appear to suggest that the message is if you are caught, resign sooner rather than later, in order to spare the
government embarrassment and loss of public confidence.

THE THEORY OF COLLECTIVE MINISTERIAL RESPONSIBILITY IN MALAYSIA

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As mentioned earlier, collective responsibility is explicitly acknowledged in art 43(3) of the Federal Constitution. In
Malaysia, this convention refers to the following understandings and usages:

First, under art 43(2) of the Federal Constitution, 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.25
This is indeed a sound policy or rule in that it enables Ministers to be prepared to defend a government policy in
Parliament, as well as to be scrutinised. For example, this article would enable Parliament easily to identify exactly
what the government’s position is on any given issue. Rather obviously, Parliament would not be able to hold the
government accountable if it did not first know what the government’s policy or decision-making on a given matter
was.

Second, 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 the Yang di-Pertuan Agong.26 The advice to the Monarch
should be unanimous so that the ‘indivisibility of the executive’ is preserved. Thus, if a Minister does not agree with
a Cabinet decision, he has three alternatives and they are: keep quiet about it, resign, or have his dissent recorded
in Cabinet minutes.27 This duty applies even if the Minister did not take part in, or concur with the decision. This
notion of unanimity is needed on the basis that an advice from the government ie the Prime Minister or his Ministers
is deemed to be that of the entire government and not just an individual Minister concerned. Hence, it is important
to note that if one Minister tells Parliament that the government’s policy is one thing, and a second Minister tells
Parliament that it is another, it would be impossible for Parliament to effectively pin the government down. It would
thus suffice to note that that the convention advocates for a requirement that whatever disagreements may take
place behind closed doors, they must be united on policy matters in public. In other words, collective ministerial
responsibility means that the Ministers must speak with one voice.

Third, the government must maintain the confidence of the Lower House (Dewan Rakyat) as a condition of its
survival.28 Article 43(4) of the Federal Constitution provides that if defeated on a vote of no-confidence or on a
‘matter of confidence’, the Prime Minister shall tender the resignation of his Cabinet. Alternatively, he may advise
the Yang di-Pertuan Agong to dissolve the Dewan Rakyat and call for fresh elections. The Monarch is not bound by
this advice.29 This is indeed a sound policy for a government that claims to be answerable, accountable and
responsible not only to Parliament but to the electorate as well. Hence, failure to convince Parliament or the
electorate that the government is strong and united may well lead to a ‘Vote of No Confidence’ which, if lost by the
government, requires its resignation.

Fourth, both under the law and conventions, Ministers have a duty to observe secrecy in relation to all deliberations
of the Cabinet. The confidentiality of Cabinet discussion is protected by the prohibition against disclosure by
Members of Cabinet.30 Secrecy is normally attached to Cabinet discussions, documents, proceedings of Cabinet
committees and communications between departments. This duty is a lifelong duty and a Minister is bound by it
even after he leaves office for whatever reason. A government would understandably consider desirable that the
process by which policy decisions are made should be kept secret, but the difficulty with confidentiality is that it
severely limits openness which the author intends to address while looking at the reality or practice of this
convention at a later stage.

Fifth, the Cabinet owes a political responsibility to the Yang di-Pertuan Agong for the general conduct of the
government. Under art 40(1) of the Federal Constitution, the Monarch has the right to all information about the
government. He has the conventional right ‘to caution, to advise and to warn’. This is indeed a sound policy for a
country respecting the concept of ‘Constitutional Monarch’ ie where the Yang di-Pertuan Agong is the Head of State
and not the Prime Minister. The Prime Minister invokes the name of the Yang di-Pertuan Agong in running the
affairs of the State. Hence, it is only fair for the Cabinet to owe a political responsibility to the Yang di-Pertuan
Agong.

THEORY VERSUS PRACTICE / REALITY REGARDING THE OPERATION OF INDIVIDUAL MINISTERIAL

RESPONSIBILITY IN MALAYSIA

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Putting theory aside and looking at the practice in Malaysia, opinions vary on how effective the doctrine of
individual ministerial responsibility is. Perhaps it is of paramount importance to make reference to the following
points or issues in order to have a better understanding of the practice of individual ministerial responsibility.

First, critics of Parliament allege that question-time is nothing but a ritual exercise in evasion. On any particular day,
two-thirds of the oral questions slated for reply are not answered due to shortage of time.31 In addition, answers are
often refused on security or other grounds. In other words, secrecy in government is so widespread that Parliament
is unable to extract information from the government. For example, Ministers can refuse to answer questions on
grounds of national security, foreign relationships and other aspects of public interest. To the critics, it is indeed a
mockery to talk about individual ministerial responsibility in the context of policy culpability resting on Ministers’
shoulders during parliamentary debates or even during question time. It should also be taken into consideration that
when a ruling party is strong in Parliament, most charges of improper or inefficient conduct in ministries are ‘stifled
under the blanket’ of party solidarity.

Still on the issue of question time, perhaps reference could be made to the perception given to the opposition in
Parliament. Generally, the opposition is regarded at its best as unnecessary and at worst, as evil.32 Thus, the time
given to the opposition in Parliament is considerably reduced. The number of oral questions that a Member of
Parliament (‘MP’) may ask in Parliament is limited to 20 questions per meeting.33 Furthermore, as the time allotted
for asking questions is limited to half an hour at each sitting of Parliament, the order in which the questions are
listed is important. In this matter, the opposition feels that their questions are listed towards the end, thus reducing
the number of questions answered orally.34 Even when questions are answered orally, they are seldom answered
adequately and to the satisfaction of the questioner.

In addition to the above, perhaps another important point that needs to be pointed out is that of the emphasis given
to party solidarity and party discipline by MPs. Due to this political atmosphere, MPs for that matter are obliged to
follow the wishes of the party rather to vote according to their own conscience. Because of this sort of loyalty to the
party, the end result is that Parliament would find it hard to pin down the Minister concerned on the basis of policy
culpability resting on his or her shoulders during parliamentary debates or question time.

Second, the convention that a Minister is vicariously responsible to Parliament for the acts of his or her civil
servants may not be workable in today’s environment. In practical terms, nowadays several factors diminish the
extent to which a Minister can assume responsibility for every action of the department. The sizes of departments,
the usually short ministerial tenure of office in any one department and the complexity of modern government have
long made the pure doctrine unworkable.35 Thus, a Minister cannot be held responsible for the action of every civil
servant, especially where operational issues are increasingly delegated to agencies. Government powers have
grown so immensely that the day-to-day administration of departments of the state cannot be scrutinised. In any
case, parliamentary time is inadequate to scrutinise the government thoroughly on the basis of a Minister being
vicariously responsible for the acts of his or her civil servants.

Third, the convention that a Minister who is seriously criticised in Parliament must resign has not taken hold
because the government usually rallies behind a Minister who is being criticised in Parliament.36 Collective
responsibility defeats individual responsibility on the basis that they have to speak with one voice. Furthermore,
as long as the Minister retains the support of the Prime Minister, he or she is safe in effect. If a Minister finds
himself or herself under vigorous parliamentary attack, but has strong support from the Prime Minister from his or
her own political party (either on the backbenches or in his own constituency), or from the media, then the Minister
may well be able to ride out the storm relatively unscathed. In other words, a Minister would not resign unless his or
her conduct is so reprehensible that it will dent severely the government’s standing in the eyes of the electorate.
Thus, resignations are most usually for personal reasons, and even then when the embarrassment to the
government of a resignation is less than the embarrassment of them keeping their job. Furthermore, ministerial
resignations show that the convention of individual responsibility has no punitive effect. For example, the erring
Minister who resigns is appointed to another post; the unearthing of incompetence and inefficiency is such a slow
process that the Minister responsible has long ceased to hold the position in question thus renders resignation
unnecessary.

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Fourth, the meaning of political responsibility cannot be defined. It is true that a Minister is responsible in the
sense that he is answerable for his department. However, it is not clear in what circumstances the convention
requires that he or she resign when his or her department errs. For example, a Minister may refuse to resign by
claiming a distinction between policy and administration. There are genuine doubts about the extent to which
Ministers should be personally responsible for operational matters as opposed to policy issues. Because of the
difficulty involved in defining political responsibility and as a matter of fact, a number of other parties intervene,
and the practical operation of individual responsibility is a less straightforward matter than the simple interaction of
a Minister and Parliament alone. Thus political parties, political leaders (especially the Prime Minister) and the
Media may all, in addition to Parliament, play important roles in determining a Minister’s fate in cases of individual
responsibility.

Fifth, while responsibility for the implementation and execution of policy of course entails ‘personal conduct’, one
aspect of ministerial responsibility which has also given rise to particular concern is the conduct of Ministers in
relation to their private lives. Should a Minister resign on the basis of ‘personal misconduct?’ Although it cannot be
denied that the personal relationships of Ministers are also matters which fall under intense public scrutiny, the
fact still remains that not every act of ‘personal misconduct’ by a Minister would lead to his or her resignation. In
practice, a Minister would not automatically resign on the basis of ‘personal misconduct’ if he or she were to have
the support of the party and that of the Prime Minister. In other words, ‘personal misconduct’ per se is not enough
to lead to resignation of a Minister. The only situation in which a Minister will resign is when he or she finds it
impossible to subscribe to the government’s policy or style, or when he has become a liability to his party.37

Sixth, ineffectiveness of the mechanisms or tools employed by Parliament in scrutinising Ministers has made the
convention of individual responsibility unworkable. For example, the Public Accounts Committee which is
required to look into the accounts of the federal ministries and departments appear not to be an effective tool for
checking wasteful expenditure.38 The Public Accounts Committee does not examine the accounts in time to be of
much use. Furthermore, the usual practice in Britain of appointing the Chairman of the Public Accounts
Committee from the opposition members is not allowed in Malaysia despite several appeals from the opposition
for this to be done on the grounds that the government cannot be both, a defendant and a judge.39

THEORY VERSUS PRACTICE / REALITY REGARDING THE OPERATION OF COLLECTIVE MINISTERIAL

RESPONSIBILITY IN MALAYSIA

Although in Malaysia collective responsibility is explicitly acknowledged in art 43(3) of the Federal Constitution,
there is no doubt that in practice, its operation has also posed some pertinent issues on its effectiveness. In other
words, there are instances where collective responsibility is seen as hampering the working of ministerial
responsibility to Parliament. The following points or issues need to be addressed while separating theory from
practice as far as the operation of the doctrine of collective ministerial responsibility in Malaysia is concerned.

First, the doctrine of collective responsibility requires that the government must maintain the confidence of the
Lower House for its survival. However in practice or in reality, a government defeated on a snap vote may not
resign, instead, may put the issue before the Lower House for second time.40 It should be noted that the Prime
Minister by virtue of art 43(4) has two alternatives in such a situation ie seek for dissolution of Parliament or resign
together with his Cabinet. With these two alternatives, the Prime Minister may use ‘party solidarity’ to regain the
confidence of the Lower House other than dissolving Parliament and call for election. In other words, he will be
sending a strong message to his party members (the rebels) that the defeat of the party may lead to a dare result
such as the dissolution of Parliament and the possibility of the opposition winning the subsequent general election
could not be ruled out.

In addition to the above, much as this is may be the case in practice, it is important to note that in Malaysia at
federal level, we have never witnessed a situation where a government had lost the confidence of the Lower
House and was thus asked to resign. However, in Malaysia we have witnessed three resignations at state level
since independence (or Merdeka) ie Stephen Kalong Ningkan in Sarawak in 1966; Datuk Harun Idris in Selangor
in 1976; and Datuk Mohammad Nasir in Kelantan in 1977.41 However in the 1976 incident, there was a partial

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breach of the doctrine of collective responsibility when the defeated Mentri Besar stepped down; contrary to the
well-established practice, his exco (Ministers) did not tender their resignation.42

Second, the Prime Minister and his Cabinet should observe the convention of public unanimity and that is why
collective responsibility requires that the Prime Minister and his Cabinet must come from either Houses of
Parliament. In practice, it is possible for the convention of collective responsibility to be waived when
circumstances are such that the political disagreements within the Cabinet are of such magnitude that the Prime
Minister finds it more expedient to set aside the convention than to have the convention broken by members of
Cabinet.43 To avoid the possibility of mass resignation and the political embarrassment that it would cause, the
Prime Minister of the day may end up waiving the operation of the convention. Thus, for the purpose of this study, it
is inevitable to point out that there have been many occasions in Malaysia when the Prime Minister and his
Ministers issued different and even conflicting statements on matters of policy.44 The situation has been made
worse as the people and the media, which should have ensured that the principle works, also misunderstood it.45 It
seems that the people here consider public contradictions and inconsistencies between members of the Cabinet as
something that is normal.

Third, secrecy (Cabinet papers) in practice has been used as a weapon to deny information to Parliament. This is
due to the fact that the convention of secrecy or concealment requiring that Cabinet papers and government
business be confidential is not very clear. Secrecy in the government is so widespread that Parliament is unable to
extract much information from the government.46 The difficulty with confidentiality is that it severely limits openness.
How can thegovernment be held effectively to account if it is closed, private and protected by both the convention
and the law of confidence? Does Parliament not first need to know what the government is doing before it can
successfully hold the government accountable? Well, perhaps not; it could be argued that as long as Parliament
knows what it is that the government has decided upon, it does not additionally need to know a great deal about the
internal processes by which the government arrived at its decision. Thus, there appears to be a general
unwillingness to debate on matters of public interest in an open and frank manner. The convention of secrecy is
under pressure from the demand for a more open government.

Still on the issue of secrecy or confidentiality, perhaps reference could also be made to the issue of a former
Minister’s memoirs of his political life. There is no doubt that such memoirs pose some problems for the rules
relating to Cabinet secrecy. It has to be pointed out that once former Ministers leave office, it has now become
commonplace for them to publish diaries or memoirs of their time in government. Perhaps the focus of attention
here is to see as to whether such publication could be viewed as violating the convention on Cabinet secrecy. The
author would like to admit that currently, there are guidelines in place that regulate what former Ministers may, and
may not write about, and so long as these guidelines are followed, they are regarded as generally free to publish.47
Perhaps we Malaysians need to relook altogether into Tun Mahathir’s political memoirs in his book entitled ‘A
Doctor in the House’. Could it be argued that some of the contents of the book were in violation of this convention?
In response to this question, the author would like to reiterate that provided that the guidelines were followed by Tun
Mahathir, it would not have been a problem for him to have published his political memoirs into a book in 2011.

RECOMMENDATIONS AS TO THE OPERATION OF THE DOCTRINE OF MINISTERIAL RESPONSIBILITY IN

MALAYSIA

Having touched on the practice of ministerial responsibility above, it goes without saying that the political
environment of Malaysia does not appear to have the characteristics or features that allow the convention to
operate fully and effectively.48 This does not mean to say, of course, that because of this, there is no ministerial
responsibility or that ministerial irresponsibility is the result.49 All it means is that the government prefers to deal
with problems of maladministration or mismanagement of government funds etc through more internal methods
rather than to discuss these matters, in open debate in Parliament. In order to strengthen the doctrine of
ministerial responsibility in Malaysia, the following recommendations may act as a catalyst of change in
achieving the primary aim of this doctrine that is, to maintain a relationship of check and balance between the
executive and the Legislature or Parliament.

First, the investigatory powers of Parliament should be increased. By doing so, Parliament would be armed with

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sufficient powers to carry out investigations regarding Ministers, civil servants and other government agencies. The
more closed that the government is allowed to be, the more difficult will it be for Parliament to scrutinise it. In other
words, by increasing the investigatory powers of Parliament would remove the veil of secrecy that hides most
government activities from the public. For political accountability to be effective, Parliament should be able to
investigate not only the decisions of the government, but also the internal-decision making process, yet it is such
processes that may be protected under the practice of confidentiality. Moreover, there should be a clear line drawn
up as to what information is detrimental to the security of the state and public order. Failure to do would result in
Ministers continuing to use secrecy as a weapon to deny Parliament the proper platform of scrutinising their
activities.

Second, the press or media should be pro-active in taking up such issues. It is important to note that the media can
play an important role in the way ministerial responsibility operates. For example, the media can be decisive in
forcing a Minister to resign or otherwise take responsibility for events. A good example to illustrate here would be
the case of Datuk Seri Dr Soi Lek as mentioned earlier, who quit as health minister in 2008 over a sex video that
featured him. This case generated a lot of attention from the public due to its wide coverage by the media. In other
words, the press and other mass media should play an important role of providing a forum for public discussion on
matters of public interest and the government should be more than ready to respect press freedom. Government
should not object to any criticisms and instead face it, by being accountable to both Parliament and the electorate.

Third, there is a need to increase on the strength of the opposition in Parliament.50 This perhaps could be achieved
by way of increasing the resources of back-benchers and opposition parties as well as giving them access to official
information. This would enable them to have sufficient information over the subject matter of discussion in the
House. It is important to note that when a ruling party is strong in Parliament, most charges of improper or inefficient
conduct in ministries are ‘stifled under the blanket of party solidarity’. In other words, we need to think of how to
equip the role of the opposition in Parliament in bringing up matters concerning maladministration in government
departments. The opposition should be given adequate opportunities in Parliament to make criticisms and ventilate
grievances. Thus, the opposition should not be regarded at its best as unnecessary, and at worst, as evil.

Still on increasing the strength of the opposition in Parliament, perhaps it is also vital to note that in assisting MPs in
their legislative and oversight functions, non-partisan legislative support structures ought to be established.51 As
mentioned earlier by the author, we have to take note of the fact that in practice it is extremely difficult for
Parliament to enforce ministerial responsibility. This is due to the fact that emphasis has been given to party
solidarity and party discipline so that MPs are obliged to follow the wishes of the party rather than vote according to
their own conscience.

Fourth, the Prime Minister should not abuse his powers vested in him. In other words, we need to have a Prime
Minister who practices ‘Cabinet Ministerial Government’ rather than ‘Prime Ministerial Government’. The Prime
Minister of the day should not run the affairs of the state single-handedly without consulting his Cabinet. By
practicing ‘Cabinet Ministerial Government’, it would make it easy for the government to be accountable to
Parliament as well as to the electorate.

Fifth, there is a need to establish well-integrated and well serviced investigatory committees as in the United States
of America and the Philippines.52 This in turn would hold the key to enabling Parliament to become the ‘grand
inquest of the nation’. It is of paramount importance to note that investigatory committees often have the opportunity
to investigate in greater detail the circumstances, for example leading to resignations. Investigatory committees
have significant impact on accountability, not least because of the opportunities they afford for detailed and
sustained parliamentary scrutiny of ministerial and departmental policy, through direct and public questioning of
Ministers and, in particular, officials.

Sixth, since much depends on the willingness of the back-benchers to act in an independent way, any changes in
the electoral system, party organisation or procedures for the selection of candidates which strengthens or
diminishes the independence of a MP would have far greater implications also for the accountability of the
government. For example, party leaders appear to have complete control over their own rank and file. This is
because party members are aware that the plums of office go to those who acquiesce with the decisions of their

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leaders and who are not ‘troublemakers’. In Malaysia, the ruling party has always enjoyed a position of strength in
Parliament and therefore has little difficulty in getting the necessary votes to support their proposals. Take for
instance even for the decision to pay Rahman Talib’s legal costs from government funds, a matter which by any
standard of government accounting practice must be considered irregular, there was no difficulty in getting the
necessary party support to ensure parliamentary approval for the action.53

Seventh, there is a need for the public to take the leading role in seeking for an accountable, answerable and
responsible government.54 In other words, we need to increase the state of public opinion on matters such as
maladministration, mismanagement, etc that involve the government. This perhaps could be achieved through the
press or mass media feeding the public with all the necessary information. The media should make it a point that
the doctrine of ministerial responsibility works by supplying the public with all the necessary information they
require in their quest for a responsible government. However, the author would like to admit that this sort of
recommendation would depend on the government’s commitment in respecting press freedom as well as its
readiness to face the criticisms from the public, if any, regarding how the affairs of the state are being managed.

Eighth, to facilitate greater scrutiny of government action under this doctrine it is recommended that draft bills
should be supplied to MPs well in advance.55 By doing so, Parliament will be in position to overcome the current
problem of shortage of time during parliamentary debates as well as allowing MPs to carry out an in-depth scrutiny
regarding the draft bill.

CONCLUSION

It may safely be concluded that whatever the origin of the ministerial responsibility, the doctrine has been
incorporated into the Federal Constitution of Malaysia especially that of collective responsibility whereas individual
responsibility is founded on unwritten conventions and political norms. Whatever the nature of the doctrine in the
UK, in Malaysia it could not be argued on the basis of it being a mere constitutional convention as in the UK and
thus cannot be enforced by legal (as opposed to political) sanctions. This contention is obviously incorrect because
if that is the position, then the entire notion of a responsible government would be frustrated. Perhaps what needs
to be reiterated here is that, the doctrine of ministerial responsibility is an imperfect tool for enforcing
responsibility in government, but it is not insignificant. Through the implementations of the recommendations
addressed above, perhaps there could be some positive results at the end of the day in the operation of the
doctrine in Malaysia. However, to turn these recommendations into a reality, the cooperation of the government of
the day is needed in order to facilitate the platform for Parliament to perform its role very effectively.

All in all, the way in which the executive is held accountable is clearly changing. It would be unfortunate, however,
if we were to lose sight of the important premise underlying the doctrine of ministerial responsibility. That is,
governments are chosen to represent the people, and hence, Ministers must remain accountable to Parliament,
and through it, to the people. Even though the political environment of Malaysia does not appear to have the
characteristics that allow the doctrine of ministerial responsibility to operate fully and effectively, this does not
mean to say that there is no ministerial responsibility or that ministerial irresponsibility is the result.56 For the
time being at least, the doctrine can be said to operate in Malaysia more in form that in reality. How do we
change this form into a reality would ultimately depend on various factors such as: the effectiveness of Parliament
itself; Ministers understanding of the operation of the doctrine coupled together with their commitment to it;
curbing party politics and solidarity; and many more. 57

Senior Lecturer, College of Law, Government and International Studies, Universiti Utara Malaysia. The author may be contacted
at: asmad@uum.edu.my

2 See Flinders M, The Enduring Centrality of Individual Ministerial Responsibility within the British Constitution, 2000, Vol 6, No
3 Legislative Studies pp 73–92.

3 As stated by Shad Saleem Faruqi, ‘A Relationship of Check and Balance’, Sunday Star, 18 March 2001, at p 26 (Focus).

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4 SeeM Puthucheary, Ministerial Responsibility in Malaysia, in The Constitution of Malaysia Its Development: 1957–1977, Ed
Tun Muhamed Suffian, HP Lee and FA Trindade, Oxford University Press: Kuala Lumpur, 1978, pp 123–135. See also Andrew
Harding, 1996, Law, Government and the Constitution of Malaysia, Malayan Law Journal Sdn Bhd: Kuala Lumpur, at pp 120–
121.

5 See art 43(3) of the Federal Constitution.

6 See M Puthcheary, n 3, at p 124.

7 As stated by Abdul Aziz Bari, 2003, Malaysian Constitution — A Critical Introduction, The Other Press: Kuala Lumpur, at p 75.

8 As cited by Hilaire Barnett, 2006, Constitutional and Administrative Law, (6th Ed), Routledge-Cavendish: Abingdon, at p 281.

9 Ibid.

10 See Adam Tomkins, 2003, Public Law, Oxford University Press: University of Oxford, at p 140.

11 As cited by Hilaire Barnett, n 7, at p 285.

12 As stated by Adam Tomkins, n 9, at p 140.

13 Ibid.

14 As stated by Hilaire Barnett, n 7 at p 281. See also the Official Report, HC Col pp 833–34, 8 April 1878.

15 Ibid, at p 281.

16 Ibid.

17 Ibid.

18 The article provides that the Cabinet shall be collectively responsible to Parliament.

19 See Shad Saleem Faruqi, 2008, Document of Destiny — The Constitution of the Federation of Malaysia, Star Publications

(Malaysia) Berhad: Petaling Jaya, at p 480. See also Shad Saleem Faruqi, ‘A relationship of check and balance’, Sunday Star,
18 March 2001, at p 26 (Focus).

20 Ibid.

21 Ibid.

22 Ibid.

23 Ibid.

24 See the case of Abdul Rahman Talib v Seenivasagam & Anor [1966] 2 MLJ 66.

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25 See Shad Saleem Faruqi, n 18, at p 481.

26 Ibid.

27 Ibid.

28 Ibid.

29 See art 40(2)(b) of the Federal Constitution.

30 See Hilaire Barnett, n 7, at p 283.

31 As stated by Shad Saleem Faruqi, n 18, at p 482.

32 As stated by M Puthucheary, n 3, at p 127.

33 See the Standing Orders of the Dewan Rakyat of Malaysia, paras [21]–[24]. There are usually four to six meetings in a year,

each meeting lasts between two weeks to about two months.

34 As stated by M Puthucheary, n 3, at p 127.

35 As stated by Hilaire Barnett, n 7, at p 285.

36 As stated by Shad Saleem Faruqi, ‘A relationship of check and balance’, Sunday Star, 18 March 2001, at p 26 (Focus).

37 See the 2008 resignation of the then Health Minister, Datuk Seri Dr Chua Soi Lek over a sex video that featured him in a hotel.

38 See M Puthucheary, n 3, at p 128.

39 Ibid.

40 See Shad Saleem Faruqi, n 18, at pp 481–482. See also Shad Saleem Faruqi, ‘A relationship of check and balance’, Sunday
Star, 18 March 2001, at p 26 (Focus).

41 Ibid, at p 483.

42 Ibid.

43 See Hilaire Barnett, n 7, at pp 282–283.

44 As stated by Abdul Aziz Bari, n 6, at p 75.

45 Ibid.

46 See Shad Saleem Faruqi, n 18, at p 483.

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47 Some of the guidelines are that the Minister must not reveal anything that contravenes the requirements of national security

operative at the time of his or her proposed publication; the Minister must not make disclosures that are injurious to Malaysia’s
relations with other nations, etc.

48 As stated by M Puthucheary, n 3, at pp 132–133.

49 Ibid.

50 See Shad Salem Faruqi, n 18, at p 483.

51 Ibid.

52 Ibid.

53 See M Puthucheary, n 3, at p 132.

54 See Shad Saleem Faruqi, n 18, at p 483.

55 Ibid.

56 See M Puthucheary, n 3, at pp 132–133.

57 Published in [2012] 4 MLJ clv

End of Document

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