©Reflecting On The Law (Used by permission)
BY SHAD SALEEM FARUQI
Parliament must recapture its role as the grand inquest of the nation.
NANCY Shukri, Minister in the Prime Minister’s Department, is being pilloried in the alternative media for her parliamentary reply to a query about why there was no prosecution for the infamous diatribe about burning Bahasa Malaysia Bibles.
Her tribulations draw our attention to the doctrine of ministerial responsibility, which is a pillar of parliamentary democracies. The doctrine has twin pillars: individual responsibility and collective responsibility. Only the first will be discussed here.
This doctrine holds that during parliamentary deliberations, debates on motions and question time, a minister must answer questions, supply information and justify her department’s policies. She must accept vicarious responsibility for all policy and administrative errors in her department even if she herself was not involved in the administrative bungling or impropriety that is the subject of the parliamentary scrutiny.
A minister must resign if a vote of censure is passed against her. In many parliamentary democracies, a minister who is seriously criticised in Parliament vacates her post.
The convention of individual responsibility has many beneficial effects. It motivates ministers to monitor the activities within their ministries. It preserves the professionalism and anonymity of civil servants and shields them from partisan, political attack on the floor of the houses. Regrettably, it also has some undesirable effects.
Public servants shielded: The minister’s vicarious liability shields public servants from parliamentary exposure when departmental wrongdoing comes to light as in the Auditor–General’s Annual Reports of financial improprieties.
The recent controversy surrounding the non–prosecution in the “burn Bahasa Bibles” case indicates that a minister may have to take the rap for a public official who is not under her Ministry.
Under the federal and state constitutions, the office of the Attorney–General is the repository of vast powers and functions. By no stretch of imagination is the AG answerable to any Minister for his constitutional role. Under Article 145(3) and a long line of judicial precedents, he has the sole, independent discretion over prosecutorial decisions.
Collective responsibility: More often than not, collective responsibility hinders individual responsibility. Unless the Minister’s conduct is so reprehensible that it will dent severely the Government’s standing with the electorate, the government tends to stand behind a beleaguered colleague.
In 2004, Works Minister Datuk Seri S. Samy Vellu faced criticism about shoddy construction projects. He refused to resign and the cabinet protected him because the cabinet felt that the real guilty parties were contractors, engineers, architects, etc.
Recently, UPSR examination leaks, the tragic loss of two MAS passenger jets within a few months, the military incursions by foreigners into Sabah, periodic custodial deaths, and collapse of bridges did not result in any resignation.
There are rare exceptions, however. Dr Chua Soi Lek stepped down few years ago due to a personal scandal. Datuk Abdul Rahman Talib lost a defamation suit in 1966 and withdrew from the Cabinet.
In contrast, in Britain, there were 125 resignations in the 20th century, about 14 due to private scandal or private financial affairs, the most famous being the John Profumo call–girl case of 1963.
On Oct 4, 2014, Taiwan’s health minister Chiu Wen–ta resigned because of a food safety scare over use of “gutter oil”. Earlier, the economic affairs minister had resigned over fatal gas blasts. The education minister stepped down after he was implicated in an academic scandal.
In Britain in 1982, Richard Luce resigned to accept responsibility for the Argentine invasion of Falkland Islands. In 2002, South Korea’s Justice Minister resigned to accept responsibility over a custodial death and Britain’s Education Secretary resigned because of the Ministry’s failure to reach child literacy targets.
Operational matters: There are genuine doubts about the extent to which Ministers should be personally responsible for operational matters as opposed to policy issues. For this reason, British Home Secretary Michael Howard refused to resign over prison breakouts in the 1980s.
Huge bureaucracy: In Malaysia, due to the increasing size and complexity of the public services, it is hard to justify 100 or so ministers and deputy ministers accepting responsibility for 1.2 million public servants, especially when many decisions involve interdepartmental committees.
Areas not amenable: Some areas are not easily amenable to parliamentary scrutiny. First are those where secrecy is paramount. Among them are foreign policy, national security and framing of the national budget.
Second, there are some “Non–Financial Institutions” like Petronas that are not required to submit their accounts to the Auditor–General and to the Dewan Rakyat’s Public Accounts Committee.
Third, when a particular service is handed over to a statutory body, nationalised industry or government–linked company, it is not reasonable to hold the Minister accountable for the acts of commission or omission of an autonomous/semi–autonomous legal persona that is distinct from the government.
Fourth, there are some constitutional agencies, like the Attorney–General, Auditor–General, Election Commission and various Commissions under the Constitution which are separate from and independent of Parliament or the political executive. Requiring a politician Minister to answer questions on their behalf appears constitutionally inappropriate. At the same time, the dilemma stares us in the face: are these agencies totally beyond parliamentary scrutiny?
In Britain, ministerial responsibility has been subjected to a number of enquiries: the Nolan Committee, the Scott Report and the Public Service Committee Report. Among the suggestions are that instead of seeking the minister’s resignation, importance should be placed on providing satisfactory answers to parliamentary questions so that parliament can recapture its role as the grand inquest of the nation.
We need similar re–thinking on this aspect of our parliamentary democracy. New principles and methods for enforcing executive responsibility, answerability and accountability need to be evolved.
Shad Faruqi, Emeritus Professor of Law at UiTM, is a passionate student and teacher of the law who aspires to make difficult things look simple and simple things look rich. Through this column, he seeks to inspire change for the better as every political, social and economic issue ultimately has constitutional law implications. He can be reached at [email protected]. The views expressed here are entirely his own.