The answer cannot be a ‘Yes’.

Public ministerial disagreements are on an all-time high.

Waytha Moorthy, the Minister for National Unity and Social Well-being, came under attack for several reasons: from ICERD to the goings on in a local Hindu temple.

Rina Harun is a minister.

She demanded for his apology.¹BH Online, 28 December 2018

Syed Saddiq is also a minister.

He went further.

He asked Waytha to resign.

He is reported to have said:

“I will never apologise for speaking my mind.” ²Malay Mail, December 22, 2018.

Can he say that?

How does the constitutional law deal with this?  Collective Responsibility

Our model of parliamentary democracy is a copy of the British constitutional monarchy.

In the UK, as it is in Malaysia, Cabinet ministers are bound by certain rules of discipline.

These rules are called ‘collective responsibility’.

Collective Responsibility is one of the most fundamental – and enduring – conventions of the British constitution. ³‘Collective Responsibility’, Michael Everett, Briefing Paper, Number 7755, 14 November 2016, House of Commons Library.

There are questions whether this is a ‘non-legal’ rule.⁴Ibid, paragraph 2.1.

The courts have recognised it, so this argument falls: AG v. Jonathan Cape.⁵See FN [13] below

Once even Karpal remarked that “Conventions are stronger than rules”.

Here are some pointers about this convention.

[1]. The Government is collectively accountable to Parliament for its actions, decisions and policies

Did you know that our constitution took that principle and repeats it in Article 43(3)? It says,

“The Cabinet shall be collectively responsible to Parliament.”

[2]. Cabinet decisions are binding on everyone in the Government

[3].  If a minister disagrees, he must resign

Whether a Minister agrees with or dissents on a government policy, he must publicly support it.

He may communicate his private misgivings to the Cabinet.

“He cannot publicly speak against it.

If he does, he cannot abide by collective responsibility.

He must resign.

[4].  Collective Responsibility can be ‘explicitly set aside’

Although the doctrine binds all members of the government, it can be ‘explicitly set aside’.

In 1977, then PM of the UK, James Callaghan, was asked whether the Collective Responsibility should continue apply. He famously said,

“I certainly think that the doctrine should apply, except where I announce that it does not.”⁶Ibid, Everett, paragraph 1.2, and section 3.3].

[5].  Free Votes and ‘Agreements to Differ’

There are two ways by which the Cabinet can set aside Collective Responsibility.

One is by ‘Free Votes’.

Where there is no definite cabinet policy on a subject, and the Cabinet agrees on a right to a free vote, then ministers can vote in parliament – as they wish.

‘Free Votes’ have been allowed over religious issues, social questions like abortion or LBGTQ issues.

‘Agreement to Differ’ on a public issue are limited by time.

There the Cabinet would have had an existing policy, but it would allow public dissent, albeit for a short period.

In 1975 UK held a referendum whether UK should join the European Union.

Cabinet members took opposing positions.

In June 2016, again a referendum was held on Brexit.

There, the Cabinet gave ministers the freedom to vote as they wished.

There is some talk that the current coalition government has a new policy: that ministers unhappy with each other can write to each other, and if that does not work, they are then allowed to talk in public.

This is improper and runs counter to collective responsibility.

Matters affecting the nation concerns the Cabinet.

They have to be brought to the prime minister who will consult his cabinet.

“Once the Cabinet decides, ministers must close ranks and publicly support the decision.

That is the right thing to do.

[6].  What does the convention mean in practice?

[a].  A minister cannot vote against government policy in Parliament.⁷Ibid, Everett, paragraph 2.2

Constitutional experts have expressed the crucial aim of the convention in this way:

‘Voting strength in [Parliament] is not only the measure of confidence in the government, but it is the test of its very right to exist’.⁸Ibid, Everett, paragraph 2.2

The parliament is a public place. A vote in Parliament is an open statement of a minister’s support for his government – whatever may be his view.

If he casts a dissenting vote, unless he resigns, he would be immediately dismissed from the Cabinet.  That is the rule.

So we should ask our loquacious ministers this question:

“If you want to break ranks, can you please resign, afterwards?”

If they say ‘Yes’, and resign, that is a good thing. If it was an expose of crooks-that we can respect it, much like what Muhyiddin Yassin did.

If they say ‘No, we want to dissent publicly, and still stay,’ how then? If all this public talk isn’t for a good reason, it destabilises the government, and worse, and makes the minister look silly. People do not like silliness.

[b].  A Minister cannot speak out against government policy. 

Ministers will always find ways of ‘expressing loyal support’ while sending out opposing signals.

On rare occasions, experienced ministers would want ‘their views to be publicly known so as to distance themselves from any Cabinet decision with which they do not agree’.⁹R. Brazier, ‘Constitutional Practice’, third edition, 1999, page 145.

[c].  Cabinet decisions are attributable to the relevant minister

The UK ‘Ministerial Code’ states that while Cabinet decisions are binding on all members, ‘they are normally announced, and explained, as if they are decision of [the individual] Minister concerned’.¹⁰‘Ministerial Code’, [UK] Cabinet office, October 2015, paragraph 2.3

[d].  Even a former minister cannot reveal Cabinet secrets. 

This is a long-observed convention.  The strength of the principle of ‘confidentiality’ has come under attack.  Time, it seems, is a crucial factor in its enforcement.

In the 1960s Richard Crossman was a cabinet minister in Harold Wilson’s government.  He had kept a detailed diary throughout his life.  He died before he could publish it.  The Sunday Times later published extracts of it.  The Attorney General sought to scotch its further publication.¹¹H. Young, ‘the Crossman Affair’ (1976)

The court was asked whether ‘Cabinet secrecy was enforceable by law?’  The publishers argued that

‘… the duty of Cabinet confidentiality had no legal basis; it was merely a moral obligation, respected or ignored according to the minister’s conscience.’

Lord Chief Justice Widgery said,

‘… the Cabinet is at the very centre of national affairs and must be in possession at all times of information which is secret or confidential.  Secrets relating to national security may require to be preserved indefinitely. Secrets relating to new taxation proposals may be of the highest importance up to Budget Day, but public knowledge thereafter.

To leak a cabinet decision a day or so before it is officially announced is an accepted exercise in public relations, but to identify the ministers who voted one way, or another is objectionable because it undermines the doctrine of joint responsibility’.¹²Attorney-General vs Jonathan Cape, [1976] one QB 752, page 768

So the court formally recognised collective responsibility as a constitutional convention.  It held that ‘ministers owe to each other a legally enforceable duty of confidentiality’.¹³ Loveland, ‘Constitutional Law’, page 274

However, the court said there had to be ‘a time limit on the obligation of confidentiality’.  It ruled that 10 years in the case of Crossman’s diaries, ‘was too long’.  It allowed publication of the diaries.

Why should we practise the doctrine?

Experts agree that collective responsibility to be ‘constitutionally important’.¹⁴House of Lords Constitution Committee’s 2014 Report: ‘Constitutional Implications of Coalition Government’.

First, it maintains a sense of coherence among different ministries which are doing different things.

Second, in reality, collective, consultative decision-making ensures that the Cabinet ‘reaches better decisions’.¹⁵House of Lords Constitutional committee, report, dated 12 February 2014, paragraph 66.

Third, the government is seen to ‘speak with one voice’ avoiding any implication that it is ‘divided’.

The government is also ‘required to act as a team’.

Fourth, once the Cabinet has decided on a matter, members of the Civil Service can go about implementing cabinet policies, secure in the knowledge that the decision will not be reversed, unless there is a collective decision to do so.

Fifth, the King can act on ministerial advice with confidence, ‘knowing that the advice represents the collective view of the government’.

It has been said that the doctrine has ‘served our constitution well’.¹⁶Ibid, paragraph 77.

History

The Convention first emerged in the 18th century.  Parliamentary democracy was then in its infancy.

King George III (1760-1820) had a habit of meeting ministers one at a time.

He saw them in a room he called ‘the Closet’.

He tried to make them disagree with each other, so that he could discern split opinions, and thus sow discord: that would give him an upper hand.

To counteract the monarch’s wiles the ministers would…

‘… agree beforehand what to say, and then go into the Closet one by one, and repeat the identical story’.¹⁷R. Pares, ‘George III and the politicians’, 1953, PP 148-149.

This system created a sense of coherence among differing ministerial views.

Development over the centuries

The development of collective solidarity made it difficult for British monarchs. The rulers could not exercise their arbitrary powers against the wishes of an elected Cabinet.

This was in the days when the Cabinet and the government were minor structures.

Democracy has grown over the last few hundred years.  There has been a growing ‘political need’ of the Executive (read, ‘Government’) to control parliament (what a surprise to see that in a UK Parliamentary Paper!).¹⁸Ibid, paragraph 4.

The Paper notes that Parliament, is ‘… the true practical source of ‘the Cabinet’s] authority’.

You know why?

In Malaysia, ‘executive authority’ is in the Cabinet. The Constitution says so: Article 39, Federal Constitution.

‘… the [King] shall act in accordance with the advice of the Cabinet…’

“If you are not a member of either house of parliament, you cannot be a minister: Article 43(1).

Free Elections, expanding government apparatus and strong media

Then, as democracy grew, national elections became genuine contests.

Results were unpredictable.

Like-minded politicians had to present a unified face – so they chose political parties as their vehicles (and how wrong they turned out to be!)

To form a government, it became vital to control parliament, and to maintain a majority there.

The growth of national politics, expansion of voter populations, increased complexity of government, increase in the number of ministries, and the growth of a strong media – all these have come to test – and occasionally undermine – the doctrine of collective responsibility.

Three implications of Collective Responsibility: Confidence, Unanimity and Confidentiality

Ministerial unanimity is practical: it prevents fragmentation of the Cabinet, and therefore, the Government.

“A united cabinet presents a view of a confident Government.

The people feel that they are ruled by a well-aligned Government – very much like the wheels of your car.

The citizens will rest easy knowing that ministers are not ‘leaking’ information.

The Post G.E.14 government is a coalition.

There has to be a lot of give and take.

Voters have come away from 60 years of rigid thinking.

Their opinions are now fluid.

These can shift from one end of the spectrum to the other.

They are with you today, and tomorrow, they are gone.

GE 14 taught them that.

They know they can change their minds with impunity.

So keep your mouths closed if you don’t want to put your foot in it

So, unless our Cabinet ministers wish to give the impression the Government is falling apart, it is best they keep their mouths firmly closed.

Or they might soon find that they are in the Opposition.

You want an allegory?  I’ll give you one.

Try driving a car with badly-aligned tyres.

You’d end up in a ditch.

Same thing here.