SEPTEMBER 26 — The Federal Constitution creates three main branches of government:
1) The Legislature (“Parliament”) which makes laws.
2) The Executive (“Government”) governs the country according to the laws.
3) The Judiciary (“Courts”) decides what the laws mean and can order people and the Government to follow the laws.
The power to govern the country is divided between the three branches. Under the concept of separation of powers, no one branch has absolute power.
The separation of powers puts in place a system of checks and balances, with each branch acting as a check over the other branches.
This in turn ensures that each branch acts in accordance with their accorded powers and does not abuse them.
The first of the checks and balances can be seen in Article 43(3) of the Federal Constitution (FC) which obliges the executive – that is, the Cabinet – to be collectively responsible to Parliament. Collective responsibility is where individual ministers are held accountable for the actions and decisions of the Government as a whole.
Ministers are also made individually accountable to Parliament. This means ministers have to explain and provide information on what is happening in their area of responsibility.
The principle of individual ministerial accountability is based on convention and precedent. The main basis for the convention is that ministers are democratically elected and generally appointed from among Members of Parliament (MPs) – Article 43(2)(b) FC – and as they are the ones who take decisions in government, they should primarily be answerable to Parliament and be held to account for the policies, decisions and actions of their departments and agencies.
Individual ministerial accountability is a separate principle from collective cabinet responsibility. In the United Kingdom (UK), both ministerial accountability and collective cabinet responsibility are constitutional conventions.
The late Royal Highness Sultan Azlan Shah explained the constitutional conventions on executive actions as follows:
“The executive itself cannot just act as it pleases, for its own powers are also subject to precise restrictions. Even where limits do not appear to be sufficiently clear, there are rules of unwritten law which dictate the courses of action that may be followed. These rules are called constitutional conventions. They serve to ensure that actions undertaken are not just lawful according to the letter of the supreme law, but are also practical, viable and have the support of society in general.” (“Supremacy of the Law in Malaysia” in Constitutional Monarchy, Rule of Law and Good Governance, 2004, at pp 22-23)
Accountability to Parliament is made possible through several parliamentary procedures, mainly:
- Oral questions submitted by other MPs to be answered in the House;
- Written questions submitted by MPs to which ministers respond in writing;
- Urgent questions which allow for debate on an issue;
- Parliamentary select committees – ministers will appear before select committees to answer questions
- Correspondence – MPs, including committees, will write to ministers to raise issues.
While ministers are accountable to Parliament, civil servants are accountable to their respective ministers.
The most senior of the civil servants are called “accounting officers” for their departments. This means that they can be made to report to Parliament, usually to the Public Accounts Committee (PAC), for the spending and efficiency of their respective department.
Officials can also appear in front of select committees, which are an increasingly important vehicle of ministerial accountability, if a minister chooses to ask them to appear in their place. Some officials may appear alongside ministers.
In the United Kingdom, there is what is known as the “Osmotherly Rules” which give guidance on the role of civil servants and other government officials appearing before select committees.
The purpose of the Rules is to assist staff in government departments dealing with requests for information from select committees, including: the provision of evidence, handling select committee reports and drafting responses to such reports. (https://commonslibrary.parliament.uk/research-briefings/sn02671/)
When giving evidence, the officials are not doing so in a personal capacity but “as representatives of their ministers”. They should not therefore be asked to offer personal judgements on government policy. This is to protect their impartiality and the principle of ministerial accountability. (https://www.instituteforgovernment.org.uk/article/explainer/ministerial-accountability)
The Rules are said to outline a number of longstanding conventions that have developed in the relationship between Parliament and successive governments of the UK. But they are also said to be contentious, as they set out a number of restrictions on civil servants’ engagement with select committees. (The 2014 Rules may be viewed here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/364600/Osmotherly_Rules_October_2014.pdf)
So, while civil servants may appear before parliamentary committees, there are protocols that govern the evidence they can give. Civil servants cannot give information on matters of policy. Certain material may also be protected by public interest immunity.
By contrast, what do we have here in Malaysia?
As mentioned in passing above, parliamentary committees are an increasingly important vehicle of ministerial accountability. One of the key powers that parliamentary committees have is the power “to send persons, documents or papers” – Dewan Rakyat Standing Order 83(2).
A person failing to comply potentially leads to him or her being held in contempt of Parliament.
A question that has been asked recently is whether the former and current Attorney Generals (AG) can be compelled to appear before the Parliamentary Special Select Committee on Human Rights, Election and Institutional Reform.
The committee’s chairperson and Selayang MP William Leong has somewhat conceded that it could not summon “the sitting and immediate past attorneys general to explain the conditional discharge of Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi”.
Instead, the committee would only invite them to participate in its proceedings and help it to understand the issue.
Leong said the committee also respects the power of the AG in exercising discretion to initiate, conduct or stop court proceedings in accordance with Article 145(3) of the Federal Constitution. https://www.malaymail.com/news/malaysia/2023/09/14/select-committee-chairman-says-only-asking-not-summoningpast-andpresent-ags-to-explain-zahidsdnaa/90888
So, which branch of the government is to check over the AG’s prosecutorial discretion? Parliament or Courts?
In my humble view, Parliament should defer to the Courts given the strong statement of Chief Justice Tengku Maimun in the case of Sundra Rajoo a/l Nadarajah v Menteri Luar Negeri, Malaysia & Ors (2021) where Her Ladyship said:
“Article 145(3) of the Federal Constitution provides the AG/PP with a wide discretion to institute, conduct or discontinue any proceeding for a criminal offence. This wide discretion means the AG/PP has sole and exclusive discretion in that only he/she can exercise such power. However, the AG/PP does not have absolute or unfettered discretion under art 145(3). [I]t is our judgment that in appropriate, rare and exceptional cases, such discretion is amenable to judicial review.” (Emphasis added) https://www.malaymail.com/news/what-you-think/2023/09/22/zahids-dnaa-take-it-to-the-court-for-a-judicial-review-hafiz-hassan/92254
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
