7 Things About Collective Responsibility
1. Applicable to the Cabinet
This is expressly provided for under Article 43(3) of the Federal Constitution:
“The Cabinet shall be collectively responsible to Parliament”
2. Stand or fall together
In An Introduction to the Federal Constitution (1960), the learned author RH Hickling pointed out the following:
“It is this principle of collective responsibility that constitutes the most peculiar feature of what we call Cabinet government. All the Ministers are collectively responsible to Parliament, and if one of them refuses to accept the views of his colleagues, then he is expected to resign: for the Ministers stand or fall together. This is, in effect, an illustration of the principle of the rule of the majority, or what is sometimes called ‘government by consent’, in which those who disagree with the majority are nevertheless expected to accept their views. This, also, is the reason for the secrecy surrounding meetings of the Cabinet, and the brevity of Cabinet minutes, that is, the records of meetings of the Cabinet: for once policy has been decided by the Cabinet, it must be defended in Parliament by all members of the Cabinet. Ministers are, therefore, in the position of Dumas’ three musketeers: they must act ‘all for one, and one for all’, and if they fail to conform to this high ideal they must resign.” (Emphasis mine)
The above extract was quoted approvingly by Ahmad Maarop JCA (later PCA) in Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 MLJ 464.[1]
His Lordship also summarised that “Collective responsibility means that the Executive Council acts unanimously even when all its members do not agree on an issue.”[2]
3. Limited waiver might be possible
Hilaire Barnett, in Constitutional and Administrative Law (Fourth Edition) [2002], made the following observations:
“It is possible for the convention of collective responsibility to be waived when the circumstances are such that the political disagreements within 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. Two illustrations of waiver can be given. In 1931–32, the National (coalition) government contained bitterly opposing views over economic policy; in particular, over the levy of tariff duties. Four members of Cabinet handed in their resignations, and withdrew them only after the Prime Minister, Mr Ramsey MacDonald, decided to waive the convention and allow the dissident members to express their views publicly.
In 1975, the Labour government of Mr Harold Wilson was faced with an equally intransigent faction in Cabinet on the matter of the United Kingdom’s continued membership of the European Community. The government had decided to put the question to the people in a referendum, although, in advance of the referendum, the government announced that it would not be bound by the result.
Rather than face a public display of disunity in contravention of collective responsibility, Mr Wilson announced a limited waiver of the convention, in the guise of an ‘agreement to differ’ …”[3] (Emphasis mine)
It is important to note that collective responsibility is merely a constitutional convention in the United Kingdom while it is an express constitutional obligation for the Cabinet in Malaysia.[4] It remains to be seen whether a limited waiver is possible within Malaysian jurisprudence specifically.
4. Records of discussions are secret
The learned author Hilaire Barnett aptly pointed this out in relation to Cabinet discussions:
“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, will be protected from the public gaze.”[5] (Emphasis mine)
5. Only applicable to acts in discharge of official functions
The Supreme Court of India made this clear in State of Karnataka v Union of India 1977 INSC 214:
“… the principle of collective responsibility governs only those acts which a Minister performs or can reasonably be said to have performed in the lawful discharge of his official functions”[6]
6. Applicable to directors, under company law
In Sime Darby Bhd & Ors v Dato’ Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464, Lee Swee Seng JC (now FCJ) referred to the decision of the Court of Appeal of England and Wales in Re Westmind Packing Services Ltd, Secretary of State for Trade & Industry v Griffiths & Ors [1998] 2 BCLC 646 on this:
“The doctrine of collective responsibility amongst directors was spelt out in the case of Re Westmind Packing Services Ltd, Secretary of State for Trade & Industry v Griffiths & Ors [1998] 2 BCLC 646 at p 653. The words of Lord Woolf MR in that case reverberate through boardrooms and the corridors of commerce:
… the collegiate or collective responsibility of the Board of Directors is of fundamental importance to corporate governance under English company law … A proper degree of delegation and division of responsibility is of course permissible, and often necessary, but total abrogation of responsibility is not. A Board of Directors must not permit one individual to dominate them and use them, as Mr Griffiths plainly did in this case. Mr Davis commented that the appellants’ contention (in their affidavits) that Mr Griffiths was the person who must carry the whole blame was itself a depressing failure, even then, to acknowledge the nature of a director’s responsibility. There is a good deal of force in that point.”[7] (Emphasis mine)
7. Applicable to clubs and associations
In Lee Mew Kwan v Royal Lake Club [2012] 8 CLJ 105, Prasad Sandosham Abraham J (later FCJ) had the occasion to point out:
“As a member of the general committee if a decision is taken, the doctrine of collective responsibility requires complete adherence to that decision even if it is felt strongly that the decision is unconstitutional, then the proper thing to do is to resign and take the issue up as a member from the floor.”[8] (Emphasis mine)
This was also the case in Law Nam Poh v Dato Lim Teong Wah & Ors [2014] CLJU 410:
“The notes of the meeting showed that a member of the GC left the meeting immediately after the decision due to frustration as it was an unfair decision (see para L at page 19 of Bundle B). Nevertheless, the court agreed with and accepted the plaintiff’s submission that as a member of the GC, if a decision is taken, the doctrine of collective responsibility requires complete adherence to that decision even if it is felt strongly by that member that the decision is unconstitutional. Hence, the proper thing for that member to do is to resign and take the issue up as a member from the floor (see Lee Mew Kan, supra ).”[9] [Emphasis mine]
[1] Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 MLJ 464 (CA), at para 381
[2] Dato’ Dr Zambry bin Abd Kadir v Dato’ Seri Ir Hj Mohammad Nizar bin Jamaluddin (Attorney General of Malaysia, intervener) [2009] 5 MLJ 464 (CA), at para 380
[3] Barnett, Hilaire. Constitutional and Administrative Law. Fourth ed., Cavendish, 2002. p. 343
[4] See Article 43(3) of the Federal Constitution
[5] Barnett, Hilaire. Constitutional and Administrative Law. Fourth ed., Cavendish, 2002. p. 342
[6] State of Karnataka v Union of India 1977 INSC 214 (SCI), at para 176
[7] Sime Darby Bhd & Ors v Dato’ Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464 (HC), at para 92
[8] Lee Mew Kwan v Royal Lake Club [2012] 8 CLJ 105 (HC), at para 14
[9] Law Nam Poh v Dato Lim Teong Wah & Ors [2014] CLJU 410 (HC)
