Bill of Rights

The constitutional implications of a British bill of rights. - Justin Santiago

A bill of rights would be likened to a written constitution outlining the positive rights of individuals and private citizens. It details the rights people have with regards to treatment from the State and remedies/protection available. A bill of rights would be likened to a form of law superior to other laws because it originates in an authority higher than the legislature which makes ordinary law and which can only be changed by special procedures. An example of this is the Constitution of the United States which requires not only the approval of Congress but also the the co-operation of other outside bodies (three-fourths of the States need to be in agreement – i.e. 38 of the 50 States have to be in favour of the amendment).

A bill of rights would have several constitutional implications :-

In the United Kingdom, where Parliament is supreme and may create any law that it pleases (by a simple majority vote in
Parliament), the bill of rights could always be amended or repealed by legislature in exactly the same way as any other ordinary Act of Parliament. A bill of rights would go against the doctrine of parliamentary sovereignty and would bind the UK in a way that it may not want.

A bill of rights may not be as flexible as the current situation with its extensive use of conventions which can change over time for example the convention that a Prime Minister has to be chosen from the party with a majority in the House of Commons has come about with the increasing importance of electoral representation in the highest seat in government. It allows for flexibility so that laws and rights move with the times and human rights can become more protected with time. The concept of entrenchment does not exist so these laws in turn do not bind future parliaments thus allowing even more flexibility. There has been a move towards subjecting political processes and decisions to formal hard law regulation that is enforceable by the courts – judicialization – and giving some level of rigidity to positive rights.

A bill of rights would also necessitate a Supreme Court to strike down any law that is in conflict with the Constitution. This would place the doctrine of separation of powers on a firmer footing in the UK. The Executive too would not be able to impinge on the independence of the judiciary. The view propounded by Lord Woolf was that “There was a growing encroachment by the government on judicial independence, warning that judges may need a written constitution to protect themselves from further political interference. This is to ensure that the judiciary can uphold the Rule of Law, prevent government from abusing its powers and to be independent from the government.”

Judicial Review : Malaysian Parliament Attempts to Exclude Judicial Review

The Star, Tuesday February 17, 2009
MCA Youth disagrees with exclusion of judicial review in Bill

The proposed Witness Protection Bill bestows too much power to the Minister in the Prime Minister’s Department, Attorney-General or Director-General and totally excludes judicial review.

MCA Youth Legal Affairs and Parliamentary Research Bureau, headed by Wong Nai Chee, said in a statement that the bureau disagreed with Clause 23 of the Bill.

The clause reads: “There shall be no judicial review in any court or any act done or any decision made by the Minister, Attorney-General or the Director-General of this Act.”

The bureau disagrees with the wording of that clause as it “precludes the court from checking the power exercised by the Minister, Attorney-General or Director-General who will be responsible for the registration of participants as witnesses,” said Wong.

“The bureau is of the view that the power vested is very far reaching and is concerned that this power is susceptible to abuse and misimplementation if the much-needed check and balance are not inserted into the law,” he added.

The bureau also feels that it is becoming the practice of Parliamentary draftsmen to insert clauses which removes judicial review.

“The bureau therefore urges the Parlia–mentary drafters to refrain from inserting the similar position in Clause 23 in future drafting because it makes a mockery of the judicial system when the powers of the courts are removed,” said Wong.

House of Lords

The credibility of a reformed second chamber will depend on the extent of its composition and its powers. - Justin Santiago

The British Parliament consists of an upper and lower house, the House of Commons and the House of Lords. Together they form the legislature and although the Commons is more influential being a democratically elected body, the Lords plays an important part in initiating controversial bills and revising legislation and keeping a check on Government by scrutinising its activities. The Lords has a wide range of experience and is able to provide a source of independent expertise, uninfluenced by party whips. The Lords also has a judicial function although this will not be covered in depth.

The reform of the Lords came about because of a crisis of legitimacy. As the Commons is a democratically elected body, and at least in theory represents the people of the country, the Lords is not and because of this is not seen as having the right to overturn the decisions of the Commons.

The Lords has had its wings clipped first in 1911 ending their power to reject bills and again in 1949 when the power to delay non money bills was curtailed from 2 years to 1 year. This is obviously far less threatening to the government than a defeat in the House of Commons, which can kill a bill and a policy. A defeat in the Lords can be overturned with the consent of MPs as what happened with the European Parliemantary Elections Act 1999 and the Sexual Offences (Ammendment) Act 2000 which bypassed the House of Lords to receive the Royal Assent are the. Finally the Salisbury Convention if followed states that the Lords’ will not block the government from carrying legislation which would deliver a manifesto commitment, as this was what they were elected to do, and to prevent it would interfere in the democratic process, which would discredit the Lords and may lead to their disbandment. Still the effect of delay would send a message to the country that such legislation did not get their support.

The Lords it has had its composition altered to be more representative and hence more legitimate to act as a check and balance against the House of Commons and the Executive. This was the impetus for the removal of all but 92 hereditary peers through the House of Lords Act in 1999. These peers would sit in the House of Lords until they passed away and their titles would not pass to their heirs. However the solution did not in any way add legitimacy to the institution. The hereditary peers were replaced by life peers who were appointed by the Crown on the advice of Prime Minister. This has allowed the influence of the government to become even stronger in the House of Lords by ensuring that government gets its key legislation through Parliament.

There have been moves by the government to make the House of Lords fully elected or at least 80% elected with a cap on tenure at 15 years. Other suggestions by the Wakeham Commission have been to establish an independent Appointments Commission be established to appoint members. The commission would guarantee that at least 20 per cent of the members are not affiliated to one of the major parties and ensure that gender ratios are improved as well as different members to reflect different interests. It also put a limit on the term of peerage to 15 years and remuneration should be adequate to encourage attendanc. The variety of members, especially minority representatives could add to its legitimacy.

However merely by being elected does not imply legitimacy. There are several advantages to not being elected. The House of Lords prides itself on being less partisan than the Commons, and on the fact that its debates are, as it sees it, of a higher quality than the political point-scoring of the lower house. Party affiliations are far less strong. A Labour peer, for example, is far more likely to vote against his party than a Labour MP. Many members are crossbench peers, who do not have any party affiliation at all. There are no devices to curtail debates such as motion of closure, guillotine or kangaroo. There is security of tenure and members are free to talk openly. The Lords have considerable expertise in specialized areas to debate bills. The Lords also have far fewer opportunities for advancement, and cannot be ousted once they are in place. This means that, although the parties have whips in the Lords, they have far less influence, and have to cajole, rather than threaten, members into voting with the party line.
Because of the weaker party structure, the major party, and therefore the government, has far less control of the House of Lords than it does over the Commons. Labour has never had a majority in the Lords, and until 2005 was not even the largest grouping. In addition, many of the Labour Lords are considered to represent “Old Labour”, and cannot be trusted to vote with the Blair administration. In order to pass bills through the Lords, the government must rely on the support, or at least abstention, of a significant number of members from other groups. Inevitably, this means that the government suffers far more defeats in the Lords than the Commons; almost 400 divisions have gone against the cabinet since it took office in 1997, compared to only a handful in the Lower House (3 as of February 2006). Debates in the Commons, tend to be dominated by party considerations, and many things are left unsaid for fear of offending the whips or damaging chances of re-election or promotion.

It may be a better idea to retain the House of Lords that is substantially different in terms of composition and powers in order that there is a balance between being fully elected and being fully selected.

Under the reforms it is likely the Upper House minus the Law Lords would become a tool of government policy and would be under the orders of an elected dictatorship.A powerless upper house (lower case emphasized) as in Canada and Malaysia would be reduced to a rubber stamp. It would be better that it be abolished as in Singapore.

The Human Rights Act 1998

The Human Rights Act 1998 is, and is not, equivalent in law to an entrenched constitutional Bill of Rights. - Justin Santiago

The Human Rights Act 1998 (HRA 1998) attempts to provide some fundamental guarantee of individual rights and freedoms but this does not come close to a constitutional Bill of Rights due to the inherent characteristics of parliamentary sovereignty and the fact the European Convention of Human Rights (ECHR) which is incorporated by the HRA 1998 may be out of date.The European Convention on Human Rights (ECHR), was adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms.

The HRA 1998 attempts to reconcile UK law with the ECHR which has been recognised as a de facto Bill of Rights among members of the EU. However the ECHR has limited effect in the UK and the HRA 1998 falls short of an entrenched constitutional Bill of Rights.

Not all articles of the ECHR have been incorporated. Of notable exclusion are Articles 1 and 13. The significant exclusions are Articles 1 which imposes a duty on signatory states to ensure that those within their jurisdiction can enjoy the rights and freedoms guaranteed by the Convention. Its exclusion would effectively remove the protective blanket covering all the rights afforded by the ECHR. Another significant exclusion is Article 13 which guarantees citizens whose fundamental rights are violated an effective remedy before a national authority. Thus the UK Parliament is excluded - effectively protecting parliamentary sovereignty but not citizen sovereignty.

While Articles 2,3,4,7 and 14 provide absolute rights the rest are subject to legal restrictions such as are necessary in the interest of national security or public safety. Article 15 of the ECHR allows domestic legislation to derogate from Articles 5,8,9,10,11and 14 of the ECHR in in time of war or other public emergency threatening the life and security of the nation. This power to derogate can be abused at the expense of the rights of the citizen.

The UK entered into such a derogation in relation to the Terrorism Act 2000 which enhanced police powers and allowed wider stop and search powers and the power to detail suspects after arrest for up to 28 days without trial as well as the Anti-terrorism, Crime and Security Act 2001 which allows for the detention without trial of foreign citizens suspected of being involved in terrorist activity and grants the Home Secretary the power to deport or detain indefinitely any non-citizen he “reasonably believes” to be an international terrorist.

Case law however has however limited these powers of derogation. In the case of A and others v Secretary of State for the Home Department and X and another v Secretary of State for the Home Department it was decided by the House of Lords that section 23 of ACTSA 2001 was incompatible with Articles 5 which is the right to liberty and Article 14 which is freedom from discrimination because the section permitted the detention of suspected international terrorists that discriminated against them on grounds of nationality. The courts viewed that there was no sense of proportion attached to the rights of the individual as opposed to the level of threat to national security for there to be a derogation.
However Derdre M. Dwyer in her article "Rights Brought Home" argues that the effect was only political and not legal. The Act remained and could not be declared invalid. The most that could be done was to enact further legislation as happened in the case of Bellinger v Bellinger where the Gender Recognition Act 2004 and the Civil Partnership Act 2004 was legislated to cater to the declaration of incompatibility of section 11c of the Matrimonial Causes Act 1973 which went against the right to a family for single sex couples.

An example of a fundamental guarantee is Article 6 of the ECHR which has been - the right to right to be heard by an unbiased tribunal the right to have notice of charges of misconduct and the right to be heard beard in answer to these charges.
However in Fiscal v Brown it was decided that the right to a fair trial under Article 6 would not overwhelm the requirement of local traffic legislation on the basis that the rights of individuals had to give way to the wider interests of the community. In the case of Venables v Thompson v Newsgroup Newspapers that the courts would only apply the Convention in exceptional cases where it was strictly necessary. In the case of Campbell (Naomi) v Mirror Group Newspapers, the courts would look into the balancing of competing interests whether the right to privacy under Article 8 outweighed the freedom of expression under Article 10.

The dualist approach to incorporating the ECHR into UK domestic law through the HRA1998 has whittled down the effects of the ECHR. Because the ECHR is not entrenched into domestic law a provision of the Convention can be breached with impunity. The HRA 1998 is still an Act of Parliament and not an entrenched Bill of Rights and can be repealed by a future Act of Parliament.

Section 2 of the Act required future courts to take into account any previous decision of the ECtHR. The operative phrase here is ‘take into account’ which does not mean that they are bound by it. Judicial decisions will continue to be made in light of judicial decisions made by UK courts regardless of decisions outside the UK. The decision in the case of Harrow LBC v Qazi was incompatible with the decision of the ECtHR case of Connors v UK. In the case of Price v Leeds City Council, the Court of Appeal held that where there were contradictory rulings from the House of Lords and the ECtHR, UK courts were required to follow the ruling of the House of Lords.

Section 3 of the Act requires all legislation to be read, so far as possible, to give effect to the rights provided under the ECHR and Section. According to Section 4courts may make a declaration of incompatibility if it finds that a provision in a UK statute is incompatible with a convention right. Taken together the impact of Section 3 and 4 would mean that the courts were able to protect individuals sufficiently. However this has been curtailed by parliamentary sovereignty and the courts are loath to go against Parliament.

The courts have interpreted the phrase ‘so far as possible’ narrowly and will only go so far in giving effect to rights. In deciding on the legality of any derogation, courts are required not just to be convinced that there is a need for the derogation but they must also be sure that the State’s action has been proportionate to the need.

Section 6 requires that public authorities act lawfully in a way that is compatible with the ECHR. Although some bodies are clearly public authorities such as government departments, local authorities, the police and the Inland Revenue the Act does not define public authority and quasi public authorities can fall outside this gambit : Donoghue v Poplar Housing and Regeneration Community Association Ltd limiting the action one could take against a body which was clearly not a public authority.

It is not mandatory that an Act of Parliament needs to be compatible with ECHR rights. Section 19 of the HRA 1998 allows for a minister responsible for the passage of a Bill through Parliament to make a statement that the bill does not comply with ECHR rights. Alternatively by virtue of Section 10 a Minister could subsequently amend an offending legislation by a fast-track procedure which avoids the full parliamentary process.

The ECHR is over 50 years old and there are a number of anachronisms present in particular the right under Article 5(1)(e) to imprison vagrants, alcoholics and those likely to spread infectious diseases. There are also certain rights such as the right to freedom of expression which are qualified by a number of exceptions primarily tailored to the interests of state institutions. The absence of certain rights such as no specific rights for children is notable.

The UK with its unwritten constitution will continue to depend on a regime of residual rights where both citizens and government are allowed any action not expressly forbidden. Additionally parliamentary sovereignty will not allow for other legislation to supercede acts of Parliament and this includes the ECHR. Judicial precedent does not include decisions other than those of domestic courts and judges tend to interpret laws narrowly.

Judicial Review

Critically assess the constitutional role of judicial review in upholding the sovereignty of parliament and rule of law. How effective are the courts in fulfilling this role? - Justin Santiago

Judicial review is the legal process by which the courts control the exercise of power by a public body. Grounds for judicial review involve the concept of ultra vires and the rules of natural justice. As the cornerstone of administrative law, it attempts to exert independent judicial control over the Executive and to safeguard the rights of the individual dealing with the state – a monumental task indeed!

- Upholding the sovereignty of Parliament

The doctrine of parliamentary sovereignty coupled with the separation of powers severely limits judicial review. A powerful Parliament and even more powerful Executive mean that in reality the courts become subservient to Parliament when it comes to judicial review.

Judicial review does not attempt to deny or invalidate the power that has been granted under statute or prerogative but merely examines the conduct of the exercise to establish that the decision made or action taken, was done in line with this power. Because of the supreme nature of Parliament and the fact that it is democratically elected the extent to which the non-elected judiciary can control the exercise of powers by public bodies is tremendously challenged.

The role for the courts is strictly interpretative and to give effect to the will of Parliament. Thus courts are not concerned with the justice of the rules but with manner in which decisions have been taken and are they within the rules – intra vires or ultra vires. Case law has developed over time to determine what amounts to acting ultra vires or intra vires such as if a power has been used for a wrong purpose : AG v Fulham Corporation or where there is a failure to act in a reasonable manner : Associated Provincial Picture Houses Ltd v Wednesbury Corporation (Wednesbury principles of reasonableness) but nowhere does it state that a power can be declared null and void.

The Human Rights Act 1998 (HRA 1998) has to some extent addressed this situation where a court can address whether a public body has violated articles of the European Convention on Human Rights. The HRA 1998 has introduced the doctrine of proportionality which confines the limit of the exercise of power to means which are proportional to the objective to be pursued. The case of R v Chief Constable of Sussex ex parte International Trader’s Ferry Ltd interpreted proportionality as appropriate measures which was more defined than the principles annunciated in Wednesbury whether the decision in question was one which a reasonable authority could reach.

But even this particular legislation limits the right of the court to declare a particular legislation incompatible but not invalid thus upholding the doctrine of parliamentary sovereignty even though the particular legislation violates human rights ex. The Anti Crime and Terrorism Suspects Act 2001.

- Upholding the Rule of Law

The Rule of Law as defined by Dicey - that no one is punishable except for a distinct breach of the law, no one is above the law and the courts are the protectors of individuals’ rights and liberties does not hold true for judicial review. There are several criticisms leveled at judicial review which fail to apply the rule of law and fails to safeguard the rights of individuals against the state :-
1. Review is only possible where an allegation of ultra vires action is made out and there are very strict rules to determine whether the power is exercised ultra vires or not. Three factors as decided in the case of the Council of Civil Service Unions v Minister for the Civil Service or the GCHQ case would determine this :-

a. illegality – the powers are not in excess of those given
b. irrationality – whether it was so unreasonable that no reasonable authority could ever have come to it and
c. procedural impropriety – where procedural rules were not followed and where there was a failure to observe basic rules of natural justice.

However there are many forms of intra vires action that are objectionable or questionable such as delay or loss of documents that cannot be corrected by means of judicial review. Furthermore the matter may not be resolved speedily : O’Reilly v Mackman – justice delayed is justice denied.

In the GCHQ case, the House of Lords additionally identified the categories of decisions that would be immune from judicial review under the concept of non- justiciability. Amongst these are the making of treaties, the dissolution of Parliament, the appointment of ministers, declaration of war and peace and matters relating to the granting of honours and these are prerogatives which are determined by the Executive not by the courts. This undermines the Rule of Law in that the power of the courts were limited to protecting the rights and liberties of individuals in matters that were justiciable. Also it places too much power in the hands of the Executive to determine what is justiciable and what is not. The correctness of a decision becomes more a question of policy rather than legality : R v Secretary of State for the Home Department ex parte Cheblak.

2. Once a court has decided a particular decision to have been unlawful, the results may prove the whole process to have been futile. The decision may simply be ignored by the administrative body in question.

3. Judicial review only concerns those cases coming before it and a conflict must arise before there is any review. There may be many practices that are not challenged by way of judicial review because those affected are ignorant, impecunious, cannot be bothered or simply accept the actions of administrators unquestioningly.

4. Judicial review is also discretionary and there will be a lot of value judgements placed on what is reasonable and what is fair leading in uncertainty as to the remedies : Ward v Bradford Corporation.

In conclusion judicial review although it attempts to uphold the rule of law can be circumscribed by the doctrine of parliamentary sovereignty and an administration that is unconcerned with the rule of law.

Example of limitations of Judicial Review

No release for Hindraf 5, Federal Court rules
The Malaysian Insider, 12 Feb 2009

PUTRAJAYA, Feb 11 — The Federal Court today ruled to uphold the detention of five ethnic Indian leaders of the Hindu Rights Action Force under the Internal Security Act (ISA) for the next two years.

The apex court dismissed the application to review the habeas corpus suit, leaving the five leaders of the banned Indian rights movement — better known by its acronym Hindraf — stuck behind the high security walls in Kamunting, Perak, where a constitutional crisis is crippling the daily administration of the state government.

The Hindraf 5, as they have come to be known, are lawyers M. Manoharan who is also Selangor state lawmaker for Kota Alam; P. Uthayakumar, brother to self-exiled Hindraf leader P. Waytha Moorthy; V. Ganabatirau; R. Kenghadharan; and former bank officer K. Vasantha Kumar.

They were arrested under the ISA two years ago on Dec 13 for taking part in an illegal mass protest in Kuala Lumpur.

It was a unanimous decision among the three-member panel of judges.

An appeal was made to the same court last May.

The Federal Court then, like today, denied release to the Hindraf 5.

The panel then headed by Datuk Alauddin Mohd Sheriff (who is now the President of the Court of Appeal), ruled that Prime Minister Datuk Seri Abdullah Badawi had acted lawfully as the then Internal Security Minister when he ordered the detention of the Hindraf 5.

In reading out the Federal Court verdict, Justice Datuk Nik Hashim Nik Abdul Rahman, explained that the apex court’s earlier ruling was made based on a previous court decision involving Mohamad Ezam Mohd Nor, once Opposition Leader Datuk Seri Anwar Ibrahim’s right-hand man in the early days of Reformasi I.

Nik Hashim noted: “Whether the Federal Court was right or wrong is not for us to decide. If we decide to do so, it will lead to another appeal.

“Thus, we find that this case is not a fit case for review. Therefore, we dismiss the motion,” he added.

Legal Turmoil over Perak Defections

Legal turmoil over Perak defections
Wednesday, 11 February 2009 09:17

Reflecting On The Law, By SHAD SALEEM FARUQI (The Star)

What is worrying is that the fall-out of this crisis is sullying the reputation and credibility of many legal and constitutional institutions while the root cause – the despicable phenomenon of party hopping – remains unaddressed.

THERE is a constitutional impasse in Perak. The descent into naked and unprincipled struggle for power was triggered by the defection of a Barisan Nasional Assemblyman to Pakatan Rakyat and an immediate four-stroke counter-punch by the BN.

What is worrying is that the fall-out of this crisis is sullying the reputation and credibility of many legal and constitutional institutions – the Sultanate, the Election Commission, the Anti-Corruption Commission, the public prosecutor and the police. Despite this damage, the root cause – the despicable phenomenon of party hopping – remains unaddressed. Let’s examine some of these issues.

Defections: The “right” to switch parties in midstream is based on Article 10(1)(c) of the Federal Constitution which guarantees freedom of association.

However Article 10(2)(c) permits Parliament to restrict this freedom in the interest of security, public order and “morality”.

In the 80s the governments of Kelantan and Sabah passed anti-hopping laws to curb this right on the ground of morality.

However, in the Nordin Salleh (1992) case, the Federal Court declared that the anti-hopping law was unconstitutional on two grounds. First it was passed by the wrong legislature. Second – and this was most unconvincing – that the term “morality” does not cover political morality.

I believe that party hopping by an Assemblyman after his election on a party ticket amounts to a fraud on the electorate.

There are three possible ways of taming this turpitude. First, a constitutional amendment to Article 10 by a bi-partisan two-thirds majority should be attempted.

A second way could be for Parliament to enact an ordinary Anti-Defection Law and to enforce it immediately.

If and when the law is challenged on the Nordin Salleh precedent, vigorous arguments could be proffered to invite the Federal Court to overrule its prior, indefensible ruling.

One possible way of expediting the overruling of this bizarre decision is for the King to refer the issue to the Federal Court under Article 130 to seek an advisory opinion on the interpretation of the word “morality” in Article 10(2)(c).

A third way of enacting an anti-defection law would be to promulgate an Emergency Ordinance under Article 150. In the case of Stephen Kalong Ningkan (1968), the Privy Council ruled that “emergency” includes “collapse of civil government”.

Without doubt, defections bring about the collapse of civil government and an Emergency Ordinance would be legally, morally and politically justifiable.

Resignation letters: The legality of the undated resignation letters from the two Pakatan Rakyat defectors is at the heart of the constitutional imbroglio in Perak.

The Speaker of the Perak Assembly accepted the validity of the letters and issued a notice to the Election Commission. In favour of the Speaker’s view, it can be stated that in the UK it is part of the privileges of parliament to determine questions relating to casual vacancies in the House.

The decision of the House is generally regarded as final. Also, Article 35 of the Perak Constitution permits a member of the Assembly to resign “by writing under his hand addressed to the Speaker”.

The problem is that the two hoppers denied that they wrote to the Speaker. There is also a relevant judicial decision. In 1982 the validity of open-dated resignation letters was rejected by the High Court in the Sarawak case of Datuk Ong Kee Hui v Sinyium Mutit.

In the light of this decision and the denial by the two defectors, the Election Commission had some basis to make up its own mind and to declare that the seats had not fallen vacant.

Perhaps the safest thing was to seek a quick Federal Court decision on the interpretation of the Perak Constitution. The Perak Constitution in Articles 63-64 admirably provides for such a course of action. Regrettably, the parties to the dispute and the Sultan did not adopt this course of action.

Dissolution: Under the Federal and state Constitutions, the Sultan has an undoubted discretion, guided by his own wisdom and the broader interest of the state, to refuse a request for premature dissolution. We have examples from Kelantan and Sabah where such requests have been refused.

Confidence of the Assembly: Having been appraised that Pakatan Rakyat had lost the confidence of the Assembly, Tuanku Sultan was faced with many difficult choices. First, he could have prorogued the Assembly pending a court decision on the validity of the hoppers’ resignation letters and the question of vacancies.

Second, he could have asked the antagonists to face the Assembly and prove their support in accordance with usual parliamentary traditions. I am of the view that if an Assembly is in session, or can be quickly brought to session, it is its right to determine the question of confidence and no one should usurp this power nor should factors outside the Assembly be taken into consideration in determining the question of confidence.

Article 16(6) of the Perak Constitution is not crystal clear as to how it is to be determined whether the Mentri Besar has ceased to command the confidence of the majority of the members of the Assembly but there is a 1966 Sarawak judicial decision in Stephen Kalong Ningkan v Tun Abang Hj Openg Tawi Sli that the Governor cannot dismiss a Chief Minister unless he is voted out by the Assembly.

In Perak, however, Tuanku took it upon himself to shoulder the lonely burden of determining who commanded confidence of the assembly. He took pains to interview all four defectors and to hear out the Mentri Besar and Datuk Seri Najib Tun Razak more than once.

The Sultan paid heed to the EC decision that there were no vacancies. Undoubtedly he was also influenced by the Speaker’s threat that the Speaker would not allow the defectors to enter the Assembly to participate in the confidence vote.

Dismissal of Mentri Besar: The Constitution of Perak in Article 16(7) states that a member of the Executive Council other than the MB shall hold office at the Sultan’s pleasure. This implies that an MB cannot be dismissed except by a vote of no confidence in the assembly.

The problem is Article 16(6) states that if an MB loses confidence then he has two choices. First, advise dissolution and second, if that request is denied, then resign. There is a lacuna in the law. What if an MB loses the confidence of the Assembly, is denied dissolution, but refuses to step down?

Can the Sultan dismiss him? It is submitted that life is always larger than the law. There are always unchartered territories. If an MB who has lost confidence, and is refused dissolution, is shameless enough not to walk away, then the Sultan would be justified in dismissing him, Article 16(7) notwithstanding.

But in Perak this was not the case. The question of losing confidence was not constitutionally investigated. There are many triable issues and the courts must accept the gauntlet.

Treason: Opinions are being expressed that to defy the Sultan and to threaten to go to court for defence of one’s legal rights amount to treason and a ground for deprivation of citizenship. There are fundamental misunderstandings here.

From day one of Merdeka, the King and the Sultans were open to civil suit for their official actions. They were only immune personally. In 1993 even the personal immunity was taken away.

In sum it is not a violation of the Constitution to resort to the courts to seek an authoritative opinion on one’s rights and duties. Where else does one go, what else does one do, if one has a claim?

Dr Shad Faruqi is Professor of Law at UiTM.

Ministerial Responsibility

The doctrine of collective and individual responsibility are effective tools in ensuring the accountability of ministers to Parliament - Justin Santiago

Individual and collective responsibility are examples of conventions that form an important source of constitutional law. They are defined by Hilaire Barnett in Constitutional and Administrative Law as non-legal constitutional rules which imposes an obligation on those bound by the convention and are largely political in nature. They govern the exercise of discretionary powers and regulate many practices in the workings of central government. Conventions regulate the relationship between the various organs of government and supplement the legal rules. Because of its non legally binding nature it helps remove certain aspects of the working of the constitution from the jurisdiction of the courts and helps preserve the doctrine of the separation of powers but at the same time the breach of convention is uncertain and can lead to abuse by an irresponsible government.

Professor Wade has defined the convention of ministerial responsibility as the accountability and responsibility of those who govern to whom they govern. Under these broad ambits are the collective responsibility of the Cabinet to parliament and ultimately the electorate for policy and administration, the individual responsibility of ministers for the policy and administration of his or her department and the individual responsibility of ministers for their personal conduct.

Collective responsibility is evidenced by three interrelated observations :- that the government must speak with one voice, cabinet discussions are confidential and the government must resign if it loses a confidence vote.

The convention of collective responsibility emphasizes the unanimity of government and its accountability to parliament. The rationale for the convention lies in the need for the government to speak with one voice is the presentation of a unanimous front to the parliament, and ultimately the electorate in order to maintain confidence. It is by convention that once the cabinet arrives at a decision, then every member of the cabinet must support that decision regardless of any disagreement beforehand. The ministers are then held collectively to be accountable to Parliament. The Prime Minister has head of the Cabinet is questioned during the Prime Minister question time making him accountable for the collective decisions of the cabinet.

Collective responsibility ensures that the Cabinet is accountable wholly and singularly for any decisions. While this convention works effectively in keeping the pack together it may not necessarily foster free and fair debate. Collective responsibility is more often looked as a political tool to reinforce party unity. It also helps maintain the government’s control over legislation and to contain unpopular public disagreements between departments. A Minister has no choice but to resign if he or she is not able to adhere to this convention. The resignations of the late Robin Cook, former Foreign Secretary and Clare Short, Secretary of State for International Development was due to disagreements with their colleagues over the Iraq war. Collective responsibility dents the accountability of the Government to Parliament because a resignation is indicative of a disagreement for reasons which are never made known.

The confidentiality of Cabinet discussions is often used as a cloak to disguise covert decisions under the banner of unanimity of a decision. The Hutton enquiry into the death of Dr David Kelly provides an idea of how information on the presence of weapons of mass destruction in Iraq could have been sexed up by the Cabinet in order to go to war with Iraq. Although it is not known for sure whether it was or not the decision to go to war was based on secret cabinet meetings which allowed for action to be taken without consultation with Parliament. This element of collective responsibility decreases the level of accountability of the Cabinet to Parliament.

Secrecy in the Matrick Churchill and Arms to Iraq affair enabled ministers who knew about the sale of arms to Iraq signed public immunity certificates thus denying the courts evidence which enabled the defendants to go scot free and hide the bigger crime of sanctioning of a government which sanctioned the illegal sale. This over emphasis on secrecy can backfire when ministers who have resigned author tell all memoirs that can embarrass the government as what happened with the release of the Blunkett tapes by former minister, David Blunkett.

The third aspect of collective responsibility ensures that ministers are accountable to Parliament through the availability of the no confidence motion. The Government must resign if it loses a ‘confidence vote’ and the support of Parliament. This goes to the very heart of accountability and has occurred on multiple occasions. The resignation of the James Callaghan Government in 1979 after a vote of no confidence and the consequent general election is an example.

Collective responsibility has been undermined by the fact that not all important decisions of national policy are taken in full cabinet. Some decisions are taken effectively by a few ministers meeting with the PM, subject at most to confirmation by
the cabinet. For example the budget proposals are settled by the Chancellor of theExchequer in consultation with the PM and not by the full cabinet.

Individual responsibility consists of two different limbs : firstly responsibility to Parliament for the conduct of his or her department, actions carried out by the deparment in pursuit of government policies and discharge of responsibilities laid
down upon him/her as minister and secondly responsibility for personal conduct.

The rationale behind the convention of individual ministerial responsibility is to foster a sense of accountability of individual ministers to Parliament and the electorate as well for acts of his or her civil servants. This convention preserves anonymity of civil servants and shields them from attack on the floor of the House of Parliament and enables to carry out the day to day administration of executive powers and policies while maintaining their position as anonymous advisers of government ministers.

The convention advocates policy culpability during parliamentary sessions. A minister is required to answer questions, introduce and defend bills, participate in debates, supply information and justify his department’s policies. He must accept responsibility for all policy and administrative bungling that is subject to parliamentary scrutiny.

There has been a greater erosion of individual responsibility due to the increasing size and complexity of modern government departments and it is hard to foresee 100 ministers accepting responsibility for the acts of 700,000 civil servants. There is also an increasing use of executive agencies or next step agencies running key areas of the administration diluting the responsibility of the Minister heading the department.

Increasingly inter department committees are formed to make secure coordination between departments with the same problem make it difficult to pinpoint the individual minister to be accountable for any wrongdoings.

Because of the nature of conventions, a breach of individual responsibility may not result in any punitive effect. A Minister may or may not resign. Case in point was the call for Michael Howard, the Home Secretary to resign after the a number of prison breakouts in the late 1980s. He argued that the runningof the prisons was chiefly the responsibility of the Prison Service. Sometimes the erring minister may be transferred to another post. This lack of accountability often buries the incompetency and inefficiency even further.

Also individual responsibility is also likely to be defeated by collective responsibility. The government will usually rally behind a Minister who is being criticized under the convention of collective responsibility or the Minister will remain as he still has the support of the Prime Minister. Thus we see the collision of the two conventions resulting in accountability being the victim.

In the area of personal conduct ministers have to be accountable and this is made available through the courts. In M v Home Office, it was ruled that an injunction could be granted in an action against a minister personally and that applications for judicial review are not proceedings against the Crown for the purposes of the Crown Proceedings Act 1947. This jurisdiction may seldom need to be exercised, but its existence may help to ensure that government is conducted according to law. In the words lf Nolan, LJ,

"The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is".

To make the government more accountable to Parliament the following is suggested :-

The link between individual responsibility and collective responsibility should be severed. Individual and collective responsibility are governed by conventions. There is therfor a need for clarity in codifying some of these conventions to make ministers more accountable. This requires parliamentary muscle in the form of statutes rather than leaving it to practices, habits or obligations which are dependent on political correctness rather than accountability.

Reform of collective and individual ministerial responsibility :-

The Nolan Committee has suggested that the Prime Minister be given explicit powers to determine whether ministers have upheld the required standard of conduct rather than laying down hard and fast rules regarding financial conduct and sexual conduct.

The Scott Report recommended for an abandonment of the blanket refusal to answer parliamentary questions and that more emphasis be placed accountability in answering questions and giving an account to Parliament as opposed to acceptance of responsibility by Ministers.

The Public Service Committee Report also emphasized that proper and rigorous scrutiny and accountability is a more important feature of ministerial responsibility than parliament’s ability to force that minister’s resignation.

Additionally there must be clear guidelines which regulate accountability of ministers and what are the penalties for not acting responsibly. A set of codes similar to the Civil Servant Code of Practice could do formulated to cover ministerial responsibility.

The Freedom of Information Act 2000 which confers on citizens a general right of access to data is a step in the right direction and makes it appear there is more transparency and openness in government.

Conventions

Conventions are an inadequate means of constitutional regulation - Justin Santiago

Conventions are non-legal rules that supplement the legal rules and have come about by practice and acquiescence over a long period of time and are generally followed by those to whom they apply. They can be classified into those relating to the exercise of the royal prerogative, operation of the cabinet system, proceedings in Parliament and the relations between the UK and other members of the Commonwealth.
Examples of conventions are that the Sovereign must assent to any bill passed by the two Houses of Parliament, that the House of Lords should not obstruct the policy of an elected government with a majority in the House of Commons and that Ministers must resign office when they cease to command the confidence of the House of Commons.

Conventions allows for political expediency but this comes at the expense of legal certainty and constitutency regulation.

Conventions are framed in very general terms are imprecise and therefor difficult to enforce.For example the convention that the House of Lords should not obstruct the policy of an elected government with a majority in the House of Commons. Because of the inherent difficulty in this very broad and general wording and does not provide solutions to exceptional circumstances. By convention the House of Lords gives assent to bills originating from the House of Commons signifying the will of the elected majority and the important role that the Legislature plays in working of the constitution. No where is this convention codified and it is simply followed by the Sovereign. Theoretically the House of Lords can refuse Royal Assent but it has never happened. However on two occasions where there was a danger of hit happening Parliament Acts of 1911 and 1949 were enacted which allowed for a bill to become law even with the assent of the House of Lords and only provided for powers to delay the passing of bills. Since 1949 four acts that have been passed without the assent of the House of Lords : The War Crimes Act 1991, The European Parliamentary Elections Act 1999, The Sexual Offences (Ammendment) Act 200 and The Hunting Act 2004. This shows that conventions can be given statutory force if necessary.

Because of the non legal nature of conventions, there is uncertainty as to the outcome if a convention (and therefore unenforceable by the courts)were not followed. While the consequences of breaking a law are clear, the consequences of breaking a convention are unknown. There are two schools of thought with regard to possible consequences of a breach of a convention. Jennings was of the view that non performance of a convention would result in political chaos whereas Dicey was of the view that it would result in illegality. Either way there is no remedy for a breach of convention unlike a breach of law where an aggrieved party may seek redress. Courts will recognize a convention but will not interfere if there is a breach. In AG v Jonathan Cape the convention of collective responsibility with regard to cabinet secrecy was recognised by the courts but the courts could not enforce them.

Some critics also argue that the establishment and existence of conventions are largely uncertain and come into being at an undefined point in time. Conventions also change over time, with some falling into disuse and others emerging and others simply evolving to meet the accepted practices of the day without the need for formal enactment and enforcement leading to uncertainty. Up until 1902, a Prime Minister could come from the House of Lords. Since then they have always come from the Commons – the head of the party with the majority in the House of Commons. Sources of law on the other hand are identifiable and will generally have a settled meaning and can be found in some legal source such as an Act of Parliament or judicial precedent. Because of its flexibility and ease in which it can be changed or dropped, conventions can be practiced when it suits those who want to enforce or refuses to enforce it and can lead to the abuse of discretionary powers as well as make the government of the day less accountable.

Conventions gives the Executive and the Legislature a free hand in dictating which conventions are a must, which are an option and which need to be abandoned. It is quite possible that a convention is ignored. For example the convention of individual ministerial responsibility is no longer followed strictly due to the growth in size and complexity of ministerial departments and the decisions of ministers have reflected a less wholehearted acceptance of responsibility on behalf of members of their department. Case in point was the call for Michael Howard, the Home Secretary to resign after a number of prison breakouts in the late 1980s. He argued that the running of the prisons was chiefly the responsibility of the Prison Service and therefor sidestepped the convention which made a minister accountable for the actions of his department.

These characteristics undermine conventions the Rule of Law which requires that no one is above the law and no one can be punished except for a distinct breach of the law. It is possible that conventions may not be an effective regulator of the constitution if there is a tyrannical government in power which wants to run roughshod using non legally binding practices.

However it must be remembered that the nature of UK's unwritten constitution has made it necessary for conventions to play a greater role. The arguments against codification is the fear that it may lose its special characteristics and make it difficult to implement in light of the unwritten nature of the UK constitution. It would seem logical for the UK Parliament to codify conventions but then the courts will not be able to question the validity of such conventions. Additionally the courts would not be able to entrench future parliaments which could then enact legislation to repeal these conventions. The codification of conventions does not practically fit into the UK constitutionary framework.

Also we need to realise that over regulation of the constitution may lead to political gridlock. Conventions are flexible and adept at meeting changing circumstances and allow discretion to be exercised. Conventions regulate the relationship between the various organs of government and supplement the legal rules. Conventions are non legally binding and helps remove certain aspects of the working of the constitution from the jurisdiction of the courts and helps preserve the doctrine of the separation of powers examples of the conventions governing ministerial responsibility such as collective responsibility and individual responsibility allow for the smooth running of the government without the interference of the judiciary. Collective responsibility is evidenced by three interrelated observations one of which is secrecy of cabinet discussions which ensures there is no risk of any dissent which may have occurred being made known and possibly undermining the solidarity of the decision. While this convention works effectively in keeping the pack together it may not necessarily foster free and fair debate. Collective responsibility is more often looked as a political tool to reinforce party unity and to keep secrets away from the back bench MPs. It also helps maintain the government’s control over legislation and to contain unpopular public disagreements between departments.

Prime Minister

Too much power vests in the office of the Prime Minister - Justin Santiago


The office of the Prime Minister is a creation of convention. The leader of the party with the majority in the House of Commons is invited by the Crown to head the government and this person is known as the Prime Minister. The Prime Minister then forms the government which includes the Cabinet and consists of the Home Secretary, the Foreign Secretary, Chancellor of the Exchequer, Lord Chancellor and other senior ministers. These positions as well as the Ministerial positions for the other departments are appointed by the Prime Minister on the advice of the Crown and will form the core of the Executive which also includes members of the Civil Service.

The office of the Prime Minister is founded on the Westminster model which is characterized by a a ceremonial figurehead who is the theoretical, nominal or de jure source of executive power within the system. In practice, such a figure doesn't normally exercise executive powers, even though executive authority may be exercised in his/her name. Executive authority within a Westminster System is essentially exercised by a Prime Minister, a Cabinet and other junior ministers.

Though the head of state, be it governor-general, monarch, or president, will have nominal powers to "check" those of the prime minister, in practice these individuals are usually regarded as little more than figureheads who are not expected to actively intervene in day-to-day politics, often because they lack a popular democratic mandate to do so. Without an active check on the executive power of the prime minister, it is argued, the PM can in effect rule largely unquestioned. He or she appoints members of the cabinet and determines when "consensus" is reached in cabinet, cabinet members do not have much independence to actively disagree with government policy, even for productive reasons leading one to conclude that the government has moved from a parliamentary government to a cabinet government to a prime ministerial government.

The Westminster prime minister additionally is able to appoint a large variety of individuals, such as judges, members of the civil service, the armed forces and the bishops as long been a matter of political contention as the influence of the Prime Minister appears to be overreaching. These public appointments and conferring of honours could lead to quangocracy or political patronage and can potentially blur the lines of separation of powers.

In order to ensure the government always has the confidence of the majority of the house, the political culture of Westminster nations often makes it highly unusual for a legislator to vote against their party. Critics argue this in turn undermines the freedom and importance of MPs in day-to-day legislating, making cabinet the only organ of government where individual legislators can aspire to influence the decisions of the government. Which in turn breeds an obsession with "getting into" cabinet. Likewise, strong party discipline obviously ensures that no-confidence votes are very rare, though this also eliminates the usefulness of such votes as an active way of holding an incumbent government accountable.

Legislative committees in Westminster systems which are the standing committees tend to be weak, as most senior policy will be made at the cabinet level, regardless of what individual MPs may or may not decide in committee. The Prime Minister may not allow room for debates and consultations from these committees and may fill these committees with his or her strongest supporters.

Even with such mechanisms in place, the Prime Minister may decide matters outside the formal Cabinet and standing committees either in ad hoc committees or in informal groups. These ad hoc committees of leading ministers are formed by the Prime Minister from time to time with a view of achieving a stronger strategic control in formulating major policies. These committees are formed for the purpose of expediting governemtn business on the assumption that certain decisions are taken more effectively by a small group of people rather than the full cabinet. Their existence and membership are not formally constituted. The informal groups simply consists of individuals whose opinion the Prime Minister values and who may not even be members of the cabinet.

The majority of bills considered will be introduced by the government of the day and once a bill passes through a second reading will be sent to the standing committees which may be doing nothing more than participating in a ritual dance punctuated by catcalls. The minister in charge of the Bill will has have the task of successfully steering the bill through the committee and for the most part deliberations are sometimes a formality.
Legislation that is passed in such a system with a strong reliance on the Salisbury Convention may result in improperly scrutinized bills and which will undoubtedly bear the mark of the Prime Minister.

Several bills which have passed through Parliament may simply be an extension of the Prime Minister’s agenda such as the Anti-Terrorism Crime and Security Act (ATCSA) of 2001 which grants the Home Secretary the power to deport or detain indefinitely any non-citizen he “reasonably believes” to be an international terrorist and The Terrorism Act 2006 creates a number of new offences and include acts preparatory to terrorism and dissemination of terrorist publications which effectively suppress political freedom and the freedom of speech which follows closely on the heels of the Terrorism Act 2000 which enhanced police powers and allowed wider stop and search powers and the power to detail suspects after arrest for up to 28 days without trial.

There is very little in terms of control over an overzealous Prime Minister. Firstly the Queen has the power to intervene in extreme cases. Secondly a motion of no confidence can be passed which can force the Prime Minister out of office. Thirdly members of the party to which the PM belongs may oust him or her as their leader which would also force the Prime Minister out of office. And lastly the Prime Minister may be removed by the electoral vote i.e. if he fails to retain his parliamentary seat.