Clarifying the doctrine of Ministerial responsibility as it applies to the government and Parliament of Bangladesh. Explain and Illustrate.


 

 The doctrine of ministerial responsibility is inextricably linked with the doctrine of rule of law[1]; that government must be under or subject to the law. Thus the doctrine of ministerial responsibility is central to the constitution, and plays a fundamental role in the relation between the executive and parliament. For the doctrine of ministerial responsibility under the law to be observed, it is essential that government be accountable to both Parliament and the Electorate[2] (people who voted), and that government be conducted in a manner sufficiently open, subject to the requirements of the national interest, to inspire public confidence. Ministerial responsibility in other words can be stated that ministers are responsible for the general conduct of government, including the exercise of many powers legally vested; and ultimately, through Parliament and parties, to the electorate. The doctrine thus has two limbs- individual and collective responsibility.

 Collective Responsibility; the doctrine emphasizes the unanimity of government and its accountability to parliament. The classic expression of collective responsibility can be stated as “for all that passes in Cabinet every member of it who does not resign is absolutely irretrievably responsible and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues. It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who, after a decision is arrived at, remains a member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the essential principles of Parliamentary responsibility established”

The rational of this doctrine lies in the need for government to present a united front to parliament and the public in order to maintain confidence. A government which exhibits public disagreements over policy matters is one which will be regarded as weak, and will be subjected to challenges to its authority to continue in office.

Two principle sub-rules underlie collective responsibility. The first rule is that, once an agreement is reached in Cabinet, all members of cabinet – and many outside cabinet – are bound to speak in support of the decision. There should be no criticism or dissent from the decision in public – irrespective of whether or not the particular member of cabinet was party to the discussion. Equally, if a decision is reached by the prime minister in cabinet committee or the Inner Cabinet when only a small handful of members are present, the decision binds all. 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 public gaze. In other words collective responsibility requires that ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees should be maintained. However, it is possible that the doctrine of collective ministerial responsibility be waived[3] when the circumstances are such that the political disagreements within the Cabinet are of such magnitude that the Prime Minister finds it more expedient to set aside the doctrine than to have it broken by members of Cabinet.

Cabinet Papers[4]; the confidentiality of Cabinet discussion is protected by the prohibition against disclosure by members of Cabinet. In addition, the rules regarding the confidentiality of Cabinet papers include the rule that the government of the day may not release papers of a previous government without the consent of the former Prime Minister. Furthermore, the papers of the previous government may not be disclosed to a government of a different political persuasion. It may at first sight appear curious that an incoming government cannot gain access to the papers of the previous government, and it may be wondered how the government is supposed to act effectively in any policy area if denied to so much data. Nevertheless, the rule is justified on the basis that an outgoing government might be tempted to remove politically sensitive documentation if it feared that a new government would make political capital out of it. Three categories of papers are excluded from the doctrine of Collective Ministerial Responsibility:

a)      Papers which, even if not publicly available can be deemed to be in the public domain, for example, letters sent by former ministers to trade associations, trade unions, etc, or to Members of Parliament about constituency cases, or to members of the public;

b)      Papers, other than genuinely personal messages, dealing with matters which are known to foreign governments, for example, messages about intergovernmental negotiations;

c)      Written opinions of the Law Officers which are essentially legal rather than political documents.

Ministerial Memoirs[5]: publication of a former minister’s memoirs of his political life poses problems for the rules relating to Cabinet secrecy. Thus the author should be free to use his ministerial experience of the purpose of giving an account of his own work, subject to restrictions on three separate categories of information:

a)      He must not reveal anything that contravenes the requirements of national security operative at the time of his proposed publication;

b)      He must not make disclosures injurious to this country’s relations with other nations;

c)      He must refrain from publishing information destructive of the confidential relationships on which our system of government is based.

The final restriction relates to opinions or attitudes of Cabinet colleagues, advice given to him by colleagues and criticism of those working for him in office.

The ministerial code[6] prohibits the writing and publication of memoirs by a Minister still in office. In relation to former Ministers the Code requires that the draft manuscript is submitted to the Cabinet Secretary before publication.

Individual Ministerial Responsibility; provides that the minister in charge of a Department is solely accountable to Parliament for the exercise of the powers on which the administration of the Department depends. The classic doctrine of this limb of ministerial responsibility states that a minister is responsible for every action of his department. Thus the responsibility of ministers mean, where used in its strict sense, the legal responsibility of every minister for every act in which he takes part. The Ministerial Code thus provides that,

a)      Ministers must uphold the principle of collective responsibility;

b)      Ministers have a duty to Parliament to account, and be held to account, for the policies, decisions and actions of their departments and agencies;

c)      Ministers must give ‘accurate and truthful information to Parliament’. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister;

d)      Ministers must be as ‘open as possible with Parliament and the public’, refusing to provide information only when disclosure would not be in the public interest.

e)      Ministers must ensure that no conflict arises, or appears to arise, between their public duties and their private interests.

The Code also states that ministers are personally responsible for deciding how to act and conduct themselves in the light of the Code and for justifying their actions and conduct to Parliament and the public. However, Ministers only remain in office for as long as they retain confidence of the Prime Minister[7]. Prime Minister is the ultimate judge of the standards of behavior expected of a Minister and the appropriate consequence of a breach of those standards.

It is the minister who represents the public face of the department and who speaks for the department in parliament. The doctrine is underpinned by Parliamentary Question Time[8] and in debates in parliament and in committees. During the passage of legislation relating to a particular department’s responsibilities, it is the minister who will introduce the Bill[9] and who will defend the Bill throughout its passage. The minister stands as the link between the Civil Service and Parliament, assuming full responsibility for the department. The ideal characteristics of the Civil Service are permanence, political neutrality and anonymity and the civil servant owes his or her duty to the government of the day and is directly accountable to his or her Secretary of State. The principle of ministerial responsibility to parliament not only underpins the doctrine of democratic responsibility of ministers to the people through parliament, but also facilitates the distinction between the responsibility of elected representatives and the civil servants who are responsible for the practical implementation of policy. In practical terms nowadays, several factors diminish the extent to which a minister can assume responsibility for every action of the department. The sizes of departments, the usually short ministerial tenure of office in any one department and the complexity of modern government have long made pure doctrine unworkable. However, it must be noted that there are neither formal qualifications for office nor formal means by which the suitability of Ministers for office is scrutinized in advance. According to Sir Ivor Jennings of British Court of law; ‘The most elementary qualification demanded of a minister is honesty and incorruptibility. It is, however, necessary not only that he should possess this qualification but also that he should appear to possess it’.

The same sentiment has later been expressed, “a politician must be trustworthy, and if he is found out telling a lie or if he is discovered in even a small financial dishonesty, he can only blow himself out of public life”

Thus if a minister of the Member of Parliament conducts his personal or financial affairs in such a manner that falls below an ‘acceptable standard[10]’, the minister may be required to resign. According to Finer, such conduct maybe described as being;

‘A personal misadventure of the minister which raises such doubt about his personal prudence or integrity as to cause him to resign’

In the United States of America, appointment to Cabinet Office is undertaken only after the ‘advice and consent’ of the Senate has been obtained. By this means, it is intended to test the suitability of candidates prior to appointment and to avoid the inevitable embarrassment which occurs when resignation is forced through disclosure of some financial, sexual or other impropriety. While responsibility for the implementation and execution of policy of course entails ‘personal conduct’, one aspect of ministerial responsibility which has also given rise to particular concern is the conduct of ministers in relation to private lives. The personal relationships of ministers are also matters which fall under intense public scrutiny. The personal financial probity of ministers, their Parliamentary Private Secretaries and other Members of Parliament is also regarded with seriousness. Under the law and custom of Parliament, Members must declare their financial interests and make public declarations in debate or committee proceedings of any interests that they hold which may affect their impartiality. The holding of directorships, ownership of shares, consultancy positions and receipt of gifts all raise issues concerning integrity and fitness for office.

 Ministerial Responsibility has been defined in Article 55[6] of Bangladesh Constitution of 1972 and sub-section 3 of the article states that ‘Cabinet shall be responsible to Parliament’ thus referring that the Prime Minister, Ministers in the Cabinet are responsible for their departments and ministries’ actions and if any obligation is breached the minister concerned should offer resignation or be dropped from the Cabinet. In recent times the Parliamentary Committee of the Shipping Ministry of the Jatiya Sangsad[11] was reported to have criticized the Shipping Ministry for its failure to take necessary action to prevent launch accidents. Furthermore, The Committee also noted him prevailing poor situation of the Mongla Port because of corruption, irregularities and low business. The Committee’s report appears to have shared disapproval of the Ministry’s performance that in turn eventually passes on to ministerial responsibility.

 Sources;

1)      http://tutor2u.net/blog/index.php/politics/comments/ministerial-responsibility/

2)      http://en.wikipedia.org/

3)      www.banglarights.net/

4)      Mahmudul Islam, Constitutional Law of Bangladesh

align=”left” size=”1″ />

[1] Everyone, including the Monarch if the state is Monarchical to be subjected under law

[2] The citizen with the voting rights

[3] Set-aside

[4] Recordings of Cabinet discussions

[5] Personal Ministerial Records; diaries etc

[6] The doctrine of Ministerial Responsibility

[7] As it is the Prime Minister who selects them

[8] The time allotted in Parliament for they Members of Parliament to scrutinize the ministers regarding policy issues

[9] Initial Stages of an Act of Parliament

[10] Objective Standard, from the viewpoint of a reasonable man

[11] Parliament of Bangladesh