King’s case: A landmark judgment
instances in the Constitution, in which only two officials other than bodies, can advice the King on appointments and certain policy considerations without the advice of the Cabinet. These two officials are the prime minister and the chief justice. In this regard, the court cited with approval the writing by Sir Ivor Jennings that:
In the Cabinet and, still more, out of it, the most important person is the Prime Minister. It is he who is primarily concerned with the formation of a Cabinet, with the subjects the Cabinet discusses, with the relation between the Queen and the Cabinet and between the Cabinet and Parliament, and with the coordination of the machinery of government subject to the control of the Cabinet”.
It was argued however, for the AG that the collective cabinet responsibility has as its corollary as embodied in section 88, that there is a constitutional obligation on the Prime Minister to place any matter before cabinet in respect of which its members will thereafter bear collectively responsibility. However, the court ruled that as for instance, with the budget, such an across-theboard proposition, would be impossible and bring the process of government grinding to a halt.
The court went on further to observe that this convention does not require that any particular matter of public policy, or any decision by the Prime Minister, should be debated in Cabinet.
The proposition is simple: ministers are bound by such decisions and can only escape by resigning their ministerial office although this does not entitle them to breach their confidentiality. So long as they vote with the government on the issue, they should defend it if required to do so and cannot afterwards claim that they did not support it.
“Collective responsibility, means all Minister, “as the Gujerat High Court said of it”, share collective responsibility even for decisions in which they have taken no part whatsoever, in which they might have dissented at the meeting of the Council of Ministers.
Collective responsibility means the members of Council of Ministers express an opinion. It means unanimity and confidentiality. “This includes the Prime Minister as leader of the government of the day, constitutionally empowered like other bodies and persons, to give advice to the King without referral to Cabinet, should be treated differently and the language does not support such a different approach.
The Court further after citing many author- ities, to say, that it is not correct to say that the Constitution requires the Prime Minister, before advising the King on the appointment of a new President , to refer the subject of that advice to cabinet.
The Court, instructively, ruled that the AG by sitting in Cabinet meetings is not a member of the Cabinet. He is only there to give advice when so asked.
The Court, therefore, also specified instances wherein the prime minister, in keeping with the doctrine of collective cabinet responsibility, ought to refer certain matters to cabinet such as those that have policy implications, of major public importance, though, in my view this is a grey area, matters affecting more than one department, matters that have significant domestic or international significance and those that have an impact on all members of the Cabinet.
In regard to locus standi, of the AG, that is the right to bring an action or challenge some decision, the Court held that as this would not make it is undesirable for it to go into it further and make a final determination of that question.
The court ruled that this question is aca- demic and in this regard, it raised a number of scenarios in which the AG could or could not lodge a case.
The Court raised a number of scenarios for discussion in this regard and said, without deciding: “All of this merely illustrates why the question of the proper construction of section 98(2) (c) is a matter of some difficulty and a decision on it cannot affect the outcome of the appeal.
It is a topic that may have to be debated in this Court on another occasion and nothing we say here should be taken to affect that debate. I accordingly express no view on it, not even a tentative one”.
In conclusion, the above notwithstanding, the judgment raised a lot of constitutional issues that define the extent and parameters of the powers of the Prime Minister within the doctrine of collective cabinet responsibility.
It also gave answers to the question of confidentiality, dissent and powers of the prime minister vis-à-vis the King and his Cabinet within the Westminster-type model of government. A really instructive case indeed.