King’s case: A land­mark judg­ment

Lesotho Times - - Health -

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.

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