PAKISTAN is in search of caretaker cabinets both at the centre and in the four provinces. It is a unique model which probably exists only in Pakistan; under this, non-elected governments are inducted after the national and provincial assemblies are dissolved for fresh elections. The principal justification for such a caretaker setup is apparently to ensure the neutrality and impartiality of the administration during elections.
Many years ago, in 1996 to be precise, Bangladesh experimented with the idea and appointed unelected caretaker cabinets with retired chief justices of the supreme court acting as head of the government during elections but later found the practice counterproductive and abandoned it in 2011.
The original 1973 Constitution of Pakistan did not envisage a non-elected caretaker setup and the government led by Zulfikar Ali Bhutto continued in office while holding general elections in 1977. Perhaps the widespread allegations of large-scale rigging in that election under an elected government triggered the idea to introduce caretaker governments. However, most caretaker cabinets appointed for general elections, including the one appointed in 1990 under Ghulam Mustafa Jatoi, the leader of the opposition in the outgoing assembly, hardly qualified as neutral or non-partisan.
Why can’t we allow the elected government to continue during the poll period in caretaker mode?
The 18th and 20th constitutional amendments passed during the tenure of the PPP-led government introduced some significant reforms to the system of caretaker governments. The appointment of caretaker prime minister and chief ministers was made a three-step cascading procedure. Instead of the president appointing a caretaker prime minister at his discretion, the consensus of the outgoing prime minister and leader of the house was made essential for the appointment. Similar consensus is required for the provincial caretaker chief ministers.
If a consensus is not reached between the two leaders, a parliamentary committee consisting of an equal number of ruling and opposition parties’ members has to pick a caretaker head of government within three days out of a list of two nominees each forwarded by the leader of the house and leader of the opposition. If even the parliamentary committee fails to reach an agreement, the four names are forwarded to the Election Commission of Pakistan (ECP) which must finally pick one person as caretaker head of government.
A similar arrangement is provided for provincial caretaker cabinets, the only substantial difference being that the parliamentary committee dealing with the selection of the caretaker chief minister consists of six members instead of eight as in the case of the caretaker prime minister. Last time, before the 2013 election, it was the ECP which had to pick a caretaker prime minister after parliamentary leaders and the parliamentary committee failed to reach an agreement. The good thing about the system is that there is very little chance of a stalemate since there is a clearly defined time limit after which the decision-making process has to move forward to the next stage.
Despite the 18th and 20th constitutional amendments addressing the subject of caretaker governments, there has been a considerable degree of uncertainty and vagueness about the functions and powers of caretaker setups. The Supreme Court had to fill that vacuum through its judgement before the 2013 election. Lately, the Elections Act 2017 passed by parliament last October has provided much-needed clarity on the subject. Section 230 of the act very clearly delineates the parameters within which the caretaker governments have to operate.
Primarily, a caretaker government has to attend to day-to-day matters which are necessary to run the affairs of the government and to assist the ECP in holding elections in accordance with the law. The latter stipulates that the caretaker government shall not make major policy decisions, or any decision that may preempt the exercise of authority by the future elected government. The caretaker government has also been barred from entering into major contracts, international agreements and promoting or appointing public officials except for short-term appointments.
Most significantly, the caretaker government cannot even transfer public officials unless it is considered expedient and after approval of the ECP. These provisions have significantly constrained the functions of the caretaker government and clearly laid down the dos and don’ts. Since the ECP has to approve even the transfer of public officials, it is safe to assume that the commission will be the de facto super government.
Now that the functions and powers of the caretaker government have been defined in very specific terms and it has become very clear that there is not much for the caretakers to do, it is only natural to ask whether we really need a non-elected caretaker government during the election period. Why can’t we allow the elected government to continue during the election period in caretaker mode like the rest of the world and create safeguards so that caretakers do not in any way act in a partisan manner to influence the election? We can further empower the ECP, if needed, to make sure that the caretaker government does not step out of its defined sphere of activity.
These additional powers of oversight and accountability for an election commission are considered essential during the poll period in most countries because the normal mechanism of accountability available in the form of a functional legislature is absent after parliament is dissolved for the next election. This is how the Indian government operates during the poll period under a strict code of conduct overseen by the Election Commission of India. Bangladesh, as mentioned earlier, has also returned to this normal mode. Some countries like Australia, New Zealand and Canada have devised their caretaker conventions which is another name for the code of conduct.
After the ECP successfully holds the 2018 general election and enhances its credibility, the new National Assembly, together with the Senate, should seriously consider whether we really need to go through the motions to look for and appoint a non-elected caretaker government for two to three months.
The writer is the president of Pildat.
Published in Dawn, May 28th, 2018