THE proposed empowerment of the caretaker government through amendments to the Elections Act, 2017, shared with parliamentarians during a joint sitting, weeks before the incumbent assembly completes its constitutional tenure, has raised questions about the conduct of elections within the constitutionally-stipulated time period.

This empowerment, although having a governance merit, does not augur well in a country where democracy continues to tiptoe a path strewn with uncertainties and shadowed by distrust of political actors in the willingness of the state to fully submit to the will of the people, as enunciated in the Constitution.

The proposal has also overshadowed the much-needed improvements in the election law that will strengthen the accountability of election officials and make the result management process more transparent.

According to the draft bill, the caretaker government will be empowered to make important decisions for the purposes of protecting Pakistan’s economic interests and implementing bilateral and multilateral agreements with institutions and foreign governments — including the continuation and conclusion of projects initiated under the Public-Private Partnership Authority Act, 2017, Inter-Governmental Governmental Transactions Act, 2022 and the Privatisation Commission Ordinance, 2000.

Many commentators consider this an effort to enable a caretaker government, whether comprised of politicians or technocrats, to go beyond the legally mandated two to three months and make long-term structural decisions to clean up the economic morass that had brought the country to the brink of default.

From a macro governance perspective, such measures make sense, as leaving the economy gasping for breath under the compulsion of implementing a nine-month International Monetary Fund (IMF) standby arrangement, in the hands of a caretaker government with no powers, has its own risks.

In this backdrop, the last-minute amendment proposed to the Elections Act 2017 appears to have economic objectives in the forefront. But the political consequences of this amendment and the delay in elections to the Punjab and KP Assemblies beyond 90 days have reinforced the view that efforts are afoot to put together a caretaker dispensation with an aim greater than simply holding the next general elections.

Recent comments by Raja Riaz, the leader of the opposition in the National Assembly, playing down the need for immediate elections, only reinforce such views. The amendment, if passed by parliament, will compromise the spirit of the law that was finalised after more than three years of consultations among all political parties between 2013 and 2017, which included an entire chapter on the functioning and ambit of power of caretaker governments.

The law had adequately restricted the caretaker governments from making any decisions having a consequence beyond their tenure, practically restricting them to day-to day functions. The law enacted in October 2017 also completed the process of legally formalising the neutrality and formation of the caretaker governments, that was initiated in 2013 when the PPP-led government enacted the Twentieth Constitutional Amendment Act.

The act spelled out a consultative process for the appointment of caretaker prime minister and chief minister. The caretaker governments thus formed were to have been appointed following a constitutional process involving consultation between the leaders of the house and the opposition in the outgoing assemblies, rather than being left to the discretion of presidents and governors, as was the case between 1990 and 2008 when the caretaker government suffered allegations on their neutrality and many made far-reaching political and economic decisions.

However, the constitutional amendment did not limit the powers of the caretaker government, which was achieved by the induction of Chapter XIV in the Elections Act, 2017.

The legislation, in fact, shaped a proverbial caretaker government, which by definition is a temporary and purely an ad hoc arrangement that is put in place to run the affairs of the government until a regular government is established after elections or any other process that is constitutionally provisioned.

Typically, caretaker governments are barred from legislating since they do not have a legitimate mandate; a notion that is now in question as caretakers in Pakistan are appointed through a constitutional process that involves the active consultation of elected representatives of outgoing assemblies, and therefore can be said to enjoy a constitutional mandate.

Notwithstanding the legal debates around effective and ineffective caretaker governments, the elections law has practically reduced the responsibility of the caretaker governments in the Centre and provinces to assisting the Election Commission of Pakistan (ECP) in the conduct of elections in a non-partisan manner and restricting themselves to activities that are of routine, non-controversial and urgent nature, in the public interest and reversible by the future government elected thereafter.

The current law also bars the caretaker governments from taking major policy decisions, except on urgent matters, as well as any decision or policy-making that may have effect or pre-empt the exercise of authority by the future elected government.

They were not only restricted from entering into major contracts or undertaking if it is detrimental to public interest, but also entering into major international negotiations with any foreign country or international agency or sign or ratify any international binding instrument, except in an exceptional case.

So much so, the law also limits the ability of the caretaker governments to make promotions or major appointments of public officials and even their transfers unless, it is considered expedient and approved by the ECP.

Despite these adequate constitutional and legal mechanisms, caretaker governments have faced allegations of partisanship after both the 2013 and 2018 elections, practically nullifying a legitimate political effort to ensure neutrality of state and the government during elections.

Some view that these measures practically left the governance during the interim period to bureaucracy, giving a greater leeway for shaping an electoral outcome.

This leeway can be curtailed through enactment of more effective caretakers and including penal consequences for bureaucrats found erring on their responsibility to remain non-partisan. However, an open debate on electoral reforms – including the amendments pertaining to strengthening the powers of the caretaker governments – is a prerequisite for greater public trust and to allay fears of inordinate delays in the conduct of general elections.

The writer is an expert on election-related issues and has been associated with the Free and Fair Election Network (Fafen)

Published in Dawn, July 26th, 2023

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