The problematic precedence of caretaker governments in Pakistan

Full-fledged caretaker governments are not required by the Constitution anywhere else in the world; the concept was added to the 1973 Constitution in Pakistan by Gen Ziaul Haq in 1985.
Published August 8, 2023

“It’s not the people who vote that count, it’s the people who count the votes.” — Joseph Stalin

As the current National Assembly term nears its end, the caretaker prime minister’s appointment has generated much discussion and controversy. The PML-N’s suggestion of appointing current finance minister Ishaq Dar — a confidant of party supremo Nawaz Sharif — has raised important questions regarding the qualifications of a caretaker prime minister. Earlier this year, similar concerns were raised at Mohsin Naqvi’s appointment as chief minister Punjab.

Before we dive into the constitutional requirements and historical evolution of caretaker governments, let us try and understand what they really are.

A caretaker government is a temporary administration that is formed to ensure a smooth transition of power from one elected government to another. The main purpose of a caretaker government is to oversee the conduct of free and fair elections, maintain law and order, and provide continuity of governance during this period. The term of a caretaker government is limited to 60-90 days, depending on whether the term of the legislature expires or is prematurely dissolved.

The concept and practice of caretaker governments in Pakistan has evolved over time through constitutional amendments, judicial interpretations, political negotiations, and historical experiences. This article examines caretaker governments in Pakistan from a historical, political, constitutional, and comparative lens, and evaluate how they have affected the quality and outcome of elections, as well as the stability and legitimacy of democratic governance in Pakistan.

Constitutional grafting: Gen Zia’s introduction of caretaker governments

Caretaker governments were neither mentioned in the 1973 Constitution, nor its predecessors — the 1956 and 1962 Constitutions. The concept of caretaker governments was added to the 1973 Constitution by Gen Ziaul Haq in 1985, just before the newly elected assemblies elected under the non-party based elections met, through a presidential order, known as the Revival of Constitution of 1973 Order, 1985 (RCO). RCO made fundamental alterations to the Constitution, among which was the introduction of caretaker governments.

Originally, the 1973 Constitution stated that after the dissolution or completion of the NA or provincial assembly term, the executive heads of the government, including the prime minister and the cabinet, would continue to hold office until the election of a new government.

Prior to the RCO, the 1973 Constitution stated that upon dissolution of the national or provincial assembly, either on term completion, or through dissolution on the advice of the prime/chief minister, under Article 94 the president, and under Article 133 the governor, had the authority to request the prime/chief minister to remain in office until a successor was elected.

The amendments under the RCO state that if the president/governor dissolves the national/provincial assembly, a caretaker cabinet is to be appointed by the president/governor until a new prime/chief minister is elected following general elections.

The rationale given was that incumbent governments have a self-interest in influencing the election and may not provide a level playing field. The memory of the 1977 election rigging and subsequent imposition of martial law was still fresh in 1985. Similarly, Gen Ayub Khan’s rigging against Fatima Jinnah in the 1965 elections was also universally recognised.

The 18th Amendment

In 2010, when the parliament and political forces convened to restore the 1973 Constitution to its original form and to rid it from the innovations introduced by Gen Zia and Gen Pervez Musharraf, the lawmakers decided to not only keep Zia’s grafting but to also strengthen it.

Through the 18th Amendment in 2010, clause 1 of Article 224 was substituted with the current clauses, 1a and 1b. Clause 1a stated that a caretaker prime/chief minister shall be selected by the president/governor after consultation with the outgoing prime/chief minister and the leader of the outgoing assembly’s opposition. This procedure provided clarity to the process of appointing caretaker governments. Clause 1b explicitly stated that caretaker prime/chief ministers and their immediate family members would be ineligible to contest the immediate general elections.

Another significant change in legislation relating to caretaker governments was made in the 20th Amendment in 2012.

Per the amendment, Article 48(5b) was amended, establishing the appointment of a caretaker cabinet similar to Article 224. Moreover, Article 224A was added to provide a procedure for appointing the caretaker government in case of failure to reach a consensus between the prime/chief minister and leader of the opposition.

The Article provided that in the case that they failed to reach an agreement within three days following the dissolution of the assembly, they shall give two nominees each to a committee constituted by the speaker of the assembly. In case of the failure of the committee to appoint a caretaker prime/chief minister within three days of referral, the nominees shall be referred to the Election Commission of Pakistan (ECP) for final decision within two days.

These amendments brought greater clarity in procedural details, and fairness to the process of forming caretaker governments.

Powers and functions of the caretaker government

The powers and functions of caretaker governments in Pakistan have been a contentious issue in the country’s constitutional and political history. In 2013, the Supreme Court delivered its judgement in the case of Khawaja Muhammad Asif vs Federation of Pakistan, which examined the powers and functions of the caretaker government that was formed after the dissolution of the NA in 2013.

The apex court held that the caretaker government had limited powers and authority, and could not make major policy decisions, appointments, transfers, or promotions that would affect the future elected government. It also observed that there were no guidelines or parameters to regulate the caretaker government’s activities, and that such guidelines should be provided by the parliament or ECP.

The SC’s judgement in the above mentioned case highlighted the need for a clear and comprehensive legal framework to define the powers and functions of the caretaker government. This need was also felt by the political parties and civil society, especially in the wake of the 2014 dharna by the Pakistan Tehreek-i-Insaf (PTI), which demanded electoral reforms and a neutral caretaker government.

Therefore, in 2017, the parliament passed the Election Act, 2017, which repealed several electoral laws and consolidated them into one legislation. The Act also included Section 230, which specified the powers and functions of the caretaker government, as well as its prohibitions and objectives.

 The role of a caretaker government outlined by the 2017 Act. — <em></em>
The role of a caretaker government outlined by the 2017 Act. —

The legal position after Section 230 is that the caretaker government is bound by the constitutional and legal framework that governs its powers and functions. The Act aims to uphold the integrity and impartiality of the caretaker government and ensure that it functions solely to facilitate a smooth electoral process rather than taking any major policy or administrative decisions. Under Section 230 of the 2017 Act, the caretaker government’s role is defined as follows:

  1. Performing day-to-day administrative matters necessary to ensure the smooth functioning of the government.

  2. Assisting the ECP in conducting elections in accordance with the law.

  3. Restricting its activities to routine tasks that serve the public interest and can be reversed by the government elected after the elections.

  4. Remaining impartial toward all individuals and political parties.

Section 230 also prohibits a caretaker government from:

  1. Making major policy decisions.

  2. Taking action that might infringe upon the authority of the future elected government.

  3. Entering into significant contracts or agreements that could be detrimental to the public interest.

  4. Engaging in substantial international negotiations with foreign countries or international agencies or ratifying international binding agreements, except in exceptional cases.

  5. Making promotions or significant appointments of public officials, though acting or short-term appointments can be made in the public interest.

  6. Transferring public officials without considering its expediency and obtaining the commission’s approval.

  7. Attempting to influence the election process or engaging in any activity that might impact or negatively influence free and fair elections.

Controversy over enhancing the powers of caretakers

The incumbent government’s decision to amend the 2017 Election Act and speculations over Ishaq Dar’s appointment as caretaker prime minister has sparked controversy and brought the caretaker government’s role into focus.

On July 26, 2023, the joint session of Parliament proposed over 54 amendments to the 2017 Act including amendments to Section 230. The amendments were proposed by the ruling PML-N, which claimed that they were necessary to protect the economic interests of Pakistan and to ensure the continuity of ongoing projects and agreements. While there was consensus on all other clauses, subclauses relating to changes in Section 230 prompted controversy and discussion in the parliament. The concerns raised by allies and opposition members led to these clauses being reviewed and re-drafted, following which the bill was passed.

According to the amended Section 230, the restrictions on the functions of the interim government would not apply whenever circumstances exist that necessitate it to take actions or decisions necessary for the protection of Pakistan’s economic interests dealing with bilateral and multilateral agreements or projects already initiated under the Public Private Partnership Authority Act 2017, the Inter-Governmental Commercial Transactions Act 2022, and the Privatisation Commission Ordinance 2000.

Despite the ‘review’, the amendments remain a controversial topic as opposition parties and civil society accuse the government of trying to interfere in the electoral process and extend its influence beyond its constitutional mandate.

According to the opposition as well as some allied parties, the amendments are vague, unconstitutional and give undue powers to the caretaker government to influence voters and make decisions that could affect the future elected government. Some lawmakers also alleged that the amendments were hastily passed without proper consultation or debate, and violated the spirit of democracy.

The controversy also raised fears and apprehensions that the military establishment, which has a history of intervening in politics and organising coups against civilian governments, was behind the amendments and that it may be looking for ways to stall the general elections, extend the tenure of caretaker governments, influencing the electoral process in its favour.

Some analysts also suggested that the amendments were aimed at facilitating the China-Pakistan Economic Corridor (CPEC) projects, which are considered vital for national security and the economic development of Pakistan.

The controversy once again highlighted the need for a clear and comprehensive legal framework to define and restrict the powers and functions of the caretaker government. It also raised questions about the role and authority of the ECP, and exposed the lack of trust and consensus among different political parties on electoral reforms.

When it comes to polls, who is supreme?

The ECP is the constitutional body responsible for organising and conducting elections in Pakistan and ensuring that they are honest, fair, and in accordance with the law. The Constitution of Pakistan grants enormous powers to the ECP under Articles 218, 219, and 220, which mandate the ECP to make arrangements for guarding against corrupt practices, preparing electoral rolls, appointing election tribunals, and exercising superintendence, direction, and control over all matters relating to elections.

The Election Act, 2017, further empowers the ECP to regulate and monitor the activities of caretaker governments, which are temporary administrations formed to assist the ECP in holding free and fair elections.

Section 5(4) of the Act mandates that after the issuance of an election programme till the return of successful candidates after elections, no transfer and postings of government officers appointed for election duty shall be made. Under this subsection, the ECP also has powers to issue necessary directions to any government authority for postings and transfer of officials. These provisions imply that the caretaker government does not have a free hand in making transfers and postings of government officers, and it is mandatory to follow the directions of ECP on such matters.

The ECP has, however, been criticised for failing to effectively and proactively ensure that caretaker governments do not overstep their constitutional mandate. The Lahore High Court (LHC) recently delivered a judgement lamenting the transgression of powers by the caretaker government in Punjab. The LHC observed that the interim government had made major policy decisions, entered into significant contracts/agreements, made promotions and significant appointments of public officials, transferred public officials without the ECP’s approval, and attempted to influence or engaged in activity that could potentially influence free and fair elections. These actions are clearly prohibited by Section 230 of the 2017 Election Act.

The LHC also noted that the ECP failed to stop these unfair interventions despite having the constitutional duty and authority to do so, urging it to take responsibility for its role. The ECP needs to take the leading role in supervising and overseeing the decision-making process of the caretaker government on its own volition and without instigation by superior courts.

Beyond the Constitution, superior courts including the SC have also recognised the election body’s significant powers. For example, in the Awami Workers Party case concerning electoral reforms, the SC held that “The Election Commission had all powers vested in it to ensure that the elections were organised and conducted honestly, justly, fairly and in accordance with law and corrupt practices were guarded against”.

Apart from a few exceptions — such as the removal of KP’s interim chief minister on addressing a public meeting of a large political party — it appears that the ECP has been afraid to exercise its constitutional powers, allowing caretaker governments to violate their mandate.

A judicial perspective

The powers and functions of the caretaker government are not only limited by the Constitution, but also the judicial pronouncements of the superior courts. Over the years, the judiciary has played an important role in interpreting, reviewing, and enforcing the constitutional provisions governing the caretaker government system in Pakistan.

A landmark judgement was delivered by the SC in the Khawaja Muhammad Asif case (supra) where it held that the caretaker government is not authorised to make decisions or appointments that have effect on the working or policies of the future elected government, and that it must restrict itself to day-to-day administration and assistance to the ECP in organising free and fair elections. In the same verdict, the apex court also declared that more than 400 appointments, transfers, and postings of government servants made by the caretaker government in 2013 were illegal and unconstitutional. Ironically, Khawaja Muhammad Asif, the petitioner, is currently serving as the defence minister in the PML-N government which has pushed for the legislation to make caretaker governments more powerful and less accountable.

Another significant SC judgement was delivered in the Federation of Pakistan vs Haji Muhammad Saifullah Khan and others (1989), where it declared that the dissolution of Mohammad Khan Junejo’s government by Gen Zia in May 1988 was unconstitutional, but it refused to restore the NA since a new government had been elected by the time the judgement was pronounced.

The court also laid down the criteria for the exercise of presidential power under Article 58(2b) of the Constitution to dissolve the NA on the grounds of a constitutional breakdown or a situation where the government cannot continue in accordance with the Constitution. The court held that the appointment of a caretaker cabinet without appointing a caretaker prime minister by Gen Zia was unconstitutional.

The judiciary has also held that interim governments must uphold the principles of neutrality, impartiality, detachment, and devotion to duty. In the Regional Commissioner of Income Tax vs Zafar Hussain 1992 case, the SC noted that the caretaker government cannot take advantage of its position for itself or its political party, and that it cannot take actions that might infringe upon the authority of the future elected government. The judiciary has taken action against violations and deviations from this principle.

The judiciary has also clarified and enforced the procedure and criteria for appointing a caretaker government. In Tanveer A Qureshi vs President of Pakistan 1977, the LHC held that there is no requirement for the interim prime minister to be a member of the NA, as it is an exception created by Article 48(5b) of the Constitution. In Muhammad Irfan Mukhtar vs Federation of Pakistan 2014, the LHC affirmed that the president had acted in accordance with the Constitution by following the resolutory mechanism envisaged in Article 224A for appointing an interim prime minister.

These judicial pronouncements have influenced and shaped the caretaker government system and contributed to ensuring its constitutional validity, impartiality, and accountability.

Political history of caretaker governments

Caretaker governments in the past have not only been accused of being partisan, biased, incompetent, and unaccountable, but have also faced criticism for being undemocratic and unnecessary. More than once, they have faced interference from other institutions such as the military and judiciary. Since 1988, eight caretaker governments have been appointed in Pakistan, each with their own features and challenges. Below is an overview of each with its impact on the electoral process and democratic transition in the country.

Timeline of caretaker prime ministers of Pakistan. — <em></em>
Timeline of caretaker prime ministers of Pakistan. —

1. President Zia and Ghulam Ishaq Khan (May-Nov 1988)

Gen Zia got an opportunity to test his own grafted system of caretaker governments in 1988. Soon after, he violated the spirit of the system by dissolving the NA and removing Prime Minister Muhammad Khan Junejo from office. He then invoked the powers granted to him under Article 58(2b) of the Constitution, which he had introduced in 1985 through the RCO. The 13th amendment provision of Article 48(5b) only required the president to appoint a caretaker cabinet in case he dissolved the NA. The specific requirement and procedure for appointment of a caretaker prime minister under Articles 224 & 224A was not part of the Constitution at the time.

However, Zia conveniently and dishonestly did not appoint a caretaker prime minister but instead, formed a caretaker cabinet directly under his own leadership. He retained ministers from the Junejo cabinet, only removing those ministers who were loyal to Junejo. Additionally, he also retained chief ministers who were his confidants, such as Nawaz Sharif in Punjab. This was a controversial and unconstitutional move, as it violated the entire rationale of the caretaker setup to ensure neutrality and impartiality. Moreover, it also violated the parliamentary form of government, as it nominally existed despite Zia’s massive disfiguring, and made the president the ‘chief executive’ of the country.

He then also announced elections. Both leading parties going into general elections, the outgoing prime minister Junejo and the opposition party Pakistan Peoples Party (PPP), were against the president. Heading the caretaker setup gave Zia influence over the electoral process. His government was biased against Benazir Bhutto’s PPP, which was seen as a threat to his military rule. Zia’s military and intelligence agencies played a significant role in forming a coalition of political parties that opposed the PPP, known as the Islami Jamhoori Ittehad (IJI).

Zia’s death in a plane crash in August 1988 prevented him from completing his plan to manipulate the elections. Following the constitutional protocols, Senate Chairman Senate Ghulam Ishaq Khan assumed the role of acting president and retained the same caretaker cabinet that was appointed by Zia. He also announced new dates for elections, which were held in November 1988. Despite the caretaker government’s efforts, the PPP still emerged as the largest party in the NA. As a result, Benazir Bhutto was invited to form the next government after some initial hesitance and securing certain assurances.

The first caretaker government also faced constitutional challenges. For six months from May 1988 to December 1988, there was no caretaker prime minister. It was questioned whether the federal government was functioning constitutionally. After Zia’s death, the SC declared this act unconstitutional in the Haji Saifullah case. The judgement was announced after the elections and the SC held that holding elections was necessary at the time and to bring a new government with fresh mandate. No relief regarding the appointment of a caretaker prime minister or restoration of the assembly was given. Interestingly, Zia’s son said that the SC would not have dared to announce such a judgement had his father been alive.

The first caretaker government in Pakistan was thus marked by controversy, interference, and manipulation. It also defeated the very purpose of the caretaker system, which was to ensure free and fair elections and smooth democratic transitions in Pakistan, setting a troublesome precedent for future interim governments in the country.

2. Ghulam Mustafa Jatoi (Aug-Nov 1990)

Ghulam Mustafa Jatoi was the first caretaker prime minister of Pakistan. He was appointed by President Ghulam Ishaq Khan after he dissolved the NA and dismissed Prime Minister Benazir Bhutto on corruption charges in August 1990. Jatoi was the leader of the opposition in the dissolved NA. Additionally, all the caretaker ministers were selected based on their political affiliations — ministers of PPP rival parties were selected. The caretaker government exhibited clear partisan bias against the PPP, leading to concerns about the fairness of the electoral process. The Pakistan Muslim League-led IJI emerged as the largest party following the elections.

The appointment of the second caretaker government and its subsequent actions raised questions about its impartiality and favouritism towards parties opposing the PPP during the election process.

3. Balakh Sher Mazari (April-May 1993)

The subsequent Interim Prime Minister Balakh Sher Mazari was appointed by President Ghulam Ishaq Khan after he once again dissolved the NA and dismissed Prime Minister Nawaz Sharif’s government on April 18, 1993. Mazari led an anti-Nawaz faction within the Pakistan Muslim League.

Interestingly, a majority of the ministers in this caretaker setup were from the PPP, including notable figures such as Asif Ali Zardari, Benazir’s husband. Elections were scheduled for July, however, Nawaz’s party took the matter to the SC which annulled the president’s order and reinstated Nawaz as the prime minister.

4. Moin Qureshi (July-Oct 1993)

Conflict between Nawaz And Ghulam Ishaq led to an army brokered agreement — or as noted journalist Zahid Hussain describes it, a ‘soft coup’ — which led to a forced resignation from both.

Before the president’s resignation, he appointed the fourth caretaker prime minister, Moeen Qureshi, a senior World Bank official. At the time of his appointment, Qureshi was unknown in Pakistan — his background as a political outsider was meant to ensure his neutrality and by extension, free and fair elections. Qureshi’s caretaker government heavily relied on the military’s involvement in overseeing the electoral process. Elections were conducted under the direct supervision of the army, with army officers stationed at polling stations vested with the powers of Magistrate First Class.

Qureshi’s appointment as the caretaker prime minister, along with the composition of the caretaker government, highlighted the military’s influence in the electoral affairs of that period.

5. Malik Meraj Khalid (Nov 1996-Feb 1997)

Malik Meraj Khalid took charge of the fifth caretaker government as prime minister after President Farooq Leghari dismissed Benazir’s second government on corruption charges in November 1996. Khalid was a veteran politician who had served as the chief minister of Punjab and speaker of the NA.

He was also a founding member of the PPP and a former-close associate of Benazir and her father, Zulfikar Ali Bhutto. However, by 1996, he had fallen out of favour with Benazir and joined the opposition.

His appointment was seen as a move by President Leghari to prevent the PPP from returning to power in the upcoming elections. Khalid used his influence and authority to undermine the PPP’s electoral prospects, especially in its stronghold of Sindh. He formed alliances with PPP’s rivals, such as the Muttahida Qaumi Movement (MQM) and the PML-N. He also launched a crackdown on PPP activists and supporters, accusing them of violence and terrorism.

In retrospect, Khalid’s caretaker government was neither neutral or impartial. It faced allegations from PPP and other parties for interfering in the electoral process. The caretaker law minister, Fakhruddin Ibrahim, resigned from his post and exposed a secret deal between President Leghari and Nawaz. He claimed that Leghari had promised to support Sharif in return for his support in dissolving Benazir’s government. This revelation raised serious questions about the legitimacy and fairness of the elections held under Khalid’s government.

The elections were held in February 1997, and resulted in a landslide victory for Nawaz and his PML-N. The PPP suffered a humiliating defeat, losing most of its seats in Sindh and Punjab. Khalid resigned from his post after handing over power to Nawaz.

6. Muhammad Mian Soomro (Nov 2007- March 2008)

President Pervez Musharraf appointed Muhammad Mian Soomro as the caretaker prime minister when the term of the PML-Q-led NA came to an end. Soomro was the Chairman of the Senate and a leader of the PML-Q. He was supposed to oversee the general elections that were scheduled for January 2008. However, his government faced allegations of being biased and interfering in the electoral process.

The opposition parties and civil society accused Soomro and Musharraf of using state machinery to rig elections and favour PML-Q candidates, especially in rural areas. The credibility of the elections were also affected by the imposition of emergency rule by Musharraf in November 2007, which suspended the Constitution and put restrictions on the media and judiciary.

The assassination of Benazir on Dec 27, 2007, further plunged the country into political turmoil and violence. The elections were postponed to February 2008, and resulted in defeat for the PML-Q and victory for the PPP and PML-N. Soomro handed over power to the next Prime Minister, Yousaf Raza Gillani.

7. Mir Hazar Khan Khoso (March-June 2013)

The ECP appointed Mir Hazar Khan Khoso as the caretaker prime minister in March 2013 after the NA’s term concluded. It was the first time the ECP had to appoint a caretaker prime minister under Article 224A as the prime minister and leader of the opposition could not agree on a candidate. This was also the first appointment of the caretaker government since the 18th and 20th Amendments had been passed.

As a retired judge with no political affiliations, Khoso was seen as a neutral figure. His caretaker cabinet was composed of technocrats and former judges. Khoso oversaw the May 2013 general elections, which were praised as free and fair, marking Pakistan’s first democratic transition of power.

He handed over power gracefully to Nawaz Sharif after his party’s victory in the NA. Khoso’s tenure showed the successful implementation of Pakistan’s caretaker system, demonstrating the ECP’s ability to appoint an impartial caretaker prime minister during a political deadlock. His commitment to integrity and non-interference in the electoral process contributed to Pakistan’s democratic development and consolidation.

Special mention: Interim CM Najam Sethi

Najam Sethi was a senior journalist and editor who was appointed as the caretaker chief minister of Punjab in March 2013, ahead of the 2013 general elections. His appointment was made by the parliamentary committee under Article 224A after the leader of the house and the leader of the opposition failed to reach an agreement on a name for caretaker chief minister.

His appointment was controversial and criticised by some political parties and civil society groups, especially the PTI, who accused Sethi of being biased and favouring PML-N in the elections. It also alleged that Sethi had rigged the elections in 35 constituencies in Punjab, which they called the “35 punctures”.

8. Justice Nasirul Mulk (June-Aug 2018)

Retired Justice Nasirul Mulk headed the eighth caretaker government of Pakistan. He was appointed after a consensus between the prime minister and leader of the opposition. This was the first appointment of the caretaker government after the enactment of the Election Act, 2017. Specific provisions helped streamline the process and establish a more structured framework for the caretaker government’s role during the election period.

However, there were serious doubts about the role of the military in conducting the 2018 elections, with around 370,000 troops deployed for security during the elections. Allegations were also levelled by politicians and civil society about the army attempting to interfere in the country’s democratic process in support of the PTI.

The 2018 elections also exposed the limitations of the caretaker setup in ensuring free and fair elections, if institutions such as the military, judiciary, and ECP don’t perform constitutional duties. Justice Nasir was widely regarded as a man of personal integrity but as caretaker prime minister, he is perceived to have largely failed in delivering a free and fair election.

Apart from the establishment, the judiciary headed by Chief Justice Saqib Nisar emerged as a major player in the elections process and there is now a consensus that it was instrumental in pre-poll rigging against the PML-N and played a critical role in the disqualification and persecution of Nawaz Sharif. The PML-N accused the caretaker government of being complicit.

The election also demonstrated the ECP’s ineffectiveness and lack of credibility as an autonomous institution that could conduct free and fair elections in the face of the establishment’s manipulations. It undermined Pakistan’s democratic development and consolidation by facilitating a rigged transfer of power.

A comparative analysis

Full-fledged caretaker governments required by the Constitution do not exist anywhere else in the world. However, some countries rely on conventions or guidelines that restrict the incumbent government’s activities during the election period.

Bangladesh introduced a system in the mid-1990s to curb violence and electoral fraud. However, it abolished this system in 2011 and reverted to the practice of holding elections under the incumbent government.

India allows the existing government to continue in office until the new government is ready to assume power. However, the incumbent government is expected to refrain from making major policy decisions or appointments that could affect the future government or influence the electoral process.

Australia enters into a ‘caretaker mode’ until the new government is elected. In this mode, the incumbent government follows a series of caretaker conventions that prohibit it from taking major policy decisions or making significant appointments without consulting with the opposition. The conventions also prevent the government from using public resources for political purposes or influencing the impartiality of the public service.

Canada and the United Kingdom also follow similar conventions. These are based on the principle that the incumbent government should only undertake routine and necessary matters for the conduct of government business, or where it is urgent and in the public interest. If a major decision is unavoidable during an election campaign, consultation with the opposition may be appropriate.

These comparative examples show that different democratic jurisdictions have different approaches to ensuring a smooth and fair electoral process. Interestingly, Pakistani courts have relied on Australia in their judgments on caretaker governments, but have omitted any reference to Bangladesh or India, which are more similar to Pakistan in terms of their political and constitutional history. This indicates a preference for a more formal and regulated system of caretaker governments over an informal and flexible one.

The 2023 election

The appointment and functioning of caretaker governments for the 2023 election has become a contentious topic.

In Punjab, the appointment of Mohsin Naqvi as caretaker chief minister by the ECP has sparked controversy. Naqvi, an opposition nominee and media house owner, faces rejection from the PTI, the former ruling party in Punjab. They accuse his caretaker government of bias, interference in the electoral process, and persecution of their workers and leaders. The matter is being challenged in the SC.

A similar situation arose in KPK, where the caretaker cabinet comprises former provincial ministers affiliated with the ruling Pakistan Democratic Movement (PDM) coalition. They allegedly misused state resources to further their parties’ interests and favour their candidates, raising concerns about impartiality.

Both provincial caretaker administrations are perceived as extensions of the PDM coalition, functioning beyond the constitutional 90-day term.

At the federal level, the appointment of the caretaker prime minister lacks informal consultation with the PTI, the largest opposition party. Speculations about proposing Ishaq Dar have been denied by the interior minister, Rana Sanaullah. The opposition parties find Dar’s name unacceptable and absurd. Even if Dar’s name is given up, it seems that with a dummy leader of opposition in the NA, appointing a partisan caretaker setup would not be a hurdle for the incumbent government.

These appointments raise serious questions about the neutrality, accountability, transparency, and effectiveness of caretaker governments in Pakistan. The lack of perceived neutrality in Punjab and KPK casts doubt on the credibility of the upcoming election, and a biased caretaker prime minister could further erode trust in the electoral process. Unfortunately, this would not be the first time.

Caretaker governments are not a panacea for ensuring free and fair elections. The main obstacle is not the caretakers or our laws, it is the powerful military establishment that has a history of meddling in politics and undermining civilian governments. In a praetorian polity like ours, technocrats, retired judges and bureaucrats are highly susceptible to partisan or external pressures.

We have tried ‘honest’ judges, bureaucrats, and partisan politicians without much success. Perhaps it is time to try a committed politician with a spine and political commitments. But most importantly, the real solution lies in strengthening political parties, voters, and the ECP.

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