Abdul Aziz Bari | Feb 14, 08The legal basis of a caretaker government has to be argued in light of the nature of a government in a parliamentary system like ours. Of course, given its role and function, there is room to argue that a caretaker government is not something that is absolutely necessary. For one thing it is just for a short period and that it merely carries out routine administration.
This is plausible given that the civil service – which includes the armed forces and the police force – are still around. Indeed, the system which includes the judiciary – except the government of the day – still exists and is operational. On top of that, the ultimate guardian of the constitution – the Yang di Pertuan Agong – is still there symbolising the nation.
Be that as it may, under our system, one under the Westminster type, the government of the day is not directly elected by the people. Unlike under the American system whereby the executive is directly put in office by the electorate, the cabinet in the British system is appointed by the head of state from among members of the legislature.
Of course, one has to bear in mind that although the appointment is made by the Yang di Pertuan Agong acting under his discretion, he has to follow certain established rules. Indeed, these rules have been incorporated into the constitution; namely Article 43(2)(a) of the federal constitution.
In any case as politicians and political parties would not want to allow a hung parliament which would put the King in a position to exercise real discretionary power and they have devised a strategy which reduces the power of the King to appoint the government – termed Article .40(2)(a) of the federal constitution.
Under this article, the appointment of the prime minister is a a matter of pure formality with no real discretion being exercised. In our case, the ruling coalition has always made it clear who their leader and prime minister was and the Yang di Pertuan Agong has just been there as a mere figure handing out appointment letter to successive prime ministers.
Under the presence composition of the Dewan Rakyat, the King must appoint someone who commands the support of the majority of the members of that lower house. Under the present provision, the person must at least have the backing of 112 members of Parliament.
Like in other Westminster constitutions, the federal constitution makes it clear that should the prime minister – who is also the lynchpin of the cabinet – lose support he must resign. Normally, this takes place through a vote of no confidence. The federal constitution makes this clear in Article 43(4).
As the government stands on the strength of its support in Parliament, it is only logical that once it ceases to command a majority support it has no grounds to continue and must resign
Having seen the relationship between the government and parliament in Westminster, one now can understand why the government in a parliamentary democracy is termed as ‘responsible government’. This actually underlines the requirement that the government owes its existence to Parliament and needs to be answerable to the legislature. This is indeed what Article 43(3) of the constitution is all about. This provision requires the government of the day – namely the cabinet – to be responsible to Parliament.
Here lies the basis for question-time in Parliament whereby the prime minister and the cabinet are supposed to explain to Parliament matters pertaining to the government and their policies.
Draconian laws passed
The relationship between government and parliament explains the role and function of caretaker government or perhaps more accurately, its limitations. Since the foundation of the government is the House, it automatically ceases to exist the moment parliament – or more correctly the Dewan Rakyat – is dissolved.
It is certainly illogical for the government to exist and continue when the very foundation on which it stands is no longer around. This alone is actually enough to argue that the concept of a caretaker government is implicit in the constitutional scheme of any Westminster type of constitution.
The nature of government in the system also implicitly tells us the limitations of a caretaker government and a government in a position to lay down policies and administer the nation due to the support it enjoyed in parliament.
The bottom line of all these explanations is that the Malaysian government essentially ceased to exist the moment the Yang di Pertuan Agong consented to the prime minister’s request to dissolve the Dewan Rakyat yesterday.
It may be argued that there is no need for the Yang di Pertuan Agong to make a formal appointment for a caretaker prime minister or government as this is implicit in the act of dissolution made by His Majesty. But of course it would be better if there is a formal appointment for things would be made clearer and less doubtful.
Unfortunately, our successive governments since Merdeka never committed themselves to this fundamental principle. In fact, after the 1969 general elections, the ‘caretaker’ made an emergency proclamation. A number of draconian laws were made under this proclamation and continue to be operative until today.
It was unfortunate that some 31 years later, the Federal Court upheld that executive action. It appears that the judges of the highest court of the land overlooked the notion of a caretaker government within our constitutional structure.
It is true that the constitution does not mention the word ‘caretaker government’ in any of its provisions. However, anyone who understands the nature of the cabinet as ‘responsible government’ would straight away recognise the existence of such an entity within the system.
In any case, after prescribing the way the prime minister and cabinet ministers are to be appointed under Article 43(2), the constitution says that a person appointed as prime minister while the House is dissolved shall not continue to hold the office when the new parliament begins after the elections. This undoubtedly refers to a caretaker government.
It has to be admitted that the legitimacy and basis of a caretaker government can only be appreciated through a comprehensive understanding of government in a Westminster system, something that was incorporated into the constitution by the Reid Commission way back in 1957.
One also needs to see the constitution as a democratic instrument. It is certainly illogical and indeed monstrous to suggest that a caretaker government could initiate new policies or drastic measures such as proclaiming a state of emergency.
Also implicit in the concept is the prohibition of the use government facilities for political advantage during an elections. In simple terms, one could say that as the government has ceased to exist, ministers no longer hold any portfolios and thus are not in a position to use their official car, staff and other state resources.
One must admit that in order to allow our democratic institutions and traditions to develop and grow, those entrusted with public power and duties must ensure that they follow not only the letter but also the spirit of the constitution.
On some occasions, however, this has been overlooked. These include the formation of federal government after the 1999 general elections which took place some 11 days after the results were announced.
This was constitutionally improper particularly when the prime minister of the then caretaker government was spending his time, among others, attending the annual Lima defence industry show. A government should have been appointed almost immediately after the general elections.
While the constitution does not specify a time-frame, it was certainly unacceptable to wait 11 days. For one thing, the Yang di Pertuan Agong has a duty to call upon the leader of the winning coalition to form the government. This cannot be delayed as the King is under a duty to act on advice.
It would be recalled that the delay eventually caused havoc and confusion in the opening of the parliament as the opposition raised the constitutionality of the government that was actually a caretaker one.
* Dr ABDUL AZIZ BARI is professor of law at the International Islamic University Malaysia.
Caretaker gov't: logic and the law