So what do we know of a ‘caretaker government’?

Borneo Post
1 March 2008

SO we are now in the midst of choosing a new government.
Only on the evening of March 8 (next Saturday) will a new government be democratically elected, or at least that is what it should be. The leader of the party with the most seats will be sworn in as head of the new government and in our case, as prime minister, likely the following day. After that, he will choose his Cabinet members.
Since February 13 when Parliament was dissolved until March 8, the nation is actually administered by a caretaker government.
But what is really a caretaker government?
Of course, we understand what ‘caretaker’ means. The most common connotation that comes to mind when we talk of a ‘caretaker government’ is ‘a government which takes care of things/matters temporarily’.
So in between the period of the dissolution of Parliament until election day, we are under the care of a temporary administration.
Actually, there is much more to it than what I actually understand of a ‘caretaker government’.
This week, the report in a national daily ‘March 4 date for Kit Siang’s suit on caretaker government’ caught my attention.
It was reported that the Kuala Lumpur High Court has set the date to hear an application by the Election Commission (EC) and the government to strike out a suit by opposition leader Lim Kit Siang on the setting up of a caretaker government after the dissolution of parliament.
In the originating summons filed on Feb 4, Lim sought from the High Court a declaration for a caretaker government to replace the government of the day during the dissolution of parliament until the swearing-in of the new Cabinet after the general election.
The DAP adviser said the caretaker government could carry on the day-to-day administration of government during that period, but would not have any power to decide on policy matters, allocation of funds or use of public facilities during the campaign in the general election.
I am not sure whether this is the first case of its kind to be initiated by the veteran Mr Opposition. But this is the first time I’ve read of such a suit.
As a matter of curiosity and for the sake of informing readers keen on the subject, I did some reading on it and this is to share with you all.
When parliament dissolved on February 13, all members of the Dewan Rakyat would have ceased to receive their allowance as from that day onwards. This is a basic principle of the parliamentary system.
In this connection, it has to be pointed out that with the dissolution of parliament, the status and function of the government also changes accordingly. The government becomes a caretaker government with caretaker functions.
A caretaker government in a parliamentary democracy merely performs the rudimentary duties of the state. Apart from maintaining law and order, it ensures that government machinery continues to function so that the day-to-day task of administration can be carried out.
According to Universiti Teknologi Mara’s Law Professor Dr Shad Saleem Faruqi, the country’s constitution is silent on the appointment of a caretaker government or whether the government of the day must resign after calling for elections or the Yang di-Pertuan Agong must appoint a caretaker government for the interim period.
“The constitution does not spell out the role of the caretaker government, how it functions its duty, whether it is simply to perform the basic essential functions or possesses the normal powers of a government.
“It relies on the Commonwealth convention, that the government does not have to be reappointed once parliament is dissolved,” he said.
However, by convention the caretaker government should not make any politically controversial decisions such as making appointments or dismissals in key posts, make important policy decisions, implement new laws or commit the incoming government into any expenditure, Dr Shad said.
During the interim period which includes election campaigning, members of the caretaker government must not use their position, government machinery or funds for partisan or political advantage.
Dr Shad added that when the Commonwealth rule was not strictly followed, the question of remedy arose.
He said the King had the power to appoint a new government during the interim period, and if the prime minister abused his power, the King may decline to listen to his advice.
“But this is usually in extreme circumstances and the King will usually let the prime minister rule the country just as during his term,” he said.
The courts, he said, could not do much to stop the caretaker government from making important policy decisions.
“This is because there is no law that permits the government and no law that forbids it either,” he said.
Hence, Dr Shad said the role and function of the caretaker government was more of a question of constitutional and political ethics.
“It is an unwritten convention of the constitution. It’s about wisdom and political morality and the caretaker government should not push its power too far,” he said.
Similarly, Dr Abdul Aziz Bari of the International Islamic University Malaysia agreed 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.
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 of government facilities for political advantage during an election. 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, added Dr Abdul Aziz.
I think I have quoted enough from the two constitutional experts on the subject. Both had provided a useful insight for those of us not legally inclined.
My attention is focused on the term ‘constitutional and political ethics’. Once that is understood and put into practice by our caretaker government, I believe we have not much cause for complaints.