Caretaker setups enjoy broad constitutional protection
he manner in which caretaker setups in the Punjab and Khyber Pakhtunkhwa are taking care of affairs in the provinces has stirred a debate in the midst of an already polarised political environment in the country.
The key opposition party, the Pakistan Tehreek-i-Insaf (PTI), which had led the governments in these two provinces is accusing the caretaker setups of being partisan and anti-PTI. The party is also questioning the legality of the caretaker governments.
The aim of caretaker administrations in Pakistan is to ensure the neutrality of the government overseeing elections and reduce the scope for abuse or misuse of power and state resources in and during election campaigns. As per rules, the caretaker cabinet members have the same powers and responsibilities as elected prime minister, chief minister and ministers and are competent to appoint persons of their choice to key positions in the bureaucracy.
Elections Act 2017 also identifies the role and function of the caretaker setup. It allows a caretaker setup to “perform its functions to attend to day-to-day matters which are necessary to run the affairs of the government; assist the [election] commission to hold elections in accordance with the law; restrict itself to activities that are of routine, non-controversial and urgent nature, in the public interest and reversible by the future government elected after the elections; and be impartial to every person and political party.”
A caretaker minister is also barred from taking major policy decisions except on urgent matters; taking any decision or making a policy that may have effect or pre-empt the exercise of authority by the future elected government; enter into major contracts or undertakings if those are detrimental to public interest; enter into major international negotiation with any country or international agency or sign or ratify any international binding instrument except in an exceptional case; make promotions or major appointments of public officials. They may make acting or short-term appointments in public interest. They should not transfer public officials unless it is considered expedient and after approval of the election commission. They should not attempt to influence the elections or do or cause to be done anything which may, in any manner, influence or adversely affect free and fair elections.
“The law is silent on the status of a caretaker setup when elections are delayed, which means it can continue till the oath taking of a new chief minister. This happened in 2008 when the caretaker setup went beyond 90 days because elections were delayed,” says Ahmed Bilal Mehboob of the PIDAT.
Ahmed Bilal Mehboob of the Pakistan Institute of Legislative Development and Transparency (PILDAT) says caretaker setups fill vacuums and gaps when an elected government/ assembly is dissolved and until there is a new government. “There is no way to remove a caretaker setup until there is a new government or the dissolved assembly is restored,” he says. “The law is silent on the status of a caretaker setup when elections are delayed, which means it can continue till the oath taking of a new chief minister. This happened in 2008 when the caretaker setup went beyond 90 days because elections were delayed.”
However, Mehboob says, the partisanship of a caretaker setup can be challenged. But again, for the new caretaker set up, the same constitutional and legal procedure would have to be followed i.e., consultation between former chief minister and the opposition leader. “If they disagree, the matter will go to the parliamentary committee and then to the Election Commission of Pakistan (ECP).”
“There is no ambiguity in that the caretaker setup will continue till the oath taking of a new chief minister, no matter how long it takes and for what reasons,” says Kanwar M Dilshad, the former secretary of the Election Commission of Pakistan (ECP) and a member of the current caretaker cabinet in the Punjab. He says Articles 254, 223, 224 and 224 A are clear about the functioning of a caretaker setup.
The writer is a staff member. He can be reached at vaqargillanigmail.com and he tweets waqargillani