Thursday, February 22, 2024

Caretakers or caregivers

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The caretakers may not just be the caretakers anymore. With the Elections (Second Amendment) Act 2023 successfully passed, the scope of authority of the caretaker set-up has been enhanced tremendously. Earlier, as per article 224A of the Constitution read with section 230 of the Elections Act, 2017 and the ruling laid down in Khwaja Asif vs Federation of Pakistan, the caretaker government was held to be an ad hoc arrangement for the execution of the day-to-day administration of the government till the elections are held. This means that the spirit of the caretaker government is to hold the mantle in the interregnum when there is the transition of power from one democratic government to the newly elected government.

World over the rationale provided for the establishment of the caretaker dispensation, for instance, in ‘Guidelines on Caretaker Conventions’ is just to keep the show on the road which is necessary for the smooth transitioning of power between the two elected governments. Moreover, if this meaning, as is accepted across the world, is read into the phrase ‘caretaker’ under article 224A, it poses a serious constitutional crisis, where even the executive actions taken in the excess of jurisdiction will get nullified as per the ruling in the case of Naimatullah vs the Federation of Pakistan.

In Pakistan, constitutionally, the only job of the caretaker set-up is to hold free and fair elections within 90 days of the dissolution of the lower house under Article 224(2). The fact that the caretakers and their kins are not allowed to contest elections and those who want to contest elections cannot join the caretaker set-up goes on to reason that the sole purpose of this temporary set-up is to hold elections only.

Also, if the caretaker government is infused with powers equivalent to the ones saved for elected representatives, it would not only diminish the importance of the latter but also challenge the very difference between the two. Equating the two means that conceptually there is no difference between the government of chosen representatives and of those that are unelected. This would amount to attributing redundancy to the Constitution and as per the settled law of the interpretation it cannot be done.

Furthermore, empowering the caretakers to have their say in policy matters and international agreements, which may become controversial and disputed in the long run, will adversely impact the right of the elected government to freely formulate financial policies. This will, subsequently, result in binding the hands of the future elected government with the obligations they never entered into.

Lastly, a careful examination of section 230 of Elections Act, 2017 juxtaposed with the Elections (Second Amendment) Act, 2023 exhibits an inherent flaw in the amendment so made. Section 230(2)(a) says that major policy decisions can be made when urgent, and Section 230(2)(d) says that even new internationally binding commitments can be concluded when circumstances are exceptional. Now the Amendment Act introduces a proviso saying that section 230 is inapplicable upon the actions or decision taken regarding existing agreements or the projects already initiated under the Public Private Partnership Act, 2017, G2G Act, 2023 and the Privatization Commission Ordinance, 2000. When read together, one invariably reaches the conclusion that either there is no urgency in continuing with the already committed international agreements or the projects listed above or their continuation does not constitute an exceptional circumstance. If the answer is in affirmative, then there is no point investing the caretaker government with the said power and if negative then they were already covered under section 230(2)(a) & (d).

Thus giving more teeth to a neutral or impartial set-up would stir up a hornet’s nest and defies the rationale of establishing that in the very first place. Today, the intent behind the amendment is to protect the economic interests of the state on the verge of default but tomorrow it can be about any other matter regarded as vital for the stability and integrity of the country. If we start from here, where do we end, no one knows.

Published in The Express Tribune, August 29th, 2023.

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