Cover Story

Caretakers or Undertakers?

The evolving environment may push Pakistan from a hybrid democracy to a praetorian rule. In that case, Pakistan may be prone to either follow the example of the government in Myanmar, or it may become an Egypt of South Asia, obviously with catastrophic consequences.

By Brig. (R) Saleem Qamar Butt | September 2023

Heads of caretaker governments are often referred to as a “caretaker” head, for example, “caretaker prime minister.” Similarly, but chiefly in the United States, caretakers are individuals who fill seats in government temporarily without ambitions to continue to hold office on their own. Full-fledged caretaker governments are not required by the Constitution anywhere else in the world; however, some countries rely on conventions or guidelines that restrict the incumbent government’s activities during the election period. India, Bangladesh and almost all other countries, including Australia, Canada and UK have done away with this practice and an incumbent government, just before the completion of the tenure, performs the task of holding timely free and fair elections and smoothly hands over the power to the winners.

Nevertheless, in a super-rich country, Pakistan surviving on IMF loans, under Article 224(1A), the caretaker cabinet is to be appointed by the President in consultation with the outgoing prime minister and the leader of the opposition. The concept was added to the 1973 Constitution in Pakistan by General Zia ul Haq in 1985. 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 justification given was that incumbent governments have a self-interest in influencing the election and may not provide a level-playing field.

As the memory of the 1977 election rigging and subsequent imposition of martial law was still fresh in 1985. 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. 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 have evolved over time through constitutional amendments, judicial interpretations, political negotiations, and historical experiences.

Under Section 230 of the 2017 Act, the caretaker government’s role is defined as follows (though mostly violated):
· Performing day-to-day administrative matters necessary to ensure the smooth functioning of the government.
· Assisting the ECP in conducting elections in accordance with the law.
· Restricting its activities to routine tasks that serve the public interest and can be reversed by the government elected after the elections.
· Remaining impartial towards all individuals and political parties.

The powers and functions of caretaker governments in Pakistan have been a prickly issue in the country’s constitutional and political history. On July 26, 2023, the joint session of Parliament proposed over 54 amendments by the Pakistan Muslim League – Nawaz (PML-N) to the 2017 Act, including amendments to Section 230. 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.

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. 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. The ECP has, however, been criticised for failing to effectively and proactively ensure that caretaker governments do not overstep their constitutional mandate.

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