Caretakers and the murky legislation governing them

Elections are the cornerstone of democracy, regularly taking place worldwide, from time to time, in a transparent and non-controversial manner.

In Pakistan, caretaker governments have been established at different points in its history, though they were not part of 1956, 1962, and the 1973 constitutional framework. The 1977 elections, in particular, saw allegations of widespread irregularities, prompting the then chief election commissioner Javed Ahmed to declare that massive rigging had caused significant harm to the country. He likened the situation to a looted store, prompting the former prime minister Zulfikar Ali Bhutto to send him to the United States for ‘medical treatment’.

This issue lingered and was formalised into law in 1985, leading to the incorporation of these caretaker governments as a regular part of our system before the 1990 elections.

If we trace the history of general elections in Pakistan, starting from 1970, there have been 11 elections to date, with caretaker governments being absent from the 1971, 1977, 1985, 1988, and 2002 elections.

While our political parties actively strive to remove legislation enacted during military dictator General Zia-ul-Haq’s regime, they continue to embrace this ambiguous law of the caretaker government(s), which continues to hold sway with full vigour.

The fundamental purpose of caretaker government is to ensure the conduct of transparent elections. They are meant to cooperate with the election commission in organizing fair elections. This begs the question: How do countries around the world hold transparent elections without the need for caretaker governments? Are caretaker governments cooperating with the election commission?

More crucially, in a country that has set stringent criteria for eligibility for parliamentarians — mandating that they be sincere, trustworthy, moral, and unblemished — its constitution is silent on the selection, qualifications and powers of people being part of a caretaker set-up.

Article 224-A (1) of the Constitution merely states that the selection of the members of the caretaker cabinet will be made by the prime minister, the chief ministers, and the opposition leader through consultation. Article 230 of the Elections Act is the only reference to caretaker governments, which provides for only two things: what they can do and what they cannot. In addition, there is a single condition in it that a caretaker prime minister, his spouse or children cannot contest elections for the next assembly.

“Now the question arises, and the constitution remains silent on this matter: is the same condition applied to senators? Are they allowed to become caretaker ministers and continue as senators simultaneously? Because in this case, both examples are available, as when Anwar ul Haq Kakar was nominated for the position of caretaker Prime Minister, he vacated his Senate seat, while Sarfraz Bugti, who is in his cabinet as caretaker interior minister, is still a senator today.”

This is because the constitution does not specify anywhere what the criteria are for being a part of a caretaker government. For a caretaker government, entrusted with the responsibility of conducting transparent elections in the country, there should ideally be some laws or regulations in place for its accountability. The powers of the caretaker prime minister and the chief ministers are astonishing when compared to the numerous constraints in place for elected prime ministers. However, this constitution and the Election Act have granted complete freedom to the caretaker government. There is no one to hold them accountable, no system or institution to scrutinize their performance. If they choose to exercise these powers beyond what’s intended, what would happen? Shouldn’t there be action taken against such a violation of the law? But the constitution remains silent on who would do this and through what means. This is why caretaker governments, as they come, depart in the same way. No one can question them about what they have done or not done, why they haven’t done something, or if they’ve done something wrong.”

“In the joint session of Parliament in July 2023, amendments were made to Section 230 of the Election Act 2017, allowing the caretaker government not only to handle day-to-day government affairs but also to exercise powers related to ongoing projects and programs. From a governance perspective, this legislation remains incomplete and inadequate. However, if it is now being equated with an elected government, then isn’t it necessary to establish a system for its accountability? Shouldn’t those in power be held accountable?”

The lack of effective legislation on this critical issue has resulted in the same problems that were prevalent in Pakistan in 2013 persisting in 2023. Recently, the election commission took action against the cabinet members, ministers, and advisers of the Khyber Pakhtunkhwa Caretaker Chief Minister Azam Zam for their political affiliations. This means that these individuals were representing their respective political parties even within the caretaker cabinet.

In countries like India, Canada, Australia, and New Zealand, elected governments are given caretaker responsibilities for some time. All these nations have established their own regulations to define how these (caretaker) governments operate. In this respect, it is a temporary arrangement, and when the next government comes into power, everything returns to normal. In the Khawaja Asif vs the Federation of Pakistan, the Supreme Court has defined the caretaker government’s role and powers, however this recommendation has been in front of us since 2013, and we have yet to find the time to legislate it correctly through our two parliaments.

“If we want to run our country like a democratic nation, bring transparency into the system, and improve the current ineffective processes, it’s crucial to start a discussion on this and explore how we can move forward. First and foremost, we should examine whether caretaker governments are successful in conducting transparent elections. If they are not, then why do we need this interim setup? Because Article 220 of the Pakistan Constitution clearly states that it is the duty of all federal and provincial authorities to assist the election commission in its functions. If we pass legislation that places the entire government machinery under the authority of the election commission in a transitional period, we can prevent unelected individuals from gaining power and undermining the country.

After dissolution of assemblies, the elected body remains in the form of the Senate. We can assign the existing Senate committees with administrative powers, as they can play a role in the caretaker government. Since all parties are represented in the Senate, this can also bring transparency. If we do not pursue this path, at the very least, we should make the caretaker government accountable to the Senate through legislation, so that someone can question and restrain them. If we intend to run a non-democratic law within a democracy, then we should at least introduce some changes to it. Transform its shape and nature into something more democratic, so that we don’t keep bestowing unchecked authority upon unelected individuals for an indefinite period.

How long will we continue to empower such unelected individuals with unbridled powers to run the country as caretakers?