Caretaker : Role and Functions under the Elections Act, 2017

Briefing Paper Caretaker Government: Role and Functions under the Elections Act, 2017

Briefing Paper PILDAT is an independent, non-partisan and not-for-profit indigenous research and training institution with the mission to strengthen and democratic institutions in .

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Published: May 2018

ISBN: 978-969-558-722-5

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DAI-CDIP - Pakistan Office: 1st Floor, 94-W, Din Pavilion (Ex City Bank Plaza), Main Blue Area, Islamabad, Pakistan Phone: +92-51-8449401-2 Briefing Paper Caretaker Government: Role and Functions under Elections Act, 2017

CONTENTS

Preface 05 About the Author 05

Introduction 09 Role and Functions of the Caretaker Government 09 The case of New Zealand 10 Caretaker Convention 10 Unclear outcome 11 Clear outcome 11 Decision-making process under caretaker convention 11 Ministerial decisions 12 Coordination and Prime Minister's role 12 Guidance on decisions about expenditure and the Official Information Act 1982 12

Briefing Paper Caretaker Government: Role and Functions under Elections Act, 2017

Preface Political Parties are an essential component of any democratic system and the foundation of a strong parliament. A very limited work has been done for the development of political parties in Pakistan. To optimise another successful democratic transition in 2018, political parties must be supported and strengthened.

Tabeer-Consolidating Democracy in Pakistan (CDIP) is working to support the democratic processes in Pakistan by strengthening the capacity of the country's institutions to be more effective, accountable and responsive to the needs of Pakistani people. The programme will achieve this by focusing on four inter- related areas: Elections, Parliament, Political Parties and Democratic Space.

To evaluate the current context for the provision of support, the CDIP team conducted an assessment of the needs of political parties in Pakistan and carried out analysis of recent political party programmes in order to learn lessons and to focus on the gaps left. The assessment was aimed at examining the current state of major political parties – identifying areas in which the parties have begun to adopt reform measures and areas where further efforts are needed. During this exercise, CDIP project team realised the need for improving the understanding of Political Party Officials on the Election Laws especially after the parliament passed a new Election Act, 2017.

The team reached out to 13 selected political parties and briefed them on CDIP's objectives. Responding to the need identified by political parties, CDIP has planned to develop a series of Background Papers on various aspects of the Elections Act, 2017 and organise roundtables and briefing-cum-training sessions for political parties officials in a multi-party setting. This Briefing Paper sheds light on the Caretaker Government under the Elections Act, 2017 for use by party leaders, candidates, polling agents and party workers. Using this paper, party officials will be briefed at a structured Briefing cum Training Session before the General Election due by August 2018.

Disclaimer The views expressed in this paper belong to the author and do not necessarily represent the views of Pakistan Institute of Legislative Development and Transparency (PILDAT) and Tabeer-Consolidating Democracy in Pakistan.

May 2018

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Briefing Paper Caretaker Government: Role and Functions under Elections Act, 2017

ABOUT THE THE AUTHOR AUTHOR

r. Shahid Hamid was the Governor of the Punjab Province from March 1997 to August 1999. Previously he was the Federal Minister of Defence, Establishment and Law in the Caretaker MGovernment of President and Prime Minister Meraj Khalid. Mr. Shahid Hamid is presently practicing law as the senior partner of Hamid Law Associates. He is one of 300 Senior Advocates of the Supreme Court of Pakistan. Mr. Shahid Hamid holds an M. A. Economics degree from Cambridge University and is a Barrister-at-Law of the Honourable Society of the Inner Temple London. He joined the Civil Service of Pakistan in 1964 and served in East Pakistan also from 1967 to 1969.

He was Acting Finance Secretary Punjab and Secretary to Chief Minister Punjab. He was Director- General Lahore Development Authority from 1976 to 1978.

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Briefing Paper Caretaker Government: Role and Functions under Elections Act, 2017

Introduction Committee is to have equal representation from the Treasury and the Opposition. Four Members Article 58 of the Constitution of the Islamic are to be nominated by the Prime Minister and four Republic of Pakistan, 1973 (“the Constitution”) by the Leader of the Opposition. There is a similar prescribes that the President shall dissolve the provision with regard to Caretaker Chief National Assembly if so advised by the Prime Minister(s) in the Provinces except that the Minister and the National Assembly shall, unless Committee is to comprise six Members instead of sooner dissolved, stand dissolved on the expiry of eight. forty-eight hours after the Prime Minister has so advised. In other words, the President cannot The Committees constituted as above are delay dissolution for more than forty-eight hours required to finalize the name of the Caretaker after the Prime Minister has given the advice to Prime Minister or the Caretaker Chief Minister(s) dissolve. Article 58 further provides that the within three days of the referral(s). In case the President shall dissolve the National Assembly if a Committees fail to agree the names of the vote of No Confidence is passed against the Prime nominees are to be referred to the Election Minister and no other Member of the National Commission of Pakistan for final decision within Assembly is able to command the confidence of a two days. The incumbent Prime Minister and the majority of its members. The corresponding incumbent Chief Minister(s) are to continue to hold provision in the case of a Provincial Assembly is office(s) till appointment of their Caretaker Article 112. successors. Earlier Article 52 of the Constitution provides that The Members of the Federal and the Provincial the National Assembly shall, unless sooner Caretaker Cabinets are to be appointed on the dissolved, continue for a term of five years from advice of the Caretaker Prime Minister or, as the the day of its first meeting and shall stand case may be, the Caretaker Chief Minister(s). The dissolved on the expiry of its five-year term. The Members of the Caretaker Cabinets are not corresponding provision in the case of a Provincial eligible to contest the elections in the immediately Assembly is Article 107. following general elections. The one circumstance in which the life of an Article 224(1) provides that the election to the Assembly can be extended beyond its five-year National Assembly or a Provincial Assembly shall term is provided for in Article 232(6) of the be held within sixty days following the day on Constitution. This Article states that while a which the term of the Assembly is due to expire. Proclamation of Emergency is in force, Parliament However, the position is a little different when the may by law extend the term of National Assembly Assembly is dissolved prior to its term as per for a period not exceeding one year and, in case provisions of Article 58 (Article 112 in case of a the Proclamation is revoked then not exceeding Provincial Assembly). In such an event Article six months from the date of revocation. 224(2) provides that the elections to the concerned Assembly shall be held within a period On dissolution of the National Assembly, or a of ninety days after the dissolution. In either case, Provincial Assembly, the President or, as the case the election results are to be declared not later may be, the Governor with the approval of the than fourteen days after conclusion of the polls. President, is to appoint a Caretaker Cabinet. In the case of the National Assembly, the Caretaker Role and functions of the Caretaker Prime Minister is to be appointed by the President Government in consultation with the Prime Minster and the Leader of Opposition in the outgoing National The role and functions of the Caretaker Assembly. Similarly, on the dissolution of a are set out in Chapter XIV of the Provincial Assembly, a Caretaker Chief Minister is Elections Act, 2017. Section 230 of this Act to be appointed by the Governor in consultation prescribes that a Caretaker Government shall:- with the Chief Minister and the Leader of the Opposition in the outgoing Provincial Assembly. (a) perform its functions to attend to day-to-day matters which are necessary to run the affairs of In case the Prime Minister and the Leader of the the Government; Opposition in the outgoing National Assembly do (b) assist the Commission to hold elections in not agree on any person to be appointed as a accordance with law; Caretaker Prime Minister within three days of the dissolution, they shall forward two nominees each (c) restrict itself to activities that are of routine, to a Committee constituted by the Speaker non-controversial and urgent nature, in the public comprising eight Members of the outgoing interest and reversible by the future Government National Assembly or the Senate or both. The elected after the elections; and

09 Briefing Paper Caretaker Government: Role and Functions under Elections Act, 2017

(d) be impartial to every person and political party. Gazette. The Caretaker Government shall not— The foregoing provisions in the Elections Act, 2017 have severely curtailed the role of the (a) take major policy decisions except on urgent Caretaker Governments. The functions and matters; powers of the Caretaker Governments have been (b) take any decision or make a policy that may reduced to the Caretaker mode adopted by the have effect or pre-empt the exercise of elected Governments in other countries such as authority by the future elected Government; Australia, New Zealand and . In these countries, the elected Governments enter into a (c) enter into major contract or undertaking if it is Caretaker mode immediately on announcement detrimental to public interest; of general elections. (d) enter into major international negotiation with The case of New Zealand any foreign country or international agency or sign or ratify any international binding The salient features of the Caretaker instrument except in an exceptional case; mode/convention(s) in the case of New Zealand (e) make promotions or major appointments of for example are as under:- public officials but may make acting or short term appointments in public interest; Caretaker convention (f) transfer public officials unless it is considered General expedient and after approval of the On occasion, it is necessary for a government to Commission; and remain in office for a period on an interim basis, (g) attempt to influence the elections or do or when it has lost the confidence of the House, or cause to be done anything which may, in any (after an election) until a new ministry is appointed manner, influence or adversely affect the free following the government formation process. and fair elections. During such periods, the incumbent government is still the lawful executive authority, with all the It would be seen that the role of the Caretaker powers and responsibilities that go with executive Governments has been restricted to performance office. However, governments in this situation of day-to-day functions that are necessary to run have traditionally constrained their actions until the affairs of the Government, and to assist the the political situation is resolved, in accordance Election Commission of Pakistan to hold elections with what is known as the convention on caretaker in accordance with the constitutional mandate of government. the Election Commission. The Caretaker There are two sets of circumstances in which the Governments are confined to activities that are of government would see itself bound by the routine, non-controversial and urgent nature and caretaker convention: to actions that can be reversed by the future elected Governments. They are enjoined to be a. After a general election, one of the two impartial to every person and political party. arms of the caretaker convention applies until a new administration is appointed. The Caretaker Governments are not empowered to take major policy decisions except in urgent b. If the government has clearly lost the situations. They cannot take any decision or make confidence of the House, one of the two a policy that may affect or preempt the exercise of arms of the caretaker convention guides the authority by future elected Governments. They government's actions until a new cannot enter into major contracts or undertakings administration is appointed, following either or major international negotiations. They also n e g o t i a t i o n s b e t w e e n t h e p a r t i e s cannot make promotions or major appointments represented in the current Parliament or a of public functionaries. They can transfer public general election. functionaries only with the approval of the In both situations the government is likely to state Election Commission of Pakistan. explicitly that it is to operate as a caretaker government until the political situation is resolved. The Caretaker Cabinets are also mandated to file with the Election Commission of Pakistan within Principles of the caretaker convention three days from the date of assumption of office statements of their assets and liabilities including Two arms of the convention assets and liabilities of their spouses and There are two arms to the caretaker convention, dependent children. The Election Commission is applying respectively: required to publish these statements in the official 10 Briefing Paper Caretaker Government: Role and Functions under Elections Act, 2017

a. where it is not clear who will form the next consultation might vary according to such government; and factors as the complexity, urgency, and confidentiality of the issue. b. where it is clear who will form the next government, but they have not yet taken Occasionally, a significant policy decision that was office. made before a caretaker period will need to be implemented during the caretaker period. Usually The principles that apply in each situation are set the implementation of such decisions can proceed out below. during a caretaker period. If the proposed action would be difficult or impossible to reverse, Unclear outcome however, it may be appropriate to consult other Where it is not clear which party or parties will form political parties about it. the next government following a general election The caretaker convention colours the whole or mid-term loss of confidence in the government, conduct of government, and requires careful the following principles apply to government judgement by Ministers, public servants, Crown business (at every level). entities, and other state sector agencies as to a. In general terms, the normal business of whether particular decisions are affected. g o v e r n m e n t a n d t h e d a y - t o - d a y No hard and fast rules are possible. Ministers may administration of departments and other need to take into account various considerations agencies in the state sector may continue (including political considerations), in deciding during the caretaker period. whether it is appropriate or necessary to proceed b. Decisions taken and specific policy on a matter and how the matter should be determined before the start of the caretaker handled. Decisions will also be considered period may be implemented by a caretaker against the background that the incumbent government. caretaker government has lawful executive authority, until replaced or confirmed in office. c. Matters may arise, however, that would usually require decisions, such as those Clear outcome concerning: Where it is clear which party or parties will form the ● significant or potentially controversial next government but Ministers have not yet been issues; appointed, the outgoing government should: ● issues with long-term implications that a. undertake no new policy initiatives; and would be likely to limit the freedom of action of an incoming government (such b. act on the advice of the incoming government as the signing of a major contract, or the on any matter of such constitutional, making of a significant appointment); economic, or other significance that it cannot be delayed until the new government ● new policy initiatives; or formally takes office—even if the outgoing ● changes to existing policy. government disagrees with the course of action proposed. Decisions relating to those matters should: Situations of this kind are likely to be relatively short-lived, as a swift transition between ● be deferred, if possible, until the political administrations is enabled by New Zealand's situation is resolved; or constitutional arrangements, including section ● if deferral is not possible (or is no longer 6(2)(a) of the Constitution Act 1986. possible), be handled by way of Decision-making process under the temporary or holding arrangements that do not commit the government in the caretaker convention longer term (for example, extending a Departments and other state sector agencies board appointment or rolling over a contract for a short period); or Day-to-day administration ● if neither deferral nor temporary The day-to-day administration of departments and arrangements are possible, be made agencies in the wider state sector will (in general only after consultation with other political terms) continue during the caretaker period. parties, to establish whether the However, departmental officials and board proposed action has the support of a members and employees of other state sector majority of the House. The level of agencies should always take into account the fact

11 Briefing Paper Caretaker Government: Role and Functions under Elections Act, 2017

that they are operating in a caretaker particular matter, they should err on the side of environment, and exercise special care when caution and raise the matter with the Prime making decisions during this time. Minister or at Cabinet. If a Minister considers that a matter requires consultation with other political Departments parties, the proposed consultation must be Most decisions to which the caretaker convention approved in advance by either Cabinet or the applies are those relating to significant or Prime Minister. potentially controversial issues, issues with long- term implications, new policy initiatives, or Coordination and the Prime Minister's changes to existing policy. In the usual course of role events, these decisions will be referred to the Minister. The Minister will decide (in consultation, In cases where any doubt arises as to the if appropriate, with ministerial colleagues and/or application of the caretaker convention, Ministers the Prime Minister) how the convention applies should consult the Prime Minister. Final decisions and how the decision should be handled. The concerning the caretaker convention rest with the department should be ready to provide advice (if Prime Minister. required) on applying the caretaker convention, All approaches to other political parties must be and the options for handling the decision in terms cleared in advance with the Prime Minister or of the convention. The Secretary of the Cabinet is Cabinet. Ministers should ensure that they notify available for guidance. the office of the Prime Minister as early as possible On rare occasions, caretaker convention issues of any matters that may require consultation and may arise in relation to matters that, under statute, action during periods of caretaker government. fall solely within the decision-making authority of a G u i d a n c e o n d e c i s i o n s a b o u t chief executive or statutory officer. Where this happens, chief executives and statutory officers e x p e n d i t u r e a n d t h e O f f i c i a l should observe the principles of the caretaker Information Act 1982 convention when making such decisions. The In relation to decisions on expenditure, there must Secretary of the Cabinet is available for guidance. always be authority from Parliament to spend Crown entities, state-owned enterprises, and money before expenditure is incurred. other state sector agencies The Official Information Act continues to operate The statutory provisions governing decision- during a caretaker period. In general, responding making within Crown entities, state-owned to requests for information should be seen as part enterprises, and other state sector agencies of the day-to-day business of government, and impose different obligations from those applicable should be dealt with in the usual way. On rare to decision-making within departments. Cabinet occasions, requests may raise issues that are expects, however, that agencies in the state likely to be of long-term significance for the sector will apply the principles of the caretaker operation of government and that require convention to decision-making during the ministerial involvement. In this situation, it may be caretaker period, as far as possible taking into necessary to consider extending the time limit in account their legal obligations and statutory order to consult the incoming Minister. Any such functions and duties. Cabinet also expects that the extension must comply with section 15A of the agencies will discuss with their Ministers any Official Information Act. issues with caretaker convention implications. For general guidance on applying the caretaker Pakistan is now the only country where Caretaker convention, the heads of Crown entities or other Governments are installed at both the Federal and state sector agencies may wish to contact relevant Provincial levels during the transition period from departmental chief executives or the Secretary of one elected Government to another. It is for the Cabinet. serious consideration whether, for the future, if a consensus can be developed between (at least Ministerial decisions the major) political parties on a Caretaker mode along the lines of other established , As a general rule, Ministers should put before their the constitutional provisions relating to Cabinet colleagues the sorts of issues on which appointment of Caretaker Governments should they themselves would wish to be consulted. be repealed. Ministers may wish to discuss with their Cabinet colleagues whether the caretaker convention applies to a particular decision and how it should be handled. If Ministers are in any doubt about whether the caretaker convention applies to a

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