A caretaker government has limited power, says don

Posted on Thursday, March 27, 2008

The Star - February 14, 2008

KUALA LUMPUR: The Malaysian system follows a longstanding constitutional convention where the government of the day will assume the role as caretaker government during the interim period when Parliament is dissolved.

Universiti Teknologi Mara’s Law Professor Dr Shad Saleem Faruqi said the Constitution was silent on the appointment of a caretaker government or whether the government of the day must resign after calling for elections or the Yang di-Pertuan Agong must appoint a caretaker government for the interim period.

“The Constitution does not spell out the role of the caretaker government, how it functions its duty, whether it is simply to perform the basic essential functions or possesses the normal powers of a government.

“It relies on the Commonwealth convention, that the government does not have to be reappointed once Parliament is dissolved,” he said.

However, by convention the caretaker government should not make any politically controversial decisions such as making appointments or dismissals in key posts, make important policy decisions, implement new laws or commit the incoming government into any expenditure, Dr Shad said.

During the interim period which includes election campaigning, members of the caretaker government must not use their position, government machinery or funds for partisan or political advantage.

Dr Shad added that when the Commonwealth rule was not strictly followed, the question of remedy arose.

He said the King had the power to appoint a new government during the interim period, and if the Prime Minister abused his power, the King may decline to listen to his advice.

“But this is usually in extreme circumstances and the King will usually let the Prime Minister rule the country just as during his term,” he said.

The courts, he said, could not do much to stop the caretaker government from making important policy decisions. “This is because there is no law that permits the government and no law that forbids it either,” he said.

Hence, Dr Shad said the role and function of the caretaker government was more of a question of constitutional and political ethics.

“It is an unwritten convention of the Constitution. It’s about wisdom and political morality and the caretaker government should not push its power too far,” he said.

Dr Shad said that in some Commonwealth countries such as India, the Election Commission was very powerful, citing former prime minister Indira Gandhi who was barred from Parliament for using the official machinery for partisan purposes.

He said Bangladesh was one Commonwealth country that amended its Constitution to make things right.

Its Cabinet and prime minister must vacate their posts upon dissolution of Parliament and a neutral caretaker government appointed by the president.