GE13: A caretaker govt – what can it do?

The Star
by DATUK DR CYRUS DAS

There is no provision for a caretaker government in the Malaysian Constitution. The notion of a caretaker government is essentially a parliamentary or constitutional convention.

THERE is no reference to a caretaker government in the Federal Constitution. The concept of a caretaker government is a concept of the Westminster parliamentary system.

It is practised in parliamentary democracies where the executive government is formed from the majority political party in the elected house of representatives.

The notion of a caretaker government is essentially a parliamentary or constitutional convention.

A caretaker government may broadly be described as an interim government that governs pending the outcome of a determining event.

The determining event is invariably a general election that would elect a government that can govern with the confidence of the majority in Parliament.

A caretaker government may arise generally in three circumstances:

> The usual instance is where Parliament has been dissolved and a general election is called where a new government would be formed either from the ruling party or the opposition.

> The other instance is where, following the results of the general election, the old government continues in a caretaker capacity until the new government is formed because of a hung parliament or the lack of a clear mandate in any political party.

In such circumstances, political parties attempt to form alliances to create a coalition government.

> The third instance is where the incumbent government is defeated on a confidence vote in parliament, and is permitted to continue in office until parliament is dissolved and a general election held.

Malaysia

In Malaysian parliamentary history, the first time the term “caretaker government” was used was in the first parliamentary election after Merdeka. It was held in August 1959 in the midst of a crisis in the Alliance coalition party which was the ruling party. The crisis was within the MCA, a component party of the Alliance, after a faction under Tun Dr Lim Chong Eu, the erstwhile president of the party, had broken off and was fielding candidates to stand as independents against MCA candidates led by Tun Tan Siew Sin.

The then Prime Minister, Tunku Abdul Rahman, as the leader of the Alliance coalition wished to devote full time to the general election and lead the campaign for his party.

The Tunku therefore “retired” as Prime Minister for the duration of the three-month election period.

He handed over the reins of government to his deputy, Tun Abdul Razak, who he said was to be a “full-fledged Prime Minister”.

This was affirmed by Razak himself, upon being sworn in as the country's second Prime Minister when he declared that the new government was not “acting as a caretaker government”.

This was reported in The Straits Echo on April 17, 1959 but there was never any doubt in the public mind or the media that it was a temporary arrangement and that Razak was “caretaker Prime Minister” holding the post for the Tunku until his return.

The Razak government of three months in mid-1959 was strictly not a caretaker government in the constitutional sense. It was fundamentally a political strategy to use the Tunku's considerable popularity to advantage in the campaign.

It was the innate decency of the Tunku that while engaged full time in party political work, he thought it improper that he should draw his income from the public funds as prime minister.

Hence the “resignation” or “retirement” as he described it himself.

The Malaysian experience, however, is not the best example of a caretaker government.

There are two examples elsewhere which better explain the working of the concept.

Britain

The first is the (Sir Winston) Churchill wartime coalition government in Britain which comprised of members from both the Conservative and Labour Party.

After the end of the War in mid-1945, the Labour Party under Clement Attlee withdrew from the coalition causing Churchill as Prime Minister to tender the resignation of his national government.

The King, by parliamentary convention, commissioned Churchill to form a new government upon the understanding that he would request for the dissolution of parliament and hold a general election.

The interim Churchill government was characterised by the national press as “a caretaker government” holding office until a new government was elected. As events went, the Labour Party under Attlee swept into power and formed the first post-War/elected government in Britain.

Australia

The other instance was in Australia in late 1975 upon the dismissal from office of the Whitlam Labour government. The failure of Prime Minister Gough Whitlam to obtain budget supply in the upper house led to a stalemate in government.

The Governor General sought to dismiss the government from office by the exercise of his vice-regal reserve powers to break the deadlock since the Prime Minister was not prepared to tender advice to dissolve parliament.

The Governor General questionably sought the advice of the then serving Chief Justice, Sir Garfield Barwick, who questionably tendered advice that upon the withdrawal of the commission of the Prime Minister he may call upon the Leader of the Opposition to form “a caretaker government” on his undertaking to secure supply.

In the event, the Governor General in the exercise of his reserve powers revoked the commission of the Whitlam government and called upon the Leader of the Opposition, Malcom Fraser, to form a caretaker government upon his undertaking to recommend dissolution of parliament and submit the country to a general election. As events went, a Fraser government came into office after the general election.

What a caretaker government can and cannot do

The important question always is about what a caretaker government can or cannot do. It is axiomatic that as a caretaker government, it “holds the fort” pending the general election and may not make any decision of import, policy or otherwise, or any decision with grave financial implications, that binds the successor government.

For example, in the Australian crisis of 1975, the Governor General in his official statement to the public on the formation of the interim government stated that the caretaker government could “make no appointments or dismissals and initiate no policies” until a general election is held.

A view point is held that the restrictions on a caretaker government during elections should not merely be limited to a prohibition against the use of government apparatus and facilities or the government's publicity machine for electoral advantage.

The view point for an enlarged restriction is based on the rationale that once parliament is dissolved and a general election called, the incumbent government continues lawfully in office as a necessity but is obliged to seek the confidence of the people to continue to govern or be replaced. In short, the incumbent or caretaker government after dissolution would have the lawful authority to govern but not the political authority, since the exercise of dissolution and a general election is to determine that very question.

Hence, according to an expert study, a caretaker government should not:

> Make any new policy which binds a future government.

> Make new expenditure commitments other than of a routine kind.

> Make public appointments which bind a future government.

> Enter into significant government contracts.

The enumeration of the restrictions above which go beyond the non-use of government facilities during the general election conforms to the concept of a caretaker government.

It affirms the principle that a caretaker government is fundamentally engaged in a holding operation with the object of keeping the machinery of government functional, in a routine way, until the people elect the future government.

The concept of a caretaker government therefore serves a useful purpose in the constitutional functioning of a parliamentary democracy.