By introducing caretaker setups in the country, the active partic ipation of citizens in the elector-- al process was enhanced to ensure fair, free and impartial general elections, democratic institutions’ development and the state functionaries’ accountability. After the dissolution of the Punjab Assembly and the Khyber Pakhtunkhwa Assembly, a constitutional procedure is underway for the nomination of caretaker chief ministers in both provinces. After the dissolution of the Punjab Assembly, the Pakistan Tehreek-i-Insaf (PTI) and PML-Q had finalized three consensus candidates as their nominees for the appointment of a caretaker chief minister in Punjab. As PTI and PML-N could not reach a consensus on one of the nominees for the interim chief minister within the stipulated time, Punjab Governor Balighur Rehman last Wednesday directed Speaker Sibtain Khan to constitute a parliamentary committee for the purpose.
The PML-N had nominated an Adviser to the Prime Minister on Establishment Ahad Cheema and senior journalist Mohsin Naqvi while PTI suggested Ahmad Nawaz Sukhera, Naseer Ahmed Khan and Nasir Mahmood Khosa for the slot of caretaker chief minister. CM Pervaiz Elahi and Hamza had 10 pm till Tuesday to agree on a name for the caretaker chief minister but they failed to agree within the stipulated time frame in terms of Article 224(1A) of the Constitution.
Now the speaker Under Article 224A(2) shall constitute a parliamentary committee for the selection of a person for the top provincial slot. Now a parliamentary committee, being a bi-partisan panel, will be formed. It will consist of three members each from the treasury and opposition benches. The penal will send two nominees and they will come to a conclusion and announce the name of the caretaker chief minister within three days. Article 224A prescribes that if the two leaders fail to reach a consensus, a parliamentary committee consisting of an equal number of the members from the ruling and opposition parties has to pick a caretaker chief minister within three days out of a list of two nominees each forwarded by the outgoing chief minister and the opposition leader.
Even if the parliamentary body fails to reach a consensus, the Election Commission of Pakistan (ECP) is authorized to finally pick one of the four persons as the caretaker chief minister. Under Article 112 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution), the provincial assembly was dissolved automatically as Governor Balighur Rehman refrained from giving his assent to the dissolution advice sent by Chief Minister Pervaiz Elahi. Article 112(1) of the Constitution reads: “The Governor shall dissolve the Provincial Assembly if so, advised by the Chief Minister; and the Provincial Assembly shall, unless sooner dissolved, stand dissolved at the expiration of forty-eight hours after the Chief Minister has so advised.” Commenting on the issue, the Punjab governor tweeted: “I have decided not to become part of the process leading to the dissolution of Punjab Assembly.
I would rather let the Constitution and law take their own course. Doing so will not hamper any legal process as the Constitution clearly provides a way forward.” Afterward in a letter titled ‘Appointment of Caretaker Chief Minister’, the governor called CM Pervaiz and opposition leader Hamza to participate in the process of the caretaker chief minister’s appointment. The letter reads: “The provincial assembly of Punjab and the cabinet stands dissolved under Article 112(I) of the Constitution of the Islamic Republic of Pakistan w.e.f January 14, 2023, at 2210 hrs.” Following hot on the heels of the PA dissolution, Governor Haji Ghulam Ali signed on January 18, 2023, the summary on the dissolution of the KP Assembly on the advice of KP Chief Minister Mahmood Khan. Mahmood Khan will continue as acting chief minister until the interim chief minister assumes office. A day earlier, the CM had sent advice to the governor seeking the dissolution of the provincial assembly on the direction of PTI chief Imran Khan. The role of opposition in the formation of acceptable caretaker governments is very crucial and decisive. If the legitimate and true opposition is deprived of its legitimate right, the very purpose of ensuring an acceptable caretaker government is defeated.
Also, the credibility of parliament, the legitimacy and neutrality of the caretaker government, and the elections that are held during the tenure of such caretaker government, are seriously jeopardised. Article 224 of the Constitution was amended to overcome any possible deadlock, by inserting Article 224A through the Constitution (20th Amendment) Act, 2012. These significant amendments to the Constitution cannot be negated by depriving the opposition of the role that is envisaged of it, and in particular of the leaders of the opposition in the assemblies as envisioned in Articles 224 and 224A of the Constitution. The object of introducing caretaker governments is to ensure against election malpractices that may be attributable to a partisan government. Article 224(1) of the Constitution says: “A general election to the National Assembly or a Provincial Assembly shall be held within a period of sixty days immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared not later than fourteen days before that day.”
To give tough time to the opponents in the general elections, particularly in Punjab, PTI and PML-Q senior leadership have decided to continue their electoral coalition and there is also a likelihood that the PMLQ shall merge with PTI.
It was revealed after a meeting held between PTI chief Imran Khan and Pervaiz Elahi at the former’s Zaman Park residence that the former prime minister has recommended that PML-Q merge with the PTI. Meanwhile, the PTI thinks early general elections are the only way forward to steer the country out of economic and political crises. It says the country lacks economic and political stability due to the ouster of the PTI government in pursuance of a foreign agenda by the PML-N and its coalition partners. It also says that the economy has gone beyond the Pakistan Democratic Movement’s control and, as a result, they are leaving a power vacuum in the country. Sensing the strong position of PTI, its disgruntled leaders are now trying to approach the party chairman but they have been asked to respond to the show cause notices issued to them and explain their position to PTI’s Secretary General Asad Umar.
The disgruntled PTI members including Faisal Cheema, Momina Waheed and Khurram Laghari had abstained from giving a confidence vote to Pervaiz Elahi. Since then, they have been facing strong resentment in their respective constituencies from the PTI workers for ditching them at a crucial time. As to the functions of the nonelected setups, the caretaker governments have to carry out the day-to-day affairs of the state and assist the ECP in holding general elections by constitutional and legal provisions. Their role and functions are mentioned in Chapter XIV of the Elections Act, 2017.
Its Section 230 prescribes that a Caretaker Government shall perform its functions to attend to day-to-day matters which are necessary to run the affairs of the Government and assist the Commission to hold elections per the law. Moreover, the non-elected governments are required to restrict themselves to activities that are of routine, non-controversial and urgent nature, in the public interest and reversible by the future Government elected after the elections; and be impartial to every person and political party. The caretaker setups are barred from taking major policy decisions except on urgent matters; from taking any decision or making a policy that may have an effect or preempt the exercise of authority by the future elected government. They cannot enter into a major contract or undertaking if it is detrimental to the public interest. They cannot enter into major international negotiations with any foreign country or international agency or sign nor ratify any international binding instrument except in an exceptional case. Furthermore, the caretakers are barred from making promotions or major appointments of public officials but may make acting or short-term appointments in the public interest.
They cannot transfer public officials. They cannot attempt to influence the elections or do or cause to be done anything which may, in any manner, influence or adversely affect the free and fair elections. They are enjoined to be impartial to every person and political party. They are not empowered to take major policy decisions except in urgent situations. They cannot enter into major contracts or undertakings or major international negotiations. They cannot make promotions or major appointments of public functionaries. They can transfer public functionaries only with the approval of the ECP. Pakistan is the only democratic nation that manages caretakers for holding elections as the idea of caretaker setups is hardly seen in the world. The idea to introduce caretaker cabinets came after rigging in earlier elections under then-elected governments.
The caretaker setups are aimed to address political parties’ concerns and to ensure free, fair and transparent elections which form the basis of civil democracy. These setups are to keep the country and the provinces running between the dissolution of the assemblies and the formation of new governments. Now, there is a need for ensuring the legitimacy and neutrality of the caretaker governments so that no quarters could assail the requisite fairness and transparency of the electoral process, and that the credibility of government formed after general elections may also not be undermined.
Muhammad Azhar Siddique
The writer is an Advocate of the Supreme Court of Pakistan and Chairman of the Judicial Activism Panel
