Friday, 5 April 2013

Must Read : The Caretaker Government In Malaysia: A Layman's Guide...

At the stroke of midnight on March 28, 2013, history was made when the Negri Sembilan state legislative assembly completed its five-year term and was automatically dissolved.

The unprecedented occurrence came about following the expiry of the state assembly's ruling term before the dissolution of parliament by the federal government.

As a result, the current Negeri Sembilan state government, helmed by Menteri Besar Datuk Seri Mohamad Hasan, now administers the state via a 'caretaker government'.

Despite this being the first time that the concept of a 'caretaker government' has arised in Malaysian politics, the rules are clear with regards to the limits of what a caretaker government can or cannot do.

Mohamad had, prior to the dissolution, explained that the present administration still handles the day-to-day operation of running the state, such as ensuring the welfare of its people and handling the salary of its civil servants.

He did however note that the caretaker government does not have any legislative authority to approve budgets, implement new policies, handle new appointments of staff and other matters, as it is not a government that is "mandated by the people."

Observers have noted that the turn of events is fascinating as there is no precedence for such an occurrence. The Malaysian Constitution, for one, does not contain any provisions for the concept of a caretaker government, as it is generally a parliamentary practice or convention.

The concept is traditionally derived from the Westminster parliamentary system, which the Malaysian administration adopts.

It is used in parliamentary democracies where the government is formed from the majority political party in the elected House of Representatives.

A caretaker government governs on an interim basis, depending on the outcome of a determining event - in this case, the 13th general election. There are generally three instances when a caretaker government may come into play.

The first instance follows the dissolution of parliament, whereby a general election is held to determine if the new government would be formed from either the ruling party or the opposition.

The second one involves the old government continuing in a caretaker capacity after the general election because a new government has not been formed due to a hung parliament or a lack of a clear mandate from any party. When this happens, parties normally come together and form an alliance to create a coalition government.

The third instance is where the incumbent government has been defeated on a confidence vote in parliament, and is allowed to remain in office until it is dissolved and a general election takes place.

It is widely believed that a caretaker government should not be allowed to use the government’s apparatus, facilities or publicity machines for electoral advantage during the elections as once parliament is dissolved – and a general election called – the incumbent government is only required in office as a necessity. It can govern lawfully, but not politically, and will need the people’s confidence to continue.

Experts believe that guidelines should restrict a caretaker government from:
1. Making new policies which binds a future government;
2. Making new expenditure commitments other than of a routine kind;
3. Making public appointments which could bind a future government; and
4. Entering into significant government contracts.

The restrictions above go hand-in-hand with a caretaker government’s objective of keeping the governing machinery functional until a new government takes over, serving a useful purpose in the constitutional functioning of a parliamentary democracy.

"The government will no longer have the legislative power to approve budgets, implement new policies or make fresh appointments of staff as it is not a government mandated by the people," Negri Sembilan Election Commission director Afizam Abdullah Sani told the New Straits Times earlier this week, adding that a caretaker government would only be running basic day-to-day operations.

There is a maximum period of 60 days for the caretaker government to run following automatic dissolution, and it is not a norm for one to run a state for too long for fear it would affect the people's welfare.

The first time a caretaker government ever came into power was in Britain when Sir Winston Churchill’s wartime Conservative-Labour coalition government in 1945 was broken up by the Labour Party’s withdrawal. This resulted in Churchill resigning his national government.

An interim government, commissioned by the King, was formed while the country held a general election but as things went, the Labour Party, under Clement Attlee, stormed to a win and formed the first British elected government.

The other prominent example was when Australian Prime Minister Gough Whitlam was unsuccessful in obtaining budget supply in the upper house in late 1975, leading to a government stalemate.

With the Prime Minister not prepared to tender advice to dissolve parliament, the Governor General stepped in and revoked the commission of the Whitlam's Labor government and called upon the Leader of the Opposition, Malcom Fraser, to form a caretaker government. Fraser’s Liberal Party would later come into office after the general election.

In Malaysia, the term 'caretaker government' had been used once, The Star reported yesterday. In the first post-Merdeka parliamentary election in August 1959, there was a crisis in the ruling Alliance coalition party. The crisis was within the MCA when a faction under its former president Tun Dr Lim Chong Eu broke away from the party and fielded candidates to contest as independents against MCA candidates who were then under Tun Tan Siew Sin.

As the Alliance coalition chief, then prime minister Tunku Abdul Rahman Putra Al-Haj had wanted to commit himself completely to leading his party and campaign for the general election, so he "retired" from his PM post for the three-month election period.

His deputy Tun Abdul Razak took over the reins, and after being sworn in as the country's second Prime Minister, declared that the new government was not "acting as a caretaker government".

Constitutionally, the three-month Razak administration was not a caretaker government but merely a political strategy to use Tunku Abdul Rahman's popularity to influence in the campaign.

The Tunku had thought that it was inapproptiate for him to continue be paid by taxpayer's money as prime minister while he engaged in full party political work.
Meanwhile, Minister in the Prime Minister's Department Datuk Seri Mohd Nazri Abdul Aziz had earlier this week called for the caretaker government's guidelines to be based on the conventions set by Australia and Great Britain, as the Malaysian experience did not set the best example of a caretaker government. The task of setting the guidelines is currently being undertaken by the Attorney-General's Chambers.

In September 2012, the Election Commission (EC) announced that it had prepared draft guidelines for a caretaker government and that it would be presented to the Federal Government for further deliberation.

The guidelines were one of the 22 recommendations made by the Parliamentary Select Committee on Electoral Reforms to better the electoral process in Malaysia.
However, theSun reported yesterday that EC chairman Tan Sri Abdul Aziz Mohd Yusof had said the commission has no power to make such guidelines as there is no provision for this under the Constitution.

"Even if the EC has guidelines on the matter, there is no guarantee that they (caretaker governments) will adhere to it," he had said.

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