Caretaker Governments: A Constitutional Black Hole

When did Pakistan's constitution first provide for caretaker governments?

The author traces it to the Revival of Constitution of 1973 Order of March 1985, issued under General Zia ul Haq, which let the President appoint a caretaker cabinet on dissolving the National Assembly. The Legal Framework Order 2002 and the 18th and 20th Amendments later revised these provisions.

Caretaker governments— a constitutional black hole i. Initially, the concept of caretaker government was incorporated in the Revival of Constitution of 1973 Order (RCO), 1985, which was promulged by Gen Zia ul Haq in March of 1985. The provision of caretaker cabinet was introduced through Article 48(5)(b) reproduced below:

“Where the President dissolves the National Assembly, he shall in his discretion appoint a caretaker cabinet”.

Later on, General Perviaz Musharaf issued the Legal Framework Order 2002 and added a proviso to Article 224A. The provisions relating to caretaker governments were further amended in the 18th and 20th Amendments to the Constitution. A well-kwon researcher, Mr. Bilal Mehboob, observed; “From a caretaker cabinet, without a Prime Minister in 1985 until 2008 to a neutral Prime Minister in 2013, to clearly partisan Prime Minister in 2018, there has been a substantial evolution.”

Have caretaker governments delivered fair elections in Pakistan?

In the author's assessment, no. He finds that over more than three decades caretakers repeatedly failed to deliver impartial elections, that complaints of rigging followed every general election, and that leaving elections to unelected interim governments, rather than an independent and credible Election Commission, damaged democracy's credibility and stability.

ii. The history of more than three decades of the caretaker cabinets reveals that the experiment has been extremely counterproductive in all respects. On one hand, the caretakers repeatedly failed to deliver on the promises of impartial elections, and on the other hand, hybrid constitutional system has badly told upon the credibility and stability of democratic process. Instead of establishing an independent and credible Election Commission, holding of democratic elections have been left at the disposal of unqualified, unelected, inexperienced and undemocratic governments. Democracy can’t flourish with undemocratic recipes, practices and procedures. Successive evaluations of the performance of caretaker governments have shown that such governments are part of the problem, not the solution. Repeated uproar against allegedly rigged elections invariably echoed after every general election. It reflects upon the negative fallout of the aberration. Few may question the futility of perpetuating the failed experiment.

What happened to Bangladesh's caretaker government system?

Bangladesh tried a caretaker government to conduct elections in 1996, with a retired chief justice at its head. The author records that the experiment did not deliver what was expected of it, and that Bangladesh therefore abandoned the scheme in 2011, a regional example he uses in his case against caretakers.

iii. In 1996, Bangladesh experimented with the idea of caretaker government for conducting elections. A retired chief justice of Bangladesh was appointed as the head of the caretaker government. The experiment, however, failed to deliver the goods. The scheme of caretaker government in Bangladesh was, therefore, abandoned in 2011.

Are caretaker governments compatible with representative democracy?

The author argues they are not. The constitution says the state shall act through the chosen representatives of the people, and a caretaker break suspends exactly that. He adds that such breaks invite unelected rule beyond 90 days, citing the caretaker governments installed in Punjab and Khyber Pakhtunkhwa in January 2023.

iv. The idea of caretaker government is incompatible with the constitutional mandate of representative democracy enshrined in the Constitution: “The State shall exercise its powers and authorities through the chosen representative of the people”.

v. In the first place, the very idea of undemocratic break negatives the spirit of representative democracy. Moreover, it is a temptation for installing undemocratic governments for periods longer than 90 days. The caretaker governments installed in January 2023 in Punjab and KPK provinces completely nullified constitutionalism.

How do other democracies avoid caretaker governments?

The author points to systems with no break in representative rule: the US House cannot be dissolved and new members take over directly; Norway's Storting serves a fixed four-year term; Indonesia's president cannot dissolve the DPR; and many upper houses are standing bodies. He favours a self-executing representative structure for Pakistan.

vi. Instead of undemocratic recipes of caretaker governments, it is in national interest to evolve a self-executing representative structure of government. Various methods for the continuity of democratic systems have been adopted in comparative constitutions of various countries. The underlying idea is to overcome existing irritants without doing away with the governments of the chosen representatives of the people. For instance, in the United States, the Congress is a standing body and the US Constitution does not admit the concept of dissolution of House of Representatives. The members of the House are elected every two years on the first Tuesday after the first Monday in November. Two-year term starts from January following the elections in November. Thus, newly elected members take over office from the outgoing members of the House without any break. Norway’s unicameral parliament known as ‘Storting’ is elected for four years without any provision for its dissolution except on the expiry of its term. Since 2001, under Article 7C of its Constitution, the President of Indonesia cannot dissolve or freeze the DPR (the Peoples Representative Council). Since 1991, no dissolution of Parliament took place in Wales as fixed term of Parliament was provided for in terms of the Fixed-term Parliament Act 2011. Article 149 of the Constitution envisages renewal of House of Representative in full every four years. It is a matter of common knowledge that in bicameral parliament’s upper Houses are mostly standing bodies, which represent continuity in change as anchor for political stability in political storms. Political stability has become a pivotal factor for the success of leading economies because instability and unpredictability badly undermine economic planning and feasibility. Although presently carried over practice of dissolution of parliaments is still a predominant tradition, economic compulsions are inevitably tending towards continuity of representative rule in one form or the other rather than resort to undemocratic breaks in the representative governance which stoke uncertainty and chaos.

vii. Caretaker governments are harmful for other reasons as well. For instance, arbitrary appointments of caretaker rulers by the government and opposition leaders, who have conflict of interest in the process, often end up in deadlocks. The caretaker governments introduced through Article 224 (1A) and (1B) is patent negation of the exercise of the authority of the state by chosen representatives. Democratic rule cannot be suspended even for short breaks in real democracy. Moreover, there is little justification for putting in place inexperienced caretaker rulers, having no orientation or qualification for momentous national affair of holding elections.

viii. The casual and compromised appointments in the caretaker cabinets without reference to any merit is rife with risks of mismanagement and unacceptability of the election results. Such governments are neither responsible to anybody nor responsive to the people. There is, thus, every likelihood that caretakers would serve themselves rather than serving the people.

Why don't presidential systems need caretaker governments?

In presidential and semi-presidential democracies, the author explains, a directly elected president appoints a cabinet that is generally separate from parliament. Because that government has no conflict of interest in the election, he considers it more credible and representative for staying in office while impartial elections are held.

ix. The problems of interim caretaker governments for holding general elections do not arise in presidential or semi-presidential democracies because the directly elected presidents appoint cabinets, which are generally separate from the parliaments. The governments appointed by the elected president, who have no conflict of interest in the electoral process, are more credible and representative bodies for continuing in office and maintaining stability of the system for conducting impartial elections

Frequently asked questions

What is a caretaker government in Pakistan?

It is an interim, unelected government appointed to run the country or a province while general elections are held. The author describes it as a hybrid arrangement that interrupts rule by elected representatives and calls it a constitutional black hole.

Which constitutional provisions govern caretaker governments?

The author lists Article 48(5)(b) as introduced by the Revival of Constitution Order 1985, the proviso to Article 224A added by the Legal Framework Order 2002, later changes in the 18th and 20th Amendments, and Article 224(1A) and (1B).

Why does the author say caretaker appointments are risky?

Appointments are made by government and opposition leaders who have a conflict of interest, often ending in deadlock. He adds that caretakers are chosen without regard to merit, answer to no one and lack experience in organising elections, which risks mismanagement and disputed results.

What does the author propose instead of caretaker governments?

He calls for a self-executing representative structure, in which elected government continues without an undemocratic break, as in countries where legislatures are standing bodies or serve fixed terms, or where a directly elected president keeps a government in office during elections.

Related Minds

• Semi-Presidential Systems: Examples and Lessons
• Constitutional Amendments in Pakistan: Who Holds the Pen?
• Proportional Representation vs First Past the Post
• Why Constitutions Fail, and What Makes Them Flourish

Read the full argument in the book How Constitutions Flourish or Fail by Mian Ashiq Hussain.