The essence of the concept of a caretaker government is to equalise the position of the ruling party and the opposition in the lead-up to the polls, says Tommy Thomas.
In our federal system of government, general elections have to be held every five years for Parliament and the 13 State Assemblies. There is no constitutional reason why the general elections for 14 Legislatures must be held at the same time.
Indeed, since Merdeka there have been instances when national and state elections were held at different times. Even in 2013, no state elections need be held in Sarawak because they had their last one in 2011 which would take them to 2016.
However, because of the centralisation of power in Putrajaya and its control over the Elections Commission, the political reality is that the Barisan federal government decides when the national polls would be held this year, and the Elections Commission, as its mouthpiece, has already announced that general elections for Parliament and all the State Assemblies (except Sarawak) will be held on the same day. For practical purposes, this means that four Pakatan governments in Kelantan, Kedah, Penang and Selangor have absolutely no say in the fixing of the date of their state elections.
It does not follow from the fact that the 12 states which have to go to polls in the coming weeks for state elections are powerless under the Constitution because they cannot decide on the date of the polls. The fixing of the date must be contrasted with the earlier or prior decision of the Menteri Besar/Chief Minister of each of the 12 states to advise his Malay Ruler or Governor (Yang diPertuan Negeri) to dissolve the State Assembly before the expiry of its five-year term.
This is a decision of great constitutional significance, and it is disappointing from the perspective of the Constitution, that the Negeri Sembilan Menteri Besar did not advise the Yang diPertuan Besar to dissolve the State Assembly of his state. Instead, Article 56(4) of the Second Part of the Negeri Sembilan Constitution was triggered yesterday, and the Assembly was automatically dissolved yesterday (26 March 2013). Historians would have to advise whether this is the first occasion that this has happened in Malaysia.
Our parliamentary democracy is established on the basis that a government elected at the general elections is a government responsible to the legislature, and one of the prerogatives of the leader of such a government is to advise his constitutional monarch to dissolve the Legislature before the automatic dissolution clause is triggered.
One hopes that the other 11 State Governments will not follow the Negeri precedent and allow automatic dissolution to occur. Rather, each of them should exercise their privilege and advise on dissolution immediately.
The significance is this: a conscious and deliberate decision of the State Executive, as contemplated in the Westminister system, is far more preferable than automatic dissolution which sends the unmistakable signal that the government is frightened to meet the electorate on a date of its choosing.
The Elections Commission has already announced that general elections for all the legislatures (save Sarawak) must be held before 26 May 2013. The Elections Commission has also declared that from yesterday, the Negeri State Government is a caretaker government.
The binding effect of decisions and contracts made by a caretaker government in the Westminister system must be contrasted with a normal government. Much learning on the nature of caretaker governments is freely available online: a sample can be found at the end of this article. The Elections Commission should publicly announce at once the dos and don’ts of what the Negeri state government can do in the next 60 days.
Some plain and basic illustrations will help. The Negeri government can continue to pay its civil servants and honour contracts entered into before 26 March 2013. Thus, if the Negeri state government had entered into a tenancy agreement in 2012 with a private sector party to rent the latter’s office block in Seremban, that agreement is valid and the state must pay the rentals to the landlord for the next two months.
However, what the Negeri state government cannot do is to enter into new contracts, transactions or deals in the next 60 days. If a third party is reckless to execute such a contract, it does so at its peril. If the people of Negeri elect a Pakatan state government, the latter is entitled to terminate such a contract in the public interest. This is the public law equivalent to the inability of an agent to bind its principal in certain circumstances that one finds in private law, say, directors committing their company to a contract when the company is facing winding-up.
As the name suggests, a caretaker government is just taking care of the state by virtue of the doctrine of necessity. Every state must at all times have a government, and Negeri currently has a government with minimum powers. The essence of the concept of a caretaker government is to equalise the position of the ruling party and the opposition in the lead-up to the polls. The objective is to have a level playing field in order to promote fair elections. It will always be temporary in nature, that is, only until 26 May 2013.
When campaigning for votes, the Negeri state government (and all the other governments in the coming weeks) should not be using public property, like helicopters, motor vehicles and government halls, which belong to the people because they are paid from tax-payers’ funds. Because the opposition cannot use such public property, neither can the ruling government. A clear demarcation between government work and party work must be applied.
Likewise, access to the mass media. Equal time and access must be given to both coalitions for the mass media (television and radio) which are funded by tax-payers’ money. The Barisan has been treating Angkasapuri as its private property — it is not, and must be shared with the opposition coalition in the next two months. One need not multiply examples to make the point.
“General Election Guidance” (2010)Cabinet Office, United Kingdom.
“The Cabinet Manual – Draft” (2010) Cabinet Office, United Kingdom.
“Guidance on the Caretaker Conventions” (2010) Department of the Prime Minister and Cabinet, Australia.
“Guidelines on the Caretaker Conventions” Premier and Cabinet, State Government of Victoria, Australia.
“’Caretaker’ Conventions and other Pre-Election Practices” (2010) Premier and Cabinet, Government of New South Wales, Australia.
“Guidance on Caretaker Conventions” (2012) Government of Australian Capital Territory, Australia.
“Caretaker Conventions in Australasia: Minding the shop for Government” (2007) Anne Tiernan and Jennifer Menzies, Centre for Governance and Public Policy, Griffith University.
“Guidelines on the conduct of Ministers, Secretaries of State, Exempt Staff and Public Servants during an Election” (2008) Privy Council Office, Canada.