Caregivers will no longer be just caregivers. With the successful passage of the Elections (Second Amendment) Act 2023, the ambit of the caretaker set-up has widened considerably. Earlier, as per Article 224A of the Constitution read with Section 230 of the Election Act, 2017 and the judgment in Khwaja Asif v. Federation of Pakistan, the Caretaker Government was considered to be an ad hoc arrangement for the execution of the day-to-day till the elections were held. Today’s Administration of Govt. This means that there is a sense of caretaker government when there is a transfer of power from a democratic government to a newly elected government.
For example, the rationale given around the world for the establishment of a caretaker system, in the ‘Guidelines on Caretaker Conferences’, is merely to maintain the facade on the street that is necessary for a smooth transition of power between two elected governments. Further, if this meaning, as is accepted the world over, is read into the phrase ‘executive’ under Article 224A, it creates a serious constitutional crisis, where executive actions taken beyond jurisdiction will also be canceled as per the decision. In the case of Naimatullah Vs. Federation of Pakistan.
In Pakistan, constitutionally, the sole function of the caretaker system is to conduct free and fair elections within 90 days of the dissolution of the lower house under Article 224(2). The fact that caretakers and their relatives are not allowed to contest elections and those who want to contest elections cannot join the caretaker set-up is because the only purpose of this temporary set-up is to conduct elections. Is.
Moreover, if the caretaker government is given powers equal to those reserved for the elected representatives, it will not only reduce the importance of the latter, but also challenge the distinction between the two. Equating the two means that ideologically there is no difference between a government of elected representatives and an unelected representative. This would tantamount to attributing redundancy to the Constitution and cannot be done according to the established law of interpretation.
Moreover, giving caretakers a say in policy matters and international agreements, which in the long run may be controversial and contentious, would adversely affect the right of the elected government to formulate financial policies independently. As a result, the hands of a future elected government will be tied by obligations it never fulfilled.
Finally, a careful examination of section 230 of the Elections Act, 2017, compared with the Elections (Second Amendment) Act, 2023, reveals an inherent flaw in the amendment so made. Section 230(2)(a) states that major policy decisions can be made when there is urgency, and section 230(2)(d) states that new international binding commitments can also be made when circumstances are exceptional. Now the Amendment Act introduces a provision which states that section 230 shall apply to works done or done in respect of existing agreements or projects already undertaken under the Public Private Partnership Act, 2017, the G2G Act, 2023 and the Privatization Commission Ordinance, 2000. Not applicable to the decision. When read as a whole, one reaches the conclusion that either there is no urgency in continuing the already committed international agreements or the projects listed above, or that their continuation does not constitute an exceptional circumstance. If the answer is in the affirmative, then there is no point in giving the said power to the Caretaker Government and if in the negative, they were already covered under section 230(2)(a) and (d).
Thus giving more strength to neutral or neutral arrangements would stir up a hornet’s nest and defy the rationale for establishing it in the first place. Today, the intention behind the amendment is to protect the economic interests of a state on the verge of default, but tomorrow it could also be about any other matter considered important for the stability and integrity of the country. If we start from here, no one knows where we will end.
Published in , August 29th2023.
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