KUALA LUMPUR, 6 March: By 8 March 2013, Barisan Nasional is no longer the government of Malaysia, says constitutional lawyer Tommy Thomas.
“Voters can legitimately say that they voted for a BN government on 8 March, 2008 to govern for five years, and if that government does not choose to secure another mandate within that period, it becomes a caretaker government,” Thomas wrote in an article published in news portal Malaysiakini.
Accordingly, BN should correctly be termed as a ‘caretaker government’ as it automatically enters ‘caretaker mode’ after that date, says the senior member of the Bar who has 26 years of practice under his belt.
What is a caretaker government?
The expression ‘caretaker government’ is not defined in constitutional or legal terms. It describes a relationship of a trustee who is holding the government in trust until after the elections.
It has been an accepted practice of mature democratic nations with known precedents within the commonwealth and even in Malaysia. After the May 13 riots, the National Operations Council (NOC) took over the nation’s affairs and Parliament was suspended.
Even the Parliamentary Select Committee on Electoral Reform Report has adopted it as one of its 22-point recommendations.
Najib is a caretaker Prime Minister
Public and political morality demands that Najib should regard himself as a caretaker Prime Minister and his Cabinet a Caretaker Cabinet, says DAP Parliamentary Leader Lim Kit Siang.
Since Najib as a caretaker Prime Minister is subject to the prevailing norms during the caretaker period, he should not make any major policy decisions without consultation with the opposition, Lim said.
How BN should act as a caretaker government
Obviously, a caretaker government is not the same as the ruling government. It has a limited scope of power that should not be exercised in a manner which will have direct implications on the elections that are to follow.
So what are the implications of a caretaker government status that BN finds themselves in after 8 March 2013?
By commonwealth Parliamentary convention, there are several restrictions or limits for a caretaker government, which include:
1) Cease making major policy decisions
It is customary for a caretaker government to observe discretion and refrain from making any major policy decisions of a continuing or long-term character. Last minute policy announcements not only provide the ruling government with an unfair polls advantage and lead to accusations of vote buying, the incoming government may act on a completely different tack.
2) Stay away from making important appointments
Important appointments of public officials should not be made during this period. Acting or short-term appointments can be made.
3) Do not sign major contracts or undertakings
The caretaker government should not ink major contracts or commitments which can be deferred. This is for the simple reason that, should a change of government occur, the new government would not be bound by the previous commitments
4) Avoid international negotiations and visits
Ordinarily, a caretaker government seeks to defer major international negotiations, or to adopt observer status until the caretaker period expires.
5) Prevent public service involvement in election activities.
During the caretaker period, the public service adopts a neutral stance while continuing to advise the Government.
How should the caretaker government handle the Sabah Sulu crisis?
“In this period of caretaker government, the caretaker Prime Minister and the caretaker Cabinet should consult with Pakatan Rakyat leaders on issues of major national importance, such as the Sabah Sulu crisis,” Lim said.
The MP for Ipoh Barat explained further that the Sabah Sulu crisis is a matter affecting national sovereignty, particularly since the security, safety and welfare of the people of Sabah is at stake.
“As Najib is morally a caretaker Prime Minister after March 8, I urge him to brief and consult with Pakatan Rakyat leaders on the Sabah Sulu crisis.”
Act within limits of caretaker role, BN
BN should recognize that its legitimacy to rule expires on 9 March 2013 and it must act according to the norms and limitations of a caretaker government. Failure to do so would be judged and punished severely by the rakyat in subsequent polls.
Pakatan Rakyat-led states have led the way in this, with Selangor having drawn up a set of caretaker government guidelines with reference to established democratic conventions.
PKR deputy president Azmin Ali has also urged the four Pakatan Rakyat-led states establish caretaker governments once legislatures are dissolved ahead of elections. -The Rocket
