The curious case of Pak's caretaker I.A. Rehman | The Asian Age* | 05 February 2008
http://www.asianage.com/presentation/leftnavigation/opinion/op-ed/the-curious-case-of-pak's-caretaker.aspx The case of the caretaker outfit in Pakistan is getting curiouser and curiouser. It has become impossible to fit it within the definition of a caretaker regime. At times, it cannot be distinguished from the set-up it is supposed to have supplanted. At other times, it assumes the role of a full-tenure government, and exercises powers not allowed even to democratically constituted authorities. The impression that the caretaker regime is a continuation of the government it succeeded has its origin in President Musharraf's apparent decision to run the government under his direct command. All major acts of government are traced to him. It is under his chairmanship that the Cabinet decides to pass on the burden of the POL subsidy to consumers. It is he who decides a TV channel's fate, the probe into Benazir Bhutto's murder, and the holding of elections. While justifying the judiciary's purge of November last, he recently declared that if the need arose he would repeat his performance. This and his frequently reiterated position that the next government will not be allowed to change his policies can only mean that whatever the result of the forthcoming election, he will be the locus of state authority. True, President Musharraf has been saying that he will be able to work with anyone who becomes the head of government after the polls, but such statements do not mean that he is a neutral referee and does not have favourites in the arena. On the one hand, the President's protestation may only mean that the next Prime Minister will as usual have to lean on him and thus his identity does not matter. And, on the other hand, the public is familiar with his favourites. He is on record as having told PML-Q legislators that the next Prime Minister would be from their party. Working under such an active head of state, the caretaker regime can hardly claim to be as independent and neutral as a transitory set-up is expected to be for guaranteeing fair elections. No elaborate argument is needed to show that a caretaker regime has a limited role. Since it constitutes a political aberration it is suggested only for unstable and immature democracies, and that too for a limited period. The argument in favour of holding general elections under caretaker regimes grew out of the peculiar tradition of sacking the National Assembly before the expiry of its term. Since the objective of this action was nearly always to get rid of an "undesirable" Prime Minister, the holding of a general election under him would have been a self-defeating measure. General Zia settled the matter by revising Article 48 of the Constitution and providing for a caretaker government every time the National Assembly was dissolved by the President. Hence, caretaker regimes had to be installed in 1988, 1990, 1993 and 1996. This was projected as a basic pre- requisite to fair elections. For reasons that are quite well-known, caretakers were never found capable of guaranteeing clean polls. Memories of rigging in all elections held since 1951, and frustrations caused by the conduct of partisan caretakers led to increased emphasis on the caretakers being neutral overseers in a transitory regime. The demand for neutral overseers of the electoral process received a boost when Bangladesh changed its Constitution to provide for an interim set-up for each election. Quite a few in Pakistan were quick to hail the Bangladeshis for showing them a way to solve a Constitutional riddle. Some kind of consensus emerged to the effect that a general election should be under a caretaker set-up even when a National Assembly passed away on the completion of its term. Whether President Musharraf was influenced by this debate or whether he had some ideas of his own, he amended Article 224 of the Constitution in the Legal Framework Order of 2002 (later on sanctified by the Seventeenth Amendment) to the effect that when Assemblies were dissolved on completion of their term caretaker Cabinets had to be appointed. The record of Pakistani caretakers chosen by the President in his discretion has not been edifying. The Bangladeshi design to confine the chief caretaker's selection to the judiciary has not worked either. As a result, caretakers no longer inspire confidence as agents of fair elections. However, a matter of greater concern than the caretakers' being a continuation of the outgoing Cabinet is their adventures into areas that are outside their mandate and jurisdiction. The caretakers are not qualified to make laws or long-term policies as that is the privilege of the duly accredited representatives of the people who are also answerable to a Parliament. The caretakers have neither a mandate from the electorate nor are they accountable to it. The reason for stating this is the evidence that the present caretaker Cabinet is dabbling in legislation it has no business to undertake. Three cases prove the point. The caretaker regime is responsible for the move to establish a high court in Islamabad, a most controversial project. The second case is the Prevention of Electronic Crimes Ordinance, which has been denounced as a cruel attack on the freedom of information. The third case relates to the NWFP caretaker regime's draft regulation to extend the system of qazi courts, tried unsuccessfully in the Malakand Agency, to a large part of the province, formerly described as Provincially-Administered Tribal Areas (Pata). In the name of enforcing Sharia, a large part of the country is being surrendered to the Taliban and this is bound to whet the latter's appetite for more of such servings. The measure will severely undermine Pakistan's polity and its future. The caretakers must desist from transgressing what must be a restricted mandate. They do not appear to be caretakers anymore, and the impression needs to be removed. *By arrangement with Dawn
