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


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