Experts: Let's make law for caretaker government

Legal experts are calling for new legislation - or at the very least a guideline - to outline the role of a caretaker government.

These requests by legal experts came as Negeri Sembilan is set to become the first legislative assembly to end its mandate this Wednesday and automatically dissolve on Thursday.

A caretaker government is the government that rules temporarily between the time when Parliament, or state assemblies, dissolve until a new government is formed.

Legally, the Federal Constitution and state constitutions, are both silent on this issue.

Malaysia relies on the English convention where the incumbent government continues in power in a caretaker capacity, until a new government is appointed by the head of the state.

Constitutional expert Professor Emeritus Datuk Shad Saleem Faruqi said that it was better to put in place "codified rules", which are "always better than purely informal ones”.

However, he reminded that rules is useless without political ethics.

“We should have clear cut codes, yes...And good law must always have certainty, predictability, accessibly, (but) law rests on internalisation of the rules. If that does not take place, then the black letter of the law would not achieve any purpose.”

Elaborating on the role of a caretaker government, Shad said that it can be run a maximum period of 120 days: from the day of dissolution, election day and when a new government is formed.

On the functions and limits of the caretaker government, he said that there are also no governing laws in Malaysia but in other countries there are detailed informal documents.

“Basically, the government should not do anything drastic such as making new appointments or dismissing people.”

“They also cannot be passing new budgets and spending excessive money. They should do nothing to embarrass the new government, if there is a change in government.”

“Basically their job is to hold the fort, attend to the day-to-day administration.

However, Shad said that these were all informal rules of political ethics, and sadly, these are not enforceable in the court of law.

“One has to rely on good sense and tradition of democracy. And in Malaysia, these questions were never asked and the same party has been in power and expected to return to power. Political ethics have not developed to this extent yes,” he said.

The issue of a caretaker government has also come to the fore now as there are more opposition-held states, he said.

Meanwhile, lawyer Syahredzan Johan said that “a caretaker government must be a government that acts in the bare minimum.”

“Generally it is accepted that the caretaker government must make sure that their actions does not bind the subsequent government,” he said, explaining that a caretaker government should not enter into any new agreements.

“You should not make major policy decisions, you can’t launch a new initiative for example. You should also avoid making local, international trips. You cannot represent yourself as a government unless it is absolutely necessary.”

“You should also ensure the civil service should not be used for political campaigning, this applies to a ruling government, and more so a caretaker government,” he said.

In calling for legislation to set out the role of a caretaker government, Syahredzan said that it was better to define the limits of a caretaker government in writing.

In September last year, the Election Commission (EC) said that a draft for a code of conduct for a caretaker government, based on studies on other Commonwealth contries, was ready.

However, the EC said the draft needs to be further deliberated by the Federal and state governments and it is not known if it could be used for the coming election.

The code of conduct is one of the 22 recommendations made by the Parliamentary Select Committee on Electoral Reforms (PSC) in order to improve the electoral process in the country.

Electoral reform watchdog Bersih 2.0 had recently announced that it would be releasing a code of conduct for candidates and rules of a caretaker government for the 13th General Election.