Respecting the caretaker government convention

MANY predict that sometime next year, Parliament will be dissolved to make way for the 14th General Election. When this happens, the state legislative assemblies will also be dissolved, except for Sarawak which held its elections last year.

It is not known whether the general election will take place this year or sometime next year. But what is certain is that the 13th Parliament of Malaysia can be dissolved at any time between now and June 2018 - when it dissolves automatically.

We should always strive to improve what we already have. This includes the laws and practices in relation to elections.

Elections these days are hard fought affairs. The margins of victory can be very small. Any advantage that one side has may affect the outcome of the elections. That is why there is a need to ensure that elections are fair to all parties.

In the context of governments, the incumbents holding power at Federal and state level usually have an advantage, which includes having the Federal or state government machineries at their disposal.

We have seen how the line between political parties and governments can be blurred during elections, and where government machinery is used for campaigning or how new developments or projects are announced by the government during elections.

As this not considered to be bribery or inducement in the context of election offences, they often take place without sanctions.

When the legislature is dissolved to pave the way for elections and until a new government is formed, the government that governs the Federation or the States is known as a "caretaker government" according to the convention practised in many countries with the Westminster system, such as ours.

However, the Federal Constitution and the State Constitutions do not expressly provide for the convention of a caretaker government. The constitutions are silent about the role of these "caretaker" governments, which are only supposed to ensure that the day-to-day administration can continue without disruption.

The caretaker government is therefore a minimum government.  It should not, for example, do anything which may bind the new government. It should not announce new government initiatives or make new policy decisions. It should not enter into new agreements or undertakings. It should also not make new appointments. Most importantly, it should not use government machinery and resources in any way which would give any political party an advantage.

The reasoning is simple: the caretaker government does not have a mandate. Since the legislature is dissolved, it does not have a branch of the State to serve as a check and balance to what it does.

In other countries that recognise the concept of a caretaker government, the role of this caretaker government is not codified into law. It is merely a practice or convention, or at most stated in a "code" which does not have force of law. Yet despite this, conventions on caretaker governments are respected and followed by all parties.

Ideally, this should be the case in our country. There should not be a need to actually put the convention into law by way of legislation. Yet because our political parties do not appear to respect the convention, it may be better for rules to be put in place.

By doing so, we will be able to ensure that the principles of a caretaker government are followed and that no political party will gain an unfair advantage by virtue of being in government as the incumbent.

> The views expressed are entirely the writer's own.

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