Who is legally responsible?

It is interesting that these past weeks The Star, Loyar Burok and the Election Commission have expressed their views on caretaker governance. The NGO Aliran also raised the same issue before the 1999 general election.

The Election Commission most recently spoke on caretaker governance, but not to answer the issues raised.

The primary concern raised in each of these articles was about “legal authority and responsibility” for new administrative initiatives carried out during the absence of an elected government.

This is especially so when the legal or legitimate appointments are non-existent because of the period of transition with the general election being called.

Allow me to repeat some of the legal views and arguments on this subject and then raise my real concerns.

The Star reported:

Constitutional law expert Datuk Dr Cyrus Das said a caretaker government should not make any new policy or enter significant government contracts that can bind any future government.”

Loyar Burok wrote: “So how should a BN caretaker government act in practical terms?

  1. The affairs of the state are still in the hands of the prime minister and his cabinet.
  2. Implementation of executive decisions and the day-to-day administration of government are, in any event, carried out by the one million strong civil service, which is supposed to be independent and neutral with regard to party politics. In that sense, government is run by the bureaucrats who continue to manage, regardless of which political party is temporarily in power.
  3. Foreign affairs and defence matters are managed as if there is no change. Thus, the defence forces should be entrusted to deal with the invasion of Lahad Datu, Sabah. Operational matters come within their discretion.

What the BN caretaker government should not do is to take policy decisions of a long term nature or which would bind the next government.

Likewise, it should not enter into contracts involving taxpayers’ money and the public purse. A new government is perfectly entitled to review such contracts and terminate them if they are not in the public interest.

Finally, a caretaker government certainly cannot give away monies like the BR1M payments from taxpayers’ fund.”

International practices within Commonwealth

Both Australia and New Zealand have their conventions based on the Westminster tradition of governance.

“In Australian political and constitutional terminology, a caretaker government is a government of Australia during a period that starts when the Parliament is dissolved by the Governor-General prior to a general election, and continues for a period after the election, until the next government is appointed.

A caretaker government is expected to conduct itself in accordance with a series of well-defined conventions that are administered by theDepartment of the Prime Minister and Cabinet, although there is no law compelling the caretaker government to do so.”

In New Zealand the Cabinet Manual has some explicit guidelines for compliance:

6.16 On occasion, it may be necessary for a government to remain in office for some period, on an interim basis, when it has lost the confidence of the House, or (after an election) until a government is sworn in following the government formation process. During such periods, the incumbent government is still the lawful executive authority, with all the powers and responsibilities that go with executive office. However, governments in this situation have traditionally constrained their actions until the political situation is resolved, in accordance with what is known as the convention on caretaker government.

6.17 There are two circumstances in which the government would see itself bound by the caretaker convention:

  1. After a general election, one of the two arms of the caretaker convention applies until a new administration is sworn in.
  2. If the government has clearly lost the confidence of the House, the caretaker convention guides the government’s actions until a new administration takes office, following either negotiations between the parties represented in the current Parliament or a general election.
  3. In both situations the government is likely to state explicitly that it is to operate as a caretaker government until the political situation is resolved.”

Whither Malaysia?

While pundits make their predictions about the future governance of Malaysia, my greater concern is: Will what happened in the Selangor and Penang state secretariats after the 12th general election happen in the federal government offices of Putrajaya?

The files and documents in both Selangor and Penang were cleared out and destroyed by perpetrators and this was allowed by the police And other security forces? Why? How did this happen?

If, in the unlikely probability, the federal government is changed by the rakyat, whom do we “hold responsible” if there is no caretaker stewardship of this democratic process of the transfer of power towards forming a new government?

What is the role of the cabinet secretary or the chief secretary to the government, who is the only ex-officio member of the cabinet today? In fact, he is the only cabinet member, and therefore is legally the only executive authority in Malaysia during the caretaker government period.

What then is the role and responsibility of the Yang di-Pertuan Agong in all of this? The Agong has discretion of authority in the appointment of the prime minister, as already clarified by Tommy Thomas in hisarticle. But the Agong has no executive authority like the chief secretary.

Are the other many national “enforcement” institutions like the police, Attorney-General’s Chambers, Armed Forces, Auditor-General and all others given legal and jurisdictional authority to handle the transition of governments really ready for such a possibility?

Who do we hold as the right people responsible if all the files and records in Putrajaya are carted away, stolen and shredded into oblivion?

May God help us get all the national institutions of democracy ready for all possibilities and permutations.

KJ JOHN was in public service for 29 years. The views expressed here are his personal views and not those of any institution he is involved with.


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