This article was published in Dawn News on June 09, 2018. It is available here:
https://www.dawn.com/news/1412999/evolution-of-caretakers
THE original 1973 Constitution had no stipulations for a caretaker government, which is why no provision existed at that time for the dissolution of the National Assembly by the president in his discretion.
There were only two ways the National Assembly could be dissolved; one, after the Assembly completed its five-year term and, two, if the prime minister advised the president to dissolve it prematurely.
In both cases, Article 94 which reads “The president may ask the prime minister to continue to hold office until his successor enters upon the office of prime minister” guided the continuation of the government. Therefore, when prime minister Zulfikar Ali Bhutto advised the president to dissolve the National Assembly to pave the way for fresh election, he (Bhutto) continued to hold the office of the prime minister during the 1977 election.
It was in the Revival of Constitution of 1973 Order (RCO), 1985, promulgated by Gen Zia on March 2, 1985, that the provision of a caretaker cabinet was first introduced through Article 48(5)(b) which stated that where the president dissolves the National Assembly, he shall, in his discretion, appoint a caretaker cabinet.
When Gen Zia dismissed the government of Muhammad Khan Junejo on May 29, 1988, the first caretaker cabinet was appointed by the president but, quite surprisingly, without a prime minister. This headless cabinet was later challenged and the Supreme Court held that the office of prime minister was necessary.
An overhaul of constitutional provisions relating to caretaker set-ups was undertaken by the 18th Amendment.
The second caretaker cabinet was appointed after prime minister Benazir Bhutto was dismissed in August 1990. Although in spirit the caretaker government is meant to be neutral such a requirement was not explicitly included in the law. Ghulam Mustafa Jatoi, president of the main contending alliance — the Islami Jamhoori Ittehad — and leader of the opposition in the outgoing Assembly was inducted as caretaker prime minister.
The third caretaker government was appointed by president Ishaq Khan after prime minister Nawaz Sharif was dismissed on April 18, 1993. Mir Balakh Sher Mazari, who had rebelled against Nawaz Sharif’s Muslim League, was appointed caretaker prime minister and several PPP politicians including Asif Zardari were inducted as cabinet ministers. This caretaker government, however, was short-lived as the Supreme Court declared the dissolution of the Assembly as unlawful and restored it.
Nawaz Sharif, however, dissolved the National Assembly on July 18, 1993, and, for the first time, a neutral person, Moeen Qureshi, was appointed as the fourth caretaker prime minister.
The fifth caretaker cabinet was appointed after Benazir Bhutto’s second government was dismissed by president Farooq Leghari on Nov 5, 1996. Malik Meraj Khalid, a former PPP stalwart, who was serving as the rector of the Islamic University Islamabad was appointed caretaker prime minister.
The constitutional provisions for caretaker governments remained unchanged till 2002 when president-general Pervez Musharraf issued the Legal Framework Order, 2002, and added a proviso following Article 224. This proviso was probably added to make sure that a caretaker government was appointed in case of the dissolution of the National Assembly and not only when the president dissolved in his discretion.
Mohammad Mian Soomro was appointed as the sixth caretaker prime minister by Musharraf when the 12th National Assembly and prime minister Shaukat Aziz completed their term on Nov 15, 2007.
A major overhaul of the constitutional provisions relating to caretaker governments was undertaken by the 18th Amendment in April 2010. Sub-clauses 1A and 1B were added to Clause 1 of Article 224. Sub-Clause 1A and its proviso further elaborated on the procedure of appointing caretaker cabinets. Sub-clause 1B specified that caretaker prime ministers and chief ministers and their immediate family members would not be eligible to contest the next election.
Another major elaboration of the caretaker government system was undertaken in the Constitution (20th Amendment) Act, 2012 enacted on Feb 29, 2012. The word ‘selected’ was replaced by ‘appointed’ in the context of the caretaker prime minister in the first proviso of Article 224. A new Article 224-A was added which deals with the procedure of the appointment of the caretaker cabinet in case the leader of the house and leader of the opposition do not agree on the name of a caretaker prime minister.
The seventh caretaker government was appointed under Mir Hazar Khan Khoso after the 13th National Assembly and prime minister Raja Pervez Ashraf completed their term on March 24, 2013. This was the first appointment of the caretaker government after the passage of the 18th and the 20th Amendments and the caretaker prime minister had to be appointed by the Election Commission of Pakistan (ECP) after the leader of the house and leader of the opposition failed to reach an agreement on a name for the post and the parliamentary committee too could not develop a consensus.
A major development relating to the legal framework of caretaker set-ups was the passage of the Elections Act, 2017. Section 230 of the law stipulates detailed functions of the caretaker government which is now mainly meant to carry out routine daily functions and assist the ECP in holding polls. The caretaker government is not even authorised to transfer a government servant without ECP approval.
The eighth caretaker government has been recently appointed with retired justice Nasirul Mulk as caretaker prime minister after the terms of the 14th National Assembly and prime minister Shahid Abbasi concluded on May 31, 2018. The leader of the house and leader of the opposition agreed on the name of the caretaker prime minister well before the deadline set under Article 224-A. It is the first caretaker government after its functions to have been clearly defined in the Election Act, 2017.
From a caretaker cabinet without a prime minister in 1985 to clearly partisan prime ministers until 2008 to neutral prime ministers in 2013 and 2018, there has been a substantial evolution. It remains to be seen where we go from here.
