Caretaker quandary in Pakistan

The Caretaker system in Pakistan finds its origins in the Revival of the Constitution of 1973 Order (RCO) of 1985, enacted during President Zia-ul-Haq’s regime. The RCO introduced Article 48(5b), which mandated the President to appoint a Caretaker Cabinet upon the dissolution of the National Assembly. A similar requirement was introduced in Article 105(3) of the Constitution, obligating the Governor to appoint a Caretaker Cabinet when Provincial Assemblies were dissolved. These constitutional provisions were not strictly followed when President Zia dismissed Prime Minister Muhammad Khan Junejo on May 29, 1988, despite announcing fresh elections for November 16, 1988. Tragically, President Zia perished in a plane crash, never witnessing the 1988 elections he had called for.

Following President Zia’s untimely demise, Ghulam Ishaq Khan, then Chairman of the Senate, assumed the role of Acting President and ensured the conduct of the 1988 election, which was won by Benazir Bhutto who went on to become the Prime Minister. Subsequently, President Khan dismissed the Benazir government and unilaterally dissolved the National Assembly on August 6, 1990, calling for fresh elections. This marked a pivotal moment in Pakistan’s political history, as Ghulam Mustafa Jatoi was appointed as the first Caretaker Prime Minister of Pakistan the day Benazir was removed from office. Since then, a total of eight Caretaker Prime Ministers have been appointed in Pakistan, including the recent appointment of Anwar-ul-Haq Kakar on August 14, 2023.

The passage of the landmark 18^th constitutional amendment brought significant changes to the rules governing elections. Article 224 (1) stipulates that “A general election to the National Assembly or a Provincial Assembly shall be held within sixty days immediately following the day on which the term of the Assembly is due to expire, unless the Assembly has been sooner dissolved, and the results of the election shall be declared no later than fourteen days before that day.” Subsection Article 224 (1A) outlines that “On dissolution of the Assembly on completion of its term, or in case it is dissolved under Article 58 or Article 112, the President, or the Governor, as the case may be, shall appoint a Caretaker Cabinet.”

The 12^th National Assembly of Pakistan, formed after the 2002 general election, became the first to complete a full five-year term from November 16, 2002 to November 15, 2007. The 2008 general election was held on February 18, 2008 — 96 days after the dissolution of the National Assembly. This election led to a regime transition in Pakistan, resulting in the fall of General Pervez Musharraf’s personalist military-hybrid dictatorship. The 13^th and 14^th National Assemblies both completed their full five-year tenures, with the 2008 and 2013 general elections held within 60 days of the dissolution of the National Assembly. These were the only instances in Pakistan’s history where the dissolution of the National Assembly and the date of the general elections complied with Article 224(1) of the Constitution.

The 15^th National Assembly was formed on August 13, 2018, and dissolved on August 10, 2023. This premature dissolution of the assembly, two days before its scheduled completion of a full five-year term, was a strategic decision to constitutionally gain an additional 30 days for the next election. According to Article 48(5a), when the President dissolves the National Assembly on the advice of the Cabinet before the term’s expiration, he shall appoint a date not later than 90 days for a general election to the assembly. However, Clause (1) in Article 48 requires the President to act in accordance with the Cabinet’s advice when doing so.

In 2013, President Asif Ali Zardari announced the date of the general election four days after the National Assembly was dissolved, while in 2018, President Mamnoon Hussain announced the election date five days in advance of the dissolution of the National Assembly. The present situation marks the first time in the post-Musharraf era that a Caretaker government has been in place for more than a fortnight, with the date of the general election yet to be announced. Notably, in the provinces of Punjab and Khyber-Pakhtunkhwa, the incumbent Provincial Caretaker governments have persisted for more than eight months. This state of affairs signals a concerning decay and potential collapse of the power transition process that emerged after the overthrow of General Musharraf.

The Election Commission of Pakistan (ECP) has provided assurance that it will be ready to conduct the next general election by February 2024, following the completion of the constituency delimitation process. However, it’s essential to understand that, under the Constitution of Pakistan, the ECP does not have the prerogative to determine the election date; and this is the responsibility of the President, in accordance with the Cabinet’s advice.

It is now evident that a general election is unlikely to occur by the end of 2023; there are even serious apprehensions that the election may not be held in the entire following year. The current political developments in Pakistan suggest the possibility of replacing the current Caretaker government at the federal and provincial levels with an interim technocratic-unity hybrid government, backed by the military, for a period of at least two years or possibly a full five-year term. The hatchet of the “doctrine of necessity”, believed by many to have been buried, might be revived to justify such a setup. The primary task of such a government would be to make unpopular decisions necessary to deal with the IMF and address Pakistan’s macroeconomic challenges.

President Arif Alvi’s tenure is set to conclude on September 8, 2023. Article 44(1) of the Constitution explicitly allows the President to remain in office beyond the expiration of his term until his successor assumes office. However, there may be undisclosed pressures on President Alvi to vacate office upon completing his term. In such a scenario, Chairman Senate Sadiq Sanjrani would automatically ascend to the position of Acting President of Pakistan. This transition could clear a significant obstacle to the imposition of an extra-constitutional arrangement to govern the country in the years ahead. The evolving political landscape in Pakistan demands close attention and thoughtful analysis as the nation grapples with complex global challenges and regime oscillations.

Published in The Express Tribune, September 8^th, 2023.

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