A full caretaker govt, not just one man, is needed in present impasse

As the country enters another day of the impasse, it functions without a fully formed government. There is presently only the interim prime minister holding the fort.

It would appear that the interim prime minister is currently aided by only the civil service in the absence of a Cabinet. Those civil servants comprise principally of the chief secretary to the government and the various directors-general and deputy directors-general in the different government departments.

It may be due to the current exigencies, but it does not detract from the requirement of a constitutional government comprised mainly of elected representatives from the House of Representatives to be formed and functioning at all times.

The requirement is contained in Article 43(1) of the Federal Constitution that does not recognise a break or an impasse, in these terms: “43. Cabinet (1) The Yang di-Pertuan Agong shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise him in the exercise of his functions.”

A commentary on the Federal Constitution has noted that “the use of the word ‘shall’ in Article 43(1) indicates that this is a mandatory provision and that there has to be a Cabinet at all times and that the Yang di-Pertuan Agong cannot dispense with the Cabinet at any point of time, even when Parliament is dissolved.” (see para. 20.051 of Volume 2 of Halsbury’s Laws of Malaysia).

It would follow that a Cabinet should be formed at the earliest opportunity despite the current impasse. In the present circumstances, the Cabinet that would come into being would function in a caretaker capacity in law.

The terms caretaker government or caretaker Cabinet are not found in the Federal Constitution. However, our courts have recognised the concept of a caretaker government (see Abdul Ghani Bin Ali Ahmad v. Public Prosecutor [2001] 3 MLJ 561 where the Federal Court ruled that a caretaker government existed at the time of the Proclamation of Emergency at the time of the May 1969 riots).

A caretaker government is an interim government that functions temporarily pending a determining event in the not too distant future. The usual instance in which a caretaker government is installed is where Parliament has been dissolved pending a general election.

Parliamentary and constitutional conventions stipulate that a caretaker government is not empowered to make any long-term or controversial policies or decisions that would bind the succeeding government or commit it to any long-term expenditure (see Mohd Norkhairi Bin Mat Darus v. Ketua Polis Negara [2009] 8 MLJ 741 at para. 8).

However, a caretaker government is warranted in the interests of continuity, particularly in instances of national crisis or where there is a pressing need for governmental response to a matter of national concern.

It was against this backdrop that the “coalition caretaker government” (or the “Churchill wartime coalition government” as it is commonly known) was formed in Britain in May 1945 after the war and following the withdrawal of the Labour Party from the coalition and pending the general election due in July of that year.

It is undeniable that there are existent matters of economic concern and public health that warrant an on-going state response. The Covid-19 outbreak and the economic reaction to the present political/constitutional crisis requires the attention of the complete apparatus of government. The formation of a full caretaker government would appear to be an appropriate response to address these concerns.

Gregory Das is an Advocate & Solicitor of the High Court of Malaya. - FMT