YB Mohamed Azmin Ali
Member, PSC on Electoral Reforms / Gombak MP, at the International Conference on Malaysia, 13th General Elections, 4th – 5th March, 2013 at Lake Club, Kuala Lumpur
Mr Chairman, distinguished panelists, ladies and gentlemen,
Much has already been said in yesterday’s proceedings on the introductory issues as well as the questions of electoral democracy and the challenges of the electoral process for the coming General Elections.
Let me just take a moment to say that as a member of the Parliamentary Select Committee on electoral reforms, I have been privileged to be acquainted with many personalities and organisations who have worked tirelessly for the betterment of our electoral process and to ensure free and fair elections.
In this regard, I will be remiss in my duty if I did not acknowledge the invaluable contributions of BERSIH in helping to push for electoral reforms and the leadership of national laureate Datuk A. Samad Said and Dato S. Ambiga. I must also thank the many unsung heroes who have made sacrifices in so many ways all for the cause of electoral democracy which is the overriding theme of this conference.
I shall now cut to the chase and address the central theme of this morning’s proceedings.
Best practices of caretaker conventions
The subject of best practices of caretaker conventions is indeed not a new one for as long as democratic elections have been held caretaker situations would have arisen. These situations would require certain practices to be observed with regard to the functions of government after Parliament is dissolved and right through the period until the final results of the elections are known and a clear majority is obtained by the incumbent; or, if the incumbent is defeated, until the new government is formed.
So, pending this, what we should have is a caretaker government which means what it is: caretaker. It takes care of the normal business of government holding it in trust for the next government which has obtained a fresh mandate to rule.
This next government could well be the incumbent or it could be a new government but regardless of who the incumbent is or who the possible new power will be, certain conventions have been established to be followed by the caretaker government.
I say that this is not new only in a general sense for in the case of Malaysia, and Singapore as well for that matter, though the subject is well taken care of academically, this will be an entirely new scenario in the event of Pakatan taking over the reins of power in Putra Jaya. In the 12th general elections, we saw transitions in the States of Kedah, Penang, Perak and Selangor, where power shifted to the hands of the Pakatan coalition. During the run-up to the elections at the state level many conventions were not observed or at least not observed in the best way, but thankfully when push came to shove, the transition to power was still relatively smooth.
Now that the ball is on the other court for at least four states (including Kelantan) as incumbent, the same best practices which are outlined below must likewise be observed by Pakatan governments in their capacity as caretaker governments. In this regard, it is noteworthy that the Selangor state government has already drawn up a set of guidelines which are essentially similar to the general conventions observed in established democracies.
Needless to say, these practices are of even greater import in the case of caretaker government at the Federal level. I recognise this forum is not to find fault but to highlight what is best for us to move forward. So no finger pointing is needed. Nevertheless, I do not propose to offer anything out of the blue since ‘conventions’ are by definition practices that are recognized as standard and proper over time even though they may not have the force of law. I will leave the jurisprudential discourse on this concept to our learned constitutional expert Prof. Dr Aziz Bari as I believe he is the best person to deal with it.
Public services must be apolitical
Let me deal with the first basic convention recognized by all established democracies, which is that the caretaker government must keep its distance from the public services. By “public services” I mean the general civil service plus the administrative and diplomatic service and all the essential law enforcement services in particular the military, the police, the anti-corruption agency, and of course the Attorney-General’s chambers.
Strictly speaking, it should be stated the other way round, that is, the public services must keep their distance from the caretaker government. Keeping a distance means to remain politically neutral.
I must say that being an elected State Assemblyman (on the side of the ruling State government) as well as a Member of Parliament (on the side of the Opposition) does have its advantages. It is true that I’m just into my first term, but being in this situation at least has enabled me to see both sides of the coin – in a very practical way.
On that score, I can say firstly how important it is to separate the party from the state whether it’s the state government or federal government. Regardless of the outcome of the elections, in a caretaker scenario, the relationship between the incumbent Government and the public services is one of the most important areas to be closely watched. Now, if we are accustomed to the practice and truly subscribe to the principle that the public services should be politically impartial as a whole, then this convention is not difficult to follow.
Separation between the public services and the political party forming the government in power is a major issue. They are supposed to be apolitical in the first place but sometimes this line is particularly hard to define and often blurred by various considerations. The thrust of this convention is to prevent controversies and questionable action on the part of the public services which are established to serve the people, not the political party in power.
How does this translate into practical situations? Once the legislature is dissolved, serving ministers and all those appointed by virtue of party affiliations to be members of the Executive are no longer responsible to the Lower House simply because it is already dissolved. They continue to hold the reins of power as caretaker. They must immediately refrain from using public resources to further their political campaign objectives.
It is true that this in fact should always be the practice whether or not elections are called but we know that in reality this is easier said than done. Let us however agree that in a caretaker scenario, this requirement should be taken not just as a best practice but as an imperative because in the run up to elections, party activities will predominate over government activities. To cite a real example, Ministers and their subordinates during this period must not use government owned transportation whether it be cars or jet planes to take them around in their party campaigns.
This seems a very straightforward best practice but of course as they say the proof of the pudding is in the eating. Impartiality must be seen in words and in deed. The general principle is that the incumbent must avoid the use of federal resources for activities that would give its party unfair advantage. Again, another obvious example would be the use of state run media as in television, whether it is to attack the political rivals or to promote its own agenda. This must be avoided at all costs.
Even more important, I believe, is with regard to access to intelligence from both military and police sources which will be particularly significant in giving advantage to the incumbent party in the run up to the elections. Both the incumbent and the public services agencies must avoid violating this restriction. They say that the test is: will the agency concerned be able to muster enough moral courage to say ‘no.’ That, of course, is the ideal situation but one must not forget that the public officers concerned may be working under severe duress and pressure. So, I believe it is imperative on the caretaker Ministers and executives whether State or Federal to abstain from putting their public services officers in a position of duress or undue influence.
This is why serving officers in the public services must refrain from any kind of political campaigning or participation for either the incumbent party or the opposition party. They must discharge their duties impartially and refrain from promoting any individual or party. Nevertheless, their right to vote remains sacrosanct which means their freedom of choice must remain intact. In this regard, warning public servants against voting for the Opposition whether at State or Federal levels is totally out of line with the requirements of proper governance let alone of caretaker conventions.
Avoiding major contractual undertakings
The next area of best practices is the avoiding of entering into major contracts that would have the effect of committing the incoming government to legal undertakings. The reason is obvious. The incoming government might well be a new government replacing the incumbent and with that comes its own set of policies and strategies in relation to matters of the state or the federation.
In this regard it must be emphasised that major policy decisions during this interim period must be avoided until final resolution of the elections and the new government takes over.
In line with this too, significant appointments to public service must also be avoided during this interim period. It is true that what constitutes ‘significant’ could vary from circumstance to circumstance. No hard and fast rules can be laid down here but in times of uncertainty common sense should prevail.
Observing these conventions under this subhead is crucial so as not to limit the incoming government’s freedom of action.
If I may just sum up, while the business of government does not stop during the caretaker period, certain best practices including restrictions need to be observed. This is because every general election brings with it the possibility of a change of government. Therefore, condemning the Opposition for campaigning for a change of government is a denial of the rationale for elections. In fact, the entire basis of elections is to allow the people a choice to change the party or parties to form the government. They may or may not want to change but this is what electoral democracy is all about. And to facilitate this process, the best practices of caretaker conventions must be observed.