The caretaker is in the house!

Jul 16, 2019 Features / Columnists, Peeping Tom

The Caribbean Court of Justice (CCJ) has designated the Granger-administration as a caretaker government. A vote of no-confidence alters the nature of the government and imposes restraints on its functions and its tenure.
The court in issuing consequential orders, noted that the government, after a vote of no-confidence, is on a different footing from that which existed prior to that vote. This declaration by the CCJ should at least enlighten the government that it cannot be business as usual.
In explaining the different footing in which the APNU+AFC now finds itself, the CCJ referred to Justice Cummings’s ruling in which she cited the Canadian constitutional expert, Peter Hogg, who had explained: “…The government continues in office as a caretaker government or an interim government until the next elections ensue and a President is appointed (or reappointed) depending on the results of that election.”
The CCJ continued that: “By convention, the government is expected to behave during this interim period as a caretaker and so restrain the exercise of its legal authority. It is this caretaker or interim role that explains the three month deadline, in the first instance that the Article lays down, in principle, for the holding of the fresh elections.”
Constitutional conventions have the force of law. Public officials in Guyana, must therefore safeguard the legality of their actions in the period between the fall of a government and the holding of elections. They must appreciate the nature of a caretaker government, how long it can last and what it can and cannot do.
In his glossary, Public Administration Terms, Vickram Singh, defines a caretaker government as one “which carries on the necessary functions of government in the period between the resignation of the government and the establishment of a new cabinet enjoying parliamentary support.” A caretaker government therefore implies the resignation of the Cabinet.
Yossi Shain of Tel-Aviv University and Juan Linz of Yale in their book, “Between States: Interim Governments in Democratic Transitions”, had argued that caretaker governments have two features. The first is that they are temporary and the second is that they are limited in what they can do.
The two professors said that the life or tenure of a caretaker government should have an end date and that this is circumscribed by the holding of elections. In terms of its functions, they noted that caretaker governments cannot make any decision of importance, except those concerned with democratization. They went on to state that in parliamentary democracies, caretaker governments are expected to deal only with routine and urgent business.
This is an entrenched constitutional convention the former Governor General of Australia, Sir Paul Hasluck had explained that that where there exists the possibility of a change in government (that is, where elections are due), “no new decisions of matters of major policy should be taken and no appointments to high office should be made.”
He went on to explain the rationale and philosophy behind this convention.
“The common sense of this convention is to avoid a situation in which an expiring government may do something which, a month or so later, an incoming government may immediately try to cancel. The philosophy of it is that if a major question of policy is being put to the electorate at an election, a government should not make final decisions on that question before the electorate has given its answer.”
Guyana now has a caretaker government. It cannot therefore be business as usual. The Court has pronounced on the validity of the vote of no-confidence passed in the National Assembly on 21st December 2018. The Court has indicated that while the government continues in office until it is either reelected or a new government appointed, it is on a different footing from what existed prior to 21st December 2018.
The APNU+AFC government is a caretaker government. The Cabinet has to resign but the government continues in a caretaking capacity.
Caretaker governments have a limited tenure and are constrained in their functions. They can only engage in routine functions and urgent matters. Their primary purpose is to hold the fort until elections are held and these must be held in accordance with the constitution.
Let us all hope that this convention is not as difficult to understand as determining the minimum majority of 65.

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