Commonwealth Conventions for a Caretaker Government

Jul 21, 2019 AFC Column, Features / Columnists

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The Constitution of Guyana does not address ‘Caretaker Conventions” nor set out progressive steps in the event that a Caretaker Government becomes necessary, as is the case now that the Caribbean Court of Justice (CCJ) has ruled that the December 2018 motion of No Confidence was validly passed in the National Assembly.
So we consulted the Constitutional Laws and Conventions of fellow Commonwealth countries and found that these conventions could be applied to Guyana.
The Commonwealth countries agree that the dissolution of Parliament leaves the state rudderless, therefore the sitting Government must continue in office until the results of general elections are announced. If the election is won by the governing party, there is no interruption in the affairs of the nation. If it is lost, the Government resigns.
During the period before elections, the Government retains its full panoply of legal powers (statutory, prerogative and common-law) since it must manage the nation and the people’s affairs in their best interest. However, by convention, it is expected to behave as a caretaker, restraining the exercise of its legal authority.
This is considered ‘appropriate behaviour’. While there is no legal sanction for a breach, obviously a clear breach would attract severe criticism and political damage. These ‘conventions’ are neither legally binding nor hard and fast rules. Their application requires good, careful judgment and common sense.
In summary, the conventions are that the government avoids:
• Making major policy decisions that are likely to constrict an incoming government
• Making significant appointments
• Entering into major contracts or undertakings
Several countries recommend consultations with the Opposition which should involve explanations of why the proposed action is considered necessary, and which should open the door for further exploration of different courses of action. While the Administration should consider the suggestions the Opposition might make, it is not required to reach agreement with the Opposition before proceeding.
There are also established practices that are directed at protecting the Public Service and avoiding the use of national resources to give an advantage to a particular party.
The following notes are intended to explain the conventions and practices in more detail, and to provide guidance for the handling of business during the caretaker period. The Ministry of the Presidency, the Office of the Prime Minister and Cabinet should be able to provide guidance to Public Service agencies, but responsibility for observing the conventions ultimately rests with agency heads and the Executive branch of Government.
MAJOR POLICY DECISIONS
Government should avoid making major policy decisions during the caretaker period that are likely to commit an incoming government. Whether a particular policy decision qualifies as ‘major’ is a matter for judgment. Relevant considerations include the impact of the policy on national resources, and it should consider whether the decision could become a bone of contention between the Government and Opposition in the election campaign.
The caretaker conventions also apply to the making of decisions, not to their announcement. Where possible, decisions should be announced ahead of the dissolution of Parliament. Care should be taken to ensure that national resources are not used to make announcements that involve partisan activities.
The conventions do not apply to promises on future policies that the party in government announces as part of its election campaign.
If circumstances require the Government to make a major policy decision during the caretaker period that would bind an incoming government, the Minister would usually consult the Opposition spokesperson beforehand, e.g. providing urgent financial and material resources to drought-affected or flooded areas in towns, the city, the hinterland or inland regions.
SIGNIFICANT APPOINTMENTS
The sitting governments should defer making significant appointments during the caretaker period. When considering the advice it would give on whether an appointment qualifies as ‘significant’, the agency should consider not only the importance of the position, but also whether the proposed appointment would be likely to be controversial.
If deferring the appointment is impracticable, usually for reasons associated with the proper functioning of an agency, there are several options:
• the Minister could make an acting appointment where permissible
• the Minister could make a short term appointment until shortly after the end of the caretaker period
• If those options are not practicable, the Minister could consult the relevant Opposition spokesperson regarding a full term appointment.
MAJOR CONTRACTS OR UNDERTAKINGS
Governments should avoid entering major contracts or undertakings during the caretaker period. When considering whether a contract or undertaking qualifies as ‘major’, agencies should consider the dollar value of the commitment and also whether the commitment involves a routine matter of administration, or whether it implements or entrenches a policy, programme or administrative structure which is politically contentious. A further consideration is whether the commitment requires ministerial approval.
If it is not possible to defer the commitment until after the caretaker period for legal, commercial or other reasons, there are a number of options. The Minister could consult the relevant Opposition spokesperson regarding the commitment; agencies could also explain the implications of the election to the contractor; and ensure that contracts include clauses providing for termination in the event of an incoming government not wishing to proceed.
Similarly, in the case of tenders, agencies should warn potential tenderers about the implications of the election and the possibility that the tender might not be completed.
(To be continued)

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