MARCH 5 — It was only half a year ago that Tan Sri Muhyiddin Yassin resigned as the prime minister (PM).

When he announced his resignation as the eighth PM at 3pm on August 16 last year, Istana Negara at the same time released a statement through its official Facebook page stating that His Majesty the Yang di-7 Agong (YDPA) had received the resignation letter from Muhyiddin as PM and his entire Cabinet, which took immediate effect.

Istana Negara also announced Muhyiddin’s appointment as caretaker PM. 

Lawyers were also quick to explain Muhyiddin’s powers as caretaker PM. 

Before long, the Chief Secretary to the Government (KSN) Tan Sri Mohd Zuki Ali waded in to outline the roles and functions of a caretaker PM. Mohd Zaki said that the PM would carry out the functions of a caretaker government.

In a statement on the functions and roles of a caretaker government, Mohd Zuki said even though the Federal Constitution did not specifically provide for the functions and roles of a caretaker government, based on conventions of a parliamentary democracy system among Commonwealth countries, it only functioned to administer the country until a new government was formed.

"In this regard, the caretaker government may act for the purpose of carrying out government administrative affairs.

"Nonetheless, the caretaker government cannot make decisions or policies which could bind or take any action which could give financial implication and burden on the new government to be formed, other than actions which need to be implemented for public interest,” he added. 

Three months later on November 5, when the Sarawak State Legislative Assembly (SLA) was dissolved, then Chief Minister Datuk Patinggi Abang Johari Tun Openg duly acknowledged that his Gabungan Parti Sarawak (GPS) government had transitioned to become a caretaker government.

"Yes, it is a normal transition when you dissolve the state assembly, the ruling government becomes the caretaker government.

"At the moment we cannot make major decisions. Even during the Emergency, we cannot make any major decisions, we just run the state as it is,” he added. 

Both Mohd Zuki and Abang Johari clearly understood the conventions to guide the actions of caretaker governments.

Typically, incumbent governments should remain in office until a new administration is sworn in. While caretaker governments are generally deemed to have full executive powers, it is expected that they should not embark upon major new policy initiatives.

In effect this means that significant policy matters not requiring immediate decisions should be left for the new government to deal with. Exceptions to such rules normally arise only when the caretaker period is protracted  —  that is, more than several months. (see, for example, Jonathan Boston et al, "Caretaker Government and the Evolution of Caretaker Conventions in New Zealand” (1998) 28 VUWLR 629)

Caretaker Johor Mentri Besar Datuk Hasni Mohammad on the other hand announced yesterday (March 4) that his caretaker Johor government had allocated 3,200 lots of land for the construction of housing for second-generation Federal Land Development Authority (Felda) settlers.

Johor caretaker Mentri Besar Datuk Hasni Mohammad announced yesterday (March 4) that his caretaker Johor government had allocated 3,200 lots of land for the construction of housing for second-generation Federal Land Development Authority (Felda) settlers. ― Picture by Hari Anggara

Now, the state authority is empowered by section 42 of the National Land Code (NLC) to dispose of state land. This is in keeping with the concept that all land is owned by the states.

The state authority has the power to approve or not to approve or to cancel the grant of state land although the decision for the grant of the title had been made. It is also the highest body with the power to make policy on state lands.

In Piagamas Maju Sdn Bhd v Pengarah Tanah dan Galian Negeri Selangor [2013] 2 MLJ 97, the court held that the power was a discretionary power granted by the NLC via sections 42, 76 and 78. The state authority could not be forced to carry out its power in the grant of state-owned land.

Decisions such as in Piagamas and Pembinaan Batu Jaya Sdn Bhd v Pejabat Tanah dan Galian Selangor & Anor [2016] MLJU indicate that where the decision is made to alienate land, that land remains state land until registration of the owner.

Until registration is complete, decisions  —  including that of revoking the decision to "allocate” state land  —  remain within the powers of the state government. It is the state government, through the state executive, that makes and carries out state policy.

Hasni’s announcement is arguably a major decision.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.