13th Amendment and future of democracy
Throughout history, important constitutional cases have had far-reaching and, at times, disastrous consequences. In 1857, in Dred Scott case, the US Supreme Court declared slavery lawful. The result was the American civil war. In 1955, in Tamizuddin Khan's case (PLD 1955 Federal Court 240), although the Chief Court at Sindh declared the Governor General's decision to dissolve Pakistan's Constituent Assembly unlawful, the Federal Court (with Justice Cornelius dissenting) reversed that decision. Chief Justice Munir was suspected of complicity with the armed forces. It is however widely believed that without that judgment, democracy would not have suffered that terrible fate in Pakistan.
It is too early to predict the consequences of the Supreme Court's judgment which declared the 13th Amendment unconstitutional. This may lead to a political crisis, and God forbid, constitutional crisis.
The nation is aware of the prolonged process of pain and suffering it underwent before the introduction of caretaker government system in March 1996. The Awami League led opposition called 96 days hartal. The prime minister was on record as saying that the caretaker government was her brainchild. Two successive elections were held rather smoothly in June 1996 and October 2001. Difficulties arose in May 2004, when the BNP government amended the Constitution and raised the retiring age of the Supreme Court judges to 67 years. The result: Justice K.M. Hasan was to lead the caretaker government, which the Awami League refused to accept. Violent agitation began, 1/11 came, the two former prime ministers found themselves in prison.
In the High Court Division, the caretaker system was challenged twice and rejected twice: firstly in 1996 (Writ Petition No. 1729 of 1996), and then in 2004 (57 DLR 171). An appeal preferred against the 2004 judgment resulted in the 4 to 3 majority judgment of the Appellate Division, the full text is yet to be available. The summary of the "short order" is as follows:
* The Thirteenth Amendment is prospectively declared void;
* The elections to the Tenth and Eleventh Parliaments may be held under the Thirteenth Amendment;
* Parliament is at liberty to bring necessary amendments excluding the judges of the Supreme Court from the caretaker government.
Once the judgment's full text is received, the precise reasoning will be known. But in Court, the Appellant's principal contention was: the amendment violated the basic structure of the Constitution, namely democracy, because the interim government is an unelected one. Since it was a matter of high public importance, the Court took the assistance of eight senior counsels, of whom two were amongst the framers of the Constitution, as amici curiae. Except one all were in favour of the caretaker government, while two (Mr. Rafique-ul-Huq and Dr. Zahir) opined that judges should be excluded.
It is difficult to understand how the caretaker system can be declared unconstitutional on the ground of its inconsistency with the democratic principles when(a)it was introduced by national consensus,(b) it came in aid of democracy, and (c) ensured free and fair elections. The relationship between democracy and free and fair elections was best summed up in an Indian case [(2002) 8 SCC 237]: "Free, fair ... elections are part of the basic structure of the Constitution...Democracy and free and fair elections are inseparable twins. There is almost an inseverable umbilical cord joining them. The little man's ballot and not the bullet is the heartbeat of democracy."
The citizens of this country (the little man) cannot forget how their votes were hijacked, bullets used, booths captured, and helicopters hired by the party in power to transport ballot boxes from one place to another. But no system is foolproof. The caretaker government has its downsides but it has put an end to this shameful chapter. This, however, does not mean that caretaker government should continue indefinitely. It came into existence through a political process. It should come to an end through a political process.
It is, therefore, impossible to say that the first part of the judgment is in aid of democracy. In history sometimes minority judgments have been proved to be right. Lord Atkin in his minority judgment (1942 AC 206) at the height of World War II declared unlawful the detention of a German citizen by applying the objective test in case of preventive detention. Forty years later, he was proved right. In Tamijuddin Khan's case, had the majority accepted Justice Cornelius's minority view, Pakistan's history would have been different. In the Thirteenth Amendment case we have to wait for the verdict of history.
The second part of the short order has been criticised as contradictory. Critics also say that the former chief justice has kept the door open for him to become the next chief adviser. However, the second part is not without merit. It has given a way out to the government to implement it. They should not insist on appointing Mr. Justice A.B.M. Khairul Haque as the chief adviser. Mr Justice Haque, an honourable man, should learn from history and decline like Mr. Justice K.M. Hasan to become the next chief adviser.
The third part is easy to implement. Parliament can pass an Amendment introducing a new form of caretaker government excluding the judges. The ruling party with its huge majority can easily do so. The government is mistaken in saying that because of the Supreme Court judgment it has no option but to scrap the caretaker system. The Supreme Court has given the government carte blanche. It has kept all options open: (a) the government can do away with the caretaker system, (b) it can keep it unchanged for ten years, or (c) it can modify the system. Absolute power now lies with the government.
True, given the Treasury Bench's huge majority in Parliament, the opposition's views may matter little. Even then, the opposition should not miss the historic opportunity of putting their proposal on the caretaker government in Parliament. By doing so, they will gain support nationally and internationally. The country is on the verge of a political turmoil. Statesmanship is required.