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Constitutional frauds

11 min read

By Faisal Siddiqi

“Pity the nation that is led by those who laugh at the law little realising that the law shall have the last laugh.” — Justice Asif Saeed Khosa

The vote of no-confidence against Prime Minister Imran Khan was not voted upon, and in effect, was subverted and made redundant on the pretext of a so-called ruling given by the deputy speaker of the National Assembly.

This is a grave constitutional situation because a free and transparent vote of no-confidence against the prime minister, strictly in accordance with procedure, is at the core of our constitutional democracy.

To subvert this right and the process of a vote of no-confidence is to subvert both democracy and constitutionalism, thus creating space for a one-party state and a rule by law (and not rule of law) regime.

The interpretation of the law, leading to the subverting or denying of a vote of no-confidence, is not merely a different or alternative interpretation of the Constitution and the law but a constitutional fraud, which uses the parliamentary process and constitutional and legal provisions as a fig leaf and facade to subvert the very vote of non-confidence which it seeks to implement.

A constitutional fraud is a classic example of George Orwell’s double speak — “To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it.”

But the question arises as to how such constitutional frauds are possible in the presence of a written constitution, a democratic process and an independent judiciary.

How are such frauds possible in the presence of a constitution, a democratic process and an independent judiciary?

Anatomy of a fraud: Anyone with an elementary understanding of constitutional law and knowledge of the English language would at once realise that to deny or cancel the vote of no-confidence against Prime Minister Imran Khan, on the pretext of an alleged violation of Article 5 of the Constitution, is at best a constitutional joke, and at worst an insult to the Constitution.

However, a constitutional fraud is a well-established legal fascist tactic that comprises five key strategic elements.

Firstly, the law is used as a fig leaf and façade. This means that the fraud entails adopting any absurd and irrational interpretation of the Consti­tution, law and procedure, in order to justify its political ends.

Secondly, it creates interpretational confusion. Once an absurd and irrational legal interpretation is employed, it seeks to argue that it is a genuine legal dispute as there are more than one interpretations possible of this so-called legal dispute, and therefore, the government’s action cannot be wholly fraudulent.

Thirdly, it invokes the justiciability barrier. As the constitutional and legal subversion is so blatant, it tries to shield the constitutional fraud by arguing that the courts cannot look into such a question — for example, parliamentary proceedings being protected from judicial review under Article 69 of the Constitution.

Fourthly, it creates illegal facts on the grounds. It tries to bring about so many changes as a result of this constitutional fraud that even if the judiciary declares it a constitutional fraud, it would be difficult to reverse the consequences.

Fifthly, it seeks refuge in the lack of accountability. Generally, even if the courts declare it a constitutional fraud, government officials or politicians are hardly ever held accountable for their actions.

Prime Minister Imran Khan’s government was in the habit of engaging in constitutional frauds. The presidential reference against Justice Qazi Faez Isa was another classic example of constitutional fraud.

International right-wing brotherhood: Imran Khan is a novice at constitutional frauds but he is in good company — right-wing populist leaders like Donald Trump and Narendra Modi too have engaged in democratic/ constitutional frauds. Imran Khan and Modi share remarkable political similarities: both of them use religion, aggressive nationalism and micro welfare schemes (eg Sehat card and Ehsaas programme in Imran Khan’s case) to win the popular vote. In terms of constitutional frauds, they also share remarkable similarities. Both pretend and declare to believe in parliamentary democracy, judicial independence, free press and dissent in civil society.

However, while maintaining the formal architecture of these four critical elements of a liberal society, they take strong measures to hollow out these very institutions. Parliamentary democracy is combined with the desire for an authoritarian one-party state; judicial independence is combined with the desire for a cooperative judiciary; a free press is combined with a desire for the media to engage in positive minor critique; and dissent in civil society is combined with a tolerance of dissent only against opponents of the ruling party.

People are right to point out the similarities between Trump’s attack on Jan 6, 2020, on the US Congress’s process of counting the electoral votes in the presidential election, and the present situation, but there is one crucial difference: vice president Mike Pence was heading the certification process of the presidential elections rather than the deputy speaker of the National Assembly Qasim Suri. Unlike Qasim Suri, vice president Pence understood that if he rigged the certification process to help Trump get a second term, such a democratic/ constitutional fraud might spell the end of democracy in America, and as a consequence, might lead to his prosecution. Certainly, no one can ever accuse Qasim Suri of having any such democratic/ constitutional literacy and foresight.

Constitutional fraud creates a very dangerous precedent, which is that any constitutional and legal provision can mean absolutely anything a ruling party wants it to mean, however absurd and fatal such an interpretation is to the Constitution and democracy.

In other words, to use an Orwellian analogy, an unconstrained state may declare tomorrow that two plus two is five. Today, it is the opposition political parties which are under attack, tomorrow the target of such constitutional frauds can easily be the military, judiciary, media and dissenting voices in society. A wild politician only guided by his raw ambition to rule and who is bent upon destroying the basic acceptable principles of constitutional democracy is like wildfire. This fire will ultimately burn him and the entire country.

The writer is a lawyer.

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