Elections Commission (EC) testimony given during a People’s Majlis committee has been used in today’s Supreme Court trial to implicate the four commission members for contempt of court and disobedience to order.
The Supreme Court is prosecuting the EC under new ‘Sumoto’ or ‘Suo motu’ regulations that allow the apex court to initiate hearings and act as both plaintiff and judge in a trial.
Article 90 of the constitution says no person will be subject to any inquiry, arrest, detention, or prosecution with respect to anything said in the People’s Majlis or any of its committees if such a statement is not contrary to tenet of Islam.
But, claiming establishing justice to be a tenet of Islam, Supreme Court Judge Ahmed Abdulla Didi today said the EC’s testimony at the independent commissions oversight committee obstructed justice and could be used in a court.
EC President Fuwad Thowfeek has denied the charges against the commission: “Testimony provided at the People’s Majlis committee was not given to hold the court in contempt, but to be held accountable to the EC’s actions – these testimonies are privileged information.”
The Supreme Court has said that no party has the authority to question or criticise its decisions as per Article 145 (c) of the constitution which states that the Supreme Court shall be the final authority on the interpretation of the constitution, the law, or any other matter dealt with by a court of law.
The Supreme Court has accused the EC of contempt, claiming it had criticised the verdict which annulled the first round of presidential elections held in September 2013, as well as disobeying a Supreme Court order by dissolving eight political parties earlier this month.
The four members of the EC were summoned to an unannounced trial on Wednesday. After being given case documents just minutes before the trial began, the commission was granted an opportunity to respond today.
Case documents included newspaper articles and testimonies provided at the Majlis, but did not include any documents outlining specific charges. The charge sheet was handed to the commission only minutes before today’s trial began.
At today’s hearing, EC lawyer Hussein Siraj asked the Supreme Court to specify charges, arguing that the commission could only respond if the court clarified which statement made – at which location, time, and date – amounted to contempt of court.
Siraj also asked the court to specify which of the commission’s actions constituted a disobedience to which order.
Chief Justice Ahmed Faiz then asked Siraj to respond to the charges to the extent that he understood them.
After a short break, all four members returned to the court room and separately denied the charges.
At today’s hearing, judges accused the EC of administrative failures and irresponsibility. They said the EC does not have the authority to raise doubts regarding the court’s decisions or to complain over the practicality of the electoral guideline.
Judge Abdulla Saeed also questioned whether the EC was now a legal entity, claiming the constitution stipulated that the committee must hold five members instead of four. The fifth member of the commission – ‘Ogaru’ Ibrahim Waheed – resigned in October 2013, citing health complications.
Four of the five judges who presided over today’s hearing are the four judges who voted to annul the election in October and strip two MPs of their Majlis membership in November. Among these four is Ali Hameed who has been implicated in a series of sex tapes last year.
Denying charges, Fuwad said any response given to questions posed by MPs in the People’s Majlis is privileged information. The EC is constitutionally bound to answer such questions, he said.
Vice President Ahmed Fayaz said there were only two things Muslims cannot challenge – the Qur’an and Prophet Mohamed’s Sunnah. Fayaz said he had not disobeyed the Supreme Court’s decisions, but had spoken to the media regarding the implications or outcomes of the court’s verdicts.
Meanwhile, Ali Mohamed Manik said the commission must answer questions posed by the media in order to be accountable to the public and said he was ready to swear on Allah’s name that he had not disobeyed a Supreme Court order.
Member Mohamed Farooq said he had never spoken to the media at a press conference because he had seen many individuals being prosecuted for speaking the truth before
“There are people ready to sacrifice themselves for democracy and freedom. I am not one of them,” he said.
However, he said he was obliged to provide truthful testimony at the People’s Majlis and that such a testimony must be held within the four walls of the parliament.
Contempt of court
Judge Didi said that labelling the Supreme Court’s electoral guideline to be onerous or suggesting a Supreme Court verdict should not be obeyed amounted to contempt of court.
Didi said the Supreme Court had in its possession a letter sent by the EC to the Attorney General (AG) “complaining” of the difficulties in implementing the court’s guidelines, and asking for advice on whether to abide by them.
Judge Ali Hameed said the EC had no authority to seek a second opinion on a Supreme Court verdict.
Judge Abdulla Saeed said the Supreme Court’s verdict could not be questioned, as it is the last word on any issue. He said the Supreme Court’s verdicts are similar to a law passed by the People’s Majlis and members of the public cannot disobey or complain about the law.
The letter to the AG questioned the Supreme Court’s mandate in issuing a guideline, Saeed said. The guideline was imposed to uphold the constitution and enhance the electoral process, he claimed.
Fuwad said the EC had asked the AG for advice with good intentions and maintained the commission had always abided by the Supreme Court’s decisions. He pointed out laws are subject to review and argued Supreme Court decisions can be revised.
Saeed also censured the EC’s criticism of the evidence used by the Supreme Court to annul the verdict. In response, Fuwad said there were “glaring irregularities” in the police forensic report used to invalidate the election.
Analysis of the report showed that voters listed as dead were in fact alive and voters listed as minors were in fact eligible. But Saeed said the Supreme Court had also relied on witness statements in issuing the verdict.
The UN has dismissed the police forensic report after conducting an expert review with UN Assistant Secretary-General for Political Affairs Oscar Fernandez-Taranco stating that the election was inclusive and met international standards.
Meanwhile, the Commonwealth Observer Group who monitored all rounds of the presidential election said the Supreme Court guideline “appeared to undermine the authority of the Election Commission, were inconsistent with or contrary to electoral law, and were at odds with the Constitution,”
Dissolution of political parties
The EC is also being charged with violating a January 9 Supreme Court order, which invalidated an EC order to smaller political parties requiring them to raise their membership to 10,000.
The EC had sent the letter as per Article 27 of the Political Party Act that states that it must give political parties a three-month deadline to increase party membership to 10,000.
The Supreme Court on January 9, however, ruled that the letter was invalid as the apex court had in September struck down Article 11 of the act, which states that a political party must have 10,000 members for registration. The Supreme Court then stated that the EC must consider minimum requirement for membership to be 3,000 members as per previous political party regulations.
The Supreme Court today said any article referring to 10,000 members was no longer functional with the invalidation of Article 11.
Judge Adam Mohamed repeatedly questioned the EC over whether any court order or verdict allowed them to dissolve any party with less than 3000 members.
EC members argued the Supreme Court had not expressly forbidden the dissolution of political parties with membership less than 3,000 in any verdict or order, arguing that the Political Party Act afforded the EC the authority to dissolve political parties.
Manik said the EC had not dissolved any party with membership higher than 3,000. Some parties among the eight dissolved did not even have 500 or 600 members, and had not submitted audit or annual reports and were a financial drain on the state’s resources, he said.
Manik also pointed out none of the annulled parties had complained over the commission’s decision.