Court verdict on polls under microscope Advocate in bid to correct ‘judicial wrong’

ADVOCATE Mubarak Al Mutawa is currently waging a fierce legal battle to right what he considers a grave judicial wrong that led to the political turmoil the country is facing. He is challenging the constitutionality of a court verdict that ruled the February 2012 elections null and void. He will be presenting his case in the Constitutional Court on Nov 28, 2012, three days before the elections to try and reverse an earlier court ruling, in which if he succeeds the upcoming elections will witness some dramatic procedural changes. He is also fighting pitched legal battles on other fronts; the case in the International Criminal Court against Israel in connection with the aggression on Flotilla crewmembers is not the least of them.

Question: You have filed a case in the Constitutional Court against the upcoming elections. What is your contention? Is it about the reduction in the number of votes per person from 4 to 1?

Answer: No. The problem is with a judgment that was issued on June 20, 2012. The judgment annulled the results of the election that took place in February 2012. So, there was a gap of nearly 4 months between the election s and the judgment that made it null and void. All this time there was a new Parliament that was functioning, passing legislation and so on. Suddenly the June judgment rendered this parliament null.
The judgment was based on technicalities and simple procedures that led to the dissolution of the parliament before the last elections. Following the judgment, the parliament that existed before the Feb elections was re-inducted, leading to yet another dissolution. This was making a travesty of democracy, there’s no stability.
There’s no guarantee that the new Parliament that will be formed after the December 2012 election will be stable, because if you are going to pick on the little details of the law there’s are hundreds of ways you can dissolve the parliament. As it is you can see that many people are boycotting the elections, people are not participating, there’s no cooperation and so on.
Basically, people are politicizing the situations in the country. I am asking why people are falling into such darkness. I am trying to light a candle in this darkness.

Q: Are you trying to stop the election from taking place?
A: I am only trying to bring to the notice of the court my reasons to believe that the verdict to annul the results of last elections by the Constitutional Court was baseless. Whether the elections will take place or not depends on the verdict of the case.

Q: Can you give us a more elaborate background of the case?
A: The constitutional court dissolved the last parliament. That was a well-balanced strong parliament. The opposition was strong, which is a sign of healthy democracy.
The instrument used to dissolve the parliament was not political, but juridical one. That’s why it’s important to correct this issue through the judiciary. There are legal problems in this judgment. The solution has to come from the court itself.
I am glad that I was able to reach this court directly, which is not possible usually. It’s the Constitutional Court and there are a whole lot of involved procedures to take a case to this court. There are only two ways to reach the Constitutional Court. One is through the Parliament, the other is when you have a case running in a lower court and that court refers your case to the Constitutional Court for reasons that are rare.
But I circumvented these procedures to reach the Constitutional Court, without violating any law, of course, but by using the prerogatives that the law confers upon citizens.
I have been informed that the trial will be on Nov 28, 2012, that is three days before the elections. I have asked for two main things: one to explain and correct the court decision issued in June to dissolve the parliament. If that’s accepted, then most of the political problems rocking this country today will be resolved.
However, I admitted in my petition that the dissolution will be valid only for MPs from the 3rd constituency. Therefore, 80 percent of the previous Parliament will be reinstated, or 40 MPs.

Q: Why is that?
A: Well, if you look at the background of the case that led to the dissolution of the Parliament, you will find that it began with a case that was initiated by two candidates from the 3rd constituency against the 10 MPs who won from that constituency. The two candidates were Safa AlHashim and Rowdha Al Roudhan. However, the verdict in the case was issued for the entire Parliament, thereby affecting even the 40 MPs who had nothing to do with the case. This is unconstitutional.

Q: Why is it unconstitutional?
A: As I said the two candidates from the third constituency who lost in the February 2012 election filed a case only against the 10 MPs from their constituency saying that their elections was illegal. However, the verdict was not limited to those 10 MPs and affected all the MPs.

I think it will help our readers to jog up their memory if you start from the resignation of former Prime Minister Sheikh Nasser Mohammad Al Sabah to give them a better perspective of your case?
A: Okay. Former Prime Minister Sheikh Nasser Mohammad Al-Ahmad Al-Sabah was forced to resign in late November 2011 following protests by the youth after two alleged corruption scandals were exposed. HH the Amir accepted the resignation of Sheikh Nasser and asked Cabinet ministers to continue in their posts until a new Cabinet is formed. A few days later, Sheikh Jaber Al-Mubarak Al-Sabah was appointed as the new prime minister. He took the oath before the Amir, however, the rest of the ministers did not as they were continuing from the previous government.
Now we technically have a Prime Minister who had sworn in leading an old cabinet that had not renewed its oath. This had raised some questions about the legality of the cabinet, which then approved in December 2011 a decree by HH the Amir to dissolve the assembly. After some time, a new cabinet was formed, but this cabinet did not have any MP in it. Therefore, technically this cabinet too was illegal. This new cabinet approved another Amiri decree calling for fresh elections.

Following the elections, the two candidates from the 3rd constituency filed a case saying the cabinet that dissolved the parliament and the cabinet that called for fresh elections are both illegal. The Constitutional Court ruled both decrees illegal and accordingly all the results based on them, including the February elections were declared nullified.
But there are examples of judgments that hold that ministers continuing from a previous cabinet, their first oaths are valid through the continuous extension of their office.
That was an unfortunate judgment that changed a lot of things in Kuwait. This led to the disqualification of a very strong and legal parliament, within four months of its existence. These MPs had a strong support base. Thousands gathered at their rallies to express their solidarity, and it is not fair to disqualify them based on a vague technicality. They have the support of the people, and that’s a truth. The people of Kuwait voted them to power, and you can’t discount that.

Q: How do you think the politics in Kuwait can resolve its problems and get back on track to function smoothly?
A: Kuwait’s politics is functioning like there are two main parties constantly at loggerheads, and innumerable groups within these broader divisions. The legislative and the executive bodies must resolve their differences and look at an amicable solution for the benefit of the nation.
This particular case in point is not just a political issue; it’s also a legal issue, because it started with a court ruling. Therefore, the solution to this problem should also be legal.
That’s what I am aiming to do. I want the Constitutional Court to listen to my appeal against the verdict and perhaps make amendments. The court could admit that the judgment given against the 40 MPs who were not involved in the case was extra constitutional, and re-induct them without an election.
The judgment was plainly against the Constitution, because you cannot pass a judgment that affects people who are not represented in the case. These 40 MPs didn’t have any defense.
If you look carefully, you will see in this verdict undercurrents of the Counsel Room dispensation of justice system, which I am fighting as well. There too, the parties upon whom judgment is passed are not represented in the trial.

However, let me make it clear that I fully respect the court. It’s because I firmly believe in the judiciary that I am resorting to law to find solutions that I believe will have a bearing on the future of our nation.
As a citizen, it is my right to approach the court to seek redress. The schisms in the country have been a stumbling block for development, for employment and for the country’s security. When these situations get worse, then people will lose faith in the system. The process of dialogue will end and there will be opposition to everything. That’s what’s happening at the Erada Square and other places. The confrontation is getting more intense and the protestors are clashing with police. All these troubles can be saved with one verdict from the court. It simply has to own up that the judgment on the last elections was wrong, and the 40 MPs have to return to the Parliament. The elections can simply be held in the 3d constituency.

The previous parliament had made some good progress. It was a very well balanced Parliament, and we could have achieved a lot through it. Take for example the humanitarian law that this Parliament legislated in just 4 months after getting established. The detention period of the accused individuals was open-ended earlier, and this was reduced to 24 hours. This was a big step, and so many human rights abuses could be prevented using this law.
With the Parliament dissolved on the grounds that it was illegitimate, these progressive legislations have also become illegal.

Q: What happened to the case you were fighting against the counseling room system of dispensation of justice?
A: Let me give you a quick background about the case. According to the Constitution of Kuwait, every human being is equal in his rights and duties in front of the law. According to this system, cases are dealt by the highest court in Kuwait in private, closed rooms, without the presence of the involved parties.
The cases are either declared rejected or accepted based on a sighting of the case papers without a fair hearing of the concerned parties or their lawyers. There is a lack of transparency as to on what basis the judgments are made. Some cases are accepted and some rejected, and this being the highest court, there’s no further appeal. This is tantamount to treating people unequally, going against Kuwait’s Constitution.

Moreover, many of our judges come from countries with discredited systems that have been overthrown by revolutions. I am calling into question the reliability of the judgments of these judges. After all judges are also humans and their thinking can be clouded by their ideologies and other factors.
The only court above the High Court in Kuwait is the Constitutional Court, but nobody has a direct access to this court. ‘You cannot directly move a case through the Constitutional Court. It is only when the constitutionality of a particular case being handled by a lower court comes into question that you can go to the Constitutional Court.
I was called to present my case against this system of justice last year. My arguments were not accepted by the court, because they said that this is the highest court and so there’s no way to appeal further, whether the verdict is right or wrong. They give verdicts without trial. My objection is: how can you give a verdict without the parties presenting their case. They simply said that that is the law, and there’s no way to change it.

However, I have not given up on that. I will continue to fight that case, because I still feel it is illegal. And I wouldn’t keep quiet with the law in the country taking such arbitrary measures, especially where there’s no scope for further appeal. Yes, it’s not always that a case goes to the Counseling Room, but in my opinion it’s still not appropriate. It’s unconstitutional. Because the Constitution says that everybody has the right of justice and to be represented.
Article 166 says your right to approach the judge and get your verdict from the judge is guaranteed. This is in the Constitution, and the counseling room system goes against this article.
It’s guaranteed by the Constitution and by the state. The law should find out the procedures and situations that you should follow for implementing this right.
This is the highest court and you can’t criticize the verdict, then how is one to get justice if not duly represented. This way, I am sorry to say, you are only creating new gods, because it’s only god’s verdict that can’t be questioned.
I should raise it in this country. If these judges are humans, they are fallible, and must be open to criticism. Well, I can understand there is no appeal against the highest court, but then there should be scope to make the court reconsider the verdict if someone has an issue with it.

Q: Your case has been overthrown, but you say you will continue to fight. How?
A: You can’t say that my case has been overthrown. You could say, not accepted, there is a difference. They said that my case has not been accepted since this is the last stage and there can’t be a further appeal. And they look at my case as an appeal against the highest court, and so they said there’s no way to change the system.
However, I am currently following a more important issue than that. That is to do with the upcoming election.

Q: You were also fighting a case in the International Criminal Court against Israel’s aggression on crewmembers on Flotilla a couple of years ago. What happened to that?
A: Yes, we had filed the cases with International Criminal Court (ICC) in France. Flotilla and some cases pertaining to human rights violation in Gaza were also filed with ICC. However, we had a big obstacle. Two particular cases, one Flotilla and the other pertaining to Bait Hanoun in Gaza, the former General Prosecutor of ICC, Luis Mareno Ocampo, had openly claimed that he was not empowered to register these cases according to the court’s constitution. This was not true. I had declared that according to Article 13, Paragraph C, of the ICC Constitution, the General Prosecutor has not only the right to register a case based on information of violation of human rights, but is also obliged to move it with immediate effect.
This article also refers to Article 15, which further states the General Prosecutor has the right to move a case and open investigations on his own accord based on information brought to his notice of crimes mentioned in the law.

However, the General Prosecutor had not acted on the information and reports that had reached him, despite there being many, and had failed to initiate any investigation in the case which is the least that is expected of him in the face of the brutality that was staged in Gaza and on the decks of Flotilla. More than 150 complaints or close to 200 must have reached him, yet he failed to act.
He must been terribly out of synch with reality to not be able to see the seriousness of the charges. He should have opened a case at the first complaint that reached him. He should have sent a letter to Israel informing them that there is a case against them and invited them to defend.
But now Luis Mareno Ocampo has retired, and there is a new General Prosecutor, who has taken charge, and we hope she will see the legitimacy of our case and open the file. We are not going to lose hope and sulk. We are going to use the rights that other articles in the ICC and move ahead.
This is our duty now. I think we should also try again and again to use the legal means to achieve just results, so that no one can accuse us of overstepping our limits. We are not doing anything illegal.


Mubarak Al Mutawa is the Chairman of the International Human Rights Committee, headquartered in Cairo, Egypt. He is also the Deputy Secretary General of the Union of NGOs in the Islamic World, which carries out humanitarian services in times of crises like starvation in Somalia, flood in Pakistan, earthquake in Turkey and so on. He is a very vocal opponent of Israel’s illegal occupation of Palestinian lands and is fighting legal battles in the International Criminal Court to make Israel account for its alleged crimes against humanity. He is also the author of numerous books including the one about his experience in Flotilla, the ship that came under Israeli aggression while on a mission to deliver food supplies to Gaza.

- By Valiya S. Sajjad - Arab Times Staff


By: Mubarak Al Mutawa

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