‘State of necessity’ invoked to pass laws without constitutional quorum

The Attorney General’s office on Thursday asked the Supreme Court to declare that parliament can pass laws without a constitutional quorum if lawmakers refuse to attend votes.

Controversial amendments to the Judges Act were passed last month in a “state of necessity” that arose due to an opposition boycott of sittings since July, a state attorney told the court.

The reduced Supreme Court bench was expected to rule on the constitutionality of the bill – which triggers automatic removal if a judge is convicted of a criminal offence – but instead accepted parliament attendance records submitted by the state attorney.

The apex court was asked by the opposition last month to strike down the legal changes because parliament voted without the constitutional quorum needed to pass laws. More than half the 85-member house must be present for voting on “any matter requiring compliance by citizens” but only 39 lawmakers attended the March 13 sitting.

President Abdulla Yameen, however, ratified both the judges removal amendments and an anti-defection bill the next day. The opposition says the bills were pushed through to sack a dozen lawmakers and two detained Supreme Court justices.

Thursday’s hearing on the constitutional challenge saw heated exchanges between State Attorney Masha Luthfy and top opposition lawyers.

The opposition’s parliament boycott poses “obstacles to calling votes on crucial matters” of economic and social welfare, Luthfy contended.

She accused lawmakers of grinding the legislature to a halt by using the boycott to “veto” government-sponsored legislation.

“Twenty-eight members took leave on the day of the vote with no appropriate reason. Nine of these 28 members attended committee hearings inside the Majlis building but did not attend the sitting for the vote,” she said.

Some 43 MPs were absent for seven out of 14 votes taken since July last year. The same 43 also boycotted 13 votes taken during the first session of 2018, she added.

But opposition lawyers questioned how the boycott caused “irreparable damage” to justify invoking the state of necessity argument.

“How many laws were not passed? Are bills like this, bills to remove judges in contravention of the constitution, that are important for the economy and society?” asked lawyer Safa Shareef.

Justice Dr Ahmed Abdulla Didi asked two lawmakers at the hearing if they failed to attend on purpose.

But Jumhooree Party MP Ali Hussain refused to answer, citing privacy rights and his suspension by the court.

Anara Naeem from the Adhaalath Party said she was unable to attend on short notice because she was informed on the morning of the sitting.

Opposition lawmakers have been boycotting sittings since July after a majority-backed no-confidence motion against the speaker was unfairly rejected, she added.

The controversial removal of 12 MPs last year was used to wipe out a new opposition majority and protect the speaker from impeachment.

“They have admitted that they did not attend after a certain event. Should the parliament remain at a standstill until they get what they want?” Lutfy asked after the MPs spoke.

But the opposition lawmakers were not to blame for parliament’s paralysis, lawyer Ibrahim Riffath responded.

“The speaker has refused to let MPs in jail or custody attend parliament sittings as legally mandated. State institutions have colluded to prevent MPs from attending sittings,” he said.

“The Elections Commission and the parliament have colluded to strip 12 MPs of their seats. But when members refuse to attend sittings it is a deliberate ploy to foil the passage of bills?” 

The 2018 state budget was passed and several presidential nominees were approved despite the opposition boycott, he stressed.

The lawyers also sparred over parliament attendance records, which the state attorney baulked at sharing with the appellants.

After a brief recess to consider objections, the three-judge bench allowed opposition lawyers to study the documents for 30 minutes but declined requests for more time to verify information.

“We are not aware that parliament keeps records such as these. And I want to note that the state was asked to present this information on 18th March during the first hearing. But this information was obtained on 3rd and 4th of April – just within a day’s time of this hearing,” Riffath observed.

“These documents were submitted suddenly and we believe there are some concealed matters behind this. If the judges cannot give us sufficient time to verify this information, we have nothing more to say on this issue.”