The electoral commissioner, Irfan Rahman, could have spared himself the uncomfortable situation brought about by the Supreme Court's decision not to grant him leave to contest his case in the Privy Council. One of those instances where one is tempted to say: "I told you so!"
For those who did not follow the case, here is the context: Mr Rahman was called to court not as an accused but as a witness. All he had to do was tell the court what happened on Counting Day and shed light on whether or not PPS Gilbert Bablee's election in Constituency no 15 (La Caverne/ Phoenix) should be declared null and void. It is very difficult to understand his refusal to comply. More bluntly, if Mr Rahman has nothing to hide, why hide from court? Whose interests is he protecting by delaying an inevitable process? Bablee has been pocketing a private parliamentary secretary's salary for about four years now. Isn't it time all doubts about his eligibility were removed?
It is also difficult to understand why the electoral commissioner should refuse to deny a petitioner, Cader Sayed Hossen, the right to ask him questions and obtain answers about what happened on Counting Day between the manual counting of the ballot papers and the now notorious computer rooms.
In a previous editorial, I had appealed to Mr Rahman to seize the great opportunity handed to him by Sayed-Hossen and his lawyers to rule out any doubt that may still linger in our minds about the irregularities alleged by the opposition and hundreds of citizens. I also warned of the further delay this may cause, particularly that Judge Joseph was retiring and with that, the process would have to be started anew before another judge.
This week, Mr Rahman's application not to give personal answers was "refused with costs". Senior Puisne N. Devat and Judge D. Chan Kan Cheong clearly stated the delay the judge's retirement would cause and stressed that "the interests of justice, the public interest and the interest of the National Assembly demand that this election petition presented in 2019 be determined and concluded with utmost celerity." The court also stressed that "a continued adjournment of this election petition is most unjustified and that, on the contrary, it should be allowed to follow its normal course".
Now, Mr Rahman is left with two choices:
He may decide to serve "the interests of justice, the public interest and the interest of the National Assembly" as stated by the Supreme Court. For this, there is only one option given by the court: "that this election petition presented in 2019 be determined and concluded with utmost celerity." This would limit the damage already caused and offer the aggrieved candidate the opportunity to have his day in court.
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Or he may choose to explore the last option left: petition the Judicial Committee of the Privy Council directly, knowing that our Supreme Court has said in so many words that "...a stay of proceedings of the election petition will in our opinion cause more harm, prejudice and injustice to the respondent - Sayed-Hossen [Ed] - than to the applicant - Irfan Rahman [Ed]."
While stating Mr Rahman's right to seek the second option, the judgement does contain the following unambiguous caveat: "However, as we have earlier pointed out, the respondent too has a constitutional right to justice and to be heard. It is not permissible for the applicant to exercise his right in such a manner as to deprive the respondent of his right to a fair trial within a reasonable time."
Now that our judges have spelled this out in such clear terms, I would understand if a member of the government who has skin in the game still went ahead to buy some more time, depriving the opponent of "his right to a fair trial within a reasonable time". I would understand if Bablee, who has everything to lose if Sayed-Hossen were to win, decided to go for yet another appeal, thus flouting his opponent's right to justice.
The electoral commissioner is paid to act as an independent referee in an election and he therefore has nothing to gain from any outcome. It would be difficult to understand what would motivate him to do the same.
