The Supreme Court last night issued a ruling ordering the Elections Commission (EC) to continue to abide by the guidelines in its October 7 verdict scuttling the results of the first round in September.
The latest ruling declared that “as the aforementioned presidential election not being held on the dates in the judgment is not a legally justifiable reason for not holding the election in accordance with the guidelines provided in Supreme Court case number 42/SC-C/2013, [the Supreme Court] informs and orders the Elections Commission and all relevant institutions of the Maldivian state to hold the presidential election that must be held in 2013 in accordance with the guidelines provided in Supreme Court number 42/SC-C/2013.”
The guidelines included holding the election before October 20, as well as demanding that all parties sign the voter lists, effectively giving presidential candidates power of veto.
The day before the election candidates Abdulla Yameen and Gasim Ibrahim had still not signed the voter lists and were not responding to phone calls from the EC or officials sent to their homes.
The pair, who received 25.35 percent and 24.07 percent respectively in the annulled first round, subsequently demanded extensive fingerprint verification of the new voters’ registry – another Supreme Court demand, issued at midnight on October 10. The evening before polls were due to open, both sought a Supreme Court ruling demanding that the election be delayed.
Receiving only a brief instruction from the court to follow its guidelines, the EC prioritised the guideline requiring an election before Oct 20 and proceeded with the vote. However, staff attempting to leave the commission’s office with ballot documents and equipment just hours prior to polls opening were obstructed by police.
Following the rescheduling of the election for November 9 – just two days before the end of the presidential term – Elections Commissioner Fuwad Thowfeek labelled the Supreme Court’s guidelines as “restrictions” and expressed concern that they effectively allowed political parties to stop elections from happening.
“We have said that when we get to a certain point, when a certain party doesn’t do what they must do, it should not affect the entire election. If that is the case, we will never be able to hold an election,” Thowfeek said, following meetings with the President, the cabinet and political parties.
“They assured us they will not allow for these kind of obstructions in the upcoming election. Ministers have given us commitment that they will find a solution and facilitate this. That is why we have started work again. If the same thing happened as before, this is not something we must do. We are starting work again because we are confident there will be an election. I am certain we will succeed this time,” he added.
“I hope the government considers these restrictions in the future and finds a solution. Otherwise, holding elections will become impossible and that affects the most fundamental [right] in a democracy,” he said.
Last night’s Supreme Court ruling
“The constitution of the Republic of Maldives obligates the Elections Commission and all relevant state institutions to ensure that the presidential election that must be held in the Maldives in 2013 is one where all Maldivian citizens eligible to vote is able to exercise the right [to vote] freely and without any kind of obstacle,” read the Supreme Court edict, signed by Chief Justice Ahmed Faiz Hussain.
“The elections must be held in accordance with the guidelines stated in the Supreme Court case number 42/SC-C/2013 to ensure that elections held in the Maldives are fair and conducted transparently in line with the principles specified in article 170 of the constitution of the Republic of Maldives,” read the edict.
The integrity of the Supreme Court has meanwhile come under increasing criticism, domestically and abroad.
Following the Supreme Court’s indefinite suspension of the first round despite local and international praise of the vote as free, fair and democratic, Transparency Maldives warned “the failure of parliament and the Judicial Service Commission (JSC) to address alleged integrity issues of the Supreme Court judges have “created avenues for political and other actors to question the conduct, injunctions and verdicts of the Supreme Court”.
Prior to his registration as a presidential candidate Gasim was a member of the JSC, and was responsible for rejecting a recommendation from the JSC’s own subcommittee recommending that Supreme Court Justice Ali Hameed be suspended pending an investigation into his leaked sex tapes.
The sex tapes and suspension of the election have resulted in escalating protests targeting the courts, with large pairs of white underpants quickly becoming widely adopted as a protest symbol.
“Expeditious resolution of such allegations and issues is imperative to ease rising tensions in the election environment and prevent the derailment of democratic processes,” said Transparency Maldives in its statement.
“Relevant state institutions, including the Judicial Service Commission and the Parliament of the Maldives must expedite the resolution of these issues and allegations, in a transparent manner free of conflict of interest, to reduce questioning of and allegations of partisan bias in such processes.”
UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, raised concern over the politicisation and impartiality of the Supreme Court as far back as May.
Knaul expressed “shock to hear that many members of the judiciary, including in the Supreme Court, hold memberships in political parties.”
Conflicts of interest and the resulting impact on judges’ impartiality was a concern, noted Knaul.
“It seems that judges, and other actors of the State, do not want to fully acknowledge and understand this concept, leading to the dangerous perception from the public that the justice system is politicised and even corrupted,” she said.
The Supreme Court, she noted, had been “deciding on the constitutionality of laws ex-officio, without following appropriate examination procedures, under the understanding that they are the supreme authority for the interpretation of the Constitution.”
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Good luck on that directive to hold the election before October 20th.
That's the election scuttled again on a technicality.
There won't voting on 9th Nov. 2013. SC guideline is being enforced for this reason. We are being mocked at and taken for a ride. Never expected this from Dr Waheed in spite of the coup. I don't trust the security forces either. They have been educated to safeguard the citizens and the Nation. But their loyalty is with only a small group of elite people. The power of prayers still remain as my hope. I pray that these people will refuse the coup leaders to betray the people of Maldives. .
Sorry Supreme Court, we do not have a time travel machine!
The Supreme Cort orders are unconstitutional and drafted by none other than Former Chief justice and Ali Hameed. The present Chief justice is like Prez Waheed: a spineless cowardly puppet in the bench who is helpless to take any decision but to endorse what the powerful four decides. This ruling empowering candidates to veto the elections will not ever happen until three of them feels they are capable of winning. Until then Police will withdraw cooperation making it impossible to cinduct and election and even if an election is held their again the corrupt 4 in the Supreme court who shall just annul the results sighting another secret police report and few annonymus witnesses. Trampling on the rights of 100 s of thousands citizens is just that easy for these laadheeni laainsaanee devils.
Hold on a minute.
(1) The Supreme Court or any court for that matter is in the business of interpreting the laws.
(2) They do not have a mandate to either make them, invent them, amend them or be involved in anything to do with the law making effort.
(3) The Supreme Court was asked to annul the elections, i.e. they were asked to pass a legal judgement. They did that and that should be the end of their long arm.
(4) I do not understand any reason why the Supreme Court can issue "guidelines" and impose them on an independent institution of the State that is specifically empowered by the Constitution.
(5) The sole body that CAN issue guidelines is the law making body, i.e. Majlis as far as I'm aware. If the Majlis makes a guideline that contravenes the Constitution, then the Supreme Court can stop that, but the Supreme Court itself has now risen above the laws themselves.
(6) Lastly, but most importantly, compromised (morally and ethically) justices creating guidelines in the midst of a political war is certainly not the right direction for a democracy.
In any tripartite government such as the Maldives, the question of power lies when any two branches of government agree. The power structures are such that two out of three rule. For example, the Majilis may pass a law and the president may sign into law saying the elections should be conducted in a certain way. If the Supreme Court rules this illegal (I should say unconstitutional, which is a more specific understanding) then the Majilis may a) modify the law to be acceptable; b) the Majilis and the Executive may simply ignore the Court (dangerous precedent, but possible); or the Majilis may - in extreme cases - act to change the make-up of the court by removing them from the bench. Another approach is to amend the constitution.
Finally, if the people of the land feel the constitution is flawed or no longer being followed, they may convene a new constitutional convention and draft a new constitution. If sufficiently large numbers of people follow this new document, then a paper revolution will have occurred. The power of the government always lies with the consent of the people to be governed.
In the United States, the original constitution was the Articles of Confederation. This document and the powers it provided for governance of the former 13 colonies proved to be inadequate. Some years later, the states convened a new constitutional convention (this came out of several smaller meetings) that drafted a new constitution that fixed the problems and inadequacies of the Articles of Confederation. This new constitution, amended from time to time, remains in force today.
To hold a constitutional convention, it does not take an act of the current government as a whole (all three parts in agreement) to act. It may be an effort of individual citizens, or it could grow out of an act of the Majilis. The nomination of delegates from all the regions of the Maldives by local counsels would also be a starting point. France went through something like this ... hence the informal name of France's current government as the "Fifth Republic" (yep, they had to try 5 times to get their basic representative form of government structure to a form they liked enough to keep for a while.
My point is that if the Majilis and Executive feel the court is wrong, they may act to either re-form the court (throw out the judges and appoint new ones) or should the Majilis and Executive be unable to act together, then the Majilis members or a subset of them, or the citizens generally may act to develop a new form of government that if adopted in a broadly recognized forum would serve to replace the current government structure.
I don't advocate revolution. Representative democracies provide for "ways out" when the basic functioning of government power structures fail. This should be well explored before we get to "revolution." Understanding how constitutional democracies are formed and re-formed is important when getting to a situation such as this.
re: Ahmed - you last point, number 6. Maldives is not a democracy and, under the present arrangement, perhaps will never be one. Somehow, somewhere, there will be another coup if anyone even tries to implement democratic principles. Remember, history tells us continually, kings release their hold on only after the greatest struggle.
Guidelines can be ignored, they have no legal binding in any court of law in any land whereas laws are to be adhered too to the letter.
Ignore the corrupt Supreme Court and claim your democratic rights.