UPR report shared with judiciary before submission, says HRCM at Supreme Court trial

The Human Rights Commission of Maldives (HRCM) shared its Universal Period Review (UPR) report with the Department of Judicial Administration (DJA) and sought feedback ahead of submission to the UN Human Rights Council, the commission’s lawyer told the Supreme Court today.

The DJA – which functions under the direct supervision of the Supreme Court – did not respond to the request for commentary on the report or object to its content, the lawyer noted at the first hearing of the trial.

All five HRCM members are on trial after the apex court initiated suo moto proceedings in relation to the UPR report, which suggested that the Supreme Court’s control over the judiciary was undermining powers of lower courts.

At the beginning of the hearing, Chief Justice Ahmed Faiz Hussain reportedly said that the HRCM’s report contained false and misleading information concerning procedural matters of the judiciary.

The suo moto proceedings – which allows the court to act as both prosecution and judge – were initiated to hold the commission’s members accountable under Article 141 of the Constitution, Article 9 of the Judicature Act, and Supreme Court regulations, the chief justice said.

Article 141(b) states, “The Supreme Court shall be the highest authority for the administration of justice in the Maldives.”

Article 141(c) states, “No officials performing public functions, or any other persons, shall interfere with and influence the functions of the courts,” while section (d) states, “Persons or bodies performing public functions, through legislative and other measures, must assist and protect the courts to ensure the independence, eminence, dignity, impartiality, accessibility and effectiveness of the courts.”

The commission’s attorney Maumoon Hameed explained that each UN member state was required to submit a report for the UPR.

The UPR is a state-driven process that reviews the human rights records of all 193 UN member states every four years, based on submissions by the government, the UN, NGOs and human rights commissions. The Maldives’ review is scheduled to take place in April or May 2015.

In a press release today, the HRCM said it submitted as evidence information regarding the UPR process as well as commentary received from various state institutions.

“At today’s hearing, the commission requested an opportunity to submit further information and evidence,” the press release stated.

“The Supreme Court adjourned today’s hearing. The commission has not yet been informed of a date for the next hearing.”

The next hearing has since been scheduled for 1:30pm on Sunday, September 28.

Noting that Supreme Court decisions could not be challenged as it was the highest court of appeal, Hameed had, however, asked for five working days to prepare a defence.

Control of judiciary

Less than two weeks before the parliamentary polls in March, the Supreme Court had charged Elections Commission Chair Fuwad Thowfeek and Deputy Chair Ahmed Fayaz with contempt of court and dismissed the pair under unprecedented suo moto proceedings.

Subsequent changes to contempt of court regulations made in June authorised courts to penalise individuals for any expression, action, gesture, or piece of writing “inside or outside a courtroom” that could be considered contempt of court.

Meanwhile, in a press statement yesterday, the opposition Maldivian Democratic Party noted that under Article 27 of the HRCM Act a case could only be filed against the commission regarding published reports following an inquiry which proves components of the report to have been false.

In its UPR report, the HRCM stated that the Supreme Court’s control of the judiciary was weakening judicial powers vested in lower courts.

“Supreme Court issued a circular ordering all state institutions not to communicate to individual courts regarding any information relating to the judiciary except through the Supreme Court. HRCM is facing difficulties in gathering information related to judiciary due to lack of cooperation,” the report stated.

Moreover, the report noted that “due to shortfalls in judicial system, functioning of the judiciary is often questionable on various grounds including independence, transparency, interference, influence, competency, consistency, and accessibility.”

Through a raft of regulations enacted in recent months, the Supreme Court has sought to consolidate control over administrative affairs of the judiciary.

In a comprehensive report on the Maldivian judiciary released in May 2013, United Nations Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, wrote that centralising administrative decisions in the hands of the Supreme Court “has undoubtedly contributed to the strong impression that lower courts are excluded from the administration of justice and decision-making processes.”

The Maldives representative to the UNHRC subsequently accused the special rapporteur of undermining the sovereignty of the country.

Criticism of the Supreme Court’s role in the electoral process by United Nations High Commissioner for Human Rights Navi Pillay last October was meanwhile described as “ill-informed” and “irresponsible” by former President Dr Mohamed Waheed.

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Supreme Court enacts new contempt of court regulations

The Supreme Court has enacted new regulations authorising courts to initiate legal proceedings and punish individuals for any expression, action, gesture, or piece of writing “inside or outside a courtroom” that could be considered contempt of court.

The contempt of court regulations (Dhivehi) promulgated on July 24 states that its purpose is “establishing justice, removing obstacles to trials, and upholding the honour and dignity of courts.”

“Contempt of court is a crime. And holding courts and its judges in contempt, and committing any act that could diminish the honour and dignity of courts is against Article 141(c) and (d) of the Constitution,” states section three of the regulations.

Spoken or written words as well as deeds and gestures that constitute contempt of court include portraying the judiciary in a negative light, an utterance or action that demeans a court, a judge, or court officer, “criticising or berating a court or a judge, or committing any act that causes loss of respect and dignity of a court or a judge, or attempting to bring the court into disrepute.”

Other actions include obstruction of ongoing trials, non-compliance with court orders or verdicts, refusal to provide testimony at a trial, refusal to answer summons to appear at court or flying overseas without permission, and use of obscene language inside a courtroom.

Additionally, causing physical harm to a judge or a court officer, damaging court property, bringing cameras or recording devices into courtrooms without permission, leaving a courtroom during ongoing proceedings, causing disorder at a trial, and using a public forum or the media to unduly influence an ongoing trial would also be considered contempt of court.

Initiating proceedings

While judges could immediately take punitive measures for contempt of court either during trials or within court premises, the regulations stipulate that the state must press charges and initiate criminal prosecution for words or deeds constituting contempt of court outside a courtroom.

However, the Supreme Court, High Court, and lower courts could initiate proceedings if either is the target of the contemptuous remark or action.

The apex court meanwhile has the discretion to initiate proceedings in cases involving contempt towards any court or judge.

If an institution exhibits contempt of court, the regulation states that its most senior official must bear responsibility and face charges.

The accused party in contempt of court trials would have the right to seek legal representation and defend themselves verbally or in writing. An odd number of judges must preside over such trials.

The accused could avail themselves of legal defence arguments used in criminal trials while evidence presented at such trials “with good will or intention to assist in the dispensation of justice” would not be considered contempt of court.

While providing information to the public regarding ongoing trials “truthfully and impartially” is permissible, the regulation states that courts could prohibit dissemination of information at its choosing.

Punishment

Persons found guilty of contempt of court during proceedings at a hearing or trial could be sentenced to up to 15 days in jail, placed under house arrest for up to one month, or fined up to MVR10,000 (US$649).

For other cases of contempt of court during proceedings or inside court premises, the regulations state that persons could be sentenced pursuant to Articles 85 through 88 of the penal code.

However, section 13 – which deals with punishment – does not specify the punishment for instances of contempt of court outside the courtroom

Moreover, sentences passed during proceedings or following a contempt of court trial cannot be appealed at a higher court. However, the Supreme Court has the authority to take measures or issue orders while a contempt of court trial is ongoing at a lower court.

‘Sumoto’

On March 9, less than two weeks before the parliamentary elections, the Supreme Court stripped former Elections Commission (EC) Chair Fuwad Thowfeek and Deputy Chair Ahmed Fayaz of their membership in the independent commission over contempt of court charges.

The Supreme Court had summoned EC members on February 27 and began a surprise trial on charges of contempt of court under new ‘sumoto’ regulations – promulgated in February – that allow the apex court to initiate proceedings and act as both prosecution and judge.

Meanwhile, in January, the Supreme Court suspended former Attorney General Husnu Suood and ordered police to investigate the lawyer for alleged contempt of court. The Prosecutor General’s Office, however, dropped the charges in March.

The former AG had represented the EC in an election annulment case before being ejected and barred from proceedings.

Moreover, the court also sought criminal charges against opposition-aligned private broadcaster Raajje TV over a report criticising the judiciary while Chief Justice Ahmed Faiz Hussain threatened legal action against media organisations or journalists who disseminate false or inauthentic information concerning the judiciary.

Opposition Maldivian Democratic Party MPs Alhan Fahmy and Imthiyaz Fahmy were meanwhile charged with contempt of court for criticising the apex court on Raajje TV.

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Criminal Court declares MP Inthi’s contempt charges invalid

Contempt of court charges against opposition Maldivian Democratic Party (MDP) MP Imthiyaz ‘Inthi’ Fahmy are invalid, the Criminal Court has declared today.

The Maafannu North MP was charged last year with “disobedience to order” under the ‘Protection of the sanctity of the courts regulation’.

The charges related to comments criticising the Supreme Court on the Raajje TV talkshow ‘Fala Suruhee’ (‘Headlines’).

“Now no one can be charged under this invalid regulation,” Inthi told Minivan News today, adding that there was now no basis to declare contempt of court outside courtrooms a criminal offence.

Today’s Criminal Court ruling came in response to procedural points raised by Fahmy regarding the validity of the regulations cited.

In October 2011, the People’s Majlis excluded this regulation, which precedes the new democratic constitution, from the General Regulations Act – the parent legislation for regulations without a statutory basis.

Within days of the Majlis’ decision, the Supreme Court declared that the regulation should still be enforced temporarily.

In the procedural points raised at the court, Fahmy stated that the regulation remains invalid and that a criminal offence can only be declared through legislation passed by the parliament.

The ruling issued today by Judge Ahmed Sameer Abdul Aziz on Fahmy’s procedural points stated that the regulation’s exclusion from the General Regulations Act made them invalid.

Aziz concurred that the power to create legislation is vested in the People’s Majlis “without any debate, and absolutely”.

The ruling came short of declaring the sanctity of the courts regulation invalid, however, stating that “the legal basis of this regulation cannot be questioned in this [Criminal] court” as it was created by a superior court.

Highlighting that the regulation has not been published as required by Article 61 (b) of the constitution, the ruling declared that criminal charges cannot be pressed as this would undermine a fundamental right of citizens.

Suggesting that the courts can still take administrative action under the regulation, the case was ordered to be returned to the Prosecutor General’s Office.

Criticism of the judiciary

Speaking to Minivan News today, Inthi described the ruling as a victory in the fight for justice,

He noted that the regulation was invalid as, though the Supreme Court can annul a law passed by the parliament, it can never bring back legislation killed by the parliament.

In another contempt of court case last March, the Supreme Court issued a verdict removing Elections Commission (EC) President Fuwad Thowfeek and Vice President Ahmed Fayaz from their posts, and sentencing Fuwad Thowfeek to six months imprisonment.

The pair were charged for commenting on the court’s rulings in the media and for answering questions posed by a parliamentary committee.

The EC members were prosecuted under the court’s ‘Suo Moto‘ regulations, which allows the apex court to initiate hearings and to act as both plaintiff and judge in a trial.

At the time of the case, MP Inthi described the verdict as “unconstitutional”, calling it “ judicial shamelessness”. He maintained that there was no law which outlaws the criticism of courts outside of court hearings.

“I will act as a shield to ensure the attempts to cover the mouths of Maldivians citizens with plaster does not become widespread. The result of this [ruling] is that such charges will not be pressed against journalists or any citizen under this invalid regulation,” he said today.

Additionally, Inthi noted that he was discriminated against at the court today, saying that while both himself and MP Ahmed ‘Sun’ Shiyam were summoned to the court at the same time today, they received different treatment.

“We are both members of the parliament, but he entered the court through the judges’ gate and waited at the VIP area of the court.”

“I was with other people, some of them handcuffed. I was there for criticising the judiciary and he is being charged with possession of alcohol,” said Inthi, stating that this was a clear reflection of the status of the judiciary in the Maldives.

Preferential treatment for Shiyam was also reported by local media at the first hearing in his trial.

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EC dismissals: Commonwealth, UK, EU, and India join international chorus of concern

The Commonwealth, UK, EU, and India have joined a growing international chorus expressing concern with the Supreme Court’s removal of the Elections Commission (EC) chair and deputy chair over charges of contempt of court.

“Such action by the court less than two weeks before the [parliamentary] election could be viewed as potentially affecting the electoral process adversely,” read a statement released yesterday by the Commonwealth secretariat.

The UK described the move as an “unprecedented expansion of judicial powers”, while India urged respect for the constitution. EU High Representative Catherine Ashton called the ruling a “serious setback in the democratic transition of the country.”

A statement from the President’s Office meanwhile called upon international partners to respect the Maldives’ constitution, echoing a statement released by the Chief Justice Ahmed Faiz on Tuesday (March 11).

The Supreme Court ruling on Sunday left the EC without the three members required for a legal quorum to hold meetings and finalise decisions ahead of the polls scheduled for March 22.

Commonwealth Secretary-General Kamalesh Sharma noted the parliament’s approval of a new member to the EC yesterday, which ensures that the quorum is restored.

“We hope that a credible and inclusive parliamentary election can be held in accordance with the constitution, and that Maldivians will be able to cast their votes with confidence and with the will of the people being respected,”  the secretary-general said.

The secretary-general stressed that separation of powers was “a fundamental political value” of the Commonwealth.

“For a democracy to function effectively, it is critical that institutions operate within their own constitutional mandate and do not encroach either on the ability of other independent institutions to execute their own remits or on the constitutional authority of other branches of government,” he stated.

“Actions that undermine the independence of an elections commission have a negative effect on democracy as a whole.”

The secretary-general noted that the Commonwealth Observer Group to the Maldives for last year’s presidential polls had recommended that “there should be better recognition of the mandate and statutory and constitutional independence of the Elections Commission.”

The Commonwealth statement also noted that the Supreme Court “assumed new powers enabling it to initiate cases”.

The Supreme Court summoned EC members on February 27 and began a surprise trial on charges of contempt of court under new ‘sumoto’ regulations that allow the apex court to initiate proceedings and act as both prosecution and judge.

Yesterday’s flurry of statements followed condemnation of the Supreme Court decision by the United States, Canada and the United Nations earlier this week.

In response, the President’s Office has contended that “negative external reaction to judicial decisions” undermined the constitution and hindered efforts for consolidation of democracy.

“Unprecedented expansion of judicial powers”

The UK’s Foreign and Commonwealth Office Minister Hugo Swire expressed “deep disappointment” with the Supreme Court’s dismissal and sentencing of the EC chair.

“The charges laid and the procedures adopted represent an unprecedented expansion of judicial powers,” the Foreign Office statement read.

The Supreme Court’s contentious ruling “appears to undermine the hard won independence of the Election Commission. This is extremely worrying so close to parliamentary elections,” the statement read.

Noting the appointment of a new member to the EC, the minister urged the government to ensure that the “the Election Commission’s independence is swiftly restored and to ensure that inclusive, free and fair Parliamentary elections are held within constitutional deadlines and in line with international standards.”

“This is essential for the consolidation of democracy in the Maldives and for the country to uphold its international reputation after the difficult events of the last two years.”

The EU’s statement commended the work of the EC, noted the key role of an independent elections body in a democracy, and drew attention to its team of monitors currently in the Maldives for this month’s poll.

The Indian Ministry of External Affairs meanwhile issued a press release welcoming the “commitment expressed by the government of Maldives to holding the parliamentary elections as scheduled”.

“India has consistently supported the strengthening of democratic processes and institutions in the Maldives. In this context, the Government of India has noted with concern the removal of the Chairperson and the Deputy Chairperson of the Elections Commission of Maldives from their positions and deferred prison sentence of the Chairperson,” the press release stated.

As “a close friend and neighbour of the Maldives”, the Indian government urged state institutions and political parties to respect the constitution and rule of law.

The statement also expressed hope that the EC’s independence will be ensured and that “the forthcoming parliamentary elections are held in a free, fair and credible manner, fulfilling the democratic aspirations of the people of Maldives.”

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EC dismissals: Translation of Supreme Court verdict

The following is an unofficial translation of the Supreme Court verdict removing Elections Commission (EC) President Fuwad Thowfeek and Vice President Ahmed Fayaz from their posts for contempt of court.

While the verdict delivered in court included an order for the relevant authorities to investigate EC members for contempt of court “through criminal justice procedures,” the copy of the verdict later shared with media did not include such an order.

The Supreme Court has reportedly insisted that there was no difference between the verdict read out at court and the copy shared with media hours later.

Although Minivan News attended the trial, the reporting of the sentencing was based on the consensus of journalists in attendance after confusion concerning the jail sentence.

Local media reported without exception that all four EC members were sentenced to jail. However, the verdict later shared with media stated that only Fuwad Thowfeek was sentenced.

Meanwhile, Thowfeek as well as observers from civil society organisations inside the court room were under the impression that both Thowfeek and Fayaz were sentenced.

“The Supreme Court said they are giving six months jail term to Vice Chair Fayaz and me and that will be executed after a three year period and that we have been removed from out position in the elections commission and we are no longer Elections Commission members,” Thowfeek told Minivan News last night.

Contacted by Minivan News today, a Supreme Court media official declined to confirm or deny any discrepancies. The full judgment (Dhivehi) including the reasoning and dissenting opinions was uploaded to the Supreme Court website today.

Verdict:

Whereas the right to vote in elections and public referendums and to take part in the conduct of public affairs directly or through freely chosen representatives is guaranteed for every citizen of the Maldives 18 years of age or older by Article 26 of the constitution of the Republic of Maldives; and while ensuring that all elections and public referendums are conducted freely and fairly, without intimidation, aggression, undue influence or corruption is stipulated by Article 170 of the constitution; and as the Elections Commission had not complied with both the Supreme Court judgment in case number 2013/SC-C/11 that struck down articles eight and 11 of law number 4/2013 (Political Parties Act), which required a minimum of 10,000 members to register and operate a political party, since it was in conflict with both the constitution of Republic of Maldives as well as practices of developed democratic societies in the world, and the Supreme Court order 2014/SC-SJ/01 – issued after the Elections Commission announced its intention of dissolving political parties with less than 3,000 members in violation of the judgment delivered in the case – ordering the Elections Commission not to dissolve political parties already registered in the Maldives despite not having a minimum of 3,000 members for reasons specified in Supreme Court case number 2013/SC-C/11, stating that dissolving parties already registered on the basis that a political party’s registry should include 3,000 members would be a violation of the constitution and the judgment in the Supreme Court case number 2013/SC-C/11, and that parties registered under the previous political parties regulation will continue to exist without being dissolved; and as the Elections Commission’s senior officials have openly displayed disobedience to articles 141(c) and (d) and 145 (c) of the constitution and articles 20(b) and 77‡‡ of the Judicature Act through the media and challenged the Supreme Court’s rex judicata [a matter already judged] judgment in case number 2013/SC-C/42 as well as the orders related to the 2013 presidential election that were issued to protect the basic rights guaranteed by the constitution for Maldivian citizens, to uphold the rule of law, to protect the constitutional right of Maldivians to vote in elections, and in public referendums, conducted freely and fairly, without intimidation, aggression, undue influence or corruption and to guarantee that elections are held under the conditions specified under Article 170 of the constitution, obstructed justice and brought the court into disrepute, in addition to the commission’s President Fuwad Thowfeek’s statements made during the trial against the Supreme Court’s procedures and jurisdictions, which held the court in contempt, and since these actions of Fuwad Thowfeek are such that it could diminish the dignity of the courts stated in Article 141*(c) and (d) of the constitution, [we] sentence Fuwad Thowfeek of Ma. Thalhamudhige to six months imprisonment under Article 88(a) of the penal code, and order that the enforcement of the sentence be delayed for a period of three years, with reference to Article 88 of the Supreme Court regulations, under the Supreme Court’s powers and responsibilities granted by articles 11††(1)(2)(3), 9(f) and 22‡of the Judicature Act to establish justice, prevent the misuse of the judiciary and uphold the honour and dignity of the judiciary as stated in Article 141 of the constitution; and since after assuming the responsibilities of their posts with an oath to uphold the constitution, the Elections Commission’s President Fuwad Thowfeek and Vice President Ahmed Fayaz, who have to bear the responsibility of running the Elections Commission in accordance with the law, stepped aside from fulfilling their legal responsibilities, challenged and disobeyed judgments and orders issued by the Supreme Court in its capacity as the guardian of the constitution and laws, (we) determine that Elections Commission President Fuwad Thowfeek of Ma. Thalhamudhige, and Vice President Ahmed Fayaz of M. Hazaareevilla, must legally bear responsibility as the two seniormost officials of the commission for disobeying and challenging Supreme Court judgments outlining the legal perspective as well as the court’s orders, and since these actions contravene Article 145 (c)** of the constitution and Article 20 of the Judicature Act and diminishes the dignity granted to the court by Article 141(c) and (d), [we] declare that Elections Commission President Fuwad Thowfeek of Ma. Thalhamudhige, and Vice President Ahmed Fayaz of M. Hazaareevilla, have lost the right and legal status to remain members of the commission and that the pair’s seats on the commission have become vacant, under the powers and responsibilities granted to the Supreme Court by articles 11(1)(2 (3), 9(f)† and 22 of the Judicature Act to establish justice and prevent the misuse of the judiciary and to uphold the honour and dignity of the judiciary as stated in Article 141 of the constitution and with reference to Article 88 of the Supreme Court regulations ; and [we] order the executive, parliament and the Elections Commission to complete all the necessary arrangements for conducting the People’s Majlis elections which are to be held in 2014 on the date for which it has been scheduled within the next six days (including holidays), and order the Elections Commission and all relevant state institutions to hold the election as planned.

*Article 141 of the constitution states, “(a) The judicial power is vested in the Supreme Court, the High Court, and such Trial Courts as established by law (b) The Supreme Court shall be the highest authority for the administration of justice in the Maldives. The Chief Justice shall be the highest authority on the Supreme Court. All matters adjudicated before the Supreme Court shall be decided upon by a majority of the judges sitting together in session (c) No officials performing public functions, or any other persons, shall interfere with and influence the functions of the courts (d) Persons or bodies performing public functions, through legislative and other measures, must assist and protect the courts to ensure the independence, eminence, dignity, impartiality, accessibility and effectiveness of the courts.

**Article 145 (c) states, “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.”

†Article 9(f) of the Judicature Act states that the Supreme Court’s jurisdiction extends to “all matters adjudicated by the Supreme Court under the powers bestowed upon the court as the highest authority for the administration of justice.”

††Article 11(a) states, “The Supreme Court has the jurisdiction to adjudicate on constitutional issues with the following characteristics as matters within the inherent jurisdiction of the Supreme Court: 1. An issue with legal reasons which may send the country into a constitutional void or remove it from the constitutional framework; or 2. A dispute between two powers or institutions of the state regarding the interpretation of the Constitution; or 3. A constitutional issue concerning public interest of the nation.”

‡Article 22 states, “In addition to the powers conferred on the Supreme Court in its own right by the constitution and the jurisdiction of the court laid out under various articles of this Act, the Supreme Court has the jurisdiction to do the following: a) The power to give all orders under this Act and the Supreme Court Regulation, relating to a matter ora case submitted to the court, and to administer justice with regard to such matters or cases, and to take necessary actions to prevent the misuse of the judicial system and to uphold the confidence in the judicial system, b) In its own initiative or at the behest of a concerned party, in order to administer justice and to prevent the exploitation of the judicial system the power to issue various orders in accordance with the law, if any party is found to have violated this law or any principles of the Supreme Court regulation, c) In accordance with the law and regulation, the power to summon people in relation to a case or matter submitted to the Supreme Court, d) In relation to a case or matter submitted to the Supreme Court and for the purpose of finding the truth or any facts surrounding the case, the power to pose any question to any witness or party to the case at any time or in any manner, e) The power to issue an order requesting for the submission of any document required by the court in relation to a case or matter submitted to the Supreme Court.”

‡‡Article 77 states, “In carrying out the ruling of a court if it has not be delayed by that court or a court where the case was appealed, the ruling of every court is binding towards, the executive,parliament, the judiciary, persons in independent positions, state institutions, persons fulfilling state positions, the security service sector composing of the police and defence force and all other members of the public.”

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Supreme Court strips Fuwad, Fayaz of EC membership

The Supreme Court has stripped Elections Commission (EC) President Fuwad Thowfeek and Vice President Ahmed Fayaz Hassan of their membership in the commission and sentenced the former to six months in jail.

The jail sentence was however suspended for three years.

The Supreme Court judgment also ordered the executive, parliament and the EC to “make all necessary arrangements” within six days to conduct the parliamentary elections as scheduled on March 22.

According to article 175 of the constitution, at least three members are required to “constitute a quorum at a meeting of the Elections Commission, and any decision of the Elections Commission shall be taken by a majority of votes of the members present and voting.”

With the Supreme Court’s removal of the EC’s president and his deputy, the remaining members are Ali Mohamed Manik and Mohamed Farooq.

Thowfeek was sentenced under article 88 of the penal code, which states that it is an offence to “disobey a lawful order”.

The Supreme Court summoned EC members on February 27 and began a surprise trial on charges of contempt of court under new ‘sumoto’ regulations that allow the apex court to initiate proceedings and act as both prosecution and judge.

Of the five judges on the bench hearing the case, Chief Justice Ahmed Faiz Hussain and Justice Adam Mohamed Abdulla issued dissenting opinions.

The majority opinion was formed by Justice Abdulla Saeed, Justice Ali Hameed Mohamed, and Justice Ahmed Abdulla Didi.

Delivering the verdict, Justice Saeed contended that EC members had “openly and systematically” brought the Supreme Court into disrepute, “deliberately challenged Supreme Court rulings” and “serially held [the court] in contempt” during press conferences.

The EC’s announcement for dissolving political parties without a minimum membership of 3,000 was in violation of the Supreme Court judgment that struck down articles in the Political Parties Act, the verdict stated.

Moreover, Fuwad Thowfeek’s public statements against the Supreme Court’s “procedures and jurisdictions” contravened the Judicature Act and constituted an act in violation of article 141 of the constitution – which states, “No officials performing public functions, or any other persons, shall interfere with and influence the functions of the courts.”

The court determined that the president and vice president must bear responsibility for “disobeying and challenging” Supreme Court judgments and orders, which were issued in its capacity as “the guardian of the constitution.”

Fuwad and Fayaz’s actions also contravened article 145(c) – which states, “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 court ruled that the pair had “lost the right and legal status to remain members of the commission” and declared the seats vacant.

“Practical difficulties”

While testimony given to a parliamentary committee was used to implicate commission members of contempt of court at the second hearing, at the last hearing of the ‘sumoto’ trial on March 5 the Supreme Court imposed a travel ban on EC members pending a judgment.

Following the Supreme Court’s summoning of EC members last month, former President Mohamed Nasheed declared that the MDP will boycott the parliamentary elections if the court removes EC members.

The Supreme Court’s actions have also been been criticised by civil society and the European Union.

Speaking to Minivan News tonight, Thowfeek said he was unsure how the parliamentary polls could take place as scheduled in less than two weeks.

He noted that the president would have to invite applications from interested candidates for the three vacant EC posts and forward nominees to parliament, after which a parliamentary committee would evaluate the nominees ahead of a vote on the Majlis floor.

“It’s very difficult for me to say anything because the Supreme Court reason given for our punishment is because of when I spoke about the impracticality of the 16 point guidelines,” he said.

“When I talk about the practical difficulties, they say nobody is supposed to talk about the practical difficulties.”

Today’s Supreme Court judgment meanwhile stated that Thowfeek had admitted to attempting to hold the second round of last year’s presidential election despite a Supreme Court stay order halting the electoral process.

Following the first round in which former President Mohamed Nasheed emerged the frontrunner with 45.45 percent of the vote, third-placed candidate Gasim Ibrahim sought annulment of the results alleging widespread electoral fraud.

Pending a ruling on the business magnate’s appeal, the Supreme Court indefinitely suspended the second round scheduled for September 28 and issued a supplementary midnight ruling ordering the police and military to forcibly prevent the EC from conducting the polls.

The EC had said it intended to comply with the constitutionally-mandated deadline for the run-off, but was forced to capitulate after it was surrounded by special operations police with orders to storm the building, arrest officials and confiscate ballot papers.

On October 7, the Supreme Court annulled the results of the first round of the polls conducted on September 7 in a controversial 4-3 decision – citing a confidential police report – despite unanimous positive assessment of the polling by more than a thousand domestic and international election observers.

The eventual revote on October 19 was also obstructed by police, after Progressive Party of Maldives candidate Abdulla Yameen and Gasim refused to sign the voter registry – a requirement from a 16-point guideline imposed on the EC by the Supreme Court judgment.

* A previous version of this article stated that all four members were sentenced to jail. The Supreme Court verdict later shared with the media however stated that only Fuwad Thowfeek was sentenced.

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PG drops contempt charges against former AG Suood

The Prosecutor General’s (PG) Office has decided not to prosecute former Attorney General Husnu Suood on charges of contempt of court, local media has reported.

In January, the Supreme Court suspended Suood and barred the prominent lawyer from all courts pending a court-ordered police investigation of alleged contempt of court.

The former AG had represented the Elections Commission (EC) in the election annulment case before being thrown out and barred from proceedings.

The apex court contended that Suood’s alleged remarks in social media, criticising its judgment annulling the first round of last year’s presidential election constituted contempt of court.

The PG’s decision came after police forwarded the case for prosecution upon completion of its investigation.

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Supreme Court guidelines undermine EC’s independence: Fuwad Thowfeek

The 16-point guideline for conducting elections imposed by the Supreme Court on the Elections Commission (EC) has undermined the institution’s independence, EC President Fuwad Thowfeek told MPs on the government oversight committee yesterday.

In a meeting with the opposition-majority oversight committee to discuss budget constraints, Thowfeek said he did not believe the EC was fully independent as some of its powers and responsibilities were transferred to other institutions by the Supreme Court judgment that annulled the September 7 presidential poll.

“For example, having to consider the Department of National Registration’s (DNR) list as the basis in preparing voters list and compelling us to use a person from the police service to transport [election-related] material from one place to another,” he said.

Thowfeek also referred to the cancellation of polls in last year’s presidential election after candidates from the Progressive Party of Maldives and Jumhooree Party refused to sign the voters list, which was among the requirements imposed by the apex court.

As the Finance Ministry has not released funds allocated in the state budget for conducting the upcoming parliamentary election, Thowfeek said that financial constraints were also an impediment to the commission’s work.

Lack of financial independence poses difficulties and “restrictions”, he added.

EC members expressed concern at yesterday’s committee meeting over having to make individual requests to the Finance Ministry to pay bills and settle other expenses incurred in preparations for the polls.

Asked by MP Visam Ali if the commission was able to comply with the Public Finance Act and regulations under the law while it was forced to depend on the ministry for expenses, Thowfeek said the EC was being told to disregard provisions of the law.

“I have to say again that the first [institution] to do this was the Supreme Court. As far as I know, the sumoto mechanism they have made to prosecute Elections Commission members is against the constitution of the Maldives,” he said.

The EC did not have “any other option or choice” when the Finance Ministry instructs the commission to disregard the public finance law, Thowfeek said.

If the EC refuses on the grounds that “it’s against the law”, Thowfeek continued, there was a fear that the parliamentary election could not be held as scheduled on March 22.

Contempt of court

On February 12, the Supreme Court summoned EC members and began a surprise trial on charges of contempt of court.

The apex court invoked new ‘Sumoto’ – or ‘Suo motu’ – regulations that allow the court to initiate hearings and act as both prosecutor and judge in a trial.

The court contends that criticism by EC members of its decision to annul the first round of last year’s presidential election – citing a secret police report that has since been dismissed by a UN expert review and questioned by the Human Rights Commission of Maldives – constituted contempt of court.

At the last hearing of the trial, Supreme Court Justices used testimony given to the oversight committee to implicate EC members in contempt of court.

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.

However, Supreme Court Justice Ahmed Abdulla Didi contended that the EC’s testimony at the committee obstructed justice – which he argued was a tenet of Islam – and could therefore be used in a court.

Asked by Committee Chair MP Ali Waheed if commission members were aware of the punishment for contempt for court, EC member Ali Mohamed Manik said he was informed by the commission’s legal team that there was no law specifying a penalty for contempt of court.

“They said there is no punishment. So I’m hoping that we haven’t committed a crime and there won’t be a punishment,” he said.

Manik referred to Article 223 of the constitution, which states that the supervision and prosecution of all criminal offences was the responsibility of the prosecutor general.

“But we didn’t see the prosecutor general there. We answered questions put to us by Supreme Court judges,” he said.

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Supreme Court’s contempt trial against Election Commission “unjust”, says Nasheed

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The Maldivian Democratic Party (MDP) is “extremely concerned” over the Supreme Court’s contempt of court charges against the Elections Commission (EC), former President Mohamed Nasheed has said.

Speaking at a press conference today, Nasheed said the trial is “unjust” and is against the spirit of the constitution. He pledged to use all means to stop the case.

The Supreme Court on February 12 summoned the four members of the EC to an unannounced contempt of court trial under new ‘Suo motu’ regulations that allow the apex court to initiate trial and act as plaintiff and judge.

“If Election Commission members are removed, then there cannot be a fair election. MDP will not participate in such an election,” Nasheed told the press today.

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 the court’s orders by dissolving eight political parties earlier this month.

During the second hearing in the case, EC lawyer Hussein Siraj said the commission had not received a document outlining charges and asked the five presiding judges to clarify and specify charges against the commission, but Chief Justice Ahmed Faiz asked the lawyer to respond to the charges to the extent he understood them.

The four commission members denied the charges, and expressed concern over the use of privileged testimony given at the People’s Majlis independent institutions oversight committee as evidence for contempt.

The constitution protects testimony provided at the Majlis unless it contravenes an Islamic tenet. Judge Ahmed Abdulla Didi claimed establishing justice to be an Islamic tenet and said the EC’s testimony at the People’s Majlis obstructed justice.

Nasheed said the if the MDP received a parliamentary majority it will add judges to the Supreme Court bench by amending the Judicature Act. Increasing the number of judges would “dilute harsh ideologies” on the bench, he said.

“Reforming the judiciary is essential for development and to protect Maldives’ sovereignty,” Nasheed said.

If the MDP receives a two-thirds majority, the party could impeach Supreme Court judges, he noted.

The MDP will also revise legislation governing the judicial watchdog body – the Judicial Services Commission (JSC) Act – to ensure the organisation’s decisons cannot be reviewed through the courts and to limit the powers of the JSC president.

In 2012, the Civil Court issued an injunction halting disciplinary action against Criminal Court Chief Judge Abdulla Mohamed. Mohamed is a key figure in the events leading up to Nasheed’s ouster in February 2012.

Meanwhile, JSC members have alleged JSC President and Supreme Court Judge Adam Mohamed had stalled an investigation into Supreme Court Judge Ali Hameed’s sex-tape scandal.

In addition to initiating proceedings against EC members, the Supreme Court has in the past ordered police to investigate MDP-aligned private broadcaster Raajje TV over a report the station aired comparing the Maldivian justice system to that of ancient Sodom, suspended lawyers for publicly criticising the judiciary, and sought criminal charges against MPs for allegedly defaming the court.

Fair administration of justice was essential for a just society, Nasheed has said previously, pledging to complete the MDP’s ‘journey to justice’ campaign to reform the judiciary.

“Our government was toppled because we began this journey. All the obstacles we are facing is because of this reason. Nonetheless, we will not back down and, God willing, we will succeed in this task,” he said.

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