injunction – Minivan News

Elections Commission to respond after Supreme Court issues injunction on dissolution of parties

The Elections Commission (EC) is to decide on how it is to proceed following Supreme Court’s temporary injunction on the dissolution of political parties.

The court issued the temporary stay order on Thursday (March 14) after Attorney General (AG) Azima Shukoor filed a case claiming that sections of the recently ratified Political Parties Act were in contradiction to the constitution.

Local media reported that Supreme Court had asked all authorities not to consider any party as dissolved until the case is decided.

President of the EC, Fuad Thaufeeq revealed that the commission would make a decision regarding what action would be taken in response to the Supreme Court’s order.

“The commission will sit tomorrow (March 17) to discuss and decide on how we shall proceed. We have to respect and obey court orders,” Fuad told Minivan News via SMS.

The Political Parties Bill – ratified by President Mohamed Waheed on Tuesday (March 12) – states that parties must now meet a minimum of 10,000 members before they can be recognised as such.

Following the bill’s approval by President Waheed, a total of 11 parties were removed of the EC’s political party registry, leaving five to compete in upcoming presidential elections later this year.

When asked whether the EC would now reinstate the parties removed off its registry prior the Supreme Court’s final decision on the case, Fuad stated: “We will follow the court’s orders.”

Out of the 16 parties that had previously existed prior to the ratification of the bill, only the Maldivian Democratic Party (MDP), Progressive Party of Maldives (PPM), Dhivehi Rayyithunge Party (DRP), Jumhoree Party (JP) and Adhaalath Party (AP) remain registered in the Maldives.

EC Vice President Ahmed Fayaz previously told Minivan News that the EC had removed parties that did not meet the required membership amount in “accordance to the law”.

“We followed procedure in accordance to the [Political Parties] bill. Within that bill there is a clause that clearly states, that when a party that has less than 10,000 members it is to become null and void,” he said.

It had been previously reported that upon ratification of the bill, political parties with fewer than 10,000 members would have three months to reach the required amount or face dissolution.

When asked about the clause, Fayaz stated it only applied to registered parties in accordance to the bill, and that therefore if a party does not meet the 10,000 limit it cannot be classed as such and is therefore exempt from the three-month clause.

Attorney General (AG) Azima Shukoor, Director Department of Judicial Administration Ahmed Maajid and Vice President of Elections Commission (EC) Ahmed Fayaz were not responding to calls from Minivan News at time of press.

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Parliament tables no-confidence motion against Defence Minister in defiance of Supreme Court injunction

Parliament announced today that a no-confidence motion filed against Defence Minister Colonel (Retired) Mohamed Nazim has been tabled despite a Supreme Court injunction ordering parliament to halt pending no-confidence votes.

The People’s Majlis secretariat revealed that Defence Minister Nazim has been given the required 14-day notice and his ministry also duly informed by Speaker Abdulla Shahid.

Article 101(a) of the constitution states, “At least fourteen days notice of the debate in the People’s Majlis concerning a motion under article (a) shall be given to the concerned member of the cabinet, and he shall have the right to defend himself in the sittings of the People’s Majlis, both orally and in writing.”

The move comes in apparent defiance of an injunction or stay order issued by the Supreme Court to halt conducting no-confidence votes through secret ballot, pending a ruling by the apex court on the constitutionality of the secret vote.

Speaker Abdulla Shahid and Parliament’s Counsellor General Fathimath Filza were not responding to calls from Minivan News at time of press.

The injunction (Dhivehi) was issued in a case filed by Progressive Party of Maldives (PPM) council member and lawyer of former President Maumoon Abdul Gayoom, Mohamed Waheed Ibrahim ‘Wadde’.

Waheed contended that secret votes were unlawful as article 85 of the constitution states that the People’s Majlis or any of its committees “may decide to exclude the public and the press from all or any part of the proceedings if there is a compelling need to do so in the interests of public order or national security.”

Waheed requested the Supreme Court specify the constitutional measure to determine a two-third majority of parliament – required to impeach the president – and to declare that the Majlis decision to approve a secret ballot was unconstitutional.

On December 3, parliament voted 41-34 to approve amendments to the parliamentary rules of procedure to conduct no-confidence votes to impeach the President and remove cabinet members through secret ballot.

MPs of the government-aligned Jumhooree Party (JP) and Dhivehi Rayyithunge Party (DRP) joined the formerly ruling Maldivian Democratic Party (MDP) to vote the amendment through.

The no-confidence motion against Defence Minister Nazim was submitted by the MDP earlier this month on the grounds that he misused his authority as acting Transport Minister by using the military to influence termination of commercial contracts.

The MDP has also submitted a no-confidence motion to impeach President Dr Mohamed Waheed Hassan Manik.

The no-confidence motion against Nazim was filed with the signatures of 17 MPs, according to the Majlis secretariat.

Under article 101(a), “A motion expressing want of confidence in a member of the Cabinet may be moved in the People’s Majlis, under the hand of at least ten members, specifying the reasons.”

“Challenging separation of powers”

In a separate ruling, the Supreme Court also issued an injunction ordering parliament not to appoint a new member to the Civil Service Commission (CSC) pending a ruling on the legality of parliament’s dismissal of the CSC’s former chair, Mohamed Fahmy Hassan.

Fahmy had filed a case contesting the legality of his removal from the independent institution on November 20 on the grounds that he had allegedly sexual harassed a female employee.

“What is at stake is the supremacy of the parliament as the representative of the people. By its actions, the Supreme Court is challenging the separation of powers that underpins the constitutional basis of governance,” MDP MP Eva Abdulla told Minivan News yesterday.

In its stay orders, the Supreme Court referred to article 144(b) of the constitution, which states: “When deciding a constitutional matter within its jurisdiction, a court may in connection with a declaration pursuant to the article make any order that is just and equitable, including an […] suspending the declaration of invalidity (of a statute, regulation or action due to inconsistency with the Constitution) for any period and on any conditions, to allow the competent authority to correct the defect.”

Meanwhile, Independent MP for Kulhudhufushi South, Mohamed ‘Kutti’ Nasheed, contended in his blog yesterday (December 12) that the Supreme Court did not have the legal or constitutional authority to issue the injunctive orders against parliament.

Moreover, the Supreme Court “does not have the power to even accept those cases,” he wrote.

Article 88(b) of the constitution states: “Unless otherwise specified in this constitution, the validity of any proceedings in the People’s Majlis shall not be questioned in any court of law.”

Nasheed argued that decisions made by parliament could not be challenged in court except in instances clearly specified in the constitution.

The purpose of article 88 was to prevent parliament’s decisions being challenged or overturned, Nasheed said, as in the absence of such a clause the Supreme Court would become a “People’s Appeal Majlis” with supremacy over the house of elected representatives.

“If every decision of the People’s Majlis is appealed at the Supreme Court in the manner that any judgement by the High Court can be appealed at the Supreme Court, then there is no difference between the People’s Majlis and the High Court,” Nasheed wrote.

This was against the separation of powers envisioned in the constitution, Nasheed said, which vested legislative powers in parliament and clearly specified instances where its decisions could be challenged at court.

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Supreme Court issues injunction to withhold no confidence vote on president

The Supreme Court has issued an injunction ordering parliament to withhold the impending no-confidence motions against both Defence Minister Mohamed Nazim and President Mohamed Waheed Hassan.

The ruling was made after a case concerning the legality of the no confidence motions had been filed by Progressive Party of Maldives (PPM) council member and lawyer Mohamed ‘Wadde’ Waheed Ibrahim.

The Supreme Court in its injunction today ordered parliament to withhold the no-confidence motion until it could decide on the legality of the matter after looking into the “necessary constitutional principles that had to be followed”.

Earlier this month, Ibrahim filed the case in the Supreme Court contending that the parliament’s decision to make impeachment votes a secret ballot was unlawful.

Speaking to local media after filling the case, Ibrahim said that Article 85 of the constitution clearly articulates that a session of parliament can only be held in ‘closed doors’ only if the issue debated in parliament concerns the national security of the state and if not the sessions should be held open to public.

He said therefore parliament does not have the authority to come to a decision outside its jurisdiction laid down in the constitution and sought the Supreme Court to invalidate the decision.

No-confidence motion

The opposition Maldivian Democratic Party (MDP) had proposed a no-confidence motion against President Mohamed Waheed Hassan in October claiming that the police and the military had “brutalised” its supporters on February 8 under direct orders from the president himself.

The MDP also alleged that President Waheed had destroyed the sensitive economy of the nation and adversely impacting investor confidence in the Maldives.

Other reasons, the MDP alleged, included the failure of President Waheed’s administration to curb gang violence in the country, as well as his government taking a loan worth MVR 300 million (US$19.5 million) from the Bank of Maldives (BML) without prior approval from parliament – a violation of Public Finance Act and Public Finance Regulation.

The MDP subsequently proposed the amendment to parliamentary regulation which would pave the way for a secret ballot in the vote to impeach President Waheed. However, the first attempt, despite approval from parliament’s General Affairs Committee was defeated in parliament by 39 to 34 votes.

Parliament this month passed the amendment when it was again re-submitted and approved with a 41 to 34 majority. The approval was backed by two government aligned parties, the Jumhoree Party (JP) and Dhivehi Rayyithunge Party (DRP).

Legality of two DRP seats

Meanwhile, Ibrahim has also raised doubts over the legality of the secret ballot decision, claiming it was passed by the votes cast by two DRP MPs Ahmed Nashiz and Ali Azim, whose seats he claimed were in question.

JP’s Policy and Legal Committee member Mohamed Haleem Ali had previously filed a case in the Supreme Court asking it to rule the concerned parliamentarians “unfit to stay in their elected seats” over the Bank of Maldives (BML)’s foreclosure on their loans.

“The Civil Court’s ruling number 935 of 2009 asks them to pay back the debts to BML. They didn’t. So I have submitted this case in accordance with subclause one of Article 73(c) and 74 of the constitution,” Haleem said at the time.

Subclause 1 of Article 73 of the Constitution of the Maldives states that a candidate for membership or a sitting member of the parliament would be disqualified if he has a decreed debt which is not being paid as per court rulings.

Article 74 states that any question concerning the qualifications or removal of a member of the People’s Majlis shall be determined by the Supreme Court.

Both MPs Nashiz and Azim were elected to parliament in 2009 general elections, the same year in which the civil court ordered them to pay the BML debts. The case was accepted by Supreme Court on December 10.

Supreme Court decision ‘void ab initio’: Ibra

Following the decision, former MP and Chair of Drafting Committee of Constitutional Assembly (Special Majlis) Ibrahim ‘Ibra’ Ismail stated that the decision was “void ab initio” (void from the beginning).

“They cannot suspend the decisions of the parliament. Parliament should not adhere to the decisions of Supreme Court,” he said.

“Parliament is free to conduct its business anyway they want to. Only the public can reprimand the parliament,” he added.

Counsel General of Parliament Fathimath Filza and Parliamentary Speaker Abdulla Shahid were not responding to calls at time of press.

No one should meddle with the courts: Supreme Court

In a previous bid, the Supreme Court issued an order quashing the decision of Parliament’s Independent Institutions Oversight Committee to not recognize the legitimacy of the Hulhumale’ Magistrate Court.

Supreme Court in the order stated that while the Maldivian constitutional system broadly entertained the principle of separation of powers, no one power of the state can go beyond the limits set out in the constitution.

“According to articles 5, 6 and 7 of the constitution that came to force on 7 August 2008, the Maldivian constitutional system has explicitly set out that the executive power, legislative power and the judicial power is independent from one another and the boundaries of each power being clearly set out, it is unconstitutional for one power of the state to go beyond its constitutional boundaries as stated in article 8 of the constitution,” read the order.

The Supreme Court also in its order maintained that as per the constitution, the judicial power of the state was the sole constitutional authority in settling legal disputes between the institutions of the state or private parties.

“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” it added.

Speaking to Minivan News yesterday, Former Foreign Minister and UN Special Rapporteur on Human Rights in Iran Dr Ahmed Shaheed identified the “pathetic state of the judiciary” as one of the key human rights concerns he believed needed to be addressed in the Maldives.

“[The judiciary] is not only corrupt, but also coming under the influence of radical Islam, even to the extent of violating codified laws of the Maldives and clear international obligations,” Dr Shaheed claimed yesterday.

“Disregard for rule of law has also meant that a culture of impunity is deeply entrenched, rendering many of the human rights of the people meaningless.”

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Hulhumale’ Magistrate Court suspends all cases

The Hulhumale’ Magistrate Court has announced that it has suspended all ongoing cases following an injunction issued by the High Court on Sunday halting the trial of former President Mohamed Nasheed.

The High Court granted the temporary injunction or stay of the former President’s trial pending a ruling on procedural points raised by Nasheed’s legal team, which included the legitimacy of the Hulhumale’ Magistrate Court.

In its announcement on Monday, the Hulhumale’ Magistrate Court said it has suspended proceedings on cases involving marriage, divorce, guardianship, family matters, property lawsuits, civil cases, criminal cases involving extension of detention periods as well as other matters that could be affected by the questions raised over its legal status.

Meanwhile, at Sunday’s hearing of Nasheed’s appeal at the High Court, the Judicial Service Commission (JSC) revealed that it had filed a case at the Supreme Court to determine the legitimacy of the court.

Writing in his personal blog last month, Independent MP Mohamed ‘Kutti’ Nasheed explained that a magistrate court could not legally be established at Hulhumale’.

The Judicature Act states that magistrate courts should be set up in inhabited islands aside from Male’ without a division of the trial courts (Criminal Court, Civil Court, Family Court and Juvenile Court).

According to appendix two of the constitution, Hulhumale’ is a district or ward of Male’ and not a separate inhabited island. The former magistrate court at Hulhumale’ – controversially set up by the JSC before the enactment of the Judicature Act in October 2010 – should therefore have been dissolved when the Judicature Act was ratified.

Meanwhile, local media reported yesterday (November 5) that the Supreme Court ordered the Civil Court to send over all files and documents on a case submitted by a lawyer, Ismail Visham, over a year ago challenging the legitimacy of the Hulhumale’ Magistrate Court.

The Supreme Court had issued a writ of mandamus ordering the lower court to suspend its hearings and had taken over the case. The apex court had however not conducted any hearings on the case.

A court official told local media that a hearing on the case of the Hulhumale’ Magistrate Court’s legal status has not been scheduled.

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High Court grants injunction suspending former President Nasheed’s trial

The High Court today granted an injunction (Dhivehi) temporarily suspending the trial of former President Mohamed Nasheed at the contested Hulhumale’ Magistrate Court, pending a ruling on procedural points raised by the former President’s legal team.

The former President is facing criminal charges over the military’s controversial detention of Criminal Court Chief Judge Abdulla Mohamed.

At a preliminary hearing on October 22, Nasheed’s lawyers requested an injunction halting the trial pending a ruling by the High Court on three procedural points dismissed by the Hulhumale’ Magistrate Court: a magistrate court holding a trial on a different island to where it was based; the constitutional legitimacy of the Hulhumale’ Magistrate Court; and the legality of the arrest warrant issued by the Hulhumale’ Magistrate Court, as such orders could only be issued by a court in the locality of the defendant’s permanent address.

At the Hulhumale’ Magistrate Court’s first trial date on October 9, the court summarily dismissed the first two points and agreed to hear the last issue. The court however ruled that the warrant was issued legally as it was following a precedent established by the High Court.

The ruling was subsequently appealed by Nasheed’s legal team at the High Court.

Concluding the hearing on the appeal on October 22, High Court Judge Shuaib Hussain Zakariya said the three-judge panel would issue a ruling on the injunction at the next hearing on the morning of November 4.

Meanwhile, the second hearing of the trial at the Hulhumale’ Magistrate Court was scheduled for 4:00pm today. Following the court order issued by the High Court however, it has since been cancelled.

In its ruling today, the High Court noted that the Prosecutor General’s Office had not objected to the court issuing the injunction at the October 22 hearing.

The High Court noted that continuing without “determining the legitimacy of the necessary procedural processes” and “ensuring the rights of the defendant” could cause irreparable injury to the claimant.

Moreover, if there was “a delay” in ruling on the request for an injunction, “the court believes that the purpose of the ruling [on the appeal] might not be achieved”.

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Civil court rejects legal challenge to MPs’ committee allowance

The Civil Court today rejected a case filed on behalf of a civil servant challenging the legality of controversial Rf20,000-a-month committee allowances for MPs.

A group of concerned civil servants filed the case on behalf of Maah Jabeen, Seenu Maradhoo Fenzeemaage, arguing that releasing funds for committee allowance without reimbursing civil servants for amounts deducted from their 2010 salaries violated constitutional provisions on fairness and equal treatment.

On 26 September, the civil court issued an injunction prohibiting the Finance Ministry from releasing funds to parliament until the court delivered a judgment on the case.

In October 2009 – almost a year into the new administration – unpopular pay cuts of up to 15 percent for civil servants were enforced as part of austerity measures to alleviate the country’s ballooning budget deficit.

The austerity measures were met with a severe political backlash. In December 2009, the opposition-controlled parliament added Rf800 million (US$62 million) to the 2010 state budget, including the restoration of civil servant salaries to previous levels.

In January 2010, however, the Ministry of Finance and Treasury refused to restore the salaries after just three months of the cost-cutting measure.

After weeks of legal wrangling with the parliament-appointed Civil Service Commission (CSC), the ministry accused the independent commission of hiding “a political agenda”, and in February 2010 filed a case with the police asking them to investigate it on suspicion of trying to topple the government “and plunge the Maldives into chaos.”

At the height of the dispute in early 2010, permanent secretaries at ministries were ordered to submit different wage sheets by both the Finance Ministry and the CSC.

In April 2010, the Civil Court ruled that Finance Ministry did not have the legal authority to overrule the CSC. Although the government contested the ruling and refused to restore salaries to previous levels, the High Court upheld the lower court ruling in May this year.

Meanwhile in the verdict issued today, the Civil Court noted that the state had appealed the High Court ruling at the Supreme Court, which has since agreed to hear the case.

The court ruled that there were no legal grounds to order the Finance Ministry not to release the funds to parliament as the two budget items in question were “not in the same state or condition.”

Civic action

After parliament’s Public Accounts Committee decided to issue the committee allowance as a lump sum of Rf140,000 as back pay for January through June, a loose association of concerned citizens launched a campaign noting that the state had a staggering fiscal deficit of Rf1.3 billion (US$85 million) as of the first week of September.

Neither lawyer from the civic action campaign was available for comment today.

Some sources have meanwhile criticised the MPs for comparing their salaries and privileges to those of United States congressmen.

“You can’t do that, the two countries are too different,” said No MP Allowance Media Coordinator Hamza Khaleel.

“The salary difference between the highest-paid civil servant and a congressman in the US is 175%, while in the Maldives it’s 365%,” Khaleel pointed out. “Our MPs get as much as MPs in Sweden, but our GDP is nowhere near Sweden’s.”

NGOs have retreated from the issue in recent weeks, but No MP Allowance, a group of concerned citizens which operates primarily through social media outlet Facebook and has almost 3000 members, has been networking to protest the allowance since February. Khaleel said the group is the “single largest civil movement for this issue.”

“You can see that our Facebook page is very active. All of the members might not show up to protest but they are writing letters and suggesting ideas, so you can see that they are involved,” said Khaleel.

Khaleel noted that MP opposition and negative media have deterred the group from publicising its plans, but he said media coverage lately had improved.

Upon hearing of the court’s verdict today, Khaleel said No MP Allowance’s campaign did not depend on a court ruling but on the constituents’ opinions.

“If you ask the MP’s constituents, they will say that the MPs aren’t doing as much as they could have. Very few MPs have taken up issues that are community-focused,” he said.

“Our main focus is still to get constituents to write to their MPs asking them not to take the allowance. We have drafted sample letters that we are distributing for signatures, and will collect and deliver to the MPs. We represent the constituents, if they are not satisfied then we still have work to do,” Khaleel said.

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Civil Court issues injunction against releasing funds for MPs’ committee allowance

The Civil Court last night issued a temporary injunction ordering the Finance Ministry not to release funds to parliament for MPs’ committee allowance until the court rules on a case filed on behalf of a civil servant, contending that the allowance could not be given before deducted amounts from civil servants salaries were paid back.

A group of concerned citizens protesting the committee allowance filed the case on behalf of Maah Jabeen, Seenu Maradhoo Fenzeemaage, arguing that releasing funds for committee allowance without reimbursing civil servants violated constitutional provisions on fairness and equal treatment.

The committee allowance was approved on December 29, 2010 while wage cuts were enforced in October 2009.

In January 2010, the Civil Service Commission’s (CSC) decided to reverse the pay cuts, sparking an ongoing legal dispute between the commission and the Finance Ministry.

At the height of the dispute last year, permanent secretaries of line ministries were ordered to submit different wage sheets by the commission and the ministry.

Speaking to Minivan News after Judge Hathif Hilmy granted the injunction last night, lawyer Mohamed Shafaz explained that the case was based on article 43 of the constitution, which states that everyone has the right to fair and just administrative action, “by which we take to mean that constitutional provisions in articles 17 and 20 relating to equality and non-discrimination would be infringed of a civil servant if the Ministry of Finance chooses to release the funds for committee allowance to the People’s Majlis before the deducted amounts from the salaries of civil servants is paid to them.”

“Our argument was based on the principle of judicial review,” he continued. “For judicial review to be used in a case in the Maldives is relatively rare and this is I would say a novel case. Our idea is that anyone vested with legal powers must act within the limits of the constitution.”

Delivering the ruling on the request for a temporary injunction, the judge said that releasing the funds before the court issues a final judgment on the case “could cause irreversible damage to the plaintiff” and ordered the Finance Ministry not to take any action that could “defeat the purpose of the claim.”

While the state attorney insisted that neither the Finance Ministry nor the President’s Office has made a decision on releasing the funds, the claimants submitted video footage of President Mohamed Nasheed telling protestors that the executive could not overrule parliament’s decision without threatening separation of powers.

The state attorney also argued that the case should not have been accepted by the Civil Court as the government has appealed the High Court verdict at the Supreme Court. The judge however ruled last night that the state could not produce documentation proving that the Supreme Court has decided to hear the appeal.

Attorney General Abdulla Muiz confirmed today that the AG office has appealed last night’s lower court decision at the High Court.

Shafaz meanwhile observed that “the ruling [yesterday] affirms that the court recognises that there is an issue here that needs to be rectified or subject to the system of justice.”

“It is also significant because by granting the temporary injunction the court has accepted and taken on an active role for implementing judicial review in the Maldives,” he said. “So this opens up the possibility for each and every action of the executive branch of the government, or the parliament or any other part of the state, to be challenged in the courts.”

Yesterday’s temporary injunction was also significant because “it was based on infringement of the rights of an individual,” Shafaz continued, adding that it was “a case where the act of a minister of the executive could infringe upon the rights of an individual.”

The favoured outcome for the group of concerned citizens would meanwhile be “for the court to recognise that giving parliamentarians their committee allowance before the deducted salary is given would be an infringement of the rights of a civil servant, or civil servants, under the constitution.”

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