Tag: legitimacy

Elections Commission to draw lots to determine candidate order on ballot paper

The Elections Commission (EC) has confirmed lots will be drawn next Sunday (July 28) to determine the order presidential candidates’ names will appear on voter ballots, unless a case questioning a candidates’ legitimacy is filed with the Supreme Court, reports local media.

The deadline for presidential-hopefuls to file their candidacy was 2:00pm yesterday (July 24) EC President Fuwad Thowfeek told local media.

There is a five day window, beginning the day a candidate registers with the EC, that cases regarding the legitimacy of a presidential candidate can be filed with the Supreme Court, according to local media.

The five day period has passed for cases to be filed against Maldivian Democratic Party (MDP) former president and current presidential candidate Mohamed Nasheed as well as President Mohamed Waheed, who is contesting as an independent, according to Sun Online.

However, cases can still be submitted to the Supreme Court against Progressive Party of the Maldives (PPM) MP and presidential candidate Abdulla Yameen, as well as resort tycoon and Leader of the Jumhoree Party (JP) Gasim Ibrahim, as they filed their candidacies with the EC Monday (July 22).

Assuming no cases are filed with the Supreme Court, lots will be drawn Sunday to determine the order presidential candidates’ names will appear on voter ballots, said Thowfeek.

In the event a case is filed against a presidential candidate, the Supreme Court must issue a verdict within seven days, according to CNM.

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Supreme Court declares Hulhumale Magistrate Court legitimate

The Supreme Court on Wednesday declared that the controversial Hulhumale Magistrate Court was legitimate and could operate as a court of law.

The decision has ramifications for the trial of former President Mohamed Nasheed, who is facing charges of illegally detaining Chief Criminal Court Judge Abdulla Mohamed during his final days in office. Nasheed and his party disputed the legitimacy of the Hulhumale Magistrate Court, which was formed by the Judicial Services Commission (JSC) and which appointed the panel of judges hearing Nasheed’s case. The JSC includes two of Nasheed’s direct political opponents.

Out of the seven member Supreme Court bench, four judges ruled in favor of the court’s legitimacy while three judges including the Chief Justice had opposed it. The other two judges were Judge Abdulla Areef and Judge Mu’uthazim Adnan.

The four judges who ruled in favor of the court were Judge Abdulla Saeed, Judge Ali Hameed Abdulla, Judge, Judicial Service Commission (JSC) President Adam Mohamed Abdulla and Judge Dr Ahmed Abdulla Didi.

The Supreme Court majority ruling stated that despite Hulhumale being mentioned as part of capital Male’ City in the Decentralisation Act, Hulhumale was an “island” with a large population and therefore, having no division of a superior court on that island and if not for the presence of Hulhumale Magistrate Court, its inhabitants would have to travel to another island in order to get justice. Therefore it declared Hulhumale Magistrate Court as legitimate.

Supreme Court also declared that Hulhumale’ is a separate island in Male’ division, even though the law recognises Hulhumale as a part of Male’ City.

The three dissenting judges, having taken different legal arguments, mutually agreed that Hulhumale’ Magistrate Court could not be legally established.

All three judges had unanimously agreed that courts should be established through legislation and that the Hulhumale Magistrate Court was not established in accordance with the Judicature Act.

The case was filed by the Judicial Service Commission (JSC) and the respondent of the case was decided as lawyer Ismail Wisham.

Former President Mohamed Nasheed’s legal team also sought to intervene in the court case. Nasheed’s lawyers stated that the case involved the interests of the former president as his case regarding the detention of the Chief Judge of Criminal Court Abdulla Mohamed is being looked by Hulhumale’ Magistrate Court.

Disregard to principle of bias

During the first hearings, the former Attorney General Husnu al Suood, who was representing the respondent raised procedural points whereby he argued that Supreme Court Judge Adam Mohamed Abdulla could not sit on the bench since he was also the President of the JSC, which therefore amounted to “presumption of bias”.

However, the Supreme Court rejected the procedural points.

Following today’s decision, Suood in a tweet described the decision as a “case of actual bias” with regard to his previous arguments in court.

“A case of actual bias because JSC would [have] lost the case without the vote of JSC president: 3 for 3 against, casting vote by JSC [president]” – Husnu Al Suood tweeted

Meanwhile, MDP MP and Lawyer Imthiyaz ‘Inthi’ Fahmy criticised the Supreme Court decision and echoed similar sentiments.

“The suspect sitting on [Supreme Court] bench today killed and buried in Maldives the very basis for the rule against bias! That’s solid murder!” he tweeted.

Arguments

During the hearing, the respondents argued that according to the existing law, there were no legal basis to support the legal existence of Hulhumale’ Magistrate Court, which had been formed in contradiction to the constitution and the Judicature Act article 53.

Judicature Act Article 53(e) states that if four divisions of the four superior courts are established in one island, then “the magistrate court of that island will be abolished. And if a division from among the four courts is established in an island, matters that fall within the jurisdiction of the relevant court shall be carried out by the relevant division and not by the magistrate court.”

The respondent’s lawyer claimed that with reference to the constitution and the Decentralisation Act, it was clear that Hulhumale’ and Villimale are now considered as a part of Male’ even though they are geographically two islands, therefore a magistrate court cannot be set up in any of the islands which under the law are now considered wards.

The intervening Nasheed’s lawyers also echoed the remarks on the case. Nasheed’s lawyers requested a period of three days to research the documents – which they claimed to have only received just a few minutes before the hearing – but were denied the opportunity.

The JSC lawyers who filed the case argued that Hulhumale’ and Villimale were only considered as a part of Male’ for administrative purposes and that this argument did not have any legal basis. Therefore, they stated, Hulhumale’ should be “judicially” considered a separate island.

The lawyers also claimed that the court was set up with the intention of providing easy access to justice for the people of Hulhumale. They also claimed that according to the Judicature Act article 66, each island must have a magistrate court and that prior to the passing of the Act, the court had been functioning as an island court.

The artice 66 states – “A Magistrate Court shall be established in all inhabited islands with the exception of Male’ where there are the four superior courts created in accordance with Article 53(b) of this Act and in an island where four divisions of these four superior courts are established in accordance with Article 53 (c) of this Act.”

Responding to the claims of the JSC, the respondents stated that based on the documents presented to the court, the Hulhumale court was formed to function as a section of Civil Court and Family Court prior to the passing of the Judicature Act.

The added that only island courts were to be declared as magistrate courts according to the judicature act and since Hulhumale Court was a section of the superior courts, it cannot be declared as a magistrate court according to the Judicature Act.

No one should meddle with the courts: Supreme Court

The Supreme Court decision on the matter is followed by its previous order invalidating the decision of Parliament’s Independent Institutions Oversight Committee to not recognise the legitimacy of the Hulhumale’ Magistrate Court.

In the order, the Supreme Court ordered not to meddle with the business of the courts by other institutions of the state stating that the country’s 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.

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Government’s statement that McKinnon endorsed independence of CNI “misleading”: Commonwealth

The Commonwealth has condemned as “misleading” a statement issued to international media by the Maldivian government, claiming that Commonwealth Special Envoy Sir Donald McKinnon had endorsed the Commission of National Inquiry (CNI) as “impartial, credible and broadly acceptable”.

The offending statement was circulated on May 25 using the PR Newswire service, which PR agencies subscribe to in order to widely distribute releases to publications all over the world.

“We welcome Sir Don McKinnon’s support for the Committee of National Inquiry and are delighted that all the concerns expressed by the Commonwealth will be resolved,” the statement quoted President Mohamed Waheed Hassan as saying.

The Commonwealth Secretariat issued a statement on Saturday in response: “Sir Don has not stated that the Commission of National Inquiry as currently constituted is ‘impartial, credible and broadly acceptable’.”

Instead, the government’s efforts to implement a commitment made to the Special Envoy, to strengthen the powers of the CNI and broaden its composition with an international co-chair and nominee of former President Nasheed, “are still ongoing”.

“Indeed, [Sir Donald McKinnon’s] efforts while in Maldives, and since his departure have been focused on achieving that objective, so that a truly impartial, credible and broadly acceptable Commission of National Inquiry can be put in place within the agreed time-frame,” the Commonwealth stated.

‘Coup’ inquiry

The CNI was established by President Waheed to investigate the controversial circumstances that brought him to power on February 7, following what the ousted Maldivian Democratic Party claimed was a coup d’état orchestrated by members of the former 30 year autocracy.

Police and military officers joined opposition demonstrators in an assault on the country’s military headquarters on the morning of February 7, before storming and taking over the state broadcaster.

President Nasheed subsequently resigned on camera, but later claimed this was under duress. In an audio recording obtained by SBS Australia and aired soon after the events, Nasheed is heard pleading with members of the armed forces for the safety of his wife and children.

The day after Nasheed’s resignation, police launched a brutal crackdown on thousands of protesters, in front of Al-Jazeera and other international media.

President Waheed appointed a three member panel to inquire into the legitimacy of his presidency, including Dr Ibrahim Yasir, Dr Ali Fawaz Shareef and Chair Ismail Shafeeu, Defence Minister under former President Maumoon Abdul Gayoom.

The panel was derided by the MDP as lacking independence, a view subsequently shared by the Commonwealth which gave the government a four week deadline to change the composition of the commission to include both a foreign co-chair and a “suitable” nominee to represent Nasheed.

The government agreed to a new June 1 deadline, and then immediately rejected nine of Nasheed’s nominees on the grounds of their “unsuitability”. Conditions imposed by the government included requirements that Nasheed’s appointee not have served in a political position in the past two years, not taken a public stand on the transfer of power, and must “be of good behavior and integrity”.

On Saturday the government issued a second statement – also circulated on PR Newswire – rejecting Nasheed’s latest appointee, Lt. Colonel Zubair Ahmed Manik, whom it argued “does not meet the basic requirement of having an undergraduate degree as per the agreed terms of reference.”

The government expressed “disappointment at former President Nasheed’s continued inability to nominate an appropriate candidate who meets the agreed criteria for inclusion on the Commission of National Inquiry (CNI).”

“The repeated proposal of generally unacceptable candidates by the former President Nasheed suggests a lack of seriousness and willingness to cooperate. The administration has already agreed to change the original terms of reference of the CNI following advice from the Commonwealth and to agree on including a foreign judge as co chair of the CNI,” the government said.

“I suspect this is Ruder Finn at work,” said MDP Spokesperson Hamid Abdul Ghafoor, commenting on the statements put up on PRNewswire. The New York-based PR agency was recently hired by the Maldivian government to counteract negative international media, in a deal thought to be worth US$150,000 a month.

Ghafoor said the MDP had initially demanded equal representation on the CNI panel, and the evening before the announcement was made, had been expecting two: “We got one, and gave up on co-chairing it,” he said.

The conditions imposed by the government were paternalistic and a stalling tactic, he suggested.

“Nobody of sane mind thinks the transfer of power wasn’t suspicious,” Ghafoor said. “This government does not have the moral high-ground to paternalistically prescribe conditions.”

While the situation might appear calm during the negotiations, Ghafoor said tensions on the street and during protests remained high, and that it would not take much for it to combust – “I’ve started seeing signs of impunity [on behalf of police],” he said.

“We are under threat – right now, the Commonwealth is the only thing stopping us from all being arrested,” Ghafoor claimed.

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