Maldivian lawyers have claimed the country has been thrown into a legal void by the dispute over whether to move ahead with run-off polls scheduled for today (September 28) in defiance of a Supreme Court order.
Speaking to Minivan News, former Attorney General Husnu Suood – who had represented the Elections Commission (EC) in the Supreme Court this week before being thrown out for ‘contempt of court’ – said the dispute had left the country’s ongoing democratic transition in “limbo”.
“I am of the view that all institutions have a duty to uphold the constitution,” he said in response to the EC’s efforts to hold voting within the time line established under Article 111 of the constitution.
“According to the constitution, the Supreme Court’s word is final only in respect of the interpretation of provisions of constitution and law. Here, the Supreme Court had not given an interpretation on Article 111. However, Judicature Act says that all state institutions must abide by the rulings made by courts.”
Meanwhile, lawyer Mohamed Shafaz Wajeed today told Minivan News that there was no clear argument for whether the Supreme Court could indefinitely delay voting beyond the scheduled deadline requested under Article 111 of the constitution.
“In terms of whether the Supreme Court could rule to postpone a constitutional date, such dates have not been met before,” he said of previous elections held in the country.
“At the same time, the Supreme Court itself has ruled that time should be considered of the essence unless there exists a state of war. So it could be argued for both sides,” said Shafaz.
Elections Commissioner Fuwad Thowfeek confirmed on Thursday (September 26) that the second round of the presidential election would be held as originally scheduled today in accordance with Article 111 of the constitution. Article 111 requires a vote to be held within 21 days of a first round poll.
Besieged by police on Friday night, the EC eventually declared that polling could not go ahead within the constitutionally mandated time frame due to a lack of cooperation from state institutions and security services.
Thowfeek’s initial decision to hold the vote was taken in defiance of a Supreme Court ruling issued Monday (September 23) ordering all state institutions to delay preparations for the poll until it reached a verdict in a case filed against the EC by the Jumhooree Party (JP).
However, the Supreme Court yesterday quoted Article 141 and Article 145 of the constitution – arguing that it remained the highest authority on the administration of justice in the Maldives, as well as the interpretation of the constitution, or any other matter dealt with by a court of law.
The Supreme Court case filed by the JP is ongoing, with a final verdict expected during the next hearing.
Constitution is supreme
Another local lawyer, who has practiced in the Maldives for the last five years, said the Supreme Court has on numerous occasions been found to have “flouted” provisions contained within the constitution relating to the scheduling of a number of elections held since 2008.
“It is the constitution in the Maldives that is supreme, and the Supreme Court has no basis to go against it,” the legal source explained.
The lawyer pointed to a Supreme Court verdict passed in January 2009 under Article 296 (a) of the constitution that parliamentary elections had to be held by February 15 that year unless prevented by an “act of God”.
The vote was eventually held in May of the same year.
According to the legal source, the legitimacy of any actions since taken within parliament were themselves constitutionally “questionable”.
However, the lawyer expressed his personal belief that the MDP should have awaited a final decision by the court in the case filed by the JP, after joining the case last week, fearing any attempts to hold an election “against the state” could have resulted in possible military intervention.
The source also reiterated concerns over the failure of watchdog body the Judicial Services Commission (JSC) to recognise Article 285 of the constitution, outlining standards for the appointment and qualification of judges, after the provision was discarded as “symbolic” by in 2010.
The source also pointed to recent controversy concerning ongoing investigations into leaked video tapes appearing to depict Supreme Court Justice Ali Hameed engaging in sexual relations with foreign women as another development undermining the apex court.
With Ali Hameed still remaining on the bench despite the ongoing investigation into his conduct, the legal source questioned the MDP’s decision to willingly join the case filed by the Jumhoree Party at the Supreme Court, rather than refusing to engage or validate the institution instead.
“Once you accept [the Supreme Court’s jurisdiction] you have to accept the verdict after joining the case,” the lawyer argued.
The legal source nonetheless did not rule out the Supreme Court “playing politics” and trying to provoke the MDP by failing to reach a conclusion ahead of the scheduled second round.
The source also raised questions over why the court had heard witness statements over three days rather than at a single hearing.