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.


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.