Supreme Court Verdict: Points of Note

A cartoon mocking Supreme Court judge Ali Hameed still on the bench after being caught on camera having sex with three prostitutes
A cartoon mocking Supreme Court judge Ali Hameed still on the bench after being caught on camera having sex with three prostitutes

 

This is my unofficial translation of the Points of Note in the Supreme Court ruling in Jumhooree Party v Elections Commission submitted on 15 September 2013 and concluded on 7 October 2013. The ruling annulled the first round of the Presidential Election held on 7 September, and ordered that fresh elections be held on 19 October. The 46 page ruling was in three main parts. The Points of Note as translated below, the majority verdict as translated by Minivan News [found here] and the minority dissenting opinion as translated by Minivan News [found here] completes the verdict.

Summary

This is a matter considered by the Supreme Court submitted by the Jumhooree Party under Article 113 of the Constitution, and Article 10 (b), Article 11 (a).1 and Article 3 of the Judicature Act (22/2010) alleging [1] that the conduct of the first round of the presidential election held on 7 September 2013 was in breach of the stipulations made in the relevant articles of the Constitution, statutes governing elections and in the Supreme Court ruling 39/C-SC/2013 and requesting the court to rule that obtaining the list of people who voted in the election is a right of every candidate; and [2] alleging that the Eligible Voters Registry used in the said election was not compiled in accordance with the relevant legal framework and the conditions laid out in the Supreme Court ruling No. 39/C-SC/2013 and asking, therefore, that the Supreme Court rule the list as not valid; and [3] alleging that the election is one that violated many basic rights of the people guaranteed by the Constitution and is an election conducted in breach of the relevant elections laws as well as the Constitutional framework of the State and, therefore, requesting a court ruling to declare the election null and void. The defendant in this matter is the Elections Commission. Proceedings were held inter-partes upon requests made by State Attorney General, Progressive Party of Maldives and the Maldives Democratic Party. MDP, however, withdrew from the case on 24 September 2013.

Points of Note

In considering this matter in light of the Constitution, General Elections Law (11/2008), Presidential Elections Law (12/2008), Presidential Elections Regulations, witness statements, documents and arguments submitted by the plaintiff and defendant, documents and arguments submitted by third parties, expert reports submitted to court by experienced Forensics Team appointed by the Supreme Court to examine evidence submitted to court and general constitutional and legal sources and material relevant to the issue, the following points were noted:

1. The plaintiff, Jumhooree Party, in submitting the case noted that there was massive fraud in the Eligible Voters Registry used in the 7 September 2013 election. Among them are inclusion in the Registry of minors under the age of 18, dead people, people who did not have a National Identity Card issued by the Department of National Registration, names not included in the Department of National Registration records, names repeated with different ID cards, and names with mismatched addresses and gender. This opened up the opportunity for several non-eligible voters to vote and made it possible for a person to vote several times. Furthermore, actions of the Elections Commission before and during the elections not only negated its integrity and good name but also failed to provide guarantees stipulated by the Constitution. This meant that the elections held on 7 September 2013 to elect a President as stipulated by Article 108 of the Constitution restricted the right to vote guaranteed by Article 26 of the Constitution; failed to follow the Constitutionally stipulated procedures for electing a leader through the ballot box; and created the opportunity for a leader to be elected outside the State’s Constitutional framework and principles of Universal Suffrage. The result would be restrictions on people’s Constitutionally guaranteed right to elect a leader and the handover of presidential powers to an unelected individual of no legal capacity, which could, in turn, destroy the entire constitutional framework of the State.

2. It is clear from the submissions of the plaintiff that it wants the election annulled on the basis that the Elections Commission, the independent body constitutionally mandated to organise and hold all elections and public referendums, did not organise the 7 September 2013 election in a manner which allowed people to exercise their right to vote as stipulated by the Constitution and relevant laws, therefore, the election could not be regarded as one that reflected the people’s own free will. JP agues that the election may, therefore, pose a threat to public order. When there are circumstances that may give rise to a constitutional dispute with the potential to affect public order arising from a matter such as an election, and when such a matter is by nature constitutional, it is clearly the Supreme Court—as final arbiter of justice—and under the powers accorded to it by Article 113 of the Constitution and Article 9 (f), 10(b), (11) a.1 and (3) of the Courts Act, that has the ultimate authority to adjudicate on the matter.

This is not, in anyway, a matter relating to a decision made by the Elections Commission regarding a complaint it received about information contained in the Voter Registry or amendments to information contained in the Registry that, according to relevant laws, should be submitted to the High Court. The High Court has jurisdiction over such matters only if the case relates to a complaint about the Voter Registry lodged at the Elections Commission prior to an election, requiring a summary judgement by the High Court. Also, the matter cannot be dealt with by the High Court because it is not the sort of complaint which falls within the High Court’s jurisdiction under Article 64 (a) of the Elections Act. Article 64(a) of the law states that if a dispute arises over the conduct of an election the matter can be submitted to the High Court. Moreover, the complaint cannot be lodged at the High Court because it is not a criminal matter which, according to Artricle 64(b) of the same law, would have allowed the High Court to accept the case. This is a matter which—as specified in Article 108 of the Constitution—is related to problems encountered in an election held to decide a leader by a people’s direct secret ballot that raises doubts over the integrity of the entire election. Under such a circumstance, Article 113 of the Constitution is very clear that it is the Supreme Court that has final authority and word on the matter. The Supreme Court, sitting together in session, shall have sole and final authority to determine all disputes concerning the qualification or disqualification, election, status of a presidential candidate or running mate or removal of the President by the People’s Majlis. Article 145 (c) of the Constitution gives it the final word on any legal dispute. Therefore, the argument by the Elections Commission that the matter is not within the jurisdiction of the Supreme Court has no legal basis.

3. The complaint was lodged in the Supreme Court under Article 113 of the Constitution. If the Supreme Court believes that in order to deal with the matter justly, to guarantee a fair verdict, and to save the nation from irreparable damage, it has the power to delay the second round of elections even if the Elections Commission stipulates that this round must be held within 21 days. This power is made clear in Article 144 (b) of the Constitution. The Constitution makes it incumbent upon all relevant state parties to do everything they can to ensure that a constitutionally stipulated deadline is met, and the only legally and judicially acceptable exemption to meeting such a deadline is a natural disaster beyond human control or a state of war, as stipulated in Supreme Court ruling 02/SC-C/02. This Supreme Court ruling means that a Constitutional provision must be observed exactly as stipulated as long as there is no legally acceptable exemption such as a State of Necessity. Therefore, what the Supreme Court ruling [02/SC-C/02] declares is that elections, or any other matter specifically outlined in the Constitution cannot be considered as valid unless carried out exactly as specified in the Constitution. The case before the Supreme Court submitted by Jumhooree Party against the EC is not about failure to meet a deadline, but about how the deadline was met. Although Elections Commission met the deadline, it violated the Constitution along the way. The submissions in this case are for the Court to rule that the activities so conducted were constitutionally void. In considering this case, the Supreme Court has accorded the utmost priority to the principle of dealing with matters such as elections without any delay. The court was also mindful that in cases submitted under Article 65(b) and 64 of the General Elections Act (11/2008) the High Court must make a ruling within a maximum of 30 days after the results of the said election are announced, and took into consideration that if such a High Court ruling is appealed at the Supreme Court, further time maybe needed for the necessary review. Thus, in a situation where the party responsible for holding the elections were negligent or are guilty of ‘misfeasance’, there is no legal norm or logic that can hold the court, which is hearing the case, responsible for the delay caused by the trial. Once the court finds the concerned party guilty of having met the deadline through unconstitutional means, it becomes necessary for the said party to re-do its actions according to the Constitution. Under the circumstances, where the principle of ‘necessity’ applies, both constitutional jurisprudence and Islamic Sharia recognise such a delay as acceptable. As per Supreme Court ruling 02/SC-C/2009, relevant state institutions began preparations to hold the parliamentary elections of 2009 before 15 February [of that year] as stipulated by the Constitution. But the election was held later in May of that year. Unless the doctrine of necessity referred to above is applicable, the said election cannot be regarded as constitutional. There is no legal or judicial norm that can stop the Supreme Court from considering and ruling on a case in which it is disputed that a specific task carried out within a time limit set by the Constitution was carried out in breach of the Constitution and from ordering that the task should be carried out according to the Constitution. If extra time beyond that given by the Constitution is needed, under the principle of necessity, to complete a specific task as specified in the Constitution, it does not necessitate the end of a legal government in place. That such a government will continue to exist under the doctrines of ‘state of necessity’ and ‘continuity of legal government’ under such circumstances is recognised by both constitutional and legal jurisprudence. However, ‘Necessity’ does not allow expansion beyond what is absolutely necessary, and the principle cannot be regarded as applicable if extra time is allowed to stretch beyond what is essential. As a principle, a State of Necessity applies during times of war or during circumstances beyond human control such as an earthquake or a flood. However if a person or institution responsible for carrying out a particular task during a constitutionally stipulated time limit fails to do so, creating a defacto situation, it is the conditions of the State of Necessity referred to above and the doctrine of Continuity of Legal government that allows extra time for completion of the task. Thus, it is known that Supreme Court ruling No 25, 26/C-SC/2010 ruled as constitutionally valid the responsibilities carried out by cabinet ministers prior to their approval by the Majlis.

4. The people’s power guaranteed by Article 4 of the Constitution is mainly assured through representatives directly elected by the people through principles of representative democracy. Thus Article 26 (c) of the Constitution clearly states that every citizen over the age of 18 has the right to take part in the conduct of public affairs, directly or through freely chosen representatives. In modern democratic systems such representatives —whether members elected to decentralised or local councils, members elected to the People’s Majlis, or the president elected as head of state—are elected by the people through free and fair elections. One of the most important requirements of such an election is that eligible voters, or the electorate, is determined. In today’s constitutional systems the electorate is decided upon under the principles of Universal Suffrage; which is a concept not limited by financial or education constraints. This means, that no conditions should be placed on a voter on the basis of their financial possessions or educational qualifications. Universal Suffrage also means non-discrimination on the basis of a voter’s gender, ethnicity, race or colour. The concept of Universal Suffrage is guaranteed by the Maldivian Constitution as Article 26 (a) makes it clear that every citizen of the Maldives over the age of 18 has the right to vote in elections and public referendums.

5. Different states, on various grounds, determine characteristics that a voter must possess. This cannot be seen as contradicting the principle of Universal Suffrage. Nor can this be regarded as disenfranchising a large number of people. Thus, in all modern States it is citizens who have the right to vote, not foreigners. This is made clear in Article 26 of the Constitution and Article 5 (a) of the General Elections Act (11/2008). Moreover, in all election laws across the world, the right to vote is granted to citizens over a particular age, 18 being the most common, as is the case in Maldives made clear in Article 26 of the Constitution. Modern election laws also make it a condition that to be eligible to vote, a person must not have a serious criminal record. But, the restrictions placed on a person’s right to vote due to the commission of a crime varies in different jurisdictions, according to the seriousness of the crime committed and for a time specified by law. However, it is a deficiency of the Maldivian election laws that there are no such restrictions placed on persons with criminal records as is the practice in other modern democracies. Furthermore, modern election laws also stipulate that voters should be mentally fit to vote. Thus, a person who is insane or is suffering from brain damage and cannot differentiate between place and door and are unable to exercise their choice are restricted from voting in various jurisdictions. Such persons are determined by independent institutions or courts. It is a deficiency of Maldivian election laws that sanity is not part of the conditions which makes a citizen eligible to vote.

6. One of the most important characteristics of the principle of Universal Suffrage is equality in voting, and that votes should be cast according to the rule of ‘One person one vote’, meaning that no one can vote more than once; no one can vote in more than one electoral area; no one should be deprived of their right to vote; and that anyone who does not have the right to vote must not be allowed to vote. One of the most basic means of ensuring this is to keep the Eligible Voters List in order and up to date. To ensure this, modern states mainly use two systems: 1) Active Registration Systems whereby voters are encouraged to register and are provided voter education and means to vote and 2) Passive Registration System where the State registers on behalf of the people. Even in the latter system, people who want to register to vote somewhere other than where their permanent residence is located, must inform the relevant state authority. In both systems, the voter registry must be compiled according to the principles of universal suffrage, and every eligible voter must have the opportunity to exercise their choice fully and the registry should be prepared in such a way as to make their choice absolutely clear. Thus, the Voter Registry should be one that does not contain persons under the voting age, dead people, repetitions, voters registered in areas that are not their electoral area, and must be guaranteed to be free of all such issues that may create the opportunity for doctoring voting results. It is the Passive Registration system that is in place in the Maldives. The exemptions are those who choose to vote in areas other than their electoral area and Maldivians abroad. Both groups must be, according to the relevant laws, made to register in their chosen areas. Article 170 of the Constitution is very clear that it is the Elections Commission which bears the constitutional and legal responsibility to organise and implement everything regarding an election as is stipulated in Article [170] (a): ‘to conduct, manage, supervise, and facilitate all elections and public referendums, to ensure the proper exercise of the right to vote, and to ensure that all elections and public referendums are conducted freely and fairly, without intimidation, aggression, undue influence or corruption;’ and [170] (b)to prepare, maintain, and update electoral rolls, and to make all arrangements for holding elections and public referendums. Article 170 (d) further states the Elections Commission must: compile the register of voters in each constituency, to revise it at such periods as shall be determined by law and to provide for publication of the register in the Government Gazette.

7. To ensure elections held in the Maldives are based on democratic values of being free, fair, transparent and trustworthy, they can be considered in light of the constitution, elections laws, and the United Nations framework for free and fair elections. In so doing, the following criteria must be fulfilled if an election is to be regarded as free and fair:

a) Every eligible voter has the right to vote as outlined in the principles of Universal Suffrage, that all election activities are conducted according to the Constitution and laws, and election results are announced by an impartial administration.

b) Ensuring that election observers are impartial, that a Voter Registry with a list of eligible voters is prepared, all means for casting the vote are trusted by all people and political parties, all arrangements are in place to stop any chance of electoral fraud, and methods for dealing with complaints and disputes are in place.

c) There should be no confusion about qualifications of a candidate, and these qualifications should be made known to the public. The Elections Commission should have in place a mechanism for dealing with any complaint or plea made regarding such a matter. All matters relating to an election are linked to the basic rights of people, and every person has the right to information such as the qualifications of a candidate. Furthermore, notes the Supreme Court, everyone has a right to information. Therefore, people should have access to all information relating to an election, except that which cannot be disclosed for legal reasons. And, any complainant who questions the results of an election should have the right to a fair resolution of the issue they raise.

d) All constitutional and legal processes of the election should be constitutionally and legally valid. If any person complains that their right to vote or a political right has been limited there should be no restrictions placed on that person to seek a remedy from an independent and impartial complaints mechanism or the relevant court. And, says the Supreme Court, should the complaint be found to be based on fact, necessary reform should be guaranteed.

e) Ensuring that acts of corruption, misfeasance of officials, restricting a particular person’s rights, undue influence, ‘personation’ [sic], (explained in brackets as ‘voting as someone else’, which suggests the learned court probably meant to say impersonation), bribery, threats and all other illegal activities have been avoided. It is known that such actions must be dealt with and punished by the criminal justice system, according to the criminal process. It must be ensured that all security arrangements and management of the general system should not be open to influence or threats. The State’s security forces must maintain safety and security of the polling stations before and during voting; and until such time as the results have been announced and all matters relating to the vote have been concluded. The persons assigned to administering the casting of votes must not be persons involved in any lead administrative role in the particular polling station. Moreover, says the Supreme Court, such people should possess the ability for overseeing the voting process, and it should be ascertained that they are individuals capable of carrying out the responsibility impartially. The responsibility for taking immediate necessary measures against such people seen to commit acts for which they can be held civilly or criminally responsible must also be fulfilled.

8. In light of Article 170 (a), (b) and (d) of the Constitution mentioned above, it is clear that ensuring elections in the Maldives are free and fair, protected from undue influence, and compiling an Eligible Voters Registry as well as a list of voters casting ballots in places other than their registered electoral areas under a passive process are constitutional responsibilities of the Elections Commission. This responsibility of the Elections Commission must be carried out according to the procedures outlined in the relevant laws and regulations, with integrity, without bias, without using undue influence or force and with independence. Thus, in compiling the eligible voters registry, the Elections Commission must regard the documented information contained the database of the Department of National Registration, the relevant central institution, as its main source. Any information the Department cannot verify must be checked with other local departments before any amendments can be made to the Registry. Confirming that the Registry does not include persons under the age of 18, dead people, and ensuring that a voter’s name, address, gender and other basic information is not altered allowing his or her name to be repeated in the Voter’s Registry and lists, not transferring a voter from their registered area to another without their knowledge and, to update the registry within the stipulated time period or before the election is held so as to maintain the Registry’s validity are all part of the constitutional and legal responsibility of the Elections Commission. Furthermore, it is also clear, says the Supreme Court, that it is the Elections Commission’s responsibility to publish the Voter’s Registry within the period required by law in a way that allows people to check the registry, provide the final Voters Registry to political parties, and to take strong, transparent steps to address any major allegations made against the validity of the Registry or should strong signs emerge of major problems with the registry.

9. Article 172 (a) of the Constitution says that a person may challenge a decision of the Elections Commission concerning an election or a public referendum, or may challenge the results of an election, or contest the legality of any other matter related to an election, by means of an election petition presented to the High Court. And, Article 172(b) says that the manner for dealing with any challenge submitted pursuant to article (a) shall be provided for in a statute on elections. The said law makes it clear that the High Court has the original jurisdiction to deal with an election-related complaint. But, Article 74 of the Elections Act refers to criminal offences. Submitting a criminal matter to the High Court without first filing it at a lower court would restrict the right to appeal guaranteed by Article 56 of the Constitution. The Supreme Court also says, criminal offences should be investigated within the criminal justice system and according to criminal justice procedures outlined in the Constitution, and in a way that does not contradict criminal laws and regulations. It further adds that all defendants in such a matter should be dealt with equally and according to the same procedures. Under this principle, it is clear that the criminal offences referred to in Article 74 of the Elections Act must, in the first instance, be dealt with by the criminal courts. Article 64 (b) of the General Elections Act says: If a criminal offence is committed in breach of this law, regulations based on this law, a law governing a particular election or regulations based on such a law, it is the Elections Commission that has the authority to submit the matter to High Court through the Prosecutor General. This article of the General Elections law directly contradicts the above-mentioned constitutional stipulations [regarding the prosecution of criminal offences]. It is clear that the Constitutional and legal way to deal with a criminal offence [violating the laws and regulations outlined in Article 64(b) above] is for the Prosecutor General to have the authority to submit the matter to the courts.

10. In compiling and maintaining an Eligible Voters Registry, the Elections Commission must include identification information such as the full name, date of birth, gender, permanent address, (with island and atoll), national identity card number, current address and whether the voter is resident in their electoral area or not. Resources for registration must be dependable such as purpose made forms. The Elections Commission must publish name, gender and permanent addresses of voters included in the Voters Registry in the Government Gazette within a reasonable time frame, 45 days prior to the election as stipulated in the General Elections Act. The information must also be published on the Elections Commission website. And, as provided in Article 45(a) of the said law, a list of all eligible voters from each inhabited island must be put up in a public space on the same day as the Eligible Voters Registry is published on the Government Gazette. The list of all eligible voters should be made available to anyone from an inhabited island who requests access. And, as stipulated in Article 45(b), Elections Commission must publicly announce where the voter lists have been placed. Article 10 of the Act states that every person over the age of 18 and every political party has the right to complain about any irregularities or information included or excluded from the the Eligible Voters Registry announced according to Article 9 of the law. Therefore, the final Registry should be published with the opportunity to appeal complaints raised over the registry. It should also always be visible and accessible, assuring the right to check the Registry. The main important issues election observers should pay attention to are check electoral complaints and mechanisms established for checking the complaints, verify the time period for which members have been appointed to the complaints division, the independence of the complaints department and verify the capacity and procedures of the special court to review electoral complaints. Essential for ascertaining integrity of the elections process is to have an independent and impartial review mechanism, and it is clear that until and unless such a mechanism exists, the election’s integrity and impartiality cannot be verified, nor can it be ascertained that it is following due legal process. Thus, if a candidate or an eligible voter raises a complaint about the election process, it should be addressed impartially and fairly through due process of law. All these processes must be established in a timely manner without undue delays, mechanisms should be available for raising complaints without restriction and ease as outlined in law.

11. Essential to making possible a free and fair election that conforms with the principles of Universal Suffrage as outlined before and has public confidence is having a valid registry of eligible voters or an ‘electorate’. Any legal act can only be considered valid if it fulfills all required legal conditions. Thus, in fulfilling the responsibility of compiling the Eligible Voters Registry as stipulated by Article 170 (b) of the Constitution, the Elections Commission must adhere to all legal requirements. The plaintiff in this case, Jumhooree Party, has submitted that the Eligible Voters Registry used in the first round of the election held on 7 September 2013 does not conform to the relevant legal framework or this court’s ruling NO. 39/C-SC/2013 and has asked that the Voters Registry thus be declared not valid. It has also submitted that the election be annulled as it was an election that restricted basic rights of the people assured by the Constitution and was in breach of the relevant provisions of the Constitution and the Elections Act. It is noted that Jumhooree Party highlighted that the Registry of Eligible Voters for the first round of elections held on 07 September 2013 compiled and published by the Elections Commission included a lot of people who did not possess the characteristics of eligible voters as stipulated by the Constitution and laws. For instance, 41 children who were under the age of 18 on 7 September 2013 were included in the Registry as well as 669 people who had died prior to the date. Furthermore, the Registry also included a lot of things [sic] that created the opportunity for multiple voting by a single person. For instance, the names of 102 eligible voters were repeated and 1818 people were included among eligible voters with ID cards that did not appear in the National Registration Identity Card Registry. In considering the witness statements and other documentation and evidence submitted to this affect, the following issues arise:

a) To ensure that elections and referendums are free, fair and safe from undue influence and in a way that allows people to exercise their right to vote to fully, one of the most important responsibilities Article 170 of the Constitution entrusts the Elections Commission with is to compile and maintain the Eligible Voters Registry. Further, Article 8(a) of the General Elections Act (11/2008) states that the Elections Commission must compile and maintain an Eligible Voters Registry, while Article 8(b) requires that the Registry should contain the following information relating to eligible voters: 1. Full name, 2. Date of Birth, 3. Gender, 4. Permanent Address (with atoll and island), 5. National Identity Card No. In light of these provisions—-Document 7, submitted as evidence is a Circular published by the Elections Commission as a guideline governing conduct of the 2013 Presidential Election. Point No.1 of the Circular states that even if the address of an eligible voter given in the National ID card does not match with the address given in the Eligible Voters Registry, they would have the opportunity to vote if all other information is accurate. Also, No.3 of the Circular says that if all information matches except the ID card no., that person, too, would be given the opportunity to vote. It is clear that acting according to these provisions in the Circular created the opportunity for a lot of people, whose real addresses given in their national ID cards, and a lot of people whose ID card nos. did not match, were given the opportunity to vote. It is clearly known that votes cast by such people cannot be regarded as valid votes that fall within the legal framework as outlined in law.

b) In circumstances where the defendant in a case does not agree with the evidence submitted by a plaintiff, the Court may believe that the submissions by the plaintiff requires expert opinion. If so, officially seeking such expert opinion is an accepted norm in the legal systems of civilised societies. It is also a procedure followed in the Maldivian legal system for eons. The plaintiff in this constitutional case before the Court submitted as evidence to support their claims several lists, marked Document 1, 2, 3, 4, 5. It is clear from the arguments made in court by the defendant, the Elections Commission, that it did not accept the submissions made by the plaintiff regarding the documents. Therefore, to verify the validity of the documents submitted as evidence in this case where Jumhooree Party alleges that the Elections Commission has committed acts of fraud and vote rigging in the presidential election held on 7 September 2013, the Maldives Supreme Court sought an expert report of Forensic Services Directorate Department of the Maldives Police Service as important for establishing justice in this matter. Thus, the Maldives Supreme Court requested the Maldives Police Service by letter 30/2013/171/1-C-197 to verify the documents submitted as evidence in this case. [Persuant to the request] Forensic document examiners, digital examiners, and a large number of support staff from the Maldives Police Service worked in the Supreme Court, in the presence of court staff, from 26 September 2013 to 3 October 2013. [On conclusion] they submitted to the Supreme Court Maldives Police Service No. 0001/2013/JER/K ‘Report on Points Noted in Comparing Lists Submitted as Containing Fraud in the First Round of the Presidential Election’.

c) Things compared in preparation of the 0001/2013/JER/K report of the Forensic Services Directorate of the Maldives Police Service referred to above include:

  1. List of people who voted in the 2013 Presidential Election (7 September 2013)
  2. The following submitted to the Supreme Court by Jumhooree Party: (a) list containing names of 41 individuals under 18 included in the eligible voters list, (b) list of 669 deceased people included in the registry, (c) list of 204 people said to have been included in the Registry twice, (d) 1818 people said to be missing from the ID card registry of the Department of National Registration, (e) list of 1187 people included in the Registry under a particular address without knowledge of the home owner
  3. The personal information database of the Department of National Registration (DNR Database)
  4. Access logs of the Ballot Progress Reporting System (or BPRS) computer software used by the Elections Commission on voting day,
  5. A copy of the 2013 Presidential Election Eligible Voters Registry released to the Jumhooree Party by the Elections Commission,
  6. List of eligible voters in the 2013 President Election published in the Government Gazette.

d) In considering the contents of the above-mentioned 0001/2013/JER/K report of the Forensic Services Directorate of the Maldives Police Service and its ‘Conclusions’, it is clear that—

  • 773 people were allowed to vote despite ID card numbers that did not match,
  • 7 people who were written into the list by pen because their names were missing from the list,
  • 18 people voted who were listed as deceased in the DNR Database,
  • 07 minors, as per the Registry, voted,
  • 03 people voted more than once,
  • 225 voted who were noted as ‘repeated’ in the DNR database and were not issued with ID cards,
  • 2830 who were included and given the opportunity to vote even though their permanent addresses did not match,
  • 952 people who voted despite discrepancies in their names,
  • 07 people voted whose records did not exist in the DNR Database,
  • 819 people whose ID card numbers did not match the number listed in the Voter Registry because election officials did not take appropriate care when recording their ID card numbers after they cast their vote—-

this is a total of 5623 votes, a very large number when considered in light of the announced results in the election.

e) As this is a matter that affects the interests of the entire state, the Attorney General entered into the proceedings as a third party to protect the interests of the state. In considering the submissions made by Attorney General of the Maldivian state, it is noted that she believed issues of concern that raised doubts about the validity of the day’s vote were present before the polling in the first round of the Presidential Election on 7 September 2013, in the Eligible Voters Registry, in the complaints made at relevant state institutions regarding incidents the occurred on the voting day, and in their findings. These incidents could include some criminal matters and, therefore, pose threats to the possibility of a free and fair election. Thus, she submitted, it was her belief that unless these matters are investigated fully and measures taken to remedy them, a free, fair, just, and transparent election could not be guaranteed nor could a head of state be elected as stipulated in the Constitution. She also submitted that it is in the national interest of the highest order, interests of the entire state and of the people that these issues were resolved and the head of state elected and powers of the state ordered as stipulated in the Constitution. It is noted that she also requested that the court order an injunction against continuing any election related work until all incidents that occurred in breach of the Constitution, election laws and Supreme Court ruling No 39/C-SC/2013 be addressed an remedied according to law.

12. Article 167 (c) of the Constitution states that the Elections Commission is an independent and impartial institution which should fulfill its responsibilities in accordance with the Constitution and statutes passed by the legislature. Further, Article 170 of the Constitution lists among the responsibilities and powers of the Elections Commission that in order to assure the people their right to vote, the Commission should be fair and free from undue influence, disputes and aggression in facilitating, organising and conducting elections and referendums. And, in holding elections and referendums it is responsible for compiling, updating, maintaining the Eligible Voters Registry as well as for all other related matters. It is also responsible for publishing up-to-date Eligible Voters Registries in the Government Gazette within the legally specified time limits. Moreover, Article 26 of the Constitution states that it is the right of every person over the age of 18 to vote in elections and public referendums while Article 26(b) states that every citizen has the right to contest for various positions in elections. Article 5 of the General Elections Act (2008/11) also states that every person over the age of 18 has the right to vote while Article 6 of the Act says that no one should be allowed to vote twice in the same round. Also Article 8 (a) of the same law states that the Elections Commission must compile a voter registry while Article 8(d) stipulates that the following information must be included in the said Registry: 1. Full Name, 2. Date of Birth, 3. Gender, 4. Permanent Address (with atoll and island), 5. National ID card number. Given these stipulations in the Constitution and in the specified Articles of General Elections Act (11/2008), in considering all the matters raised in the Expert Report of the Forensic Services Directorate of the Maldives Police Service No. 0001/2013/JER/K, the arguments and documentation submitted by the Elections Commission, and the evidence and statements submitted by witnesses there is sufficient proof that the Presidential Election held in the Maldives by the Elections Commission on Saturday 7 September 2013 was not a valid election that fits the constitutional and legal framework stated above. Furthermore, the Elections Commission announcement 474/2013/CA (A) (14 September 2013) which published the results of the election states that of the 4 candidates who contested in the election, candidate No. 1 received 50422 (Fifty Thousand Four Hundred and Twenty Two) votes and Candidate No. 3 received 53099 (Fifty Three Thousand Nine Hundred and Ninety Nine) votes. In considering these results, it is evident that the difference between the two candidates is 2677 (Two Thousand Six Hundred and Seventy Seven) votes. The Expert Report referred to above reveals that 5623 (Five Thousand Six Hundred and Twenty Three) votes were cast illegally. This figure is greater than the difference in votes between Candidate No. 1 and Candidate No.3. Therefore, there is no constitutional and statutory basis to regard the Presidential Election held in the Maldives by the Elections Commission on Saturday 7 September 2013 as a valid election.

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