Baaghee Waheed has fled the Maldives

Mohamed Waheed Hassan Manik has fled the Maldives with MVR500,000 in cash and no dignity. Last night, at around 10:30 p.m., while opposing candidates and their supporters were busy holding their last campaign rallies ahead of tomorrow’s vote, Waheed hastily got into a speedboat waiting at the jetty straight in front of his Office and beat a retreat.

Dr Manik, was the Vice President in the first democratically elected government of the Maldives but betrayed President Mohamed Nasheed on 7 February 2012 as the facade that portrayed the day’s coup as ‘a legitimate transfer of power’. He ran for President in September this year but managed to garner only 5% of the vote. He remained as ‘President’ for 21 months, the last three days of which were beyond the presidential term he illegally occupied.

He recorded a ‘farewell speech’ aired this morning on all television channels some 12 hours after his departure. He spent his last words on defending his decision to side with the coup-makers—‘I was treated very badly as a VP!’; on insisting that Supreme Court is the final authority on the Constitution—‘we have to obey the Supreme Court, no matter what!’; on boasting about how he maintained peace and stability in the Maldives—‘I did that under so many difficulties!’; and on praising the security forces for their ‘defence of Maldives and our people.’ He sounded bitter, and was determined, even at the last minute, to attack his former President.

While hiding in whatever glorious mansion of Macau that he is in, he told anyone watching Maldivian television that Nasheed had ordered the military to use rubber bullets against the mutinying police on 7 February. Retired Brigadier General Ibrahim Didi appeared on television this afternoon to refute Waheed. ‘How would he know? He was not there.’ Waheed spent the night of the worst crisis in recent Maldivian history hiding inside the official residence while his wife Ilham dolled herself up for the presidential oath taking ceremony planned for later in the day.
Without Waheed, the coup-makers would not have been able to legitimise their illegal overthrow of the first democratically elected government of the Maldives, of which he was the Vice President. Without Waheed, the traitors would not have been able to hold on to power for 21 months, and without Waheed as a fig leaf, they would not have been able to drain public coffers of all money, renege on international agreements, destroy Maldives’ relations with the international community and allow Adhaalath Party’s Islamists to gain such traction in our socio-political affairs.
‘I will have to consider what the atmosphere is like in Maldives’, he told Haveeru yesterday when asked if he plans to return. Waheed has a reputation for fleeing—when things got tough back in the 1990s when he was an MP, he ran off abroad for a job in the United Nations. He has boasted that he provided education for millions of women in Afghanistan where he was posted there after the American invasion. In the lead up to these presidential elections, he was asked on TVM’s RiyaaC programme if he would stay or flee should he lose. ‘I will stay,’ he lied.

Waheed is one of the biggest traitors in the history of the Maldives. He is also one of its biggest cowards.

The devil is in the judiciary

[I]f men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls would be necessary.~ James Madison

But why would membership of the judiciary be restricted to angels? ~ Josè María Maravall

 

Judicial independence is generally accepted to be a protection from the government or the legislative majority. If rulers are to be controlled, then, rule of law—which checks their power—must remain immune to their influence. But that raises the question: who checks the independence of the judiciary? Checkers being unchecked is an inherent weakness in the role attributed to rule of law in democratic theory.

There are limits, but they are easy to overcome.

One such limit on judicial power is the law. As MDP’s presidential candidate Mohamed Nasheed said on Saturday, judges speak the law, they do not make it. The role of the unelected judiciary is to execute the law enacted according to the will of the elected parliament. But the opportunity to override this limitation is frequently open to the judiciary. When laws are ambiguous, for example, it is the judges who interpret them, and this interpretation comes close to legislation. Precedents are set that must be followed, law-like.

Another restriction on judicial power is the principles of justice: if rule of law is inseparable from a political theory of rights, it means that judges must not only enforce laws, but must also be guided by certain judicial principles. But there are no mechanisms to ensure that such principles are adhered to—they can be easily ignored in the ‘right’ political and social environment as can be seen from the behaviour of the Maldives Supreme Court examined below.

The third restriction on judicial power is administrative—internal checks on the checkers. These include the hierarchy of courts—one court above checking the one below; ethical and professional requirements that should stop just anyone becoming a judge; and disciplinary action and legal liability that stops judges from straying the course. But who enforces these checks? The checkers themselves. In the Maldives, it is the responsibility of the Judicial Service Commission, which is under tight control of certain members of the judiciary.

In a democracy, judges are ‘protected, unchecked, and unaccountable’, and ‘we do not know why the judiciary would be politically impartial and neutral’. Often, therefore—especially, but not always, in consolidating democracies—rule of law becomes an instrument of political power.

For politicians both in government and opposition who are looking for allies to help them achieve their goals, judges—‘unchecked agents whose decisions are binding’—are an attractive prospect that cannot be ignored. Over the years, several strategies have become common place: 1) politicians using democracy to subordinate the judiciary and overcome the limits set by rule of law; and 2) politicians using existing norms and independent judges to undermine democracy as a regime; and 3) although democracy is preserved, the independence of judges is turned into a political instrument to get rid of an opponent if the rules of democratic competition are not enough[1].

The Supreme Court as a political weapon to undermine democracy

The 2008 Constitution of the Maldives, based on democratic principles, envisions an ideal world where democracy and an independent judiciary co-exist in harmony and support each other. In reality, this is hard to achieve not just in the Maldives but in most newly democratising countries. In three years of democracy, Maldives did not come even close to the ideal.  The judiciary left behind by the authoritarian regime, and which remained mostly unchanged after the assumption of democratic governance, has constantly been used by politicians as a political weapon—most often as a strategy for 1) undermining democracy as a regime, and 2) to get rid of an opponent while preserving the façade of a democracy. The role of the judiciary in the downfall of the Maldivian democracy in February 2012, and in the authoritarian reversal that has followed, is by now well documented. Its current role is to prevent the restoration of democracy. To execute the strategy, anti-democratic politicians have adopted a majority of the Supreme Court bench as their main instrument.

On 7 October 2013, just before midnight, the Supreme Court issued a majority ruling making void the first round of the second democratic election in the Maldives. The election was held on 7 September 2013 and was widely heralded as free, fair and virtually free of error. Initially, only Jumhooree Party (JP), led by tourism magnate, Qasim Ibrahim, disagreed. He filed a case at the High Court on 11 September (01/SH-I-HC/2013) alleging that the Eligible Voters Registry used in the election included ‘hundreds of ineligible voters, several repeated voters’ and ‘several thousand voters’ whose addresses were problematic. JP wanted the court to allow it access to the Eligible Voter Registry. The High Court ruled in JP’s favour, ordering that JP and other contestants in the election be allowed to see the list.

But, before the High Court ruling (on 17 September), JP filed a new case at the Supreme Court on 15 September (42/C-SC/2013), treating it as a court of first instance, rather than the apex court. The Supreme Court accepted the role it was given, and later justified it by saying that Article 113 and Article 145(c) of the Constitution states that it has the final word on any matter relating to the Constitution. There is room to contradict this interpretation of the Constitution, as outlined in the opinion of Justice Mu’thasim Adnan, one of three Supreme Court justices who dissented.

JP made three submissions:

  1. The presidential election on 7 September 2013 violated relevant articles of the Constitution, Elections Law and Supreme Court ruling 39/C-SC/2013 (2 September 2013). Therefore, Supreme Court must rule that it is the right of all candidates to have access to the voters list.
  2. The eligible voters list used for the 7 September 2013 election did not fit the required legal framework or Supreme Court ruling 39/C-SC/2013. Therefore, Supreme Court must rule that it is not a valid list.
  3. The election violated basic rights guaranteed by the Constitution as well as breached Constitutional provisions and laws related to elections in addition to falling outside of the state Constitutional framework. Therefore, with reference to Article 113 of the Constitution, Article 10 (b), Article 11 (a)1 and 3 of the Courts Act, the Supreme Court must rule the election as void.

The case, which lasted from 15 September to 7 October was a farce from beginning to end. Very few legal concepts and principles are left that it did not undermine.

It may as well have been written by Kafka

First, none of the Justices would be on the bench if Article 285 of the Constitution were followed. As discussed earlier, measures available in a democracy to check the checkers are limited. In the Maldives, Article 285 of the Constitution, which outlined the qualifications and professional standards of judges, was one of such limitation imposed on judicial power.

But, with the Judicial Service Commission—-constitutionally mandated to check judicial powers—at the helm, Article 285 was dismissed as symbolic, meaning that an overwhelming majority of the country’s judiciary sits in breach of the Constitution.  The Supreme Court’s ‘ascension’ to the bench was doubly unconstitutional. Moreover, several of the judges on the Supreme Court bench are facing allegations of serious offences or misconduct. The main offenders are Ali Hameed, Adam Mohamed, Abdulla Saeed, and Abdulla Didi. [The allegations against them are summed up here, on Minivan News.]

Second, most of the evidence presented in the case should not have been deemed admissible. Several witnesses were allowed to give evidence in ‘secret’, as if this was a major criminal investigation where witnesses had to be given protection in case of retaliation by a dangerous defendant. This was, as the Supreme Court was anxious to reiterate, ‘a constitutional matter’. Third, the State Attorney General entered the case to submit arguments against Elections Commission, a state institution. Media reports of the time revealed that AG Azima Shakoor did not even speak to the Elections Commission, an independent state institution,  for clarification of the allegations against it before deciding to side with JP, a political party.

The four Justices, meanwhile, refused to give a fair hearing to the defendant, frequently shutting EC lawyers down in the middle of an argument, or generally disregarding their arguments and submissions. Lawyers for MDP, which like Azima Shakoor had entered the case as a third party, were ejected from the proceedings and held in contempt of court for discussing the case [more specifically the judges] in public. EC lawyer Husnu Suood was given the same treatment, forcing the Commission to find a replacement at short notice. The Supreme Court ordered a report from an ‘expert forensics team’ from the Maldives Police Service (MPS) on its own initiative, and gave them access to all election-related data and the Department of National Registration (DNR) database which holds personal information and fingerprints of the entire population.

The Supreme Court allowed the case to drag on, scheduling the case, cancelling and then rescheduling at whim. It kept odd hours, often sitting late at night, and announcing decisions after midnight. Throughout the duration of the case, Male’ was in a state of unrest as MDP members and other disenfranchised voters continued to protest in the vicinity of the Supreme Court daily. Late in the evening of 23 September, five days before the scheduled second round of the election, the Supreme Court issued an injunction calling a halt to all preparations for it. The court order, signed by the same four judges named above, gave no date on which the second round could be held, making the postponement indefinite.

On 26 September it issued another ruling (06/SC-SJ/2013) again around midnight, ordering the security forces to enforce its order to postpone the election and to halt any preparations for the second round by anyone. With this order, the Supreme Court took the responsibility of conducting the election away from the Contiutionally mandated Elections Commission (EC) and placed it firmly in the hands of the security forces.

The Maldives Police Service, led by rogue Commissioner Abdulla Riyaz, immediately descended on the EC in what amounted to a siege of the premises. Although defiant at first, and determined to hold the second round despite the Supreme Court order—which its lawyers described as unconstitutional—president of the Elections Commission Fuad Thowfeeq announced on 27 September, on the eve of the scheduled second round, that lack of co-operation from the security forces and other essential state institutions meant that the election could not go ahead.

As disenfranchised voters took to the streets with increased frustration, the Supreme Court plodded along with the case. The police were invited to work within the premises of the court, and finally, allowed to submit a ‘secret report’ which the Elections Commission, as the defendant was not allowed to see. That report, on which the Supreme Court based most of its decision to cancel the election, is still a secret. But, from what one of the dissenting judges, Justice Mu’thasim Adnan said, it contained nothing that justified annulling the first round of the election held on 7 September. [Here is another report prepared by the same ‘expert’ police team on 15 September, which gives an indication of the standard the Supreme Court’s report is most likely to be of]. 

After two weeks of deliberation of the above evidence, the Supreme Court reached the majority verdict to annul the first round held on 7 September. Yet again, the verdict was announced at midnight, and was accompanied by brutal ‘enforcement’ by the security forces. Rogue Commissioner Abdulla Riyaz’s Special Operations (SO) police, guarding the Supreme Court premises throughout the case and monitoring the constantly present protesters in the vicinity, charged into the public at precisely the moment the court announced its decision. Pepper-spray and disproportional force were used to disperse the crowd. The message was clear: any defiance of the Supreme Court order to annul the election would not be tolerated and would be violently subdued by security forces working in tandem with the four judges.

Subverting democracy with the rule of law

A subsequent detailed MDP analysis of the Supreme Court verdict comparing it to the secret Police Forensic Experts Report shows that in actuality, the total number of votes that could have been cast fraudulently is an astounding 242 (two hundred and forty two).

That the Supreme Court ruled in this way based on such flimsy and fictitious ‘evidence’ is proof of its politicisation and demonstrates how it is being used by politicians as a means of a) undermining democracy as a regime and b) getting rid of an opponent who cannot be eliminated by abiding by the principles of democracy. Cancelling the election puts anti-democracy politicians well on the path to realising both goals. To ensure that the destination is arrived at, first the Supreme Court ordered that a re-run of the cancelled first round be held before 20th October. This gave the Elections Commission a grand total of 12 days in which to organise everything for an election in which over 240,000 eligible voters are expected to vote. It also issued Guidelines consisting of 16 conditions the Elections Commission must abide by in it preparations  for the election.

In addition to these orders aimed at making an election as difficult as possible, the Supreme Court verdict also acted against several principles of democracy and rule of law, which as discussed earlier, are among the few limitations meant to check judicial power discussed at the beginning of this analysis. This included infringing heavily on the role of the Elections Commission, not only setting a new date before which the election should be held (12 days from the verdict) but also strict guidelines according to which the election must be conducted.

These included more restrictions of democratic values and principles such as the an order minimising access to polling booths by media and independent observers, helping obscure what is meant to be a transparent process. The court also ordered that all voters who registered to vote in the second round in an electoral area outside of their home address re-register. The order also stipulated that the re-registration form should bear the fingerprint of the voter, two witnesses, and if the form was being submitted by another person on behalf of the voter, the fingerprint of that person too.

The underlying ethos of the entire ruling is that there should be as many restrictions placed on the right to vote as possible rather than facilitate it being extended to as many as possible.  Most subversively, the Supreme Court verdict does this by invoking the principle of universal suffrage. Everybody has the right to vote, therefore, we will make sure as few people as possible can do so.

The unnecessary assumption of dangerous powers

One of the gravest threats to democratic governance included in the Supreme Court ruling is the power it has given itself  to invoke the principle of necessity to resolve the current dispute should it deem fit to do so. As mentioned at the beginning of this analysis, the power to interpret laws can be akin to the power to legislate.

In 2009, the Supreme Court considered the legality of delaying parliamentary elections scheduled for 15 February 2009 by Article 296(a) of the Constitution. On 13 January 2009 it issued a ruling (02/C-SC/2009) stating that only a natural disaster beyond human control or a state of war  would justify delaying the completion of a task specified in the Constitution, as specified in the Constitution and within the time specified. The verdict of 7 October, not only breaches this verdict of its own (as highlighted in Justice Mu’thasim Adnan’s dissenting opinion in 42/C-SC/2013) but also adds ‘necessity’ to natural disaster and state of war as conditions under which such a Constitutional deadline can be neglected without legal liability.

Necessity, Machiavelli’s guiding principle, is based on the belief that infringing on the moral law is justified when necessary. It allows an actor to engage in conduct that would under normal circumstances be deemed illegal because it is ‘necessary’. The principle has a long philosophical and juridical history, and has been invoked by countries to declare a state of exception, a state of emergency and martial law. The principle is easy to distort; as Cromwell put it, ‘necessity hath no law.’ It was in this state of exception based on the principle of necessity, for example, that the United States deemed many illegal acts, such as torture, legal during the War on Terror. US government lawyers argued then that the defence of necessity permitted acts of torture that violated domestic and international laws[2].

The Supreme Court’s decision to include ‘necessity’ among the conditions in which the Constitution can be legally ignored has allowed the Constitutional deadline (Article 110) to elect a new president at least 30 days prior to the expiry of the current presidential term on 11 November to lapse without legal liability. According to the Supreme Court verdict, there is no judicial or legal basis to argue that the time the Court took to deliberate the case was responsible for the lapse—it is the duty of the Court to properly and duly examine any allegation that a state institution has acted unconstitutionally. The deadline was bypassed not because of its own actions in delaying the case for so long, but because a state institution (namely the Elections Commission), in meeting the Constitutional deadline for presidential elections, acted outside of the Constitution. Therefore, under the principle of necessity, the Court’s lengthy and erratic deliberations, during which time the Constitutional deadline passed, can be deemed legal.

Responding to the argument that this lapsed Constitutional deadline to have a new president elected and ready to takeover on 11 November before 12 October means that the Maldives entered a constitutional void, the Court again invokes the principle of necessity to deny the accusation. And what occurred when the deadline lapsed, says the Supreme Court, is not a constitutional void but a ‘defacto state’ in which the doctrines of ‘state of necessity’ and ‘continuity of legal government’ allow the extra-legal extension of the Constitutional deadline to be deemed legal. In other words, by invoking the principle of necessity, the Supreme Court has assumed the power to deem the unconstitutional and illegal continuation of the current government as legal.

How long would the state of ‘necessary’ exception continue?

According to the Supreme Court, the Maldives is now in a ‘defacto state’ where it is possible to invoke the principle of necessity—by the Supreme Court—whenever it sees fit or until such time as elections are held. What has become crystal clear, especially in the days following the Supreme Court verdict, that it is working with political parties, most obviously former authoritarian ruler Maumoon Abdul Gayoom’s Progressive Party of the Maldives (PPM), to obstruct the elections as much as possible.

As discussed above, the Supreme Court’s verdict to annul the election came with strict Guidelines that make preparations nigh on impossible. Since then, the Court has issued one additional order that eases the restrictions (allowing media access to the polling booths on election day) and two orders that further complicates the preparations. All three orders were issued at midnight and signed only by the Chief Justice. The Supreme Court has not sat together as a group since.

This is because, after issuing the ruling, the most corrupt of the judges, Ali Hameed, flew to Mecca for the Haj pilgrimage in what appears to be a cynical attempt to duck and cover behind religion.  At a time when the stability of the nation hangs in balance, his eagerness to seek forgiveness for the sin of fornication could have taken a form that does not require being abroad. Repentance, for instance, is locally available to ‘Justice’ Hameed by admitting to the multiple incidents of fornication the nation has borne witness to, and accepting a public flogging.  This would have the added benefit of Hameed being able to attend to the judicial duties he has given himself tenure to perform for as long as he lives.

The whereabouts of the rest of the other three judges who have worked with Hameed to bring the Maldivian democracy to its knees is not known. Taking on their subversive role and performing it with double eagerness is Chief Justice Ahmed Faiz, one of the three judges who dissented to the majority verdict annulling the election. The first of Faiz’s rulings was on Thursday October 10, ordering that the Elections Commission start the re-registration process from scratch; the second was on October 12 relaxing restrictions on the media outlined in the 7 October verdict; and the third, issued midnight on Sunday October 13 allowing fingerprint verification if any party complains, has the potential to make the election before 20 October absolutely impossible despite the Elections Commission’s determination that this not be the case.

As stated before, for as long as there is no election, the country remains in the ‘defacto state’ where the Supreme Court has given itself the power to invoke the principle of necessity and to make legal actions that are unconstitutional and illegal. Rogue Defence Minister Mohamed Nazim, the disgracefully retired former Colonel who (with rogue Police Commissioner Riyaz) was instrumental in bringing the first democratic government to an end on 7 February 2012, has denied that he, and other coup-makers, are planning a military takeover. Experience has proven Nazim’s word means nothing, so such a circumstance cannot be ruled out. But, given that the Supreme Court has invoked the principle of necessity and already declared as legal the unconstitutional [and from the beginning illegitimate] ‘coalition government’ of Waheed, the declaration of martial law becomes a moot point. All it would take to stall the restoration of democracy in the Maldives indefinitely is for the Supreme Court to continue its declared State of Necessity where the rule of law is nothing but a political weapon for the subversion of democracy.

What is currently playing out in the Maldives is an all-out confrontation between democracy and autocracy in which the biggest weapon of the autocrats is the judicial independence that is widely accepted as a means of making democracy possible. If there ever was a text-book case of democracy being subverted by the rule of law, the unfolding events in the Maldives is it. If there is no election on 20 October, the only power that can stand up to the unchecked power of the judiciary is the source from which both judicial power and democracy stems: the power of the people.



[1] Josè María Maravall and Adam Przeworski, Democracy and the rule of law, 2003: Cambridge University Press

[2] Memorandum from Jay S. Bybee, Assistant Attorney general, US Department of Justice to Alberto R. Gonzalez, Counsel to the President (1 August 2002)

 

Maldives’ judiciary – an impediment to democracy consolidation

by Mushfique Mohamed

Graffiti on Male's eastern sea-wall  Photo: Aznym Graffiti on Male’s eastern sea-wall Photo: Aznym

In September 2003, 30-year dictator Maumoon Abdul Gayoom declared a state of emergency after the dictatorships guards killed an inmate named Evan Naseem in Maafushi jail. Security services on duty resorted to the use of firearms to defuse the revolt, killing three others and injuring 17. The riots that erupted forced Gayoom to initiate a reform agenda. The security forces and the judiciary came to the forefront of the discourse on democratic transition. The constitutional assembly, which proposed democratic restructuring of the system of governance and the report published by legal expert Professor Paul Robinson in 2004, highlighted these reforms needed for the criminal justice system. Professor Robinson concluded that “the reforms needed [for the Maldivian judiciary] are wide-ranging, and that without dramatic change the system and its public reputation are likely to deteriorate further.”

The Constitution ratified in August 2008, which paved way for the first democratic elections won by Mohamed Nasheed in October that year, consisted of a mechanism to re-appoint sitting judges during the interim period from August 2008 to 2010 and ensure judicial independence for the first time in Maldives’ history.

During the interim period, in accordance with sub-article (b) of Article 285 of the Constitution, the Judicial Service Commission (JSC) was mandated to ascertain whether all sitting judges possess mandatory characteristics and standards prescribed under Article 149. Aishath Velezinee, former JSC member appointed by Nasheed, who publicly spoke out about JSC’s failures, claims that judges appointed during Gayoom’s regime secured their positions on the bench through a “Failed Silent Coup” in 2010 which subverted the Constitutional processes to re-appoint judges. In January 2011, her criticism of the manipulation of the Constitution by judicial actors made her the victim of a knife attack.

The interim Supreme Court judges, who were also subject to Article 285, wrote to the Nasheed administration as early as June 2010, declaring that they would permanently remain on the bench. Velezinee recalled the appointments to the Supreme Court as a “grave blunder.” The JSC defied Article 285, declaring it “symbolic” and swore-in all sitting judges, securing their tenure for life. A report published by the International Commission of Jurists in February 2011, also raises concerns about “the politicization of the judicial vetting process.”

Coup to undo democratic gains

The first democratically elected government of Nasheed was forcefully brought to an end on 7 February 2012 by a televised coup d’état, led by loyalists of dictator Gayoom’s regime, and facilitated by Nasheed’s deputy Mohamed Waheed. The international community was quick to recognise the post-coup government headed by Waheed. A Commission of National Inquiry [CoNI] backed by the Commonwealth declared the chaotic transfer of power “lawful”.

The CoNI report publicized at the end of August 2012 was heavily criticised by MDP, and with good reason, claiming that the inquiry selectively ignored evidence that did not fit its contrived conclusion. International legal experts also echoed MDP’s concerns with regard to the Report. MDP, however, accepted the report with reservations as it acknowledged police brutality on 6, 7, and 8 February 2012. To date its recommendations regarding police brutality have not been implemented, resulting in impunity for Special Operations officers who were involved in the violent crackdown in early February 2012.

During the onset of the political turmoil, MDP maintained that elections should be held that same year, without letting the post-coup regime “entrench itself.” International community supported calls for an early election in 2012, although Waheed’s administration stated that “earliest an election could be held under the Maldivian constitution was July 2013.” In July 2012, MDP’s presidential candidate Nasheed was prosecuted for the arrest of chief judge of the Criminal Court, whom the Judicial Service Commission (JSC) failed to take any action against despite his prior criminal record and misconduct in 2011.

Nasheed also faced proceedings against him at the Civil Court over allegations of defamation made against him by dictator-loyalists Minister of Defence Mohamed Nazim and Commissioner of Police Abdulla Riyaz who led Nasheeds ouster. Over 20 MDP parliamentarians and some 800 active members and supporters were also subjected to various politically motivated criminal proceedings against them. In hindsight, the period leading up to elections was used by the post-coup regime to create shock and awe among the electorate, characterised by manufactured incidents and political persecution of MDP supporters in order to dissuade them from taking part in political activity and deflect attention away from the disputed legitimacy of the regime.

The juridical system continues to act as the means by which the regime achieves these ends under a democratic façade. Without a constitutional mandate to regulate lawyers, the Supreme Court issued a resolution for all practicing lawyers and prosecutors in April 2012. The resolution restricted lawyers’ freedom of expression, ordering that lawyers shall not discuss or criticise judicial proceedings or judges. Lawyers were pressured to sign the resolution since the courts refused right of audience to those who didn’t. Ahmed Abdul Afeef who was part of Nasheed’s legal team was not able to represent him in court since he had protested the resolution and remained without signing it.

The muzzling of lawyers didn’t end there; Abdullah Haseen who represents a huge number of pro-democracy protestors was suspended for appearing on a TV show on Raajje TV disseminating information of the law.  Although there is no legislation that prohibits sketching inside the courthouse, a lawyer named Shafaz Wajeeh was fined by the Supreme Court for his sketch. Lawyer and MDP parliamentarian Imthiyaz Fahmy is currently being prosecuted for contempt of court due to remarks he has made against the judiciary, although his comments are in line with international bodies such as the United Nations Human Rights Committee.

Nasheed’s prosecution further revealed the state of Maldives’ judiciary to the international community. Trial observer Blinne Ní Ghrálaigh from Bar Human Rights Committee of England and Wales noted in her report that the panel of judges in the Hulhumale Magistrates’ Court was “cherry-picked for their likelihood to convict by a highly politicised JSC.” The 2012 report by United Nations Special Rapporteur on Independence of Judges and Lawyers  Gabriela Knaul detailed the crisis Maldives’ criminal justice system is faced with. The report expressed concerns over the “politicised and inadequate” JSC, noting that “the concept of independence of the judiciary has been misconstrued and misinterpreted in the Maldives, including amongst judicial actors” to benefit judges, enabling a culture of unaccountability. The UN Special Rapporteur also questioned legitimacy of the Hulhumale Magistrates’ Court since it contravened the Judicature Act 2010 and was declared invalid by a parliamentary oversight committee in November 2012.

The selective manner in which the JSC has taken disciplinary measures against judges suggests that the judicial watchdog refrains from taking action where it suits its political needs to shield loyalists of the former regime. In 2009, then Chief Judge of the High Court was removed from his position, and the JSC suspended a Civil Court judge for sexual misconduct. In 2013, a Criminal Court judge was suspended for sexually harassing a public prosecutor and Chief Judge of the High Court who was hearing Nasheeds appeals was also suspended.

However, it has not occurred to the JSC to take any form of action against Justice Ali Hameed of the Supreme Court whose scandalous escapade in Colombo with three prostitutes have become public knowledge with leaked video footage of him doing the deed. The Bar Association of Maldives called for the immediate suspension of Justice Hameed in July 2013. JSC’s inconsistency in penalizing has left Justice Hameed unscathed so he can sit in the Supreme Court hearing the motions filed by Qasim Ibrahim who has close family ties to Gayoom’s family. It is also worth remembering the motion filed by Gayoom’s half-brother Abdullah Yameen Abdul Gayoom at the Supreme Court.

Ballots to restore democracy

One of many gigantic posters of incumbent Mohamed Waheed put up across Male' ahead of 7 September polls. Waheed got 5%. Photo: Aznym One of many gigantic posters of incumbent Mohamed Waheed put up across Male’ ahead of 7 September polls. Waheed got 5%. Photo: Aznym

February this year, the Elections Commission of the Maldives (EC) announced the presidential election to be held on 7 September 2013. On 28 July 2013 the EC officially announced the order of the candidates on the ballot paper, after approving the candidacy of all four candidates; Qasim Ibrahim with his Jumhooree Party (JP) and Islamist party Adhaalath (AP) coalition; Dr Waheed, independent, incumbent president, endorsed then, by Dhivehi Rayyithunge Party (DRP); Abdulla Yameen Abdul Gayoom from the Progressive Party of Maldives (PPM) in a coalition with Maldivian Development Alliance (MDA); and Nasheed from Maldivian Democratic Party (MDP).

Foreign and local observers such as the Commonwealth, the European Union, Transparency Maldives, Human Rights Commission of the Maldives declared that the first round of polls were “peaceful and inclusive” with a markedly high voter turnout of 88%. Transparency Maldives, which observed the election across the country, stated “none of the incidents reported on Election Day would have a “material impact on the outcome of the election”. The chair of the Commonwealth observer group, former Prime Minister of Malta Dr. Lawrence Gonzi stated, “the vote count at the polling station was highly transparent with media monitors, party observers, and national and international observers able to scrutinize the process closely.”

In accordance with sub-article (a) of Article 111 of the Constitution and sub-article (a) of Article 19 of the Presidential Elections Act 2008, the EC began preparations for the presidential election’s runoff as none of the four candidates secured 50% of the votes; Nasheed had 45%, Waheed an embarrassing 5% and Qasim who had 24% came closely behind Abdul-Gayoom who secured 25%. The third place JP coalition refused to accept the first round of elections, and filed a motion at the Supreme Court requesting annulment of first round of polls. The JP also filed a motion at the High Court, requesting the Court to release the voters’ list.

JP produced three documents as evidence for their motion at the High Court, which indicated three lists of alleged discrepancies in the voters’ registry. Out of the first list that JP claimed consisted of deceased people who appeared on the registry, only seven were found on the original voters’ registry, and five were found to be alive. The other list consisted of allegedly repeated names of eligible voters. The EC’s legal counsel later proved in court that these were not repeated names but in reality different people with different national identification numbers and dates of birth. The third list consisted of people who were on Male Municipality’s Special Register who have mailing addresses registered in the capital. The High Court decided that there was no evidence of fraudulent activity with regard to the motion. However, it allowed supervised viewing of the electoral registry.

Supreme tyranny of the electoral process

Protests near the Supreme Court in Male' as it deliberated JP's case to annul 7 September election Photo: Aznym Protests near the Supreme Court in Male’ as it deliberated JP’s case to annul 7 September election Photo: Aznym

Article 172 of the Constitution indicates that the High Court has the initial appellate jurisdiction for electoral motions, while Article 113 states the Supreme Court shall have final jurisdiction over such motions. Regardless, JP filed their motion directly at the apex court. MDP, the Attorney General (AG) and PPM made inter-partes claims to the motion, with PPM supporting JP’s claim and with the AG calling for the Court to order the Prosecutor General and Maldives Police Service (MPS) to investigate the alleged “irregularities” in the electoral registry.

The request by the AG is contrary to electoral laws and the Maldives Constitution, which clearly outlines the forum and mechanism to investigate and adjudicate on disputed results of an election. Sub-article (b) of Article 64 of the Elections Act 2008 states that if electoral laws have been violated, only the EC has the legal authority to initiate criminal proceedings through the Prosecutor General at the High Court. Article 62 stipulates that the electoral complaints mechanism shall be established by the EC. If a party is not satisfied with the recourse given by the complaints bureau, he or she may file a case at the High Court in accordance with sub-article (a) of Article 64.

The EC’s lawyer, former AG Husnu Al Suood noted an astounding lack of evidence to back JP’s claims. Suood also claimed that any delay could result in a constitutional void, citing US Supreme Court case Bush v. Al Gore 2000. MDP’s lawyers Hisaan Hussein and Hassan Latheef expressed concern at the lack of substantial evidence to claim electoral fraud, and stated that JP had not submitted complaints to the EC regarding the registry when the EC had publicly requested for complaints with regard to the publicized list of eligible voters.

JP’s lawyer and its presidential candidate Qasim’s running mate Hassan Saeed stated that the JP had thirteen reasons for annulment, reiterating claims made at the High Court. At the proceedings Saeed requested that; the security services oversee a fresh round of elections after nullifying the first round and for the Court to issue an injunction halting the EC’s work to hold the runoff dated 28 September 2013. The AG Azima Shakoor echoed JP’s criticism over the EC, but refrained from vocally supporting an annulment. The international best practice where either a public prosecutor or state attorney does not support actions of a state institution would be to refrain from commenting.

It is of importance to note such procedural irregularities that took place during the proceedings for this extraordinary motion. Despite the case being deemed a constitutional matter by the Supreme Court, and anonymous witnesses whose identities are protected by courts are only very rarely admitted in serious criminal cases, the apex court acted as a court of first-instance, admitting 14 witnesses submitted by JP who gave their testimonies in secrecy. Out of the three witnesses submitted by the EC, only one was admitted.

The AG also withheld certain evidence and this was left unquestioned by the Court. The AG’s office requested to submit a police intelligence report as “confidential” evidence – solely submitted as evidence to the Court’s Bench. The Chief Justice responded on behalf of the Bench, inquiring whether the intelligence report (or at least parts relevant) should be disclosed to the EC since their lawyers requested it. In her response to the Chief Justice, the AG stated that she will not submit the police intelligence report if the contents of the report would be disclosed to the EC.

“Where is my vote?”

Protesters near Supreme Court hold up cartoons making fun of disgraced Justice Ali Hameed Photo: Aznym Protesters near Supreme Court hold up cartoons making fun of disgraced Justice Ali Hameed Photo: Aznym

At approximately 8:00 pm on 23 September 2013, four justices from the apex court signed and issued a stay order indefinitely postponing the runoff election until the court reaches a verdict. After the issuance of the stay order, the Commonwealth, European Union, Transparency Maldives, Human Rights Commission of Maldives, the United Kingdom, United States of America, Canada, Russia, and India all expressed concern over the postponement of the second round, calling Maldivian authorities to hold the second round according to the timescales stipulated under the Maldivian constitution.

At the proceedings the next day, the Supreme Court ejected and suspended lawyers Suood representing the EC, Hussein and Latheef representing MDP as a third party to the case, claiming that they were in contempt of court for their comments on social media regarding the Court’s stay order. Subsequently the MDP revoked its inter-partes claim to the case, claiming that the Court cannot guarantee the rights of over 95,000 of its supporters.

MDP’s chairperson Moosa Manik sent an open letter to the Chief Justice, criticizing the apex court’s contravention of the Constitution by denying fundamental right of reply and issuing a stay order indefinitely suspending sub-article (a) of Article 111 of the Constitution. The chairperson also called on the Chief Justice to restrain the Court to the “legal ambit of the Constitution” and “uphold Article 8 of the Constitution, which states that all powers of the State shall be exercised in accordance with the Constitution.”

After weeks of countrywide protests against indefinite postponement of the runoff election, the four Justices; Abdullah Saeed, Ali Hameed, Adam Mohamed Abdullah and Ahmed Abdullah Didi who infamously legitimized the Hulhumale Magistrates’ Court last year, also issued the stay order halting elections, and on 7 October 2013 decided to annul the first round of elections held on 7 September 2013. Chief Justice Ahmed Faiz and Justices Abdullah Areef and Ahmed Muthasim Adnan gave dissenting judgments, which claimed that the Court has adjudicated based on “inadmissible evidence” which the EC, the respondent in the motion, was not privy to, and questioned the Court’s jurisdiction in accepting the motion prior to the High Court.

The confrontations the judiciary continue to have with the legislature and executive from 2008 to present day is proof that elements within the Maldives’ judiciary is adamant on holding onto the power structures that existed during the former dictator Gayoom’s regime. The dregs of dictatorship continue to impede realisation of democratic governance in Maldives as envisioned in the Constitution.

The final chance to consolidate democracy through universal suffrage is at risk due to justices in the Supreme Court who have assumed supreme powers unto themselves, in order to benefit those politicians who unequivocally support their tenure, and are against overhauling or reforming the judiciary.

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About the author: Mushfique Mohamed, a former Public Prosecutor, is a member of MDP’s Electoral Complaints Committee. He has an LLB & a MScEcon in Postcolonial Politics from Aberystwyth University.