Dissenting Supreme Court justices challenge court’s jurisdiction to hear annulment case, evidence

Chief Justice Ahmed Faiz, Justice Abdulla Areef and Justice Muthasim Adnan in their verdict stated that the High Court has initial jurisdiction over election petitions as per Article 172 (a) of the Constitution.

They also challenged the credibility of statements provided by the Jumhoree Party (JP)’s 14 anonymised witnesses, and dismissed a secret police document submitted by the Attorney General Azima Shakoor as invalid evidence, since the Elections Commission (EC) was not provided a right of response to the document.

The Jumhoree Party asked the SC to annul the vote held on September 7, after its candidate Gasim Ibrahim narrowly placed third with 50,422 votes, behind Yameen Abdul Gayoom of the Progressive Party of the Maldives (PPM) who gained 53,099 votes. Maldivian Democartic Party’s Mohamed Nasheed gained 45.45 percent of the vote with 95,224 votes, while incumbent president Mohamed Waheed received just 5.13 percent.

The Supreme Court delayed the runoff scheduled for September 28 until it issued a verdict in the case, and on Monday four of the seven SC Justices invalidated the first round and ordered a revote by October 20.

The majority decision appears to have drawn on the secret police document, as they cite 5623 irregular votes, whereas Faiz and Areef note only 473 cases of irregular votes – 0.2 percent of total votes polled.

Faiz and Areef depended on a comparison between the EC’s list of those who voted and the Jumhooree Party’s seven lists alleged of dead, underage, and repeated voters, which was conducted by a police team consisting of forensic document examiners, computer forensic analysts and technical staff.

Faiz and Areef also stated that election laws do not allow for annulling the entire election in instances of fraud, but only in ballot boxes in the specific geographic area where fraud was found to have occurred.

The four judges making the majority decision contended that 5623 irregular votes were cast. According to the verdict, these included:

Of the 473 irregular votes noted by Faiz and Areef, 12 were votes cast by minors, 14 cast by dead people, and 207 cast by people without authentic ID cards. According to Faiz and Areef, there were cases of no repeated voting.

“We have not referred to the secret Maldives Police Service document submitted by the Attorney General’s Office as the defendant did not have a right of response,” the judges stated.

Neither did they consider valid the testimony of the 14 anonymised witnesses, “as they were unable to clarify their statements because such questions may have violated the anonymity of the witnesses.”

In his dissenting opinion, Adnan said he did not accept the evidence submitted in the case.

“I do not accept the evidence submitted in this case. A secret document that the defendant could not respond to was submitted. The complainant was not able to submit any credible evidence that allows for the election to be annulled,” he said.

Adnan also said the Elections Commission had followed all procedures laid out in the Constitution and the Elections Act in compiling, publishing and revising the voter registry.

The three dissenting judges noted that the Supreme Court does not have jurisdiction on initial election complaints, as Article 172 (a) of the Constitution states that a person “may challenge a decision of the Election 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.”

Although the majority bench cites Article 113 of the Constitution which states that the Supreme Court, sitting together in session, shall have sole and final jurisdiction 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, the three dissenting judges note the JP’s complaint was to do with the electoral registry and should have been submitted to the High Court.

Faiz and Areef also cited Article 65 (a) of the Elections Act, which states that a vote may be annulled only in a certain geographical area in instances of fraud.

“The Majlis has passed a statutory elections law (Act 11/2008) as per Article 172 (b) of the constitution which states the manner for dealing with any challenge shall be provided for in a statute on elections, and as Article 65 (a) of Act 11/2008 with reference to Article 64 states a vote in a specific area may be annulled and a revote ordered in that area if the court decides there is undue influence in an election in that specific area.

“Hence, official results of an election can only be annulled only in the specific area, specific ballot box or boxes, in which undue influence has occurred as per Article 65 of Act 11/2008 (Elections Act), there is no room to annul the votes of the 211,890 people who voted in the 2013 Presidential Election held on 7 September 2013,” they said.