Observing the Supreme Court in action

10 Oct 2013, 11:54

Mohamed Naahee

The first round of the Maldives presidential elections – the second multi-party presidential elections held in the country since 2008 – came to a bitter end after the Supreme Court annulled the poll deeming it invalid, void from the outset and, as per the exact wordings of Justice Ahmed Abdulla Didi, “undermining the principle of Universal Suffrage”.

This article is based on direct observations of the proceedings of the Supreme Court case filed by the Jumhooree Party (JP) against the Elections Commission (EC), in which the presidential election was annulled.

After succumbing to a disappointing third place finish at the poll despite a heavily financed presidential campaign, JP Leader Gasim Ibrahim and his party sought to annul the poll, citing “massive” electoral fraud amounting to a “systematic failure”, that would have otherwise put him at the forefront of the race to become the sixth president of the country.

Among the list of allegations upon which the party founded its case were the presence of deceased and underaged voters, and repeated or erroneous entries. This, they argued, paved way for their opponents, primarily the Maldivian Democratic Party (MDP) to cast ineligible votes that impacted the “true outcome” of the poll.

To add weight to their claims, the party produced lists of entries in the voter registry which it claimed to be invalid – the source of which remains subject to doubt, with the party’s claims to have obtained the information through its private investigations, party call-centres, and hearsay statements from anonymous witnesses.

Following the submission of the evidence and inspection of the original voting list used by Elections Commission (EC) officials, the Supreme Court tasked a ‘Technical Team’ of police officers to compare the voter list against the allegations by the JP.

The Supreme Court, using the findings of the police’s ‘technical team of experts’ – who claimed the existence of some 5,623 instances of electoral fraud – annulled the elections in a four to three decision, contending that instances of electoral fraud highlighted by the police sufficed to prove a loss of legitimacy in the election.

The majority ruling was formed by Supreme Court Justices Adam Mohamed, Dr Ahmed Abdulla Didi, Ali Hameed and Abdulla Saeed. Meanwhile, the Chief Justice Ahmed Faiz Hussain, Justices Abdulla Areef and Muthasim Adnan had dissenting views in which they argued that there lacked sufficient grounds to annul the poll.

Controversy surrounding Justices

It is first worth highlighting the controversies that surround the four Justices who formed the majority ruling.

Justice Ali Hameed – who was formerly a High Court Judge prior to his appointment to the Supreme Court – is currently under both police and Judicial Service Commission (JSC) investigation for the sex scandal in which leaked CCTV footage allegedly taken during a stay in Sri Lanka depicted him fornicating with multiple European and Sri Lankan prostitutes. The videos went viral in both local media and on social networks, subjecting the judge to heavy public criticism. Meanwhile. a corruption case against Justice Hameed was forwarded to the prosecutor general on July 2013 for abuse of state funds.

Justice Dr Ahmed Abdulla Didi was formerly a member of the Dhivehi Qaumee Party (DQP) – whose leader Dr Hassan Saeed represented the Jumhoree Party (JP) in the case. Didi contested the 2009 parliamentary elections as a DQP candidate. Moreover, Justice Didi’s eligibility had been contested after it had been argued that he did not satisfy the requirements as prescribed by the law to sit in the Supreme Court, as he lacked the required seven years experience practicing law.

Justice Adam Mohamed – who is also the Chair of the judicial watchdog the Judicial Service Commission (JSC) – stands accused by fellow commission member Shuaib Abdul Rahman of dictatorial conduct in the commission including an instance where he, as the chair of the JSC, outright refused to table a no-confidence motion levied against himself. He has also been subjected to criticism for the JSC’s delay in looking into Justice Ali Hameed’s sex-tape scandal and the controversial suspension of the Chief Judge of High Court over one year ago.

Justice Abdulla Saeed – who was the interim Chief Justice prior to mid 2010 – stands accused of making politicised statements, contrary to the law. Recently, opposition-aligned Raajje TV – which was destroyed in an arson attack this week – aired an alleged audio clip in which Justice Saeed described the opposition MDP candidate Mohamed Nasheed and his supporters as suffering from “yellow fever”, and that “by no means should Nasheed be allowed to become president”.

It worth noting that these four justices have joined hands to form the majority ruling in several controversial Supreme Court cases, most notably the overriding of a parliamentary removal in the sexual harassment case of former Chair of Civil Service Commission (CSC) Mohamed Fahmy Hassan and the legitimizing of the controversially formed Hulhumale Magistrate Court – which is currently hearing the criminal trial of Nasheed.

Eviction of the Elections Commission’s lawyer

Back to the election annulment case. One of the most telling observations during the hearings was the attitude shown by these four justices – most notably Justice Dr Ahmed Abdulla Didi and Justice Abdulla Saeed – towards the attorney representing the EC, Hussain Siraj, during the hearing in which concluding statements from the parties were heard.

Siraj was forced to appear as the senior counsel for the EC after the former Attorney General and President of the Maldives Bar Association, Husnu Al Suood, was ejected from the case for publicly challenging the constitutional legitimacy of the Supreme Court’s mid-trial order to suspend efforts by the EC to hold the run-off election.

Subsequently, the attorneys representing the opposition MDP – who had intervened into the case – were ejected on similar grounds, prompting the party to withdraw from the case altogether claiming that “justice had been denied”.

During the hearing in question, Siraj attempted argue that the injunction issued by the Supreme Court would contradict the constitutional provision prescribed under Article 111(a), which explicitly states that a run-off election must be held within 21 days of the first election should no presidential candidate obtain more than fifty percent of the vote.

The Supreme Court Justices Abdulla Saeed and Ahmed Abdulla Didi responded harshly, while Justice Abdulla Saeed questioned the capacity of Siraj to comprehend what the Supreme Court was doing with regard to judicial review.

Meanwhile, Justice Ahmed Abdulla Didi stated that no one could speak on the legality of a decision made by the Supreme Court and that such an action could amount to contempt of court.

It was also observed that the Justices repeatedly disallowed Siraj from contesting the constitutionality of JP’s requests, while no such restrictions were placed on the JP’s legal counsel Dr Hassan Saeed when he made similar claims.

EC not given opportunity to respond to police report

As mentioned before, one of the fundamental documents upon which the Supreme Court’s judgement was based upon was the report produced by the technical team from the Maldives Police Service, who had cross-referenced the JP’s allegations against the voter list used by Elections Commission officials.

The existence of such a report by police was not formally announced until the justices starting using it as a reference point – despite it playing a pivotal role in forming the majority ruling of the Supreme Court.

As a result, the Elections Commission’s legal counsel was never given the opportunity to challenge or examine the findings of the police report, let alone produce a counter argument.

This was even mentioned in the dissenting view of Justice Muthasim Adnan. He stated:

“…Among the evidences produced [by the parties] included evidence that I do not consider as evidence, and a confidential report to which the parties to the case were not given the opportunity to respond to.”

However in precedents set forth by the Supreme Court, and given that it stands as the final authority to decide on all legal matters, there lies no way as to contest the court’s decisions.

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