Originally Published 2013-10-25 06:59:06 Published on Oct 25, 2013
After the cancellation or non-conduct of the court-ordered first-round re-poll on 19 October in Maldives, outgoing President Mohammed Waheed Hassan Manik and the Supreme Court seem to have expanded the scope and meaning of 'inclusive poll' in the even more contemporary context.
Maldives: Now, 'inclusive polls' does not stop with Nasheed
"In the long run-up to the annulled polls to the Maldivian presidency, the world wanted free, fair and 'inclusive polls'. Based on popular perceptions, the international community at the time implied that former President Mohammed Nasheed should not be disqualified, based on any conviction and sentence handed down to him in the 'Judge Abdulla abduction case', relating to his term in office.

The judiciary, that was perceived to be fast-tracking the trial at one point, seemingly slowed down the process. Nasheed's commitment that he would stand trial after the presidential polls may have been a mitigating factor in the eyes of the court. The high 45.45 percent vote-share in the court-annulled first-round for Nasheed showed that the world's perceptions were not entirely misplaced.

It was not about an individual or about the fate and future of the Maldivian Democratic Party (MDP) that he represented in the poll. With the MDP resolving early on that they would not field another candidate, should Nasheed be disqualified, such a course would have meant that the party with the highest number of registered numbers would have stayed out of the democratic process.

The votes that Nasheed polled in the annulled round was double the registered membership of the MDP. In an election with a high 88.48 percent voter-turnout, any boycott of the poll by those who voted Nasheed later -- had it come to that -- would have rendered the democratic process farcical, if not wholly whimsical. The international intervention favouring an 'inclusive poll' at the time may have thus served the larger cause of Maldivian democracy than seeking to sub-serve the political interests of a party or the personal ambitions of an individual.

Inspiring interpretations

Now, after the cancellation or non-conduct of the court-ordered first-round re-poll on 19 October, outgoing President Mohammed Waheed Hassan Manik on the one hand and the Supreme Court on the other seem to have expanded the scope and meaning of 'inclusive poll' in the even more contemporary context. The inspiring interpretations seek to protect the sanctity of democratic process, yes. Even more, they throw up possibilities, whose unimaginable consequences should not be allowed to marooned Maldivian democracy in legalities and technicalities.

A candidate in the annulled election who has since withdrawn from the re-poll, Waheed has said or implied that the latter should involve the willing participation of Abdulla Yameen of the Progressive Party of Maldives (PPM) and Gasim Ibrahim of the Jumhooree Party (JP). The court has reiterated its Majority verdict in the annulled first round that every election has to include every eligible voter - not otherwise.

At a news conference two days after the Election Commission had announced the cancellation of the re-poll, President Waheed said that the three candidates contesting to lead the country should carry out their responsibilities, in order to solve the current problems. He recalled how the "international community was pressuring me for the past one and half years, claiming that Nasheed should be allowed to contest in the election". As he recalled, "several groups have tried to take action" against Nasheed.

In this context, President Waheed declared: "I am happy that Nasheed can stand in the election today. Similarly, Nasheed should be happy other candidates can stand as well." According to him, "Nasheed cannot participate in an election in which other candidates can't. "If he (Nasheed) does, we should question his moral principles." President Waheed said that the election in the Maldives should be fair, and organised as agreed by all candidates.

For its part, the Supreme Court reiterated the earlier majority verdict annulling the 7 September polls, and referred to the court's 16-point guideline for re-poll. Citing the Constitution, the new order said that it was the duty of the Elections Commission and other relevant institutions to ensure that the election allows all eligible voters to exercise their right to vote freely and without obstructions.

The order, signed by Chief Justice Ahmed Faiz Hussain, said that the failure to hold the re-poll as scheduled (19 October for the first round, and 4 November for the second round, if required) did not allow the election to be held in violation of the court's guidelines. The clarification may have become necessary after loose interpretations purportedly began doing the rounds that the guidelines related only to the re-poll as originally scheduled and not otherwise. If anything, the majority verdict could hold good for all future polls for all elected positions across the country, unless otherwise Parliament revisits the current position. Incidentally, Chief Justice Hussain was among the three Judges on the seven-Judge Bench that gave a dissenting verdict on poll annulment.

Post-9/11, what?

Taking off from where he had left in an interview to an Indian newspaper, The Hindu, on the eve of the cancelled poll, President Waheed has begun speaking more frequently and loudly about the constitutional status after 11 November, when his term comes to an end. With the Election Commission now having set first-round re-poll on 9 November, followed by a re-poll on 16 November, if none of the three candidates in the fray did not cross the mandatory 50-percent mark, the question of what after 11 November becomes increasingly relevant.

There is no bar on a new President assuming office on 11 November, if the first-round results throw up a clear victor. "I don't think we will need to hold a second round," President Waheed said at the news conference. "I think, someone will win through the first round alone," he said. However, indications are that the official results of the first-round polls may not be available before 12 November. In constitutional matters such as this one, even a day can make the difference.

President Waheed reiterated that he would not wish to stay on in office after 11 November. "I must prioritise the nation's interests over my own," local media quoted him as saying. He did not clarify what he meant by such a sweeping statement. He, however, clarified that he did not know how he should proceed if a second round was required.

'Simple majority' not enough

Not stopping with such declarations, pious or otherwise, President Waheed has since written to Parliament Speaker Abdulla Shahid on the matter, for the Legislature, in its wisdom, to consider options and possibilities post-11 November. In between, an MDP member of the People's Majlis, or Parliament, has tabled a resolution, setting out an order of precedence, starting with the Speaker, to stand in for the President after the expiry of Waheed's current term on 11 November.

Debating the new Bill, Mohammed 'Kutty' Nasheed, an independent member, pointed out that the existing constitutional provision for the Speaker to stand in and conduct fresh polls applied only to situations in which an incumbent President and his Cabinet, including the Vice-President, resigned en masse. It would not apply to a situation in which the full term of the incumbent had lapsed. Hence, the original provision would not apply to the same, he argued.

Interestingly, the Bill stands in the name of Hamid Abdul Ghafoor, the MDP parliamentarian, against whom the police has issued a 'search notice', as directed by a criminal court for not appearing before it in case relating to his refusal to give his urine for testing after being arrested on the charge of consuming alcohol in the Islamic country. A party colleague of Ghafoor has since moved a Bill in Parliament for reducing sentencing for such refusals from one year to 15 days, house arrest or fine, down from a one-year jail-term that would have entailed his disqualification. Such a course during the long and repeated run-up to the presidential polls may have some consequence, after all!

With an absolute majority in the 77-member House on its side after the Dhivehi Raayathunge Party (DRP) crossed over to its side, the MDP could ensure a 'simple majority' for any Bill of the kind. This applies also to the MDP Bill on the Speaker taking over from the President after 11/11. However, this is much different from a two-thirds majority that the party may need to pass a constitutional amendment, which alone could have validity under the circumstances. Since the cancelled polls of 19 October, the two rival coalitions, headed by the PPM and the JP, with their own presidential candidates in the fray, have begun working together otherwise - both, within and outside Parliament. They have addressed at least one news conference together on the presidential poll. Their MPs voted together for the PPM nominee in the election of Parliament's representative on the all-important Judicial Services Commission (JSC). As was to be expected, the MDP won the JSC poll.

Independent of Parliament passing the MDP Bill on the Speaker taking over as President post-11/11, it remains to be seen if incumbent Waheed would readily give his assent to such a piece of legislation. The legality of the matter could get even more complicated should it lead to a situation in which President Waheed 'returns' such a Bill to Parliament, and the latter votes it again. The Constitution, as in many other democracies, confers automatic presidential assent (after 14 days in Maldives' case), if the President had not given his assent to the Bill. Yet, that would not address the question if a 'simple majority' would be enough.

Caught in constitutional complications, this President and Nasheed, as his predecessor, had sought the views of the Attorney-General, or the Supreme Court, or both, before proceeding in the matter. It can be a time-consuming matter, and time is at a premium just now. Worse still, Parliament is set to take up on Monday, an MDP-sponsored no-confidence motion against Azima Sukhoor, and the party has a majority. Another AG in her place too would have to go through confirmation proceedings before Parliament, where the MDP has to play ball.

For its part, the Supreme Court, if approached by the President or otherwise, can take a view of its own, including on matters of 'simple majority' and 'two-thirds majority' for any Bill of the kind moved by the MDP. Already, the Majority verdict had suo moto clarified that there would not be any constitutionhal vacuum after 11 November, if a new President had not been elected by then. Accordingly, the incumbent, President Waheed in this case, would (have to) continue until the poll process is completed (to everyone's satisfaction).

It would remain to be seen if the court would want to review its current position on the issue of 'days after 11 November', if approached on the basis of any parliamentary initiative to address the emerging impasse, or independent of this. The President, if he were to write to the Supreme Court, seeking its advice/initiative in the matter as he has done in the case of Parliament, may be entitled or possibly duty-bound to address the larger issues and national concerns in this regard.

The (simpler) alternative, if President Waheed's decision were not to stick on to office even for a day after the D-day, would be for he and his Cabinet, including Vice-President Waheed Deen, would have to quit ahead of the 11 November deadline, so as to facilitate the elevation of Speaker Shahid. The Constitution provides only for the Vice-President to complete the remaining part of an incumbent's term, if the high office fell vacant.

Before calling for the Supreme Court and the Majlis to think over the post-11/11 situation, President Waheed had told The Hindu newspaper that he would quit for power to be transferred to the Speaker if no election results were available by then. The PPM and the JP promptly declared that President Waheed should continue should such an impasse arise. MDP's Nasheed told a public rally later that President Waheed and the Supreme Court, among others, were under the control of his own predecessor and PPM founder, Maumoon Abdul Gayoom. Needless to say, the PPM has stoutly denied the same.

It may also be recalled that President Waheed himself had got elevated when he was Vice-President, following the controversial resignation of President Nasheed. Here again, the rule may not apply to Vice-President Deen if he did not resign, should President Waheed and his Cabinet quit en masse. A vice-president's term is co-terminus with that of his president, and his elevation does not change the situation. Else, President Waheed should have a longer term than the one-and-half years he has had at the highest office. That was also not the intention of the Founding Fathers, nor of the Constitution.

(The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter)

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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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