Originally Published 2013-10-21 06:52:32 Published on Oct 21, 2013
In Maldives, 'bogus voters' and 'fraudulent votes' were among the major issues on which the Supreme Court had adjudicated. However, the prescribed cure has proved to be as problematic as the perceived ailment.
Maldives: Poll-ball should go back to the court for one last time
" The judges of the Maldivian Supreme Court may not have divined that their 'Majority verdict' in the 'Presidential poll case' could contribute to avoidable delays, which definitely was not their intention. Yet, the court's 16-point guidelines for re-polls, issued while annulling the 7 September first-round, as scheduled and conducted by the Election Commission (EC), may have caused avoidable interpretations, hence delays, too.

'Bogus voters' and 'fraudulent votes' were among the major issues on which the court had adjudicated. However, the prescribed cure has proved to be as problematic as the perceived ailment. The court's guideline for the contesting candidates to attest a fresh voters' list prepared by the EC, based on other guidelines contained in the Majority judgment, has led to an 'unfinished task' of a kind.

Two of the three candidates in the fray, namely, Abdulla Yameen of the Progressive Party of Maldives (PPM) and Gasim Ibrahim of the Jumhooree Party (JP), declined to sign the voters' list, saying that they needed more time than the 24 hours available to them, for verification. The third candidate, Mohammed Nasheed of the Maldivian Democratic Party (MDP), the front-runner in the annulled first-round with a high 45.45 percent vote-share, readily signed the list, just a day ahead of the first-round re-poll, scheduled for 29 October as per the Majority verdict.

With the re-poll not taking place on the appointed day, EC President Fuwad Thowfeek blamed it on the Maldivian Police Service (MPS), saying that the latter had blocked the way outside the poll panel building, not allowing his officials from moving the ballot papers and other election material to their respective destinations, with only hours left for the scheduled commencement of the re-poll. Already, the EC had been delayed in its work by the voter re-registration, as mandated by the nation's Constitution and as outlined again by the Majority verdict of 7 October. To make up for the lost time in moving poll material to distant islands and atolls, the EC had arranged charter aircraft as stand-by after the MPS said that the delays had rendered it impossible for them to honour the Apex Court guidelines for police security for such transfers.

Interlocutory orders or what?

Between the annulment judgment and the re-poll scheduled for 29 October, the Supreme Court had passed a series of what could be termed interlocutory or clarification orders, deriving from the majority verdict. The court thus ordered the EC to re-open re-registration after the EC had kept the process open only for 24 hours, if only to carry out the court guideline in the matter and yet have enough time for tying up the loose ends. As a further clarification, the court ruled that candidates from the annulled polls had the freedom to withdraw from the re-poll after the EC had denied the facility, as the Majority verdict was otherwise silent on the subject.

Only hours before the cancellation of the re-poll, the court had reportedly directed the EC, the PPM and the JP to refer to the earlier guidelines relating to new voters' list and candidates' attestation. Going by media reports, it would transpire that the court did not choose to clarify the matter. This can prove to be a contentious issue-cum-precedent, as at every turn in every election in future, one candidate or the other could decline to attest the voters' list, citing reasons that need not be genuine (as may appear now). This in turn could also cause the arrival of non-serious candidates, who could then hold the poll process, Maldivian democracy and even more serious candidates in the fray to ransom.

In a nation with over 240,000 votes (which is very low by any standards, given the comparisons in geography and demography of other South Asian nations), physical verification of the voters' list, that too against the information available to them, would be next to impossible for any candidate to undertake to his entire satisfaction within any time-frame. This time round, deriving from the majority verdict, which had employed the process, the PPM and the JP demanded forensic verification after re-registration. Equipped with technology and equipment, the police said that it would take close to eight months for completing the process even with the available figures. The JP and the PPM, proposed to settle for a random forensic verification of 10 percent of the 71,000 re-registered voters, up from 62,000 for the annulled polls. This itself is an impossible under the Maldivian circumstances, and only a court order could help.

With the re-poll not taking place, the EC has clarified that it would require three weeks for conducting another round of polls. With the constitutionally-mandated transfer-of-power to an elected President due by 11 November, that would leave the EC with next-to-nil time for conducting two rounds of polling, if the revised first-round vote were to produce a straight victor with 50-percent vote-share. As was evident during the run-up to the annulled poll and the adjourned poll, re-registration takes its time.

Under the Constitution, every citizen turning 18 on the day of polling would have to be registered as a voter, thus explaining the delays that the EC says it would (have to) encounter. In ordering re-poll on or before 20 October, through its 7 October verdict, the SC had shortened the time now being sought by the EC for registration of new voters, to around 10 days. While meeting with registration requirements for new voters, the EC could consider seeking the apex court's orders for not having to re-open the re-registration process all over again, but only for the purpose of imminent revisions, if any, thus reducing the paper-work and verification processes (both by the EC officials, and possibly by the candidates, too) as much.

Pending court orders, the EC could also encourage the PPM and the JP, the latter the original petitioner in the 'annulment case', to verify the available re-registration forms, at random (and possibly without forensic verification), if each one of them were to meet the 11 November deadline, which they all need to remember is a constitutional mandate. Fair enough, the majority verdict has suo motu declared that there would not be a constitutional vacuum if a new President is not elected by 11 November, and the incumbent would continue in office. However, the situation may have changed since, with political concerns and consequences of their own.

The EC declaration that the police had stalled the 29 re-poll has led to demands for a probe, and appropriate action against those found guilty. Chennai-based Indian newspaper 'The Hindu' reported that the police action itself was based on a decision of the National Security Council (NSC), chaired by President Waheed. Appearing before a parliamentary committee dominated by Nasheed's MDP since, Police chief Abdulla Riaz denied the charge, thus possibly pressing the need for a probe even more.

Prior to the annulment, and pending the court-ordered countermanding of the original second-round scheduled on 29 September, the Bench had directed the nation's security forces to ensure that the EC did not end up doing precisely that. As may be recalled, the EC had held on to the ground on re-poll almost until the end, and was dissuaded from going ahead only after the MPS declared that it would not be able to carry out an unconstitutional order that amounted to contempt of court.

In between, the EC also charged the police with interfering with re-registration work for the re-poll. It's thus that the Majority verdict that aimed at facilitating greater cooperation and understanding between the EC and the Police than already, seems to have come unstuck. Under the circumstances, it may be necessary for the EC to revert to the judiciary and seek clarifications on the kind of role that the Apex Court envisaged for the police in the conduct of a re-poll, whenever held.

In the light of the experience of the past weeks, the EC may also (have to) consider the wisdom of approaching the Supreme Court, for a direction that no complaints could be entertained by either on the prolonged poll process until the results are known and a new President elected to office - and, possibly sworn in, too. It does not necessarily has to flow that election petitions may not lie against an incumbent President, by virtue of the constitutional immunity that he may enjoy, as is the case in other democracies. Yet, other democracies, including the world's largest and Maldives' closest, namely India, have had precedents where an elected President, the late V V Giri, had faced an election petition after being sworn in (1969).

In the context of the continuing crisis, post-democracy institutions in the country, including the Supreme Court and the Election Commission, may have to revisit their own positions under the Constitution, and redefine their interdependent relations. The Constitution in the country has created such institutions as its creatures only to sub-serve the larger mandate and purpose outlined in and by the letter and spirit of the Constitution, and not otherwise. The court and the EC in particular may thus desire to revisit their own equations and positions on the annulment petitions, before, throughout and after the highest judiciary of the land had produced the unassailable 4-3 verdict.

The nation's Legislature, either now or after fresh polls to Parliament, due in May next, too may wish to revisit its own equations with other constitutional institutions. More importantly, the People's Majlis, as Parliament is known, may also want to reconsider the relevance of certain provisions and institutions to ground situations, in the light of the first five years' of experience with the working of Maldivian democracy, as the nation and the nationals had desired at birth, but may not have bargained for so much of it, after all.

Waheed's 'threat' to quit

As if to make the contesting candidates and their political parties responsive to the constitutional requirements and the larger demands of democracy, President Waheed has since indicated the possibility of his quitting office along with his entire Cabinet in time for the 11 November deadline for power-transfer. Should Vice-President Deen Waheed too quit with President Waheed, then the Constitution provides for Parliament Speaker Abdulla Shahid to take over as care-taker President of sorts for two months, with the sole mandate of conducting the presidential elections.

If President Waheed's idea was to pressure the contesting candidates to see reason, and also the political rationale behind his 'threat', if it could be called so, it's not to be. MDP's Nasheed, for instance, has caught up on Waheed's threat, or offer, and has since called for President Waheed, Vice-President Deen Waheed and the police chief to quit. He may have a point, though only as much. Politically, however, such demands could only complicate matters than resolving the already mounting complications and complexities.

It is unlikely that the other two stake-holders would agree to a 'caretaker President' in Speaker Shahid conducting the polls, though they may have little choice under the Constitution, if it came to that. As may be recalled, Shahid, elected Speaker after becoming a parliamentarian on the ticket of the Dhivehi Rayyathunge Party (DRP), floated by Gayoom before he split away to launch the PPM, is now with Nasheed's MDP. His impartiality apart, there is little chance that Nasheed's rivals, if they have it in them, would want fresh polls under a Shahid-led dispensation. With a parliamentary majority in MDP's favour now, Shahid will also have a free run in Cabinet-formation, however lame-duck they all could turn out to be - again, if it all came to that.

With the re-poll not happening, India as Maldives immediate neighbour conferred with other concerned members of the international community over the weekend to try and find a way out of the current impasse. Foreign Secretary Sujatha Singh, who met with Maldivain stake-holders in the national capital of Male, only two days before the scheduled re-poll, conferred with Delhi-based envoys of P-5 members in the UN Security Council, and also with those of close and common neighbours like Sri Lanka and Bangladesh, among others.

At the end of the day, Maldives and Maldivians may be bothered about who becomes the next President. The world is concerned about larger or smaller issues attending on the election of the next President. More than who, for them, the why, when and how of it all matters the most - now and ever!

(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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