Originally Published 2013-09-18 04:22:19 Published on Sep 18, 2013
It is anybody's guess why Maldives' Election Commission did not choose to move the Supreme Court, particularly when legal cases of the current nature has the potential to reset the poll-clock, for which there is no provision in the Constitution.
Maldives: Presidential poll poised for 'photo-finish'?
"The second round of the Maldivian presidential polls seems to be poised for a 'photo-finish' at every turn from now on. With the higher judiciary already engaged in deciding on the fate of the first round, questions remain about the possibility of the second round. It could also mean lesser time than intended for competing parties to re-work the alliance for the second round and campaigning, and the possibilities of politics interfering with the democratic process.

Given the complexities of the issues flagged, and complications attending on the administrative aspects of poll management thus, all of this in turn could cause confusion in the minds of political parties, electoral institutions and the people and the voters at large. Thus, 'photo-finish' at one turn, in terms of time-availability, could become the nudging force for the next stage to commence, yet all culminating hopefully in a presidential poll, where the victor could still be decided in a photo-finish of the traditional kind.

Plea, support for annulment

At the centre of the court cases are two petitions filed by Jumhooree (Republican) Party candidate Gasim Ibrahim. On one of them, the High Court ruled partially in his favour, directing the Election Commission (EC) to give JP team access to the voters' details from the first round, but on its premises and under supervision.

The Supreme Court has been hearing the second petition, which seeks the annulment of the first round, and an injunction to the EC, not to conduct second-round polling until the alleged discrepancies are addressed. Appearing for the JP, Gasim's running-mate and former Attorney-General Hassan Saeed, who is also the founder-leader of the Dhivehi Quamee Party (DQP), is reported to have cited 13 reasons for seeking annulment.

Supporting the JP plea for annulment in the Supreme Court was the Progressive Party of Maldives (PPM), whose candidate is Abdulla Yameen. In the first round voting of 7 September, Yameen came a distant second to the Opposition Maldivian Democratic Party (MDP) nominee and former President Mohammed Nasheed. JP's Gasim Ibrahim came a close third after Yameen, thus making the pending court cases as challenging legally as they are interesting, politically.

Intervening in the Supreme Court case, Attorney-General Azima Shukoor, however, stopped short of seeking annulment of the first round polling, as sought by JP and attested by PPM lawyers. However, he wanted specific complaints in regard to first-round irregularities addressed before proceeding with the poll processes, further. Of greater significance could be the AG's reported reference to the National Centre for Information Technology (NCIT) reporting hacking of the computer systems of the EC, which however denied the former access to information.

As was to be expected, under the gruelling second-round deadline fixed under the constitutional scheme, the EC argued against access for JP to the voters' list in the High Court. In the Supreme Court, it argued against the annulment plea. Appearing for the EC in the Supreme Court, former Attorney-General Husnu Al Suood reportedly cited cases from other countries, including the famous 2000 US Supreme Court case Bush v. Al Gore regarding its presidential elections -- and submitted that a constitutional void could follow any delay of the electoral process.

Parliamentary intervention

The MDP, as an affected party intervening in the case, submitted that any annulment of the first round results would interfere with the rights of the 95,000-plus citizens who had cast their lot with Nasheed. Outside the court, however, the MDP steering committee passed a resolution reviving its doubts about the credibility of the nation's Judiciary, and called upon the party's parliamentary group to work for summoning Parliament ahead of the scheduled time.

The MDP, with 34 members of its own, now has an absolute majority in the People's Majlis in the company of the Dhivehi Rayyathunge Party (DRP) after the first-round poll, heralded by earlier cross-over of Speaker Abulla Shahid. With eight of the 10 DRP parliamentarians backing party leader Thasmeen Ali in his decision, the MDP coalition now has 40 MPs in a 77-member House.

As may be recalled, Thasmeen was the running-mate of incumbent President Mohammed Waheed Hassan Manik in the first round. The two have parted ways since, with President Waheed, with a low 5.13 per cent vote in the first round, backing PPM's Yameen for the second round. President Waheed's Gaumee Iththihad Party (GIP) does not have any parliamentary representation.

Yet, in a nation where parliamentary defections are dime a dozen - with some MPs crossing over across parties and the central aisle at will -- the immediate future could hold prospects for some and possibilities for political leaderships, inside the House and outside. Contextualising the same with the current legal issues engaging the presidential polls can add to the complexities and complications even more.

What should remain a legal battle has acquired a further political twist with the youth wing of the 'National Movement' too reviving its forgotten demand to 'reform' the nation's 'independent institutions', and to back the separate but common demand of the JP and the PPM, for addressing the issues flagged in the first round before proceeding further with the presidential poll process. The group comprised various religious NGOs when it took to the streets in a big way, demanding the resignation of President Nasheed under the banner of 'December 23 Movement'. The protests had led to the controversial power-transfer in February 2012, when President Nasheed was succeeded by his Vice-President Waheed, the current incumbent.

It's numbers game still

At the end of the day, the Maldivian presidential poll, like all elections in every other democracy, is about adding numbers. The first-round polls has established the MDP as the single largest party in the country, with 45.45 percent vote-share - and Nasheed as the most charismatic and acceptable of all leaders. In non-electoral political terms, it has also exploded the myth that the MDP was a party of the urban middle class, particularly of the middle-aged housewives from among them. Or, between the past elections and this one, the MDP has expanded its voter-base, and Nasheed, his popularity.

Yet, for winning the second round, Nasheed will have to poll the extra five percent vote-share that has evaded the MDP in the first round. It is easier said than done. Though prima facie, they are only 4.5 percent short of the 50-percent cut-off mark for victory, earning each vote is as difficult as having won the earlier 45.45 percent. In doing so, the MDP, with its cadre-base intact, will also have to ensure that they retain the vote-share from the first round.

The 95,000-plus votes that Nasheed polled in the first round is more than double the 43,000 registered members that the MDP has on its rolls. This clearly implies a support-base that goes beyond the membership/cadre-base of the party. Sustaining the campaign pressure and retaining this voter-support by itself will be a challenging task for the party. Better or worse still, it would also have to ensure either cross-over from the non-MDP ranks, and/or increase the poll percentage for the second round, which cannot be much more higher than the highest-ever 88.2 percent recorded in the first.

MDP spokespersons are on record that they did not fare as much as they had hoped for in urban centres like the national capital of Male, in the first round. Nasheed had polled, for instance, 49-plus percent votes in Male, and five percentage points fewer votes in other population centres like Addu in the south and Kulhuduffushi in the north. Male with the highest number of 80,000-plus registered voters, way ahead of many other urban centres and atolls put together, recorded a high 89-plus percent voter-turnout in the first round.

In some of the urban centres, the figure has been down to 83 percent. Yet, the manoeuvrability in terms of a higher voter turnout is restricted, if not wholesale absent. Yet, there is scope for the MDP to do better in terms of vote-share in the second round, particularly if the current court-room battles and political consequences leave the urban voter craving for 'stability', that too as a pre-requisite for the much-needed economic growth and personal prosperity.

The MDP may have also begun well with the second-round support from the DRP. Considering that the DRP's presidential partner, Waheed, had polled just over 10,000 votes, and the fact that Nasheed too had fallen short almost by as many votes for a first-round victory, the numbers would seem to add up. Not as simple as it would seem, however.

With President Waheed siding with PPM's Yameen in the second round, there would be some loss in the combined vote-share. It also remains to be seen how far would the 'DRP voters' go with the leadership's decision. A closer analysis of the first-round figures would show that DRP's contribution to Waheed's vote-share in the first round may have been substantial in relative terms, not as much in real terms.

Whether Jumhooree?

Against this, the Jumhooree Party's continuing court-battles may have dissipated some of the early energies that the PPM may have reserved for the expected second-round. While conceding the first place for Nasheed, the Yameen camp may not have anticipated such a wide gap for the second berth, or such a narrow gap with the third-placed Gasim. The latter's public posturing, "God willing, Gasim will be President on 11 November" (the customary day for power-change), too may have hurt the PPM's second-round chances to an extent, already.

It is unclear what the JP coalition's strategy would be for the second round, should the Supreme Court either finds no merit in its petition, or does not want to interfere with the poll process until the final results are known. The latter is both law and practice in most democracies, as any judicial intervention after the poll process had been set in motion could lead to a never-ending poll process - and a constitutional deadlock and deadend at the same time.

Should the JP carry on with Gasim's current posturing and decide that it would not participate in the second round, as it stands now, owing to the conviction that they were the victors denied their due, then Yameen faces a near-impossible task. Should Gasim decide to support Yameen for the second round, then they would still have only fewer days than was originally available to get their collective act together.

Though the JP has said that they would decide on their second-round strategy only after the fate of the court cases were known, there is little likelihood now than even pre-poll that the party would openly back Nasheed in the second round. For now, JP's Adhaalath ally from the first round, which had formally decided in favour of Yameen for the second, is still sticking with the Gasim camp. JP has also identified with the 'National Movement' since deciding to challenge the first round processes and results in the courts.

This, along with the PPM's pronounced support for Gasim's cause and case for annulment of the first round has opened up possibilities. Like the MDP's move to summon Parliament earlier, such a course could lead to over-politicising of the electoral process, the like of which the stake-holders had consciously and consistently lived down in run-up to the first round. The court's decision and the JP's position thus assume added significance.

It can be safely argued that the facts attending on the specific instances cited by the JP and the AG in the Supreme Court and the High Court by themselves may not 'materially affect' the results of the top position for Nasheed in the first round. If anything, a theoretical construct could put Nasheed closer to the 50-percent mark, if not beyond it.

Yet, such a construct extended to the second place could have consequences. The complaints, if accepted by the courts as correct, in theoretical terms 'materially affect' the results for the second slot, which Yameen has won by a very narrow margin against Gasim. Thus, backing Gasim's case for annulment of the first round makes political sense for the PPM camp.

It remains to be seen what verdict would the Supreme Court pronounce, and what impact it would have on the first-round results, to begin with. The courts cannot alter the official results declared by the EC. It could either annul the first round, kick-starting a political controversy that could hit the streets, after ordering the rectification of errors that the Bench might acknowledge as such.

Should in theory, the Supreme Court annul the first round results, it would have political consequences. More importantly, the Bench would have to decide if it was directing fresh round of polling for the first round, or a fresh round, starting with the EC calling for fresh nominations. Should the latter be the case and should it entail an extension of the poll period beyond the constitutionally-mandated five-year term for the incumbent, ending on 10 November, as per law and tradition, then the court would also have another decision to make.

The Supreme Court Bench would then have to decide if it should employ another constitutional provision, calling upon the Parliament Speaker to discharge the functions of the President for a further 60-day period, for the express purpose of conducting the presidential elections. Yet, these are only theoretical possibilities, not necessarily requiring to be employed should the Supreme Court decide otherwise.

Alternatively, the court could order re-count, though that is not the JP's only plea. Either way, there is bound to be political hiccups of every other kind, particularly between the PPM and JP for more reasons than one. How they sort out those issues - or, not -- would also contribute to determining the fate and results of the presidential polls, whatever form it takes from now on.

UN appeal

In the light of the pending court cases, the UN in particular has called upon all candidates in Maldives to accept the verdict in the first round and proceed to complete the process for electing the next President. Yet, in the evolving situation nearer home, it is unclear if the EC would come to be bound by the court orders, or by any initiative that an MDP-controlled Parliament or parliamentary committees could initiate - if the two are contradictory.

The EC may not have covered itself with glory by moving Parliament's National Security Council, with a majority of MDP members, that too with a construct that the JP's taunts and criticism of the Commission amounted to 'threats to national security'. In a highly surcharged atmosphere, by taking the issue to Parliament, where the MDP has been known to politicise every other issue (including a pending criminal case against Nasheed) in sub-committees controlled by the party, the EC's initiative may smack of ignorance, not innocence. It is anybody's guess why the Election Commission did not choose to move the Supreme Court, particularly when legal cases of the current nature has the potential to reset the poll-clock, for which there is no provision in the Constitution.

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

The views expressed above belong to the author(s). ORF research and analyses now available on Telegram! Click here to access our curated content — blogs, longforms and interviews.


N. Sathiya Moorthy

N. Sathiya Moorthy

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

Read More +