Originally Published 2013-10-08 06:13:59 Published on Oct 08, 2013
Maldives President Mohammed Waheed Hassan Manik had indicated in a national address last week that he would transfer power on 11 November. Yet, the Supreme Court's observation may have thrown up an eminently avoidable possibility.
Maldives: Supreme Court orders fresh polls
" The Maldivian Supreme Court, by a 4-3 verdict, has annulled first round of polls for the nation's presidency held on 7 September, and ordered two rounds of fresh polls in time for power-change on 11 November, when due. To this end, the majority judgment fixed an outer-limit of 20 October and 3 November, respectively, for conducting two rounds of polling. The Judges gave the Election Commission (EC) 72 hours for consultations with other Government institutions on the guidelines set out by the court for the purpose.

Writing the majority judgment, Justice Ahmed Abdulla Didi said that police forensic experts had found irregularities in 5,623 votes cast in the first round. With the gap between runner-up Abdulla Yameen of the Progressive Party of Maldives (PPM) and the third-placed Gasim Ibrahim (Jumhooree Party, JP) was less than this figure, the court determined that a re-poll was in order.

In arriving at its conclusions, the majority judgment detailed the allegations of irregularities alleged in the election petitions filed by Gasim Ibrahim, demanding annulment. The court said that the Election Commission issued a confidential circular close to the date of the election, stating that a person should be allowed to vote even if the number on his identity card does not match the identity card number on the voters' list, as long as the name and address on the person's identity card match the name and address on the voters' list. The court ruled that votes cast in this manner are invalid.

"The EC's actions amounted to undermining of the people's right to vote and conflicted with the concept of Universal Suffrage which had been acknowledged in the Constitution". In doing so, Justice Didi, quoted by Maldivian media reports, noted that even though a new President is unable to be sworn in on November 11 - the date on which the current presidential term expires - the country would not go into a state of constitutional limbo as the principle of continuity of legitimate government would over-ride any repercussions faced by failure to adhere to constitutional deadlines. In doing so, the majority judgment referred to the EC's submissions that the election must be held within the period stated under the Constitution, and said that if illegal activities were carried out in an election, additional time will be required to address those issues.

It may be noted that incumbent President Mohammed Waheed Hassan Manik had indicated in a national address last week that he would transfer power on 11 November. Yet, the court's observation may have thrown up an eminently avoidable possibility. Such a situation still may not arise in the current instance, given the 2008 precedent when the poll process was concluded on 28 October, for President-elect Mohammed Nasheed to be sworn in on the due date, conforming to a tradition. In the normal course, such a situation could arise if, and only if, the Apex Court interfered with the electoral process all over again - and of course, for equally justified reasons, as it has concluded now!

Chief Justice Ahmed Faiz Hussain was among the three Judges who differed with the majority verdict. They held that the Jumhoore Party had failed to provide sufficient groups for the court annulling the polls. Among them, CJ Faiz and Justice Abdulla Areef also disallowed the petitions on procedural grounds, saying that they should have been filed in the High Court in the first place. The third, Justice Muthasim Adnan, held that the EC worked according to the procedures stipulated under the law, a position that the petitioners had contested in the first place.

Judicial intervention

Maldivian media has pointed out that the police forensic report, on which the majority judgment was based, was not presented to the lawyers representing the petitioners and the EC for their comments. The judgment said that the forensic experts had looked at it in the presence of Supreme Court officials. No mention was made about the presence of the representatives of the EC, the petitioners and those of the other candidates in the fray.

The majority judgment looked only at the possibility of the 5,623 votes identified for 'irregularities' influencing the results for the second-place, now awarded to PPM's Yameen. It may be a simplistic view, not based even on any scientific method like the mathematical 'theory of probability'. Given the fact that the first-placed MDP candidate and former President Nasheed had polled a high number of 95,000 votes, against Yameen's 25,000 votes, the possibility of all 5,623 votes going to him, and still influencing the second-place results could be ruled out. It cannot be said of all those votes going, for argument's sake, to President Waheed, who in the just-annulled first-round had got 10,000 votes, for a lowly-placed fourth place.

Under the circumstances, the ends of natural justice would have been only if all 2,11,000-plus polled votes in the first-round were counted, accompanied by a forensic analysis of each one of those votes, to determine if 'irregularities' had actually impacted on the second-position, or not. In political and theoretical terms, if all those 'suspect votes' had gone to Nasheed, with his 45.45 percent vote-share in the first-round, then a dent on the figure would also make him that much vulnerable (however small that be) should the rest of 'em all should have ganged up then, as they may still be doing after the re-poll - that is, if there was none won the presidency in the first-round, this time, either.

Independent of the majority judgment and observations, the question would still focus on the wisdom of what could amount to judicial intervention with the poll process once set in motion until it had been concluded. Going by the letter and spirit of the majority judgment, a situation could still arise, at every turn and after every such other round of polls even this time round, that the higher judiciary may be tempted to accept election petitions of the kind. Multiplicity of such petitions, and consequent multiplicity of polls, if it came to that, if taken to its logical or illogical conclusion, could extend the electoral process, indefinitely.

Questions about the legitimacy of such a process could challenge the credibility of electoral democracy, per se. In the immediate context, it could cause eyebrows to rise nearer home and afar, in relation to the majority judgment's reference to the legitimacy of the incumbent government beyond the 11 November deadline, if the results of the presidential polls were not readily available by then. It's in the context of such possibilities, though not probabilities, matured democracies have in their Constitution, specific provisions barring judicial intervention in the poll process, once it had been set in motion and until the process had been concluded. The People's Majlis now in its wisdom may have to consider the future course, if only to avoid multiplicity of petitions, some of them frivolous, too, if an indefinite legal bar on future elections were not to be settled, once and for all, through legal and constitutional amendments, if it came to that.

In the immediate context, the question may also relate to the Supreme Court pre-fixing the outside deadline for the EC to complete the two rounds of polls, afresh. The court is of course silent on the issue of the EC calling for fresh nominations - and rightly so. As coincidence would have it, Maldives would be enjoying a near shutdown across the country for nine days from the usual weekend, commencing on Friday, 11 October. The annual Eid-al-Adha holidays commences on Monday, 14 October, and concludes on Saturday, 19 October. Government offices are not expected to reopen only on Sunday, 20 October, the last day fixed by the majority judgment for the first-round re-poll. Prior to the Supreme Court's judgment of Monday, 7 October, the President's Office had announced a public holiday for Sunday, 13 October, to facilitate a long holiday, with compensatory work on a later date.

This would mean that the Election Commission may just have enough time now for holding consultations with institutions involved in the poll process before the 72-hour deadline for such consultations to conclude, before going into recess on Friday, 11 October. Even if the EC were to work through the vacation and in full force, whether other Government agencies and officials, including polling teams, could be similarly expected to do so would remain a moot question - concluding that the first-round polls could be held only on the last day of the court-mandated deadline of 20 October.

To this end, the EC would also require time to complete the paper-work required to re-engage the temporary staff hired for the elections but sent home after the Finance Ministry declined funds, pending a court order. Likewise, the EC would have to revive the security agreement it had entered with the Maldivian Police Service (MPS) for poll-duty. This agreement too lapsed after the court stayed the second-round poll of 28 September, pending a final verdict. This is independent of the PPM's demand for maximum time to campaign for the second round, as was made available as per the annulled original schedule.

Further humiliation?

From among the stake-holders, the JP and PPM have readily welcomed the Apex Court verdict even though the judgment on a near-similar petition by the latter is yet to come out. Clear enough, both PPM's Yameen and JP's Gasim would be contesting the court-ordered polls. President Waheed, whose spokesperson, welcomed the court's pronouncement of verdict, promptly declared that the former was yet to decide on his contesting the re-poll. Apart from getting a low fourth place, Waheed's running-mate from the annulled first-round has since split from him. While Waheed had backed Yameen for the (annulled and un-voted) second round, running-mate and Dhivehi Raayathunge Party (DRP) chief Thasmeen Ali is backing MDP's Nasheed, and reiterated the same after the court verdict.

The law does not seem to provide for Waheed's name being stuck from the fresh set of ballot papers, which would have to be otherwise printed as per the Apex Court orders. Nor did the Founding Fathers visualise such a scenario for the likes of Waheed to withdraw their nominations from a (court-ordered) re-poll. With Thasmeen not backing him, Waheed may face further humiliation for an incumbent President (for the record though) if his named continued on the ballot-paper for the re-poll, even as he 'retires' from the contest otherwise. His name might still be on the ballot-paper, and his vote-share may much worse than already, under such circumstances.

Two key stake-holders are yet to make their position known. The Election Commission and the MDP are continuing with their confabulations, before deciding on their respective positions on the court verdict. As is common to Maldives' work-culture, unique to South Asia at the very least, the EC held long hours of internal discussions after the delayed court verdict on Monday night, but did not announce its views on the court verdict. The mainline MDP, whose candidate Nasheed polled a high 45.45 percent vote-share in the first-round, has since declared its readiness to face fresh polls, whenever fixed by the EC. After a detailed in-house discussion, MDP parliamentary party leader Ibrahim Solih reiterated the party position on this, as also the earlier position that they would not recognise President Waheed in office after 11 November.

Filling the vacuum

For all the criticism, from nearer home and afar, the Maldivian Supreme Court might have only filled the inevitable vacuum arising in a democracy when the political class (collectively and otherwise) are deemed to have failed democracy and the nation - and hence fail to continue capturing the imagination of the people, either as a party or the polity as a whole. Despite their claims to the contrary, the West is known for its 'guided democracies' or 'managed democracies'. It is only in the Third World that the conceptual vacuum clearly shows up when there are multiple options, and most, if not all, fail to measure up after a time.

At times such as this, other institutions of democracy like the Judiciary, the Election Commission, and in recent times, the civil society have all risen to fill that conceptual vacuum, in the interim at the very least. Contemporary India is a standing example of the same, where all three institutions are seen as standing up to the political class most of the time, and standing in for the same otherwise. The trend and scope in India has only widened and deepened over the past two decades, when alone the Election Commission as a constitutional institution invested with independent powers and responsibilities stood up and allowed the nation and the rest of the world to take notice. Where it found its powers inadequate to its calling, the Supreme Court was not wanting in conferring such rights and responsibilities that the two institutions in their wisdom thought that the EC should possess.

The Maldivian situation was/is not unlike this. The divided polity refused to acknowledge the inherent coalition concept that alone the people were willing to trust at the advent of multi-party democracy in 2008. With the divided polity continuing to weaken themselves and contest the inherent credibility of independent institutions like the Supreme Court and the EC at different times, maybe for no real fault of the latter, it was but natural the 'conceptual vacuum' created itself. Already in the nation's focus, it was but natural that the Supreme Court and the EC, which had learnt to stand up to defend themselves from the divided polity, sought to fill the vacuum, inadvertently and unconsciously, though - as has been the experience elsewhere, too. Where they may have failed the nation and failed themselves, too, was in their inability to work together, and present themselves as the continuing collective consciousness of the Maldives.

With individuals and institutions allowing themselves to be 'branded' politically without let-up, it was but inevitable that independent of political situations and legal issues, non-political constitutional institutions, ended up being assertive - and were seen as being so. However, it may have suited the rest, particularly the political class, divided or otherwise, to continue with the branding, and handing over to these independent institutions, bouquets and brick-bats that might not have been theirs in the first place. Maldives is still traversing the democracy curve, before settling down to a pattern. It may thus be time for all the stake-holders to revisit the democratic past and apply all-round correctives that are still possible. The Maldivian polity in particular has to look inwards, not otherwise. Where there was overall acknowledgement of inadequacies, sections of the polity blamed everyone else but the self and the larger self that they represented. The refusal of the Maldivian polity to look inward may thus have been behind the back of the current impasse, the present dilemma.

Yet, the impasse of the past weeks, particularly after the Supreme Court's countermanding of the first-round polls may have done some good, not otherwise envisaged and possibly not possible, either. One after the other, starting with the Election Commission and the political stake-holders, declared their willingness to abide by the court verdict, whatever. In doing so, the EC did a near last-minute turn-about to go back on its plans to have the second-round polls on 28 September, as originally scheduled. President Waheed, the Jumhooree Party and the PPM followed suit. MDP was the last one, with vice-presidential nominee Lufthee expressing readiness to accept the court verdict over the weekend. Independent of the letter and law of the verdict, the court case, as also the unexpected and relatively inordinate delay in pronouncement of the judgment, however split it may be, has served an intended purpose. The otherwise divided Maldivian polity has for once come around to agreeing to something as controversial as the court proceedings and verdict may sound - yet, a consensus of the sort that they could not achieve otherwise - and could not have achieved, either!

(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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