By Dr. S.Chandrasekharan
The Supreme Court in Maldives has struck again and this time it is against the Election Commission who had displayed high professionalism in conducting the Presidential and later the local council elections against heavy odds.
The Tyrany of the Supreme Court
In the judgement on the case taken suo motu against the Election Commission for disobedience of orders, the Supreme Court stripped the EC President Fuwad Thowfeek and his deputy Ahmad Fayaz Hassan of their membership of the commission and sentenced the former to six months in jail. ( The jail sentence is to be kept under suspension for three years)
Since the elections to the Majlis were due within two weeks, the Supreme Court also ordered the Executive, the parliament and the Election Commission to make all necessary arrangements within six days to conduct the elections scheduled for March 22.
The judgement was not unanimous with two judges including the Chief Justice differing with the majority judgment of the three judges that included the “famous” Justice Ali Hameed Muhamed.
The Supreme Court did not consider the practical difficulties involved in continuing with the elections with only two members now left in the Commission. According to Article 175 of the Constitution three members are required.
The procedure for appointment of new members is not a straightforward one and would take time. First, the President has to invite applications from interested candidates for the three vacant posts and then forward nominations to the Majlis. The Majlis will form a committee to evaluate the nominees and then it has to be put to vote in the assembly. Then the appointments are made by the President.
It is unlikely that the procedures given in the constitution could be followed strictly to get at least one more member for conducting the elections. In all probability that is what the ruling coalition led by President of PPM perhaps wants. One cannot understand the great alacrity with which Yameen welcomed the ruling and said that the government “will not criticise or challenge” the verdict.
The order, prima facie appears unconstitutional as only an appointing authority can remove a person from that position and here what is involved is a constitutional post.
Reaction of the Majlis:
The People’s Majlis has strongly reacted to the verdict. A letter signed both by the Speaker and the Deputy Speaker, points out the irregularities in the verdict in great detail.
The letter said that the verdict is:
a. Contrary to constitutional procedures governing their appointments and dismissals.
b. Contrary to the Election Commission Act.
A member of the Election Commission can be removed by a simple majority of votes in a parliament while in sitting.
The letter specified that the manner of removal is contrary to the procedures in Art. 177 of the Constitution and Articles 5,10, and 14 of the Election Act.
The letter also pointed out the contradiction from the Supreme Court’s previous judgement in the removal of Fahmy Hassan from the Civil Service Commission. The court then said that the “constitution does not allow any of the three powers of the State to carry out the constitutional jurisdiction or functions of another and the system of separation of powers, check and balances established between three powers by constitution is a principal feature of the constitutional system and constitution of Maldives.”
To a layman it looks that the Supreme Court has over reached and when everyone is equal before law, the Supreme Court cannot arraign itself to be above law.
International reaction was swift and adverse. The US considered it as an ‘unprecedented expansion of judicial powers’. Canada and Australia expressed their concern.
The UN Secy. General while expressing concern, praised the Election Commission of Maldives for its professionalism and tireless efforts to ensure credible and transparent elections.
The reaction of the Supreme Court was equally strong. The Chief Justice issued a statement that neither international countries nor organisations have the authority to criticise and spread falsifications regarding any verdict of the Supreme Court. The CJ termed the international reaction as “irresponsible”
Nasheed’s Reaction: Should he pull out of the Elections?
The question is whether Nasheed should pull out of the elections as he has threatened to do?
He had observed that the panel of judges pulling the members of the Election commission to the court is an attempt to exert political influence and termed the verdict as unconstitutional.
In another election meeting on the 11th, he said- I quote ” In my view, an election conducted with the Supreme Court exerting influence over the Election Commission to deliberately commit electoral fraud or rig the vote will not be a legitimate election- in my view MDP should not participate in such an election.
If Nasheed and his MDP boycott the elections, he will be playing into the hands of the duo Yameen and Gasim who will be pleased if that happens. Let him not make the mistake that Begum Khaleda did in Bangladesh who now will have to wait for another five years to contest the elections.
About the author: SAAG
SAAG is the South Asia Analysis Group, a non-profit, non-commercial think tank. The objective of SAAG is to advance strategic analysis and contribute to the expansion of knowledge of Indian and International security and promote public understanding.