09 October 2013, Male'; Attorney General's Office has issued an unofficial translation of the Supreme Court Judgment on the first round of the Presidential Election.
Please find bellow the unofficial translation:-
42/SC-C/2013 Judgment of the Supreme Court of the Maldives
(translation of the final verdict only, reasoning not included)
Case number: 42/SC-C/2013
Claimant: Jumhooree Party
Respondent:Elections Commission
Intervening Parties: State (Attorney General's Office)
Progressive Party of Maldives
Case Type:Constitutional
Form of Application: Constitutional Dispute Form
Date of Application: 15th September 2013
Date of Registry: 16th September 2013
Date of Judgment:7th October 2013
Time of Judgment:23:30
Bench:
Chief Justice Ahmed Faiz Hussain, Justice Abdullah Saeed, Justice Abdullah Areef, Justice Ali Hameed Mohamed, Justice Adam Mohamed Abdullah, Justice Dr. Ahmed Abdullah Didi, Justice Ahmed Muthasim Adhnaan.
HELD:
Whereas, regarding the claim submitted by the Jumhooree Party to the Supreme Court of the Maldives, based on the statements submitted by the Plaintiff and the intervening Parties, Attorney General's Office and the Progressive Party of Maldives, the Supreme Court Judgment No. 39/SC-C/2013 which sets out the guidelines on arrangements and amendments in regard to the Presidential Elections held on 7th of September 2013 and the Principle of Legality, the Constitution of the Maldives, The Elections (General) Act (Law No: 11/2008), the evidence submitted, the expert report compiled by the Expert Forensic Team hired by the Supreme Court to analyze the evidence and the guidelines outlined in Article 170 of the Maldivian Constitution about elections and public referendums held in the Maldives, the Supreme Court notes the following in a judicial and legal perspective;
And the Jumhooree Party claims that the Elections Commission, which has the constitutional responsibility of arranging and overseeing an independent, impartial, free and fair Presidential Electoral process, in doing so during the voting for the Presidential Elections held on the 7th of September 2013, deprived the fundamental right of every citizen of and above 18 years of age to cast their vote guaranteed by the Constitution of the Maldives, deprived the right of many citizens to appoint freely chosen representatives; and while it is required to ensure that the Elections Commission arranges the Presidential Election in accordance with Article 170(a) of the Constitution of Maldives, which details the powers and responsibilities of the Election Commission to hold all elections and public referendums and that they are conducted freely and fairly, without intimidation, aggression, undue influence and corruption, the Elections Commission did not accept the support and co-operation on issues that needed to be addressed provided by National Centre for Information Technology and Maldives Police Service; and since there is enough evidence to support the fact that the Elections Commission acted in an arbitrary manner to grant an undue advantage to a specific party, as they violated the guidelines highlighted in the Supreme Court Judgment No. 39/SC-C/2013, which directs the election and its process to be arranged in a way that would not lead to a perception of intimidation, undue influence and corruption and should be an election which guarantees an independent election which provides for every citizen's right to vote and therefore since the citizens have lost confidence in the election held on 7th September 2013, the election should be nullified:-
Hence it is clearly known that the fundamental right governed by Article 26 (a) and (c), the right to vote in elections and public referendums and to take part in the conduct of public affairs directly or through freely chosen representative is a right ensured under Chapter 2 of the Constitution, for every citizen of age 18 years or older, and that Article 69 of the Maldivian Constitution clearly states no provision of the Constitution shall be interpreted or translated in a matter that would grant to the state or any group or person the right to engage in any activity or perform any act aimed at the destruction the rights and freedoms set out in the Constitution, and by referring to the fundamental rights and freedom set out in Chapter 2, Article 65 states "anyone whose rights or freedoms, as guaranteed by this chapter have been infringed or denied may apply to a court to obtain a just remedy." And if it is believed that by directly the right of an individual, or a group of people has been violated or the right of a community is infringed by an administrative action, have the right to apply to court to obtain a just remedy.
Having said this, Article 113 of the Maldivian Constitution confers that the Supreme Court, sitting in session shall have sole and final jurisdiction to determine all disputes concerning the qualification or disqualification, election, status, of a Presidential candidate or running mate or removal of the President by the Parliament of the Maldives, and as such, it is clear that the Supreme Court decision is the final judgment.
Since Article 145 (c) of the Maldivian Constitution states that the Supreme Court shall be the final authority on the interpretation of the Constitution, the law, or any other matter dealt with by a court of law, and since the Article 20 (b) of the Judicature Act of the Maldives (Law No. 22/2010) sates that a Supreme Court ruling on a matter shall be conformed to by the Executive, the Parliament, the Judiciary, those in independent posts, state institutions, those holding state positions, the police and the defense force and all the citizens, it is clearly evident that;
The claim is based on the dispute of the electoral process of a presidential candidate as stated under Article 113 of the Maldivian Constitution and it is also clear under Article 113 of the Constitution that in such a dispute the final jurisdiction lies with the Supreme Court, the Supreme Court of the Maldives has the final jurisdiction regarding the claim submitted by Jumhooree Party and since it is the constitutional responsibility of the Supreme Court conferred within the special jurisdiction, to provide a just ramification to the dispute regarding the election of a President, as the governing body of the Constitution and there is no judicial and legal basis to dispute the power conferred to the Supreme Court under Article 113 of the Constitution of the Maldives within the jurisdiction of the Constitution of the Maldives;
The Election Commission who prepared the electoral rolls that has to be held in the year 2013 in the Maldives, is an independent and impartial Commission enacted under Article 167 of the Constitution of the Maldives and the Election Commission's responsibilities and powers include ensuring the process of all elections and public referendums are conducted fairly and freely, without intimidation, aggression, undue influence, or corruption;
It is clearly evident from Article 17 (a) (1), (6) and (7) of Elections Commission Act (Law No. 8/2008) that Election Commission members should uphold the rule of law, protect the rights and freedoms of the citizens, refrain from any activity that directly or indirectly support or object a candidate or a political party, the members should also refrain from any act or participation or communicating an opinion or by any such means which might lead to question the member's integrity and impartiality, and the members should refrain from any activity which might question the Commission's independency, impartiality and integrity, under the law; and because the arrangements of the Presidential election held on 7th September 2013 were carried out by the Elections Commission in a way which is in clear violation of the binding guidelines set out in the Maldivian Constitution and the Supreme Court's judgment No. 39/SC-C/2013 and since this action of the Elections Commission has resulted in intimidation, undue influence and corruption on a large scale, it led to 773 votes cast using incorrect Identity Card numbers, 7 voters whose names manually added to the list later, 18 votes cast in the names of individuals listed as deceased in the Department of National Registration's (DNR) database, 7 votes cast by minors, 3 cases of vote repetition, 225 cases of voting by individuals who were not issued an ID card by DNR as their records were repeated, 2830 individuals who voted even though they had conflicting addresses, 952 voters with incorrect names, 7 votes cast without a record in the DNR database, due to the lack of attention given by the officials of the Elections Commission, 819 individual discrepancies were found between the ID card numbers noted down by the officials of the Elections Commission, and the printed voters list;
It is evident that the fundamental right to vote ensured to all citizens by the Constitution of the Maldives was infringed and it paved the way for more than one vote to be cast per person;
the above mentioned Presidential Elections cannot be considered as one which provides for the right of every citizen to exercise their right to vote in a free and fair election, on either a legal or judicial basis as per Article 170(a) of the Maldivian Constitution, based on the witness statements, documentary evidence and the expert report compiled by the Expert Forensic Team hired by the Supreme Court to analyze the evidence, it is held that the Presidential Elections held on the 7th of September 2013 has no legitimacy, because of the above mentioned flaws, and is therefore annulled, and hereby order the Elections Commission and the relevant entities of the State to hold a fresh first round of the 2013 Presidential Elections as mandated under the Constitution, in accordance with the guidelines stipulated below in this verdict.
1. The Elections Commission and other relevant entities of the State must make arrangements to ensure that the first round of the 2013 Presidential Elections can be held before the 20th of October 2013, in accordance with the guidelines stipulated in this verdict.
2. The Elections Commission and other relevant entities of the State must make arrangements to ensure that, if required, a second round of the Presidential Elections can be held before the 3rd of November 2013 as per the Constitution and relevant laws.
3. In accordance with the guidelines stipulated in this verdict, make arrangements to ensure that all citizens who turn the age of 18 by the date of the 2013 Presidential Elections are able to exercise their fundamental constitutional right to vote fully and independently.
4. In determining those who are eligible to vote in terms of age, the main source used to compile the voter register should be the Department of National Registration's Database and it must be guaranteed that minors under the age of 18 and those deceased are not included in the voter register.
5. In order for voting to commence in all constituencies in Maldives and abroad, the voter register must contain voter's name, permanent address, and Identity Card number, and must be approved by the Elections Commission and the candidates or their representatives, and must be the final list containing their signatures and finger prints, and no other lists must be used in any of the constituencies in the Maldives or abroad.
6. When voters are being assigned to respective constituencies after the announcement for voter registration, ensure that their names are not transferred to another constituency and that the list of a specific constituency contains only the names of those registered to that constituency.
7. As the law regards those registered under the Special Registry of Male' Municipality as residents of Male', and because there is no real need for them to be registered to a specific address in a particular province or constituency of Male' for the purpose of the Presidential Election, arrangements must be made such that those registered under the Special Registry of Male' Municipality, including those that have been transferred from the Special Registry of Male' Municipality to Male' addresses, are able to vote to ballot boxes specially allocated to them, and this must be announced publicly.
8. To ensure that no one can vote twice, and that only one ballot slip is issued per voter, and to ensure that all officials present at all polling stations are independent of any suspicions of being a supporter or a representative of any candidate or for having any political affiliations, all officials must be assigned with the knowledge of the candidates or their representatives.
9. After polling closes in every constituency, to ensure that the Report on Election is compiled truthfully, representatives of candidates who were assigned to be in that area beforehand must be present during the compilation process; and it must be ensured whether or not a person who has not voted has been struck off as voted or marked as voted, and whether more votes has been cast than those marked as voted on the list, and whether those who voted are only those who were registered to that list beforehand.
10. The Elections Commission and other relevant entities of the State must prohibit and ensure that those who enter the polling stations in order to vote or for any other purpose (including officials), do not carry phones, handbags, files or any other item (except pens) that may compromise the rights of candidates.
11. It must be ensured that a second list that has been verified as identical to the original voters list of every constituency is publicly displayed at that constituency.
12. In order to have the Presidential Elections mandated under the Constitution, before the 20th of October 2013, brand new ballot slips containing appropriate security features for a such an election must be printed, and the Elections Commission together with the security services of the Maldives must make arrangements to ensure that security is maintained during the process of printing and moving the ballot slips from one place to the other as well as ensuring the safekeeping of the ballot slips and ballot boxes after voting closes.
13. Assign an independent official in order to ensure that the latest token number issued for voters are announced every 30 minutes in a way apparent to those present at the polling station, and to ensure that the official notes-down the token number corresponding to every voter at the time when the voter's name is marked as having voted on the list, and also to ensure that no voters name is marked twice on the list and that no marked name has two token numbers corresponding to it.
14. In making arrangements necessary for the Presidential Elections mandated under the Constitution, the Elections Commission must comply with the binding guidelines stipulated in this verdict and collaborate with the relevant entities and authorities of the government to make the necessary arrangements, in a time frame no more than 72 hours after the delivery of this verdict.
15. In order to minimize the risk of unlawful transfer of a voters name to a constituency other than the one to which they are registered in without their knowledge, re-registration forms and forms submitted through others must not be accepted by the Elections Commission if they do not include the name of the person requesting re-registration, names of two witnesses other than the person submitting the form, address, Identity Card number and fingerprint of that person; and in order to ensure that such forms are not utilized, a list containing the people re-registering, their new constituencies, name, address and Identity Card number must be publicly announced.
16. The expert report referred previously shows that the server and database of the Elections Commission were accessible by many who should not have clearance to access them in both Maldives and abroad. Therefore to ensure that the server, database and the whole IT system of the Elections Commission is a reliable system, it must be improved and restructured as per the professional opinion of National Centre for Information Technology and other relevant Government entities.
ENDS...
http://www.foreign.gov.mv/new/assets/downloads/Verdict_Unofficial_English.pdf