Following is an unofficial translation of the judgment (Dhivehi) delivered by the Supreme Court on October 7, 2013 annulling the first round of the presidential polls in the case filed by the Jumhooree Party against the Elections Commission alleging electoral fraud. The 4-3 majority decision of Justice Ahmed Abdulla Didi, Abdulla Saeed, Adam Mohamed Abdulla and Ali Hameed Mohamed annulled the election result.
Read story on election annullment
Read summary of Dissenting Opinions
Read Minivan News’ courtroom observations
Majority verdict:
Thus, upon consideration in a legal and judicial view of the arguments made by the complainant as well as the Attorney General of the Maldives and the Progressive Party of Maldives who had intervened in the case filed at the Supreme Court of the Maldives by the Jumhooree Party; the guidelines given to the Elections Commission in the Supreme Court case 39/SC-C/2013 regarding improvements in the arrangements for the presidential election held in the Maldives on September 7, 2013 as well as the principle of legality; the constitution of the Republic of the Maldives; the law number 11/2008 (Elections Act); the evidence submitted in the case as well as the expert report compiled by an expert forensic team assigned by the Supreme Court to compile a report needed for the trial concerning the evidence; and the standards in article 170 of the constitution to be followed for public referendums and various elections:-
And since the case submitted by the Jumhooree Party requested annulment of the presidential election held on September 7, 2013 contending that a large number of citizens were deprived of the fundamental right of every citizen of the Maldives older than 18 years to vote in elections and to take part in the conduct of public affairs, directly or through freely chosen representatives, due to the actions of the Elections Commission, which is given the responsibility by the constitution of making the arrangements fairly, without bias or partiality, to elect a president; [and contending] that the Elections Commission made arrangements for the election without accepting the cooperation and consultation offered by the National Centre for Information Technology and the Maldives Police Service based on information they had concerning the reforms the Elections Commission needed to enact to ensure that all elections and public referendums are conducted freely and fairly, without intimidation, undue influence or corruption as stipulated in article 170(a) of the constitution; and [contending] that there was sufficient evidence to prove with certainty that the Elections Commission acted dictatorially in violation of the guidelines given in the Supreme Court case 39/SC-C/2013 with the intention of benefiting a particular party:-
As it is clearly stated in article 26(a) and (c) in chapter two of the constitution that every citizen of the Maldives 18 years of age or older has the right to vote in elections, and in public referendums, and to take part in the conduct of public affairs, directly or through freely chosen representatives; as article 69 of the constitution states that no provision of the constitution shall be interpreted or translated in a manner 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 of the rights and freedoms set out in this constitution; as article 65 of the constitution, referring to chapter two of the constitution that outlines the fundamental rights and freedoms of Maldivian citizens, states that, “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 where the rights of a person, a group or community has been adversely affected by administrative action, every such person, group or every person who may be directly affected by such action has the right to submit the matter to court.
And article 113 of the constitution states in clear language that the Supreme Court 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 People’s Majlis, and that such a decision by the Supreme Court shall be the final word; as article 145(c) 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 as article 20(b) of law number 22/2010 (Judicature Act) states in clear and unambiguous language that it is obligatory upon the executive, the People’s Majlis, the judiciary, members of independent institutions, state institutions, persons in state posts, the security services comprising of the police and military, and all citizens to obey decisions of the Supreme Court,
The [Jumhooree Party] case is in regard to a dispute referred to in article 113 of the constitution concerning the election of a presidential candidate, and as article 113 definitively states that only the Supreme Court has the authority to settle such disputes, there is no legal or judicial basis to disagree within the region where the constitution of the Maldives holds sway that making a judgment in the case submitted by the Jumhooree Party and resolving the dispute concerning the election of a president is a constitutional responsibility within the special jurisdiction of the Supreme Court as the guardian of the constitution:-
As the Elections Commission that made the arrangements for voting in the first round of the presidential election mandated by the constitution of the Republic of the Maldives in the year 2013 is an impartial independent institution formed under article 167 of the constitution; as it is the responsibility of the Elections Commission to ensure the proper exercise of the right to vote, and to ensure that all elections and public referendums are conducted freely and fairly, without intimidation, aggression, undue influence or corruption; and as it can be clearly seen from article 17(2) (6) and (7) of law number 8/2008 (Elections Commission Act) that it is the responsibility of the members of the commission to promote rule of law, protect the rights and freedoms of citizens, to not commit any act either directly or indirectly to support or oppose a candidate or a political party, to not commit or participate in any act or express any opinion that might cast doubt on the independence of a member, and not commit any act that might cast doubt on the independence, freedom and impartiality of the commission – the arrangements for the presidential election held on September 7, 2013 were made in violation of the compulsory guidelines given to the Elections Commission in the Supreme Court case 29/SC-C/2013 as the guardian of the laws and the constitution of the Republic of Maldives; and as a result of the actions of the Elections Commission regarding the election, which broadly facilitated fraud, undue influence and corruption, 773 persons were allowed to vote despite conflicting ID card numbers, 7 persons whose names were not were not on the list were added to it manually with a pen, 18 persons voted despite the DNR [Department of National Registry] registry showing they were deceased, 7 children voted according to the registry, 3 persons voted twice, 225 people voted despite not being given ID cards under their names because their records were considered “repeated” in the DNR, 2830 people were allowed to vote despite their permanent addresses not matching, 952 people voted despite their names not matching, 7 people voted despite their names not being in the DNR at all, and records showed that the ID card numbers of 819 people did not match in the printed voter registry because of the carelessness of elections officials who noted it down after they had voted; as it can be seen that a large number of Maldivian citizens were deprived of their constitutionally guaranteed right to vote and as there was opportunity for one person to vote more than once; and as there is no legal or judicial basis to consider that the proper exercise of the right to vote as required by article 170(a) of the constitution was fully ensured in the aforementioned election, based on the witness testimony heard in this case, the clerical evidence, and the expert report compiled by the expert forensic team assigned by the Supreme Court regarding the evidence, [the Supreme Court rules] that presidential election held on September 7, 2013 is a void election that lacked legitimacy, and orders the Election Commission and other relevant state institutions to make arrangements for the first round of the presidential election required to be held in 2013 by the constitution under the following [guidelines];
(1)        The Elections Commission and relevant state institutions should jointly make arrangements to hold the election required by the constitution to be held in 2013 in adherence to the guidelines provided in this judgment before October 20.
(2)        If a second round is required in accordance with the law and the constitution, the Elections Commission and relevant state institutions should jointly make arrangements to ensure a second round of the presidential election before November 3, 2013.
(3)        Make arrangements for voting to ensure that all citizens who turn 18 years of age by the date of the election required by the constitution to be held in 2013 is able to freely and fully exercise the constitutionally guaranteed fundamental right to vote in accordance with the rules or guidelines stated in this judgment.
(4)        Accept the Department of National Registration’s database as the main source to determine eligible voters in terms of age, and ensure that children under the age of 18 and the deceased are not included in listing eligible voters.
(5)        Ensure that voting in all electoral districts in the Maldives and abroad is based on the latest list that includes the voter’s name, permanent address and ID card number and [that the list] has been agreed upon as valid by the Elections Commission, candidates or their representatives, and [ensure that] no other list will be used in any electoral district either in the Maldives or abroad.
(6)        Ensure that all persons who register following the announcement for voter registration will not have their names changed to a different district when they are divided into the voting districts, and [ensure that] the list does not include the names of any persons other than those registered to vote in that district.
(7)        As those registered in the Male’ municipality special register are legally considered residents of Male’, and since there is no real reason to register [them] in a house in a particular ward or constituency of Male’ to vote in the presidential election, [the Elections Commission should] make arrangements for all persons in the Male’ municipality special registry who have been changed to houses to vote in specially designated ballot boxes [for those in the special registry].
(8)        Ensure that no one will be allowed to vote twice, and that every voter will be issued one ballot paper, and appoint all officials with the knowledge of candidates or their representatives to ensure that all officials in voting districts are safe from allegations of supporting or representing a particular political ideology or candidate.
(9)        Ensure that reports on the voting process in every district are compiled after completion of voting in the presence of representatives of candidates to ensure that the report is compiled without fraud or falsehood, omit or mark the names of people who did not vote in that district, ensure that the number of people who voted is not higher than the list of voters, and ensure that the report is compiled in the presence of representatives of candidates to assure that the people who voted in the list are those registered to vote in that district.
(10)   The Elections Commission and relevant authorities should make it illegal for any person (including officials) who enters the polling station to carry phones, handbags, files or any item (excluding pens) that could be considered to infringe upon the rights of candidates and ensure that no such action took place.
(11)   Ensure that a verified second list identical to the voters list in every district is placed in the district available for public viewing.
(12)   The Elections Commission together with the security services should ensure secure arrangements for printing new ballot papers with adequate security features appropriate for the election to be held before October 20, 2013 under the constitution, transferring ballot papers from one place or island to another, maintaining security for ballot papers, and maintaining security for ballot boxes after voting.
(13)   The latest token number issued to voters must be announced every 30 minutes to voters [waiting in queue], the relevant official should note the token number near the person’s name on the list while marking the name of the person after he or she has voted, and impartial officials must be appointed to ensure that no person’s name is marked twice and that two token numbers are not listed near the same name.
(14)   In order to ensure that arrangements for the presidential election required under the constitution are made in accordance with the compulsory guidelines given to the Elections Commission in this judgment, [the Elections Commission should] consult with other state institutions within no more than 72 hours of this judgment to ensure that [the necessary] arrangements will be made.
(15)   To minimise the possibility of a person being registered to a different district illegally without his or her knowledge, the Elections Commission should not accept re-registration forms or the forms submitted by a third party that does not include the name, address, identity card number and fingerprint of the person requesting re-registration, the person submitting the form as well as [the same information of] two witnesses. To ensure that [incomplete forms are not accepted], the Elections Commission should publicise a list including the names of those re-registered, the new district they have been registered to, their names, addresses, and ID card numbers.
(16)   As the aforementioned expert report revealed that a high number of foreigners who should not have had access to the Elections Commission server and database had regular access to it, the Elections Commission’s server and full IT system should be reformed and improved in accordance with the professional opinion of the National Centre for Information Technology and other relevant state institutions to assure confidence [in the server and IT system].
Dissenting Opinion
Chief Justice Ahmed Faiz Hussein and Abdulla Areef
The Jumhooree Party requested the annulment of the first round of the presidential election held on 7 September 2013, claiming the Elections Commission violated the Constitution, Elections laws and the Supreme Court verdict number 2013/SC-C/39, violated fundamental rights guaranteed in the constitution to every citizen and requested the Supreme Court to declare it a right for every presidential candidate to receive the registry of individuals of who had voted from the Elections Commission, and requested the voter registry be invalidated, claiming the registry was not accurate as it was not compiled in accordance with relevant laws and guidelines noted in the Supreme Court’s verdict 2013/SC-C/39.
We note the following with reference to the testimony and evidence presented by the complainant, defendant and those who intervened in the case, the Maldives’ constitution and Act no 12/2008 (Presidential Elections Act), and Act no. 11/2008 (General Elections Act).
1. The complainant, Jumhooree Party, has noted the following in contending the existence of irregularities in the “Voter Registry of Presidential Election 2013”:
2. Although the Jumhooree Party filed this suit under Article 113 of the Constitution, with reference to the points noted below, it is clear this complaint relates to the voter registry as per Article 170 (b) of the Constitution. The Jumhooree Party has asked:
3. The following points are noted with reference to relevant constitutional articles, Act no 12/2008 (Presidential Elections Act) and Act no. 11/2008 (General Elections Act):
4. Article 62 – 65 of the General Elections Act states the manner with which any challenge submitted pursuant to Article 172 (a) shall be dealt with.
5. The following is noted with reference to Act no 11/2008 that was passed pursuant to Article 170 of the Constitution. The Act states that the Elections Commission responsibilities and powers include conducting, managing, supervising, and facilitating all elections and public referendums, ensuring the proper exercise of the right to vote, and to ensure that all elections and public referendums are conducted freely and fairly without intimidation, aggression, undue influence or corruption and holding and declaring the results of those elections and public referendums within periods prescribed by law
6. Jumhooree Party submitted five lists as evidence to prove that the Elections Commission’s Voter registry was not compiled in accordance with the constitution, relevant laws and Supreme Court verdict 2013/SC-C/39. However, the sources from which the information obtained for these five lists are not known. These lists are 1. A list of dead people present on the Voter registry (669 individuals) 2. A list of individuals who were not 18 years of age in the Voter registry (41 people) 3. Individuals whose names were repeated twice on the Voter Registry (204 names) 4. A list of individuals who were not issued ID cards by the Department of National Registration (1818 names) 5. A list of individuals who had registered at addresses without the knowledge of the owner of the address (1187 names). The Elections Commission submitted lists of those who had voted in the first round of the presidential election held on 07 September 2013 for all 470 ballot boxes (796 booklets) on orders of the Supreme Court. Jumhooree party’s five lists and the Election Commission’s list of those who had voted were given to a Maldives Police Services expert team consisting of document examiners of the forensic services directorate, computer forensic analysts and technical staff for comparison. We note the following from the expert report compiled by the Maldives Police Services:
7. The plaintiff and those who provided witness statements asked for anonymity. There were clarifications to be made in the 14 anonymised witness statements. However, since such clarifications may have violated the anonymity of the witnesses, such questions were not asked. Further, the secret Maldives Police Services document submitted by the Attorney General’s Office submitted to court did not provide a right of response to the defendant. Hence these witness statements and the secret documents have not been counted [in this opinion].
Given, Article 172 (a) of the constitution states that a person may challenge a decision of the Elections Commission concerning an election or a public referendum, or may challenge the results of an election, or contest the legality of any other matter related to an election, by means of an election petition presented to the High Court,
Given the Majlis has passed a statutory elections law (Act 11/2008) as per Article 172 (b) of the constitution which states the manner for dealing with any challenge shall be provided for in a statute on elections, and as Article 65 (a) of Act 11/2008 with reference to Article 64 of the same act states a vote in a specific area may be annulled and a revote ordered in that area if the court decides there is undue influence in an election in that specific area,
Given official results of an election can only be annulled only in the specific area, specific ballot box or boxes, in which undue influence has occurred as per Article 65 of Act 11/2008 (Elections Act), there is no room to annul the votes of the 211,890 people who voted in the 2013 Presidential Election held on 7 September 2013.”
Justice Ahmed Muthasim Adnan’s Dissenting Opinion
The Jumhooree Party requested the Supreme Court – under Article 113 of the Constitution, Article 10 (b) and 11 (a1-3) of Act no 22/2010 (Judicature Act) –  annul the first round of the presidential election held on 7 September 2013, claiming the Elections Commission violated the Constitution, Elections laws and the Supreme Court verdict number 2013/SC-C/39, violated fundamental rights guaranteed in the constitution to every citizen and requested the Supreme Court to declare it a right for every presidential candidate to receive the registry of individuals of who had voted from the Elections Commission, and requested the voter registry be invalidated, claiming the registry was not accurate as it was not compiled in accordance with relevant laws and the Supreme Court’s verdict 2013/SC-C/39.
The defendant in this lawsuit is the Elections Commission. The Maldivian State, and the Maldivian Democratic Party (MDP) and Progressive Party of the Maldives (PPM) intervened in the case. However, the MDP later left the case.
I note the following with reference to the Constitution, Act no 08/2008 (Election Commission Act), Act no 11/2008 (General Elections Act), Act no 12/2008 (Presidential Elections Act), testimony provided by the Jumhooree Party, testimony provided by the Elections Commission, testimony provided by third party interveners, documents submitted to court, the answers provided to judges, and procedural aspects of this case.
With reference to the aforementioned points, I do not see it necessary to issue a ruling on Jumhooree Party’s claims.