Comment: Law as an instrument of political power – CoNI and the coup, part two

This article originally appeared on DhivehiSitee. Republished with permission.

Using the law as an instrument of political power is not a new thing for governments, be they ‘established democracies’ or not.  A prime example is how the Bush administration (ab)used the United States Constitution to circumvent international law on acts of war, to justify Guantanamo Bay, torture, extraordinary rendition and to deny justice and human rights to suspected terrorists in the War on Terror.

The government of Dr Waheed – which, incidentally, is enjoying the full backing of the current US administration – too, has proven itself to be a dab hand at (ab)using the law as an instrument of political power. The CoNI Report, which found there was no coup, mutiny or duress involved in the transfer of power on 7 February 2012, is a case in point.

The first part of this series looked at how CoNI approached the investigation with a foregone conclusion: there was no coup. As discussed, CoNI then began a process of putting together all evidence that supported this conclusion while systematically excluding, or discarding as irrelevant, any evidence that refuted or cast doubt over the said predetermined conclusion.

CoNI approached laws relating to the transfer of power on 7 February in the same manner as it did the facts surrounding it. Laws were picked and chosen as applicable only if they supported CoNI’s foregone conclusion: the change of government was Constitutional. Any part of the Constitution or existing laws that could be applied to refute the said conclusion or challenge its validity were ignored, glossed-over, deliberately misquoted, or dismissed as mere ‘protocol’.

Take, for instance, the following statement:

With regard to the idea that there was a ‘coup d’état’, nothing in the Maldives changed in constitutional terms – indeed, the Constitution was precisely followed as prescribed.

Yes, the Constitution remains unchanged. But that does not automatically mean that the transfer of power ‘precisely followed’ the Constitution ‘as prescribed’. This is a conclusion that can only be deemed legal by abusing law and making a mockery of the principles of the rule of law.

CoNI’s use of the law as an instrument of political power is most blatantly evident in the sections of the Report dealing with (a) presidential succession and (b) resignation and succession. It discusses as relevant to this issue six Articles of the Constitution: 108, 100, 112 (b),  112(d), 121, and 123 (b). Each of them appears to have been selected precisely to prove a particular point, which when taken together, supports the CoNI conclusion that the transfer of power was constitutional.

Article 108 is deemed relevant in this section, for instance, solely to remind the people that sometime ago, in 2008, when they voted for Nasheed, they also voted for Waheed as his running mate. As noted by the Legal Review of the Report by a team of Sri Lankan lawyers, it is an inherently limited argument that

[…] purports to construe the change of power or justify the change of power in terms of what had transpired 3 years ago rather than what had transpired in the present.

Regardless, CoNI uses it to demonstrate that, by law, it matters little that they voted for him not as their leader but as the leader’s deputy. Only when considered separately from the fact that thousands of people now suspect the very same deputy of having caused their leader’s downfall—and when taken in isolation from the various other aspects discussed below—does Article 108 allow Waheed to become someone that can even remotely be regarded as an ‘elected’ president.

Article 100–which deals with the legal means of removing a President from office–is mentioned in the Report, but is not discussed as deserving of note. Given the predetermined conclusion of CoNI, that there was no duress involved in the President’s resignation, the Article of the Constitution is indeed irrelevant.

Articles 112 (b) and (d) deal with eventualities requiring the Vice President’s succession to office of the President.

Article 121(a), which deals with details of a President’s resignation letter, meanwhile, helps establish that because Nasheed wrote the letter in his handwriting, it must be valid and legal. Once President’s Nasheed’s claims that he wrote the letter under duress are dismissed as ‘baseless allegations’ (having excluded any evidence to the contrary), then Article 121 makes perfect sense.

The letter is in Nasheed’s handwriting (written under what circumstances matters not) and it was delivered to the leader of the Majlis (how and by whom did not matter). When looked at in this sort of fantastical isolation, Article 121 can, indeed, be interpreted as validating the document as legal.

Article 114, meanwhile, is cited almost in full:

An incoming President or Vice President shall assume office upon taking and subscribing, before the Chief Justice or his designate, at a sitting of the People’s Majlis, the relevant oath of office set out in Schedule 1 of this Constitution.

Interestingly, although cited in the CoNI Report as the law relevant to ‘resignation and succession’, the Report pays scant subsequent attention to it. In fact, much like the JSC’s dismissal of Article 285 of the Constitution as ‘symbolic’, the CoNI Report dismisses the stipulations of Article 114 as mere ‘protocol’.

The Presidential oath, as stated in the Constitution, requires the incoming President to say his own name in the oath. ‘I, Mohamed Waheed Hassan Manik…’ Chief Justice Ahmed Faiz Hussein, who administered the oath,  did not include Waheed’s name in its composition. Similar problems affected US President Barack Obama’s swearing in ceremony in January 2009. The remedy then was for Obama to re-take the oath exactly as prescribed in the Constitution. The current Maldivian government, and the CoNI Report, in contrast, chose to ignore the glaring omission in Waheed’s oath, as if it mattered little.

At a stretch, this is a matter that can be dismissed as a breach of protocol.

But the same cannot be said for the requirement in Article 114 that the new President must take the oath of office at a sitting of the People’s Majlis.  President Waheed took the oath office at a ceremony held in the privacy of a room in the Majlis premises, with only his wife, the Chief Justice, Speaker Abdulla Shahid and a few administrative staff as audience and witnesses. This is not simply a bungled oath.

Neither is it, as the CoNI Report claims, a ‘possible non-compliance’ of ‘protocols which had been created for general office management.’

Precisely where the presidential oath is taken is not simply a matter of housekeeping, nor merely a matter of deciding on which venue is free or most conveniently accessible for the occasion. If the Constitution were to be ‘followed precisely as prescribed’, and if Waheed has been properly sworn in as the President of the Maldives, it would have been done at a sitting of the people’s Majlis.

Is Waheed a caretaker president?

Something starts to smell really rotten when it comes to issues surrounding this question. First, the Report glosses over the fact that the oath administered to Dr Waheed to enable his accession to the presidency was one meant for a caretaker president.

Take the fact, for example, that although it is Article 114 that CoNI cites in reference to Dr Waheed’s oath, in reality the oath administered to Waheed is the one stipulated in Article 126:

Any person temporarily discharging the duties of the office of the President or Vice President shall take and subscribe before the Chief Justice or his designate, the relevant oath of office set out in Schedule 1 of this Constitution.

This is an oath which is not required to be taken in front of the Majlis, for it is not meant for a President proper. And, although the CoNI report makes no mention whatsoever to Article 126, this is the oath that is administered to Waheed. That is what Speaker Shahid says before the oath is administered. Watch the video:

Having stated that Nasheed has resigned under Article 121(a) of the Constitution, this is what Speaker Shaid says (at 1:11):

I, therefore, request of the Vice President, Dr Mohamed Waheed Hassan Manik, to take the oath as stipulated in Article 126 of the Constitution enabling him to carry out the responsibilities of the President.

Article 126. Not Article 114.

To cite Article 114 to justify an action taken under Article 126, as the CoNI Report did, is to deliberately mislead the public into believing that we have a President proper rather than a Vice President temporarily assigned the responsibility of carrying out the duties of the President—until such time as there could be a president proper.

This deliberate deceiving of the pubic is further shored up by blatant disinformation, or to put it less kindly, by a blatant lie.

Below is a screen shot of an extract from page 22 of the CoNI Report. Note the highlighted section, and what it states as the contents of Article 123(b) of the Constitution.

This is not factual information.

What Article 123(b) says in reality is this:

The ‘subsequent election, permanent incapacity or death’ which the CoNI Report falsely states as contained in Article 123 (b) of the Constitution, in reality, appears in Article 124 (b) in relation to the permanent incapacity of both the President and the Vice President together. It is, therefore, not relevant to the circumstances surrounding the transfer of power on 7 February 2012.

Note that even then, the person who assumes the office of the President does so in a temporary capacity.

If the Constitution were precisely followed as prescribed, as the discussions above show, Waheed is a caretaker president; someone who is temporarily in charge of carrying out the duties of the President until a President proper – that is, a president elected by the people of the Maldives – is sworn in under Article 114.

Even though CoNI and the current Coalition Government, which set CoNI up and also administered the caretaker oath to Dr Waheed, knows this full well, it has chosen to selectively apply parts of the Constitution – and at times deliberately lie – to force the public as a whole to accept him as the ‘elected’ (recall the use of Article 108) President of the Republic of Maldives. Something which he is not.

Why?

Because it is the only ‘legal’ way in which the current government can withhold from the Maldivian people their right to a free and fair election – which must be held as soon as possible – so the caretaker president can be replaced by the President proper, be it Waheed, Nasheed or someone else.

Getting around the mutiny

A group of police and military personnel refused to obey the orders of their Commander in Chief on 6th and 7th February 2012. This is documented in CoNI’s own Timeline, which it describes in the Report as the most solid foundation for its conclusion that there was no coup. Therefore, even for an institution that proved so adapt at twisting the law to suit its facts, there was no getting around the fact that the armed forces—for whatever reason—disobeyed their leader. This was a mutiny:

mutiny |ˈmyoōtn-ē|

noun ( pl. -nies)

an open rebellion against the proper authorities, esp. by soldiers or sailors against their officers : a mutiny by those manning the weapons could trigger a global war | mutiny at sea.

So how does CoNI absolve the mutinying armed forces of any responsibility in the transfer of power? First it points out that ‘there is no definition of the expression “coup d’etat’ in Maldivian law’, implying that because the Maldivian law has so far failed to define the term, no transfer of power, no matter how illegally affected, cannot be deemed a coup.

Then it notes that there are several statutory provisions that do define rebellion as an offence against the State punishable by law, but promptly dismisses them as inapplicable because, even if there was such a thing as a coup, the open rebellion of the armed forces cannot be deemed a coup because it occurred before the coup.

This position is nothing short of ridiculous: the only thing that can be considered a coup under this definition is the actual act of assumption of power by a new President – the act of swearing in, in this case. Everything that comes before it, leads to it, triggers it, is the catalyst of it, and/or is the direct cause of it, according to this position, is irrelevant and inconsequential.

Yet, this is the position CoNI takes: because the rebellion of the armed forces can neverbe a coup per se even if it directly leads to one, any such mutiny cannot be punished as an offence against the State.

By (ab)using the law in this manner, CoNI is thus able to make a military and policecoup d’etat against the State impossible—even if it occurred in broad daylight and was witnessed, in real time, by the entire nation. In this manner, the police and the armed forces, and the three men who commandeered them and guided them through the rebellion, are all absolved of responsibility and made immune from prosecution for not just their disobedience of authority but also its consequences: the end of a democratically elected government.

Given CoNI’s abuse of rule of law – using the law as its primary instrument – it would be a travesty against the very concept of democracy for its Report to be accepted and endorsed as the definitive truth, and as a legally binding document that settles once and for all the many disputes that surround the transfer of power in the Maldives on 7 February.

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