Law and order appears to have gone a bit schizophrenic in the Maldives in the last few days. First the Maldives Police Service (MPS) arrested its intelligence head, Chief Superintendent (MC) Mohamed Hameed, on charges of ‘endangering internal security’ by disclosing classified information.
Hameed is alleged to have co-operated with the co-authors of ‘The Police and Military Coup’, an MDP-affiliated investigation into the events of 7 February 2012. The report was released in response to the current government’s ‘findings’ into the events, published so prematurely as to be available for public feedback even before investigations began.
The MPS says drafts of the Coup Report, along with commentary, were found in MC Hameed’s gmail account. Nobody has yet answered the question of why the MPS was snooping around in the man’s private email account in the first place. Is it normal for the MPS to spy on their officers?
Then the Criminal Court granted the MPS a five-day extension to Hameed’s detention. He was promptly taken to Dhoonidhoo, the Maldives’ most famous prison island. Hameed’s lawyers lodged an appeal at the High Court on the same day but he was not granted a hearing until the fifth and last day of his detention. Three Justices agreed unanimously that he should be detained for five days, just hours before the five-day detention period expired.
Now, is it just me, or is it a bit difficult to get your head around the question of why the High Court would deign to deliver that judgement at that particular time? Three more hours, and the detention order would no longer be valid anyway. So what was the eleventh hour High Court ruling for?
The High Court’s behaviour becomes all the more inexplicable in light of the fact that shortly afterwards the Criminal Court released Hameed. It saw no grounds to detain him further. All told, the judiciary does not seem to know quite what to do, with itself or with a problem like Hameed.
What is to be done with Hameed? Was he ‘spying for the enemy camp’ as some are alleging? Or is he a heroic whistle-blower? Is he to be jailed for life, or celebrated as a voice that stood up for democracy?
National security violation or whistle-blowing?
The MPS is alleging that by talking to the authors of the Coup Report, Hameed had facilitated an ‘intelligence leak’. Here’s a Tweet by pro-government blogger endorsed by Police Commissioner Abdulla Riyaz.
— heyoverikan (@heyoverikan) June 15, 2012
Was it an intelligence leak?
The Coup Report does not name any names that are not in the public domain already as having been involved in the events of 7 February; nor does it reveal information a third party had not been privy to previously. What the report seems to have done, for the most part, is gather together scattered evidence already available on various platforms on the Internet and other media into a coherent single narrative.
It appears the authors shared their drafts with Hameed, and he acted as some sort of a proof-reader or a fact-checker. Double-checking what was in the report against what he saw and knew as the Intelligence Chief on 7 February. The MPS says it saw evidence of this in Hameed’s gmail account.
In the absence of an Official Secrets Act or whistle-blower legislation (any lawyer wanting to stop practising the art of silence is welcome to contradict or complement this), what is the most likely legal instrument that would be used for prosecuting Hameed?
The Police Act is a likely resource. It is what the MPS says Hameed violated. The Police Code of Conduct says:
Information obtained during police duty should be confidential and not shared with a third party. Information about police operations and information contained within official police records should not be made public unless their exposure is lawfully ordered.
So, technically, Hameed was acting against the Police Code of Conduct when he liaised with the authors of the coup report.
But, what if he was co-operating in revealing a crime? In such a scenario, Hameed cannot be regarded as guilty of misconduct or any other offence, but becomes a whistle-blower. In the absence of a Maldivian legal definition, let’s go by the dictionary definition:
whis·tle·blow·er or whis·tle-blow·er or whistle blower (hwsl-blr, ws-)n.One who reveals wrongdoing within an organisation to the public or to those in positions of authority: ”The Pentagon’s most famous whistleblower is . . . hoping to get another chance to search for government waste” (Washington Post).
What the Coup Report alleges, and is the opinion shared by tens of thousands of Maldivians, is that the elected government of the Maldives was illegally overthrown on 7 February with the help of police mutiny. If so, providing information on how the police mutiny occurred is not a crime.
Besides, information relating to those events should not be an official secret or classified information. What could there be of more grave public interest than knowing how a government most voted for ended so suddenly and in such questionable circumstances?
Would Hameed not have given the same information to the Commission of National Inquiry if it had bothered to ask him? Would he be not sharing the same information with CoNI now that it’s work has begun at long last? Or is this a way of making sure Hameed is not able to freely speak to CoNI?
If the State were to go after Hameed, there is also Section 29 of the Penal Code:
Whoever attempts to commit or participates in or facilitates the commission of an act against the State shall be punished with imprisonment for life or exile for life or imprisonment or exile for a period between 10 years and 15 years.
An ‘act against the State’ is a term so broad that the act does not necessarily have to amount to an offence to be deemed punishable. The State, meanwhile, is defined as:
the Cabinet existing in accordance with the Constitution, People’s Majlis and collectively all agencies that are entrusted with the administration of those entities. This definition shall also include all property belonging to the State.
So, anyone who does anything about anything to do with the State, which the state deems to be ‘against’ it, can be jailed for life, or banished for life?
Then again, the above definition defines the State as ‘the Cabinet existing in accordance with the Constitution.’ Which means that, if this government is found to be illegitimate, the Cabinet cannot be seen as existing in accordance with the Constitution, and therefore, Hameed could not have committed an ‘act against the State’.
Which brings it all back to the Mother Question upon which all other questions depend: is Waheed’s government legitimate?
Should that question not be answered first before pursuing people who talk about it for espionage and/or defamation? Shouldn’t any information made public for the purposes of answering that question be deemed valuable rather than criminal? Shouldn’t holders of such information be regarded as vital witnesses to be protected rather than traitors to be prosecuted?
Every question that depends on ‘if this government were legitimate’ should take a back-seat to that of how the first democratically elected government ended on 7 February. Especially the question of who is the hero and who the villain.
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