Supreme Court precedent in Nexbis case makes ACC meaningless: ACC President

The Supreme Court of the Maldives last Sunday invalidated the a High Court injunction blocking the implementation of a border control system (BCS) in Ibrahim Nasir International Airport by Malaysia-based security solutions firm Nexbis.

The seven member bench of the Supreme Court invalidated the injunction, stating that “the subject of the injunction was not a subject where an injunction can be issued and thereby the bench of the Supreme Court unanimously rule that High Court order is invalid”.

The decisive ruling ends a long-running legal battle involving Department of Immigration, the Anti-Corruption Commission (ACC) and Nexbis. The ACC had alleged there was corruption in the bidding process.

Following the decision, Controller of Immigration Dr Mohamed Ali stated to local media that the system would soon be fully installed.

“A team of Nexbis staff will be coming over by the end of this week. A large portion of the system has already been installed. I hope we would be able to begin using the system very soon,” the controller said.

He reiterated that the immigration department currently uses a very basic application which has many issues and would also expire by the end of the year.

The new system he said would alleviate the existing problem of long queues and other issues, as well as increase the efficiency of the process.

He further said that when they when the system is implemented and begins functioning, biometrics from all departures and arrivals will be recorded. Afterward, “no one will dare to enter the Maldives illegally.”

“No one can stop the project,” he concluded.

State of limbo

Meanwhile, ACC President Hassan Luthfee has expressed concern and frustration over the Supreme Court decision stating that it has put the commission in a state of limbo deprived it of purpose.

“If this institution is simply an investigative body, then there is no purpose for our presence,” he said. “Even the police investigate cases, don’t they? So it is more cost effective for this state to have only the police to investigate cases instead of the ACC,” Luthfee said.

Referring to the ruling, Luthfee said that the ruling meant that the ACC had no power to prevent corruption, even if it was carried out on a large scale.

“In other countries, Anti Corruption Commissions have the powers of investigation, prevention and creating awareness. If an institution responsible for fighting corruption does not have these powers then it is useless,” he said.

Officials investigated were invoking their right to remain silent, Luthfee said, and refusing to take any responsibility.

“When an official chooses to remain silent, what is the purpose of sending such a case to the Prosecutor General? Who will take the responsibility for the damages caused by such actions?” Luthfee questioned.

He added that even if a local island council or a school engages in a activity that involves in corruption, the Supreme Court precedent meant there was nothing that the ACC could do.

“This is just a simple example. To be frank this is the size of the ACC. The Supreme Court should be a court that should assist the independent institutions formed within the constitutional framework of this country,” he added.

Nexbis and ACC at loggerheads

The border control system at Ibrahim Nasir International Airport has been subjected to several allegations of corruption linked to former Controller of Immigration Ilyas Hussain – brother in law of current President Mohamed Waheed Hassan.

Following the presidential elections of 2008, then President Mohamed Nasheed gave Ilyas Hussain the position of Controller of Immigration as a part of coalition agreement with Waheed’s party, at the time Nasheed’s Vice President

However, when the Nexbis case came to light, former President Nasheed removed Ilyas Hussain from the position and put him as the head of the Disaster Management Centre, replacing him with Abdulla Shahid.

Shahid was a vocal opponent of the Nexbis system, alleging that the terms agreed with the company would deprive the Immigration department of significant revenue for comparatively little return.

The former controller at the time expressed concern over both the cost and necessity of the project, calculating that as tourist arrivals continued to grow Nexbis would earn US$200 million in revenue over the project’s 20-year lifespan.

Comparing Nexbis’ earnings to the government’s estimated revenue from the deal of US$10 million, Shahid suggested the government instead maximise its income by operating a system given by a donor country.

“Border control is not something we are unable to comprehend – it is a normal thing all over the world,” Shahid told Minivan News at the time. “There is no stated cost of the equipment Nexbis is installing – we don’t know how much it is costing to install, only how much we have to pay. We need to get everything out in the open.”

Following the controversial transfer of power on February 7, President Waheed returned Ilyas Ibrahim to his former position as the controller of Immigration.

However as the corruption investigation progressed, President Waheed removed Ilyas Hussain from Immigration and installed him as Minister of State for Defence and National Security, Chief of Staff of the President’s Office Dr Mohamed Ali replaced him as Controller of Immigration.

Nexbis and ACC came to loggerheads the day after signing ceremony between Immigration Controller Ilyas Hussein Ibrahim and Nexbis CEO Johan Yong. The ACC opposed and sought and injunction after stating it had received “a serious complaint” regarding the “technical details” of the bid.

In November 2010, nearly a month after the signing of the agreement, shares of Nexbis dropped 6.3 percent on the back of rumours that the project had been suspended.

The speculations lead to Nexbis announcing that it would seek legal redress against parties in the Maldives, claiming that speculation over corruption was “politically motivated” in nature and had “wrought irreparable damage to Nexbis’ reputation and brand name.”

In August 2011 the Malaysian based mobile security system vendor on the local media threatened to take legal action over the stalled border agreement with the government.

In a letter to then Immigration Controller Abdulla Shahid on August 19, Nexbis complained that it had not received a reply from the Immigration Department to its inquiries after the cabinet decided to proceed with the project.

Nexbis stated in its letter that the company had spent “millions of dollars” to purchase equipment and had even paid import duties to the government, noting that the continuing delays were resulting in financial losses.

ACC filed a court case against the Rf500 million (US$39 million) Nexbis system in November 2011, two days after cabinet decided to resume the project.

The ACC in December also forwarded corruption cases against former Immigraiton Controller Ilyas Hussain Ibrahim and Director General of Finance Ministry, Saamee Ageel to the Prosecutor General’s Office (PG), claiming the pair had abused their authority for undue financial gain in awarding the Nexbis project.

On January 2012, the Civil Court ruled that ACC did not have the legal authority to order the Department of Immigration and Emigration to terminate the border control system contracted to Nexbis in November 2010.

Judge Ali Rasheed ruled that the ACC Act clearly allowed the commission to investigate corruption cases, but did not give ACC legal authority to issue an order which can annul a formal agreement signed between one or more parties.

He asserted that it was “unfair” to the contractors if ACC could annul an agreement without the contractors’ say, adding that such a decision violated the protection granted to the contractors under the Maldives Law of Contract.

Nexbis on February 2012, a week after the controversial transfer of power, filed a lawsuit at the Civil Court seeking Rf 669 million (US$43 million) in damages from former Immigration Controller Abdulla Shahid.

According to the lawsuit, Nexbis alleged Shahid refused to proceed with the project despite court approval and spread false information regarding the agreement to the media, tarnishing Nexbis’ global reputation.

Meanwhile, the Immigration department decided to proceed with the stalled border control system.

On April 2012, the ACC appealed the Civil Court’s ruling in the High Court.

The High Court favoured the ACC and issued an injunction, temporarily halting the roll out of the border control system pending the outcome of the ACC’s appeal against a Civil Court ruling that the ACC did not have the authority to halt the project.

Nexbis then filed an appeal at the Supreme Court against the High Court injunction.

The firm had earlier in May stated that despite the legal complications surrounding the deal, the border control project had completed its first phase, with Rf 10 million’s (US$650,000) worth of installation work having been finished.