A legal analysis of the Commission of National Inquiry’s (CNI) final report by a team of high-profile Sri Lankan legal professionals – including the country’s former Attorney General – has been prepared upon the request of the Maldivian Democratic Party (MDP).
The scathing report accuses the commission of exceeding its mandate, selectively gathering and acting upon evidence, and failing to adequately address the fundamental issue with which it was charged: determining whether former President Mohamed Nasheed resigned under duress.
“[The CNI] appears to have abdicated its duty to objectively and reasonably bring its collective mind to bear on whether or not there was duress involved in the purported resignation of President Nasheed,” concludes the the detailed report.
The CNI report had stated that Nasheed’s resignation was “voluntary and of his own free will,” adding: “It was not caused by any illegal coercion or intimidation”.
The legal analysis’ authors include two Sri Lankan Supreme Court attorneys – Anita Perera and Senany Dayaratne – and the former Sri Lankan Attorney General Shibly Aziz.
“The Report offends the fundamental tenets of natural justice, transparency and good governance, including the right to see adverse material, which undermines the salutary tenets of the Rule of Law.”
The Sri Lankan legal team also believe “There is evidence to demonstrate that there was in fact adequate evidence to suggest that duress (or even ‘coercion’ and/ or illegal coercion as used by CNI) is attributable to the resignation of President Nasheed.”
Last week’s official release of the CNI report was preceded by the resignation of one of the commission’s five members.
Ahmed ‘Gahaa’ Saeed – Nasheed’s nomination to the commission – resigned after viewing the first draft compiled by the Singaporean co-chair, retired Supreme Court Judge G.P. Selvam.
“I feel compelled to formally register with you a number of issues that I believe, if left unaddressed, will seriously undermine the credibility of the report,” Saeed wrote to his colleagues on August 26.
“I also believe these matters defeat the purpose for which the CNI was established,” he added.
Saeed’s concerns – which included withheld evidence, non-examination and obstruction of witnesses, and overlooked evidence – appear to have been substantiated by the Sri Lankan analysis.
The MDP had previously commissioned a legal report by a team of Danish experts which concluded that Nasheed had resigned under duress.
“To the extent that a ‘coup d’etat’ can be defined as the ‘illegitimate overthrow of a government’, we must therefore also consider the events as a coup d’etat,” read the analysis, titled ‘Arrested Democracy’.
Exceeded mandate, flawed report
The Sri Lankan analysis focuses on five main areas: the CNI’s compliance with its mandate, the procedure pursued in exercising this mandate, the evidence gathering process, the adherence to the “imperative dictates” of natural justice, and the legal issues which ensue from this.
In addressing the issue of the mandate, the analysis states the following: “It must be emphasised that the mandate granted to the Commission, is not to investigate whether the ouster of President Nasheed is politically justified, nor is it an evaluation of the manner in which the President discharged his powers and duties during his period of office.”
The report opines that the CNI simultaneously expanded its mandate to include additional concepts such as ‘common-good and public interest’, whilst restricting itself to completion in a timely manner in order to move the country forward.
The analysis argues that “without any explanation or rationale” the CNI focussed only on the physical threats to Nasheed without considering the context of pressures which were “exerted on the ability of the President to lawfully administer the country” in the period under review – January 14 to February 7.
Procedure and evidence
“It is respectfully submitted that the Report, which was compiled and released in less than two months, cannot be relied on as a credible analysis of the legality of the change of power as it has, inter alia, not provided objective reasons for the way in which it has selected or afforded weight to the evidence considered for its conclusions; has deviated from the critical issues it was required to consider in terms of its mandate and appeared to have conferred on itself an objective of ascertaining a political justification for the change of government rather than analysing, as it was required to do, the legality of the said change.”
In analysing the evidence gathering aspect, the analysis provides a table of “numerous glaring omissions” which include:
- No testimony from deputy leader of the Progressive Party of Maldives (PPM) Umar Naseer, or consideration of public statements calling for, and taking credit for, the overthrow of the government.
- No examination of the role of then Vice-President Dr Mohamed Waheed Hassan on February 7 and his meeting with opposition leaders on January 30.
- No mention of the leaders of some opposition parties openly joining protesters on the morning of February 7, and the fact that some were inside the police headquarters “conspiring alongside certain senior police officers.”
- No inclusion of the account of Nasheed’s wife, Madam Laila Ali, despite the basis of coercion adopted by the CNI including threats to Nasheed’s family.
- No analysis as to why Mohamed Nazim, currently the Defence Minister but a civilian on the morning of February 7, announced the appointment of acting heads of the police and military before Nasheed had resigned.
- No testimony from key witnesses, such as Chief of Defence Brg. Gen. Moosa Ali Jaleel and Deputy Police Commissioner Ahmed Muneer, despite CNI’s procedural rules prescribing “rigorous deliberation” on obtained evidence.
- Statements from key personnel like Male’ Area Commander Ibrahim Didi and Commissioner of Police Ahmed Faseeh were not taken August 27.
The report also repeats the concerns of ‘Gahaa’ Saeed that vital CCTV footage was not obtained by the commission.
“In view of the totality of the foregoing, it is submitted that CNI failed, and/or neglected, to take such steps as are necessary to ensure a full evaluation of all relevant evidence and/or expressly account for any limitations therein,” it states.
Natural Justice
Citing the dictates of natural justice, the analysis argues that the CNI impinged on the right to a fair hearing and the rules against bias.
The Sri Lankan experts argued that, as the report at various time treats Nasheed as a witness, a complainant, and as the accused, he ought to have been afforded greater opportunity to give evidence and to defend himself.
“The Report appears to depict the President as the accused in an investigation that, however, was never designed or intended to place any culpability on anyone, unless the Commissioners so misconceived their writ,” the authors stated.
The analysts also point out that the events of February 8 were treated as stand-alone incidents and not used to contextualise the climate in which the previous day’s events tool place.
They also argue that the CNI’s conclusion that the events of February 6 and 7 were responses to Nasheed’s actions implies that he got what he deserved, and was therefore “tainted with manifest bias.”
“The report further purports to create a strange burden of proof that no evidence is required to prove or disprove allegations, if the commission is of the opinion that the allegation is lacking in substance or reality,” read the analysis.
“It appears therefore, regrettably, that the commission appears to have adopted the whims of its preconceived notions, rather than the requirements of its mandate, in determining the evidence it will consider in compiling the Report,” it continued.
Legal issues
The legal issues concomitant with the CNI’s conclusions include the use of a draft penal code from 2004 to support the claim that Maldivian law does not define a coup d’etat.
It is also suggested that the CNI failed to consider the principle of duress as referred to in its original mandate, instead interchanging the term with ‘coercion’ which has a far narrower scope involving only threat to life limb or liberty.
It is argued that restricting illegal pressure to physical threats is not appropriate in a political context.
The legal analysis concludes that the evidence seen “gives strong credence to the claim that President Nasheed was under duress when he tendered his resignation”, even when considered in terms of the ‘coercion’ used by the CNI.
Regarding the claims that the events could not have amounted to a coup d’etat, the Sri Lankan team argued that there is no provision in Maldivian law which corroborates the CNI’s rationale that a Vice President can succeed a President based solely on the fact he was elected on the same ballot.
“The limitations of such an argument lie in the fact that it 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,” said the Sri Lankan report.
“The simple question that [the CNI] needed to answer to ascertain whether there was a coup was who controlled the communications and defense functions of the country – who was the police and military personnel listening to, who was occupying the national television promises immediately before President Nasheed’s resignation,” it continues
The analysis further suggests the CNI became overly focused on dispelling accusations of a coup, rather than simply determining whether the transfer of power was legal, the two not being mutually exclusive.
The analysis also adds that, just because a coup is not defined in Maldivian law, it does not mean it is not prohibited, suggesting that the penal code provides multiple provisions prohibiting unauthorised challenges to governmental authority.
The CNI’s claims that an army mutiny is an internal military matter is dismissed in the analysis by pointing out the president’s position as Commander-in-Chief.
It also suggests that the inability of the president to control his army is a “universally accepted hallmark” of a coup.
The constitutionality of the transfer is also challenged on the grounds that the permanent, as opposed to temporary, resignation and swearing in of presidents must take place before the People’s Majlis, as prescribed in Article 114 of the constitution.
“These authors observe therefore, that CONI could not have conclusively arrived at a finding that all constitutional provisions were duly complied with and further observe that such inconsistency cannot in any way be dismissed as a failure to comply with a mere protocol.”
“More importantly this also confirms the state of affairs that may have prevailed at the time of resignation where the persons who were desirous of bringing a change in the presidency were willing to sidestep constitutional requirements to replace President Nasheed,” concludes the analysis.
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so what? MDP maybe good at putting on spins but the facts are clear. the majority of the country who will vote in the next election has been let down by the way MDP conducted itself. judging by the present setup, it seems very likely MDP will be relagated to the second position for the forseeable future
Sri Lankan justice system is a model for the entire world, especially for the west.
It can be considered an honest and authoritative opinion if it comes from Sri Lanka - the cradle of peace in asia
When we read the analyzes of Sri Lankan team, we have very strong evidence the CNI report was a flawed document drafted by a commission selected for the sole purpose of legalizing the coup. The Singapore judge was a pre planed conspiracy to give impression to International actors the genuine intention of conspirators. Anni should not have accepted any Maldivian in the commission, especially when it was constituted by the coup leader, a blunder by Anni…… but we do realize the option for anni was non, Anni would have been seen unreasonable if he did not accept that commission when he put his own guy Gaha Saeed. That old judge may have signed it without reading , and those observers didn’t want to make big fuss for something, the outcome would not be disastrous. When it comes to banana republic everything will be like a joke, even the whole coup and what came after the coup was unusual events that are difficult to be defined under international laws and concepts. So lest accept it was “a coup but not a coup”, good for everyone.
Obvious whitewash to cover up the coup dictatorship. What a scam.
The majority of this country understands what had happened on feb 7th was a coup, specially the youth..
OMG, the angels of peace have spoken with their extensive experience of ever lasting honesty and brotherly love.
The tearful drop of peacefulness the region has ever seen over the past few decades.
Please hear them out, we may learn how to fry some opposition members, permanently.
What do we have here?
A commonwealth appointed retired Singaporean Supreme Court judge as Co-Chair and UN nominated Observer -Professor John Packer from Canada - International legal advisor &
Commonwealth nominated Observer - Sir Bruce Robertson, Retd Court of Appeal Judge from New Zealand - International judicial advisor; pitted against 3 Sri Lankan lawyers hired by ex-President Nasheed.
The former says the transfer of power is legal. Nasheed’s hired lawyers say transfer of power is illegal and they explain that the former legal experts concocted their conclusions by commissions & omissions because they had decided that it was best for Maldives if they declared the change of Govt was legal. 🙂
A sinking man clutching at straws!!!!!!!! Pathetic!
CONI's attempt to hoodwink the international community and the Maldivian pubic is now exposed. the CMAG's next meeting will consider this response before accepting the report....
Anyone gone through the CNI report thoroughly will see its an assignment that will score a low marks. any educated person will believe this.
The CONi report is a cheap joke, in the wake of the coup. The coup regime controls all aspects of the government and spreading fear since take over of the democratic government by the coup. The people are helpless as the country is under total military control, The people have not choice but to accept what ever they say. Most of the written media and TVs stations and Radio are all under regime control, the remaining few are under daily threats are not allowed to cover news. Some people still have the courage to stand against this oppression, hoping for the international community will intervene. I saw what happened on the 7 Feb, and I have no doubt that this is a very well planned coup, which forced the government of Nasheed to resign. He resignation in a duress, is obvious, as Umar Naseer was demanding him to resign by 1.30 pm that day, or face the consequences. The CONi report does not cover much on the coup, and the commission wasted the democratic rights of the people. The international community should save Maldives to prevent this happening in other countries. The situation is more serious than what people in other countries may think, and there is coming back to democracy, if we left the problem ourselves.
Why dont we ask Mr Mugabe' how the transfer of power happened here. His views would also be a major decision factor in this case now.
I am sure there must have been a time when all Maldivians, were proud of our nation. When we were proud to be a Maldivian citizen.
Now, I am definitely not proud to be one, in fact ashamed to be one.
On the next opportunity, I will leave Maldives, and I do have several options. Any of our neighbours can be destination. They are governed far better, more tolerant, my kids would have better opportunities, everything that is not here in Maldives now.
I foresee a lot of people would leave. Good bye..
Actually, Tamils are bad, bad and bad. bad in the Maldives, bad in Jaffna and bad on the boats as they "kamikazily" drowns near Australia in order to qualify for refugee status.
Anni studied in Sri Lanka in his school days and hence grew up among Tamil boys as well. He should have known the bad bad side of the Tamils.
Unfortunately, it was the Commonwealth which put a Tamil Judge into CONI. This judge drafted the report which was endorsed by other CONI members. So, although the Judge was bad, it was endorsed by others and then later accepted by the Commonwealth. So, my belief is the Commonwealth used a known Tamil Judge to trick Prez. Nasheed. What a pity. Shame on you Commonwealth.
My views on the Maldivian dictatorship appointing former Singapore Judge GP Selvam in a national inquiry to look into the recent military coup in that island. GP Selvam spent his entire career disgracefully, using the law to destory, impoverish and silence Lee Kuan Yew's political opponents. The question to me was whether he can expect to be impartial. I have written about him in my earlier blogs here. I have pointed out that Mr. Selvam is a thoroughly unscrupulous man who has no regard for anyone else and would do anything, however despicable he is orderd to do to further his career.
Gopalan Nair
Attorney at Law
Fremont, California
Judge Selvam In his entire life both as a lawyer and as a judges had no concern for Singapore, but to enrich himself by doing anything that his master desires. Had he been living in Nazi Germany, he would have extolled the virtues of Hitler, or Mussolini or Franco. In today’s age, he would have been very comfortable serving Mugabe in Zimbabwe or the North Korean dictator. . He has 2 daughters, both of whom live comfortably from the rewards of his dirty work. One daughter just sits at home while her husband works as a lawyer in the firm he set up. Another daughter is a veterinary doctor. Both live quietly and away from the public eye. A person such as Selvam who is prepared to destroy his fellow human beings to further his own career has to be someone who lacks self confidence, is completely ruthless and thoroughly unconscionable and someone who is incapable of realizing the misery that he causes to others.
Mr. Ong Beng Seng, Managing Director of HPL group Singapore + his partner in the Maldives and co-occurrent Vice President + His relative Shafeeu + their old time friend President Waheed = happened to be Judge Selvam siting in the CONI as a co chair
If we all accept the CoNI Report, it's quite easy to change the government anytime without an election.
Nazim Sir and letter carrying expert Riyaz shall be enough....we can ask them to help or rather one can buy them...money, money, Yes sir
Of course our neighbor are better.
In Sri lanka, if a person open their mouth against the president , then that person will get disappeared in no time. This is what I called the democracy and freedom of speech. I guess Sri Lanka is the best place to learn the democracy in the world and best judiciary system.
Sri Lanka is in line with the Maldives for the highers corruption Index and we should really follow them.
Both Sri Lanka and india is an example for us to follow.
This same Ismal Shafiu with CNI he wos appointed by Gayoom to investigate,Evaan Naseem who was killed In prison and Q.R.T shooting in prison,No one will belive CNI report just only a game to show the world (JETS)
The mouth of Gayoom (Dunya) already said they will quit the Commonwealth if it does not cave to their demand to remove Maldives from the agenda. I am sure the commonwealth would be devastated if the Maldives quit.
The CONI report must be evaluated by the Commonwealth and its is certainly fair to point out the numerous shortcomings.
Evan naseem was not killed when he was sleeping in his house. ?
He was convicted thief and gangster and druggist ?
This guy got killed when there was riot in the Jail and some inmates were charged with battern , steel and they tried to fought with the police men at the Jail.
In fact, there is no need to find out what happened, who were involved in this nothing but a coup that was brought out.
Waheed though he does not want to believe that he is dancing to someone's tune, is not dancing to his tunes.
To make this thing look like was legal, money that belong to the very people to who Maldives belong, has been spent without even blinking an eye. Waheed and the people who are involved in this nothing but a coup will have to answer the people.
I am sure everyone who are involved in the coup cannot digest anything other than what is siding them!
CoNI or anyone can say anything, but what took place on the 7th of February 2012 was nothing but a coup that brought down a government of the people, by the people and for the people!
People's choice and their wishes was looted!
Evan Naseem was in jail serving a sentence for using drugs and not selling them. He was not a gangster but an ordinary Maldivian child. He was tortured and eventually murdered by the Police in 2003. There was a head of police at the time. There was a president. Where are the guilty perpetrators?
Thank you Analyst. Your comments warrant us to ask the Commonwealth to push for a new CONI (national commission of inquiry) to investigate Judge Selvum.
If Mr. Ong Beng Seng of Singapore maneuvers CONI by appointing judges, its normal. That's the business model in Maldives.
After all, he country's foreign relations under Anni was decided by UK. The Arabs did that under Maumoon. Who know whom Waheed wd be looking up to. China?
Its always foreigner's who knows best. So Sri Lankan's are quite fit to teach morality, values and rule of law to Maldivians.
Fair game isn't that.
The CoNI report was written by Aazima Shakoor, Hassan Saeed, Kutti Nasheed and Maumoon.
Otherwise, why did Selvam leave to Singapore when the investigations wete going on,
Bo one can be expandable just because he is a criminal, A criminal once upon a time w
used to be a human, and someone's son, father or brother,,!!
@mody, you just have so much hate for Anni, & MDP that it blinds you from seeing anyone as a human, except may be yourself or your Baagyn!!
If you fell in the same delima, especially today, these days were lawless police arrest people for even taking pictures, and you get convicted, you will be labeled a criminal!!
does that quailfys anyone to shoot or kill you or anyone like that..,
How can you be a human when you don't know this much!!!
If you are a human!! you'll know how much everyone's life value!!!!
No point in insulting the independent and sovereign states of Singapore and Sri Lanka.
As ah mad has summed up. One the one hand we have a report released by a Commission formed with the backing of the Commonwealth, the Maldivian government and the complainant, Ex-President Mohamed Nasheed.
On the other we have a report commissioned (that means paid for) by the MDP. This is also not the first such report commissioned by Nasheed and his party. A Danish team of legal experts were hired to bring out legal arguments favoring Nasheed's claims of a coup.
There are issues of proportionality with regard to the authorities behind these reports and the processes used to procure them.
Its either the "Rannamaari" or the "King". So lets decide .....
it's the Rannamaari dho.
Those who can afford, please leave this god forsaken land of hypocrites. I'm sure, it's not only homosexuality that god finds repulsive, the land of hypocrites will very soon be on the radar for submergence.
Justie4all,
Tell me why Anni had tortured Saddanu Luthfee when he had taken asylum in a foreign country . Why Luthfee 's children had to go through so much trouble because of Anni.
Why did so called champion of human rights , Anni tried to give all these trouble to Luthfee and his family ?
Evan Naseem was a gangstar and he was convicted druggist and he is one guy who was storming at the police men who were looking after the jail.
Evan Naseem was one of the key guy who was in charge of the riot .
When you talk about human rights, the life of every one need to be on the same level and it does not need to have higher rights for MDP members .
Human rights does not only limit to a life of a person and there are many aspects of human rights. There many ways to torture people and any form of torture is a violation of human rights.
How many people were killed during Anni regime and after the collapse of Anni regime ?
Some of the key people from Mdd who are the victims of Anni , are openly calling for the violence . These encouragements by the elites are responsible for what we are seen today on the roads.
The CONi report is an insult to the intelligence of the Maldivian people and a slap in the face of justice! Everything rejected in coming to a conclusion are included in the recommendations!
In Maldives, for legal purposes, any shortcoming in the penal code is replaced by Shariah! Raising against the Leader, as long as he remains a Muslim, is defined as a "Bagaawaaiy" (coup)!
A large portion of Maldivian society has not accepted the CONi report! Proof? The sheer number of protestors!
CONI in dhivehi means a "bunch". There will be many more bunches to come. Already we have seen a bunch readied by some Danes. Now another bunch by Sri Lankans. Another bunch by Amen Faisal and Aslam. A small bunch by Latheef. a hybrid bunch by Velezinee as it includes judiciary.
@Mohamed Rasheed.
Only a patriot will say this!
Thanks!
I really feel ashamed to read that report by coni. i mean this is ridiculous. is there any way that a proper unbiased report can be written? I mean only with the accounts of eyewitness this puzzle can be solved. I feel really pity to those maldivians who signed that coni report. they should be the biggest baaqees of the century and to centuries to come. i believe all Maldivian should stand up to them. ofcourse i guess theres nothing we can do about the singapore reitred judge. but the other three locals should be held liable to producing such an unrelaible report based on nothing. should be held treason. what do u say Maldivians?