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Notwithstanding the recent media leaks on a ‘US military base’ in Maldives, a decision on whatever that facility be, may have to wait until after the parliamentary polls of May 2014, not stopping with the presidential elections due in September this year.

In effect, this could mean that a national debate, and more importantly a parliamentary vote, will be required before any government in Male – this one or the next – takes a decision, though none is now in the air even a month after a section of the local web media went to town on the ‘leak’ and subsequent reports in the matter.

For starters, it may be too premature, if not outright improper, to dub the emerging relations as ending in a military base for the US in the Indian Ocean Archipelago.

The two governments have stuck to the position that the ‘Status of Forces Agreement’ (SOFA), with the US claiming it to be a general agreement for extending training facilities by the American armed forces. According to the US, similar agreements already exist with over 100 countries.

Maldives Defence Minister, Col Ahmed Nazim (retd), too has said that they were not contemplating any military facility for the US but only for the latter extending training to his nation’s personnel.

He has since gone to town, declaring that the leaked document was ‘not genuine’ and that they had shared the original one with the President’s Office, the Attorney-General’s office and the Maldivian customs – and would do so only with the Security Services Committee, not Parliament’s Government Oversights Committee, where the opposition Maldivian Democratic Party (MDP) incidentally is in a majority.

Bringing parliament into the picture

For now, the lid has been placed on the issue after Attorney-General Aishath Bisham clarified that handing over any region in the Maldives for the setting up of a foreign military facility of whatever kind would require parliamentary clearance with a simple majority.

In doing so, the Attorney-General cited the advice given to the incumbent government of President Mohamed Waheed Hassan Manik, by her predecessor Aishath Azima. According to her, Azima had advised the Defence Ministry as early as March 21 that parliamentary approval would be required for any agreement of the kind with the US. Bisham said she stood by her predecessor’s position in the matter. The media leaks appeared a month later.

As may be recalled, the law providing for prior parliamentary clearance for agreements of the nature came into being when Maldivian Democratic Party (MDP) leader Mohamed Nasheed was President in 2010. That was when the Nasheed government was keen on signing a construction-cum-concession contract for the Male international airport with India-based infrastructure developer, GMR Group.

The deed was done, but not without high drama and controversy both inside and outside parliament.

Between the executive and the legislature in a democracy, both sides blamed each other for ‘colourable exercise’ of respective powers in the ‘GMR deal’ but none questioned the subsequent application of the new law to new agreements of the kind.

The US-SOFA deal cannot be exempted either, unless parliament were to do so. However, given the present political calculus and electoral calculations, no political party or leader may have the will to move forward in the matter, inside parliament or otherwise,.

As may also be recalled, after much drama and bilateral tensions, the succeeding government of President Waheed cancelled the GMR contract. The decision has since been upheld by the mutually agreed-upon arbitration court in Singapore, which is also looking into the compensation claims of GMR. The Maldivian government argues that the contract was ab initio void, and has cited the existence of the law requiring previous clearance for transferring possession of a ‘national asset’ to foreign parties, as among the reasons.

The law came about at a critical juncture at the birth of the GMR contract. A day after the Nasheed government announced the formal decision in the matter the opposition-majority parliament hurriedly passed the law, pending the unanticipated reconstitution of the board of the Male Airport Company Ltd (MACL), after the existing one was unwilling to sign on the dotted line.

President Nasheed returned the bill to parliament promptly, under the existing provision. Left with no option but to assent the bill after parliament had passed it a second time, with equal hurry and vehemence.

As is the wont in many other countries, the Constitution provides for any bill passed by parliament a second time becoming law automatically, if within a stipulated period the President does not give his assent. In the Maldives it is a 15-day window. However, the MDP government got the GMR contract through before the lapse of the 15-day period, and President Nasheed too gave his assent to the said bill within the stipulated time, if only to avoid arguments about the untenable nature of his continuance in office under controversial circumstances of the kind.

From ACSA to SOFA…

Apart from SOFA, the US has signed another 10-year agreement, titled the ‘Acquisition and Cross-Servicing Agreement’ (ACSA), which it claimed had been done similarly with over 100 countries. The ACSA, signed ‘on a bilateral basis with allies or coalition partners that allow US forces to exchange most common types of support, including food, fuel, transportation, ammunition, and equipment.

The agreement does not, in any way, commit a country to any military action. Some would argue that SOFA is an extension of ACSA, but some others also point out that not all countries that have signed ACSA are targeted by the US for signing SOFA.

In the case of Maldives, in 2009, when MDP’s Nasheed was the Maldivian President, his Defence Minister of the day, Ameen Faisal was said to have discussed an ACSA with visiting US Ambassador Patricia A Butenis.

According to Wikileaks, sourced to US Embassy message of October 7, 2009, “He also reiterated the Maldives’ interest in establishing a USN (US Navy) facility in the southernmost atoll. He thanked the Ambassador for US security assistance…”

In the present case, Maldivian media reports, claiming access to unauthenticated draft of SOFA, said that the agreement outlined “conditions for the potential establishment of a US military base in the country”. The draft, obtained by Maldivian current affairs blog DhivehiSitee, “incorporates the principal provisions and necessary authorisations for the temporary presence and activities of the US forces in the Republic of Maldives and, in the specific situations indicated herein, the presence and activities of the US contractors in the Republic of Maldives”, the Minivan News web-journal said in the last week of April.

Under the proposed 10-year agreement outlined in the leaked draft, Maldives would “furnish, without charge” to the US unspecified “Agreed Facilities and Areas”, and “such other facilities and areas in the territory and territorial seas? and authorize the US forces to exercise all rights that are necessary for their use, operation, defence or control, including the right to undertake new construction works and make alterations and improvements”.

The draft also says that the US would be authorised to “control entry” to areas provided for its “exclusive use”, and would be permitted to operate its own telecommunications system and use the radio spectrum “free of cost”.

Furthermore, the US would also be granted access to and use of “aerial ports, sea ports and agreed facilities for transit, support and related activities, bunkering of ships, refuelling of aircraft, maintenance of vessels, aircraft, vehicles and equipment, accommodation of personnel, communications, ship visits, training, exercises, humanitarian activities”.

The contents of the leaked draft has remained uncontested – maybe because it is an American template that has been leaked – and provides for US personnel to wear uniforms while performing official duties “and to carry arms while on duty if authorised to do so by their orders”. US personnel (and civilian staff) would furthermore “be accorded the privileges, exemptions and immunities equivalent to those accorded to the administrative and technical staff of a diplomatic mission under the Vienna Convention”, and be subject to the criminal jurisdiction of the US – and not the Maldivian laws, with a preponderance of Islamic Sharia practices.

The draft exempts US vessels from entry fee in ports and airports, and personnel from payment of duties even for their personnel effects brought into Maldives.

The draft also stipulates that neither party could approach “any national or international court, tribunal or similar body, or to a third party for settlement, unless otherwise mutually agreed” over matters of bilateral dispute flowing from the agreement. This would obviously cover “damage to, loss of, or destruction of its property or injury or death to personnel of either party’s armed forces or their civilian personnel arising out the performance of their official duties in connection with activities under this agreement”.

Sri Lankan precedent on ACSA

In recent years, ACSA became news in neighbouring Sri Lanka at the height of ‘Eelam War IV’, when the government of President Mahinda Rajapaklsa signed one with the US in seeming hurry. President Rajapaksa was away in China when his brother and Defence Secretary Gothabaya Rajapaksa signed the ACSA at Colombo in March 2007, with Robert Blake, who was the US Ambassador to Sri Lanka and Maldives at the time.

It is believed that the US intelligence-sharing, helping Sri Lanka to vanquish the dreaded LTTE terror-group, particularly the ‘Sea Tigers’ wing, followed the ACSA.

At present, questions are being asked within Sri Lanka if the current US ‘over-drive’ over ‘war crimes and accountability issues’ relating to Colombo at UNHRC may have anything to do with Washington’s possible desire to sign up for SOFA or such other agreements.

However, there is nothing whatsoever to suggest that such may have even be the case. It is however to be presumed that the US may not be exactly happy over Sri Lanka getting increasingly involved in China’s sphere of influence, what with President Rajapaksa visiting Beijing almost every other year, and signing bilateral agreements in a wide-range of sectors, as he has done less than a fortnight back.

A section of the Sri Lankan media in the immediate neighbourhood has since claimed that MDP’s Nasheed would take up the issue with Colombo and New Delhi. Otherwise, President Rajapaksa’s ruling front partner, Minister Wimal Weerawansa, head of the National Freedom Front (NFF), a shriller breakaway faction of the one-time Left militant, now ‘Sinhala-Buddhist nationalist’ Janatha Vimukthi Peramana (JVP), is alone in his condemnation of the US move in Maldives. The Sri Lankan Government and polity otherwise have refrained from any reaction – so have their counterparts in India.

Politics of silence?

If partners in the Maldivian government and also the opposition MDP seem to be maintaining relative but calculated indifference to the leaked document, it may not be without reason. The Wikileaks’ indication of the predecessor Nasheed government’s willingness to sign ACSA with the US and then Minister Faisal’s interest in the ‘US setting up a military facility in the southernmost atoll’ may have silenced the party to some extent.

The Progressive Party of Maldives (PPM), which in its earlier, undivided avatar as the Dhivehi Progressive Party (DRP), put Maldivian sovereignty and national security as among the major causes for its opposition to the Male airport contract with the GMR.

Post-leak, media reports have quoted second-line MDP leaders in the matter. The party’s international spokesperson, Hamid Abdul Ghafoor, said that the MDP had heard of the proposal – supposedly concerning Laamu Atoll and the site of the former British airbase on Seenu Gan in the south of the country.

“We are wondering what our other international partners – India, Australia, etc – think of this idea,” Ghafoor said.

Other party leaders too have reacted cautiously, linking their undeclared future decision in the matter to the views of the Indian neighbour and regional power, whose security interests too are involved.

It is not only the opposition in the Maldives that has maintained silence over the proposed agreement with the US.

Ruling front partners who prop up the Waheed government inside the Cabinet and more so in Parliament have also avoided direct reference to the US proposal, at least in public. The president is not known to have commented on the subject, as yet. When the SOFA leak appeared in April, President’s Office Spokesperson Masood Imad said that he had texted President Waheed, who had no knowledge of any agreement.

The Defence Ministry also had no information on the matter, he said. At the time, Imad would not comment on whether the government would be open to such a proposal.

Subsequently, Defence Minister Nazim clarified that no decision had been taken in the matter. There thus seemed to be an attempt to show up the SOFA initiative, if there was any on the Maldivian side, as that of the Defence Ministry.

It is not a new process in the Maldivian context, as in most other nations, specific initiatives of such kinds are often moved only through the departments or ministries concerned, and the rest of the government is involved, at times in stages.

The Nasheed government’s certain initiatives in similar matters too had followed this route, in relations to China, it is said. In this background, Defence Minister Nazim’s delayed clarification that the Government had shared the official document with the relevant authorities and that the “leaked agreement was altered and shared on the social media” should set some of the concerns on this score to rest – at least for the present.

However, as the SOFA leak says, “The proposed agreement would supersede an earlier agreement between the US and Maldives regarding “Military and Department of Defense Civilian Personnel”, effected on December 31, 2004.

PPM’s founder, who had also founded the DRP, was Maldivian President in 2004. Hence possibly the reluctance of the PPM to keep the ‘US issue alive’, over which the Gayoom leadership had taken on the Nasheed government, on the ‘Guantanamo prisoner’ issue, for instance.

The issue involved the transfer of a Chinese prisoner of the US from the infamous Guantanamo Bay facility in Cuba, to Maldives, but domestic opposition flowing from the nation’s Islamic identity (however moderate) stalled the process.

After Diego Garcia…

A SOFA agreement for the US with Maldives acquires greater significance in the current context of the nation having to possibly the vacate the better-known yet even more controversial Diego Garcia military base in the Chagos Archipelago, less than 750 km from southern Maldives’ Addu Atoll with the Gan air-base.

The 50-year lease agreement for Diego Garcia, which the British partner of the US in the NATO purchased from Mauritius in 1965 for three-million pound-sterling a year earlier, ends in 2016.

The controversy over the forcible eviction of the local population to facilitate the lease has not died down in the UK, and there are strong doubts about the likelihood of its extension, owing to a British High Court verdict, which restored residency rights to the original Chagos inhabitants as far back as 2000.

Though a subsequent 2008 House of Lords ruling has over-turned the court verdict, the Chagos have appealed to the European Court of Human Rights, where embarrassment might await both the UK and the US. Whether or not the Chagos can return to their home, a 2010 British decision to declare the Archipelago as the world’s largest marine reserve and protected area could well mean that no military activity could occur thereabouts.

The controversies have not rested there, and continue to rage in court-room battles, and could become a cause for the civil society in the UK and rest of Europe. It is in this context, any SOFA agreement would trigger an interest and/or concerns in neighbouring Sri Lanka and India – not necessarily in that order – as also other international users of the abutting Indian Ocean sea-lines, which Diego Garcia and Maldives, not to leave out Sri Lanka’s southern Hambantota port, built in turn by China.

Neighbourhood concerns

Thus, US Assistant Secretary of State Robert Blake’s assertion after the SOFA draft leaked to the Maldivian media that Washington did “not have any plans to have a military presence in Maldives” has not convinced many.

“We have exercise programs very frequently (with Maldives) and we anticipate that those would continue. But we do not anticipate any permanent military presence. Absolutely no bases of any kind,” Blake said.

However, considering the content of the leaked SOFA draft, and/or the motive behind the leak and its timing, there are apprehensions that before long the US might demand – and possibly obtain – Maldivian real estate for its military purposes, one way or the other, and will also have protection from local court interference.

In this, the interest and concerns of Sri Lanka and India are real. Ever since the US took a keener interest in the ‘war crimes’ and ‘accountability’ issues haunting the Sri Lankan state, political establishment and the armed forces almost as a whole, Colombo has been askance about the ‘real motives’ behind Washington’s drive at the UNHRC, Geneva, for two years in a row.

The European allies of the US too are reported to have been perplexed by the American move, which they seem to feel should stop with the attainment of political rights for the minority Tamils in Sri Lanka, and not chase a mirage, which could have unwelcome and unpredictable consequences, all-round.

For India, after the Chinese ‘commercial and developmental presence’ at Sri Lanka’s Hambantota port and Mattale airport, any extra-territorial power’s military presence in the neighbourhood should make it uncomfortable. It would have to be so even it was the US, with which New Delhi signed a defence cooperation agreement in 2005.

Before Washington now, Beijing was said to have eyed real estate in Maldives, and was believed to have submitted grandeur plans to develop a whole atoll into a large-scale resort facility for an anticipated tens of thousands of Chinese tourists.

Around the time, China reportedly submitted its plans, news reports had suggested that Chinese tourists, who had propped up the Maldivian economy at the height of the global economic meltdown of 2008, felt unwelcome in the existing resorts, where they would like to cook their own packed meal brought from home – cutting into the hoteliers’ profit-margin in a big way.

While China now accounts for the highest number of tourists arriving in Maldives, it does not translate into the highest-spending by tourists from any country or region. This owes to the spending styles of the Chinese and other South Asians, including Indians, compared to their European and American counterparts.

India as ‘net provider of security’

Media reports have also quoted US officials that they would take Indian into confidence before proceeding in the matter. If they have done so already, it does not seem to have been in ways and at levels requiring an Indian reaction in public.

Alternatively, the US may not have as yet found the levels of negotiations/agreement with Maldives that may require it to take the Indian partner into such confidence. This could imply that the US is still on a ‘fishing expedition’ on the Maldivian SOFA. It is another matter that at no stage in its recent engagements with India’s South Asian neighbours, Washington seemed to have taken New Delhi into confidence at the comforting levels that the latter had been used to with the erstwhile Soviet Union during the ‘Cold War’ era.

Whatever the truth and level of such ‘confidence’ on the American side, an existing bilateral agreement provides for Maldives tasking India into confidence over ay third-nation security and defence cooperation agreements that it may enter into.

As may be recalled, India rushed its military forces to Maldives in double-quick time under ‘Operation Cactus’ in 1988, after Sri Lankan Tamil mercenaries targeted the country, and then President Maumoon Abdul Gayoom sought New Delhi’s military intervention.

Bilateral security relations have been strengthened since, with the Coast Guards of the two countries exercising every two years together, with Sri Lanka being included in ‘Dhosti 11’ for the first time in March 2012.

However, considering the purported American vehemence on the Sri Lanka front, and Washington making successive forays into India’s immediate neighbouring nations, one after the other, questions are beginning to be asked in New Delhi’s strategic circles if they had seen it all, or was there more to follow. As is now beginning to be acknowledged, in countries such as Bangladesh, Myanmar and Nepal, where the Indian concerns had neutralised Chinese presence to some extent, the US is being seen as a new player on its own.

In the bygone ‘Cold War’ era, the erstwhile Soviet Union was not known to have made forays – political or otherwise -into South Asia without expressly discussing it with India, and deciding on it together.

Afghanistan might have been an exception. The country at the time was not seen as a part of South Asia, yet the embarrassment for India was palpable. But Maldives and the rest in the present-day context of purported American military interest seeks to side-step, if not belittle India.

Otherwise, if the choice for India is between the US and China, for an extra-territorial power in the immediate neighbourhood, it would be a clear one. But if that choice were to lead to an ‘arms race’ between extra-territorial powers that India and the rest of the region cannot match for a long time to come, it would be a different case altogether.

It could also lead to greater estrangement of India and some of its neighbours, who would find relative comfort in China, compared to the US, whatever the reason. Prime Minister Manmohan Singh’s recent assertion that India was in a position to be a ‘net provider of security’ in the South Asian region needs to be contextualised thus.

In this context, Maldivian Attorney-General Bisham’s assertion that any agreement of the SOFA kind with the US would have to clear Parliament assumes significance.

However, considering the general American tactic that involves economic carrot and politico-diplomatic stick at the same time, it is not unlikely that the current phase on the SOFA front may have been only a testing of the Maldivian political waters, when the nation is otherwise caught in the run-up to the presidential polls, to be followed by parliamentary elections. By then, it is likely the issues would have also sunk in on the domestic front in Maldives, for the US to take up the issue with a future government in Male.

All this will make sense in the interim if, and only if, the US is keen on proceeding with the Maldivian SOFA.

To the extent that Defence Minister Nazim has said that Maldives was only considering what possibly may be a unilateral US proposal, he may be saying the truth – and his government may not have moved forward on this score.

With most political parties in the country, then in the opposition, flagged ‘sovereignty’ and ‘national pride’ while challenging the GMR contract, inside parliament and outside, it is likely that any precipitate initiative at the time of twin-elections now could trigger the kind of ‘religion-centric reaction’ that cost President Nasheed his office in February 2012.

For now, Islamic Minister Sheikh Shaheem Ali Saeed, representing the religion-centric Adhaalath Party, which spearheaded the anti-Nasheed protests leading to the latter’s exit, has served notice. The party will not allow the Government to sign SOFA with the US, he has said.

Considering that President Waheed has bent heavily on the Adhaalath Party for support and campaign cadres in his election-bid of September this year, it is likely that SOFA discussions with the US may not proceed for now – just as it may not form part of the electoral discourse, either for the presidency this year, or for Parliament next year.

The writer is a Senior Fellow at Observer Research Foundation

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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