Author: Ahmed Naish

MDP withdraws no-confidence motions against ministers

The opposition Maldivian Democratic Party (MDP) has withdrawn no-confidence motions in parliament against Home Minister Dr Mohamed Jameel Ahmed and Defence Minister Colonel (Retired) Mohamed Nazim as well as a motion to remove MP Gasim Ibrahim from the Judicial Service Commission (JSC).

The parliament secretariat released a statement yesterday (April 14) confirming the move, explaining that MPs had the discretion under parliamentary rules to remove no-confidence motions before they are put to a vote.

Speaking to press before departing for Denmark last night, former President Mohamed Nasheed said the MDP parliamentary group made the decision in the interest of averting political turmoil and ensuring calm and order in parliament ahead of the presidential election on September 7.

The MDP presidential candidate added that the party would “always consider public interest”.

MP Ibrahim Mohamed Solih, parliamentary group leader of MDP, told local media that the decision was made to avoid strife caused by the dispute among MPs over secret voting.

Voting on the no-confidence motions tabled for the parliament sitting on April 8 was postponed after MDP MPs insisted on conducting voting through secret ballot.

With 29 MPs out of the 77 in parliament, the formerly ruling MDP needed the support of at least 10 MPs to pass the no-confidence motions.

At last week’s sitting, MDP MPs claimed that the government-aligned Dhivehi Rayyithunge Party (DRP) agreed to vote in favour of the motions before reversing the decision at the eleventh hour.

MPs of the government-aligned Jumhooree Party (JP) and DRP had voted in favour of secret ballot for no-confidence votes in December 2012.

However, on March 16, the Supreme Court struck down as unconstitutional the amendment to parliamentary rules stipulating that no-confidence motions must be conducted through secret ballot.

In its judgment (Dhivehi) on the constitutionality of secret ballots for no-confidence votes, the Supreme Court majority opinion contended that the rule contravened article 85 of the constitution as well as parliamentary principles and norms of free and democratic societies.

The Supreme Court also ruled in March that parliament’s removal of Civil Service Commission (CSC) Chair Mohamed Fahmy Hassan was unconstitutional.

Both rulings were criticised at the time by opposition, government-aligned and independent MPs as an unconstitutional “challenge to the separation of powers.”

On March 19, parliament’s Independent Institutions Committee voted to seek a replacement for Fahmy at the CSC despite the Supreme Court judgment reversing his dismissal.

“The committee decided today that he [Fahmy] should go and we should continue looking for another person. Effectively we are ignoring the Supreme Court’s decision. The MDP will continue to raise this issue in parliament, it is a policy and it is legally non-negotiable. We cannot compromise on that,” MDP MP Hamid Abdul Gafoor told Minivan News at the time.

The committee’s decision has since been approved at the parliament floor, passing with 42 votes in favour during last Wednesday’s (April 10) sitting.

Supremacy

On the following day, the Supreme Court released a press statement declaring that judgments, orders and rulings of the apex court with their attendent legal ramifications must be accepted “without further debate or interpretation.”

The Supreme Court called on all persons and institutions subject to the Maldivian constitution to comply with and respect its decisions.

The statement referred to article 145(c) of the constitution, which states, “the Supreme Court shall be the final authority on the interpretation of the Constitution, the law, or any other matter dealt with by a court of law.”

The press release also noted that article 141(b) establishes the Supreme Court as “the highest authority for the administration of justice in the Maldives.”

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Former Police Commissioner Adam Zahir faces corruption charges

The Anti-Corruption Commission (ACC) has asked the Prosecutor General’s Office (PGO) to press corruption charges against former Commissioner of Police Adam Zahir over the alleged embezzlement of MVR65,817 (US$4,268) from the police budget.

According to the ACC, the funds were released in 2008 to purchase return tickets for Adam Zahir’s wife from Manchester, England to Male’ to attend a function to mark the police golden jubilee.

The ACC investigators however found that Zahir’s wife was not out of the country at the time.

While a payment voucher for the trip included an Emirates Airlines ticket slip dated April 7, 2008, immigration records showed that Zahir’s wife was in the Maldives between March 26 and April 9 that year.

Immigration records also showed that Zahir’s wife did not travel on Emirates Airlines at all in 2008. The ACC discovered that she had arrived in the Maldives on a British charter flight from First Choice Airways.

The commission therefore asked the PGO to prosecute the former police chief for abuse of authority and embezzlement.

A senior officer of the now-defunct National Security Service (NSS), Zahir became the first Commissioner of Police when former President Maumoon Abdul Gayoom established the Maldives Police Service as a civilian law enforcement agency under the Ministry of Home Affairs.

During the reform movement led by the Maldivian Democratic Party (MDP), Zahir was accused of overseeing torture and custodial abuse, making his resignation a perennial opposition demand.

He resigned in November 2008 after the election of President Mohamed Nasheed.

Wikileaks cables from the American Embassy in Colombo meanwhile revealed that the former police chief was seen as part of the “old guard” opposed to political reforms under President Gayoom.

In December 2005, Sri Lankan police raided the Colombo office of the then MDP-affiliated Minivan News publication upon request from the Maldivian authorities, which alleged that Minivan staff were engaged in seditious activities and gun-running.

“In a December 29 meeting with poloff [political officer], an American contractor who works with law enforcement officials in Colombo said that his police contacts informed him the request for the investigation had been signed by Maldivian Chief of Police Adam Zahir and sent to the Interpol Liaison Desk. The contractor said the Sri Lankan police suspected  the charges were politically motivated, but were compelled to  follow up because of their serious nature,” the cable read.

In January 2006, former Foreign Minister Dr Ahmed Shaheed – part of the ‘New Maldives’ group of young ministers associated with Gayoom’s reform package – told the US Embassy political officer that the raid on the Minivan office was “utterly shameful.”

“Shaheed expressed  concern that the raid undermined the ‘New Maldives’ agenda he and several other reform-minded ministers are promoting. Describing the police chief as ‘someone we are at war with,’  Shaheed added that he had encouraged the president to shift  Zahir from his current position,” reads the cable.

In 2006, reformist magazine Adduvas exposed a number of MPs and regime officials who had taken soft loans from former President Gayoom, including Zahir, who had obtained loans totalling MVR8.7 million (US$677,000).

In August 2009, Zahir was summoned to the presidential commission set up by former President Nasheed to investigate allegations of corruption and misappropriation of state funds under the former regime.

At a ceremony on March 29 this year to commemorate the 80th anniversary of police, Zahir was awarded a special plaque by President Dr Mohamed Waheed “in remembrance of his dedicated and invaluable services rendered to MPS.”

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JSC contests High Court jurisdiction to rule on legitimacy of Hulhumale’ court bench

The Judicial Service Commission (JSC) on Thursday (Apirl 11) asked the High Court to dismiss a case filed by former President Mohamed Nasheed contesting the legitimacy of the Hulhumale’ Magistrate Court’s bench controversially constituted by the commission.

At Thursday’s hearing, the JSC contended that the High Court did not have jurisdiction to rule on the case as the panel of judges presiding over Nasheed’s trial – on charges of illegally detaining Criminal Court Chief Judge Abdulla Mohamed in January 2012 – was appointed based on counsel from the Supreme Court.

“It is strange that the JSC’s legal counsel contested jurisdiction of the High Court to hear the case on the grounds that they had sought the advice of the Supreme Court in determining the bench,” Maldivian Democratic Party (MDP) MP Mariya Ahmed Didi, spokeswoman of the former president said after the hearing.

“Recently, when eight judges of the High Court bench filed a complaint at the JSC claiming that the High Court had not followed procedure in accepting President Nasheed’s appeal and granting stay to Hulhumale’ Magistrates’ Court proceedings, the JSC had rejected it on what we understood the grounds to be as the matter should be heard in court. We did ask for an adjournment to prepare our response to their procedural issue. The court said they would give us time to prepare for our response and adjourned the hearing.”

Raising the procedural issue at Thursday’s hearing, the JSC lawyer reportedly informed the High Court that the Supreme Court provided counsel on September 4, 2012 on appointing judges to the Hulhumale’ Magistrate Court bench.

The JSC lawyer argued that decisions by the apex court could not be challenged at the High Court.

In response, Hisaan Hussain from the former president’s legal team noted that counsel provided by the Supreme Court in a letter did not carry the same legal weight as a court ruling.

Chief Judge Ahmed Shareef Ali then adjourned the hearing after granting time for Nasheed’s legal team to study and respond to the procedural issue. In addition to the chief judge, the three-judge High Court panel included Judge Abbas Shareef and Judge Abdul Raoof Ibrahim.

Hulhumale’ court bench

In a recent trial observation report, the UK’s Bar Human Rights Committee (BHRC) expressed “serious concern” over the appointment of judges by the JSC to the Hulhumale’ Magistrate Court bench.

Accounts of the appointment process, “if accurate, suggest egregious unconstitutional behaviour by the JSC in selecting the judicial bench to hear Mr Nasheed’s case,” stated BHRC Executive Committee member Blinne Ní Ghrálaigh.

“It is difficult to see how proceedings presided over by a judicial bench, cherrypicked for their likelihood to convict by a highly politicised JSC, which includes a number of Mr Nasheed’s direct political rivals, could in any way be deemed to comply with constitutional and international fair trial rights, including the right to an ‘independent court established by law’,” stated Ghrálaigh, in her concluding remarks.

The MDP maintains that the charges against Nasheed  represent a politically-motivated attempt to bar its presidential candidate from upcoming presidential elections scheduled for September 7, 2013.

Legal wrangle

Nasheed’s trial at the Hulhumale’ Magistrate Court was suspended after the High Court issued a stay order on April 1.

The trial had resumed in March after the Supreme Court declared the magistrate court legitimate in a controversial 4-3 ruling.

At the least hearing of the trial at the Hulhumale’ court, the state prosecutor said that the Prosecutor General’s Office (PGO) did not have any objections to granting a request by the former president’s legal team to defer the trial until after September’s presidential election.

The Hulhumale’ Magistrate Court however refused to delay the trial and scheduled its next hearing for April 4.

Nasheed’s legal team subsequently appealed the magistrate court’s decision not to grant a deferral while also filing a case challenging the legitimacy of the bench.

The second case followed testimony from members of the JSC at parliament’s Independent Institutions Oversight Committee suggesting that the commission exceeded its mandate in appointing judges to the magistrate court bench.

Sheikh Shuaib Abdul Rahman, member of the general public on the JSC, testified that the commission arbitrarily appointed three magistrates from courts across the Maldives to Nasheed’s case after dismissing the three names first submitted by the Hulhumale’ Magistrate Court.

“Moosa Naseem (chief magistrate of the Hulhumale’ Court) initially submitted names of three magistrates, including himself. This means that he had taken responsibility for overseeing this case. Now once a judge assumes responsibility for a case, the JSC does not have the power to remove him from the case,” Sheikh Rahman explained. “However, the JSC did remove him from the case, and appointed three other magistrates of their choice.”

Rahman further stated that the judicial watchdog body was highly politicised, and openly attempting to eliminate former President Nasheed from contesting the presidential elections.

Meanwhile, Speaker of Parliament Abdulla Shahid – also a member of the JSC – told the oversight committee that he believed the JSC acted unconstitutionally in assigning magistrates to oversee Nasheed’s trial.

“In deciding upon the bench, the JSC did follow its rules of procedures. That is, it was voted upon in an official meeting and six of the seven members in attendance voted on the matter. The seventh member being the chair, does not vote in matters,” Shahid explained.

“However, whether it is within the commission’s mandate to appoint a panel of judges in this manner is an issue which raised doubt in the minds of more than one of my fellow members,” he added.

During a visit to the Maldives in February, United Nations Special Rapporteur (UNSR) on the Independence of Judges and Lawyers Gabriela Knaul also criticised the appointment of judges to the magistrate court bench..

“Being totally technical, it seems to me that the set-up, the appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws,” Knaul told press after delivering her statement.

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HRCM paid food, travel allowance in violation of finance regulation: audit report

The Human Rights Commission of Maldives (HRCM) paid travel and food allowance to employees at a higher rate than specified in the public finance regulations, the commission’s audit report for 2012 has revealed.

The audit report made public on Monday (March 18) explained that amendments were brought to chapter five of the regulations dealing with travel expenses through a circular issued in 2012.

The audit discovered that food and travel allowance paid to HRCM employees for trips within the country on official business was higher than the rates specified in the amended sections 5.09 and 5.19 of the public finance regulations.

In addition, the audit found that the commission outsourced work valued under MVR 25,000 (US$1,621) without signing official agreements with the hired parties as required by section 8.22 of the public finance regulations.

The report also noted that the commission did not seek quotations from three parties as required by the finance regulations for purchases and services valued under MVR 25,000 (US$1,621).

The regulations require state institutions to seek quotations or estimates from at least three parties to select the best offer for purchases, outsourced tasks or services rendered.

Aside from the three issues flagged in the audit, the report stated that the commission’s expenses were in accordance with public finance regulations and the annual budget approved by parliament.

Auditor General Niyaz Ibrahim meanwhile approved and verified the commission’s finance statement for 2012 as authentic.

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Independent Institutions Committee votes to replace Fahmy in CSC

Parliament’s Independent Institutions Committee voted yesterday to replace Mohamed Fahmy Hassan at the Civil Service Commission (CSC) following Thursday’s Supreme Court ruling reversing parliament’s removal of the CSC chair over allegations of sexual harassment.

The proposal to appoint a replacement for Fahmy by Maldivian Democratic Party (MDP) MP Ahmed Sameer was passed with five votes in favour and none against.

Dhivehi Qaumee Party (DQP) MP Riyaz Rasheed attempted to disrupt the committee meeting on Monday afternoon and did not participate in the vote. Other government-aligned MPs did not attend the meeting.

Riyaz contended that yesterday’s meeting was called in violation of parliamentary rules of procedure and insisted at length that parliament could not challenge Supreme Court rulings.

Monday’s sitting of parliament was meanwhile called off after MDP MPs objected to the Supreme Court ruling on the grounds that the apex court overstepped its constitutional authority.

Speaking to Minivan News, MDP Spokesperson Hamid Abdul Ghafoor stated that the MDP did not believe Fahmy should hold his position in the CSC, accusing him of  having  an “issue of integrity”.

“The committee decided today that he [Fahmy] should go and we should continue looking for another person.

“Effectively we are ignoring the Supreme Court’s decision. The MDP will continue to raise this issue in parliament, it is a policy and it is legally non-negotiable. We cannot compromise on that.”

The sitting was first adjourned at 10:00am when MDP MPs raised points of order after Deputy Speaker Ahmed Nazim announced the Supreme Court’s decision.

In regard to the morning announcement, Ghafoor said Nazim did not make the “right call” when informing parliament of the court’s decision.

“He [Nazim] informed us of the three issues to do with the Supreme Court in a language that essentially showed an acceptance of those verdicts. We didn’t like this,” he said.

After the sitting resumed at 1:00pm, Nazim announced the cancellation as the issue was to be taken up at a meeting of the Independent Institutions Committee.

On November 20, 2012, parliament dismissed Fahmy in a 38-32 vote after the Independent Institutions Committee looked into a complaint of sexual harassment by a female employee of the CSC.

Fahmy however contested the dismissal at the Supreme Court, which ruled 6-1 on Thursday night that his removal was unconstitutional. The majority opinion contended that the Independent Institutions Committee violated due process and criminal justice procedures in its inquiry.

The majority opinion held that Fahmy would receive two punishments for the same crime if he was convicted at court following his dismissal by parliament (double jeopardy). The CSC chief returned to work on Sunday.

“Fundamental, revolutionary change”

Writing in his personal blog following the Supreme Court judgment, MP Mohamed ‘Kutti’ Nasheed – chair of the Independent Institutions Committee – argued that the Supreme Court judgment established a legal precedent that would bring “a fundamental, revolutionary change” to employment termination.

On the Supreme Court’s argument that Fahmy was accused of committing a criminal offence, Nasheed noted that sexual harassment at the workplace was not specified as a crime in Maldivian law. Legislation on sexual harassment is however currently before parliament.

In the absence of a law prohibiting the offence, Nasheed wrote, a person could not be prosecuted for sexual harassment.

Fahmy’s dismissal by parliament was therefore a disciplinary action taken by the institution with oversight powers over the CSC, Nasheed explained.

Under article 187(a) of the constitution, a member of the CSC can be removed “on the ground of misconduct, incapacity or incompetence.”

Article 187(b) states, “a finding to that effect by a committee of the People’s Majlis pursuant to article (a), and upon the approval of such finding by the People’s Majlis by a majority of those present and voting, calling for the member’s removal from office, such member shall be deemed removed from office.”

As the process to be followed by parliament was clearly specified in the constitution and parliamentary rules of procedure, Nasheed argued that the Supreme Court could not require parliament to adhere to “new conditions and new procedures”.

“While parliament has the power to remove members of the Civil Service Commission and the process to exercise that power is specified in the constitution, the problem that has risen is that the [Supreme Court] has determined that Majlis cannot use that power even in accordance with the procedure laid out in the constitution and law,” Nasheed wrote.

Nasheed further argued that parliament’s removal of former Auditor General Ibrahim Naeem in March 2010 has now been thrown into question in the wake of the Supreme Court ruling. Naeem was dismissed after the Finance Committee investigated allegations that he used an office credit card for personal benefit.

The ruling has also raised doubts over the legal status of current Auditor General Niyaz Ibrahim, Nasheed wrote.

Nasheed also criticised the Supreme Court’s interpretation of “double jeopardy” in Fahmy’s case. According to the Supreme Court ruling, a person could not be removed from his or her post as a disciplinary action unless he or she was convicted of a crime.

If an employee is accused of a criminal offence, he added, employers would no longer have the right to fire the accused before he or she was found guilty.

“If that is the case, questions have been raised over the dismissal of all police officers, army officer, civil servants and employees of other institutions over cases of misconduct or breach of ethical rules that involves allegations of a criminal offence,” Nasheed explained.

Double jeopardy does not preclude civil, disciplinary or administrative action before or after criminal prosecution, he added.

However, Nasheed argued, the Supreme Court ruling has effectively prohibited employment termination as a disciplinary action as the judgment considered such action “a punishment.”

As a result of the legal precedent established by the Supreme Court, Nasheed wrote, it was “very likely” that most people dismissed from their posts since the adoption of the new constitution in August 2008 would have to be reinstated.

“That is, considering their cases individually, it is certain that no state institution would have adhered to the standard set in this Supreme Court judgment. The standards are that high,” he explained.

Nasheed however stressed at the beginning of his post that he was obliged to accept the Supreme Court ruling as it was the highest court of appeal.

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Summary: Testimony of former police intelligence chief to Government Oversight Committee

In January 2013, parliament’s Government Oversight Committee heard testimony from six of the highest-ranking officers of the police and military for its review of the Commission of National Inquiry’s (CoNI’s) report into the transfer of presidential power on February 7, 2012. Minutes of the closed-door sessions (Dhivehi) along with audio recordings were made public on January 16, 2013.

Following is a translated summary of the testimony from former head of police intelligence Chief Superintendent Mohamed Hameed to the oversight committee on January 9, 2013. Hameed was fired in August 2012 by the police disciplinary board over allegations of leaking confidential information. He has since sued the police for unlawful termination.

Mohamed ‘MC’ Hameed joined the Maldives Police Service (MPS) on April 8, 1995. He was appointed head of the police intelligence department on January 17, 2010 following completion of a state-sponsored Masters degree in policing, intelligence and counterterrorism from the University of Sydney, Australia.

“I attended CoNI on April 15, 2012 and in addition I also attended the reconstituted CoNI. I believe it is because they did not consider what I said there to have much weight that important points from my two statements to CoNI were not highlighted in the report. The reason I am saying this is because what happened on February 6, 7 – I am not a legal expert but I have worked in the police profession for a very long time – I believe what happened with the police those two days should not have been seen from those belonging to a professional police service.”

Hameed believed that elements of the police mutinied on February 6 and 7. The CoNI report however did not highlight police misconduct, alleged brutality and disobedience that he “emphasised” at the commission.

When the new administration took office in November 2008, MPS did not have “a professional intelligence setup.” The previous intelligence department, known as Omega Sector, was referred among police as the “black room”. It was headed by current Commissioner of Police Abdulla Riyaz.

Police intelligence was focused on the political opposition to the then-government and did not provide much assistance or cooperation for routine policing. Hameed’s “main purpose” as the new head of police intelligence in 2010 was “setting up an intelligence mechanism needed for policing or law enforcement.”

At CoNI, Hameed was asked why police intelligence had not learned of a plot to overthrow the government if the events of February 6 and 7 were orchestrated and planned in advance.

“I said very clearly, if intelligence operated in the way it did in the police service before 2008, the incidents of February 6 and 7 would not have happened. It would not have been allowed [to happen].”

Gathering information from the political arena was “not a priority at all” for the department. However, the intelligence department did monitor political activities, especially protests or demonstrations that affect public peace.

“Considering the information I was receiving in my post, I do not believe what occurred on those two days happened spontaneously.”

Police received intelligence that plans were made to carry out anti-government activities with police involvement to disrupt a mass gathering planned by the formerly ruling Maldivian Democratic Party (MDP) for February 17, 2012 as part of its campaign for judicial reform.

“We had learned that discussions took place. This information would be recorded in the Maldives Police Service intelligence department intelligence reports and intelligence logs.”

On the night of February 6, when clashes erupted between opposition protesters and government supporters at the artificial beach, the intelligence department was monitoring the situation. Communications from the mutinying police from the Specialist Operations (SO) department at Republic Square were being intercepted.

An off-duty platoon from the SO was active at the artificial beach without orders.

Following the military’s detention of Chief Judge of the Criminal Court Abdulla Mohamed on January 16, 2012, anti-government graffiti was discovered in the toilets of the SO accommodation block at Iskandharu Koshi. The graffiti called for Police Commissioner Ahmed Faseeh, Deputy Commissioner Ismail Atheef and President Mohamed Nasheed to be killed.

“I believe that police as a whole was not ready for democratic governance. There were serious problems in the institution.”

The judge’s arrest sparked demonstrations by the opposition coalition for 22 consecutive nights. During that period, police would gather at the Republic Square at 7:00pm every night and follow the protests until 2:30am or 3am.

“The sole focus of police was on these demonstrations. During the whole day, the police service was almost asleep.”

On January 23, 2012, the intelligence department prepared an assessment report of the situation with a recommendation for the Commissioner of Police to seek the release of Judge Abdulla from military detention and find “another settlement” of the issue.

At the demonstrations outside the Maldives Monetary Authority (MMA) building, opposition leaders were publicly claiming that police and army officers would join their protest.

On January 17, 2012, ten senior police officers above the rank of chief inspector met with the Commissioner of Police and informed him that they “did not accept” having to control the protests against the judge’s arrest. The ten senior officers were in charge of police operations.

“One of them indirectly proposed that the commissioner resign that very day.”

In the coming days, police intelligence learned that some of the senior officers had separate meetings with the current Police Commissioner Abdulla Riyaz, State Minister for Home Affairs Mohamed Fayaz ‘FA’ and Defence Minister Colonel (Retired) Mohamed Nazim.

The ten senior officers were also noticeably absent from the police headquarters during the operations to control the opposition protests.

On January 18, 2012, President Mohamed Nasheed met with police officers of commissioned rank at the police headquarters theatre hall and attempted to explain the reasons for the judge’s arrest. A few days later, an audio clip of President Nasheed’s talk was leaked and broadcast on opposition-aligned DhiTV and Villa TV.

A police officer of a junior rank was meanwhile caught relaying information of the operation to opposition politicians leading the demonstrations. Riot police officers were also seen to be reluctant in taking action against unruly demonstrators.

A few nights before February 6, opposition protesters marched to the Maldives National Broadcasting Corporation (MNBC) building, located near the ruling party’s Haruge (meeting hall). In response, a group of MDP activists led by MDP MPs made their way to the Supreme Court building and MMA area.

In contrast to their attitude towards opposition demonstrators, SO officers deployed at the MMA area forcibly broke up the MDP protest as soon as it reached the police lines.

Police intelligence learned that a SO officer called Progressive Party of Maldives (PPM) MP Ahmed Mahloof later that night and bragged of having beaten up MDP supporters. In the intercepted call, MP Mahloof asked the officer why they did not break the leg of MDP MP ‘Reeko’ Moosa Manik at the protest.

Based on such intelligence information, the assessment report prepared on January 23 warned that the likelihood of “police and army officers coming out against the government” was high.

In the early hours of February 7, the special assessment unit of the Maldives National Defence Force (MNDF) responsible for intelligence regarding domestic security relayed information that PPM council member ‘Marz’ Ahmed Saleem was coordinating efforts to send speedboats to Dhoonidhoo and Feydhoo Finolhu to bring more police officers to join the mutinying police at the Republic Square.

Police intelligence also learned that some army officers inside military headquarters told the mutinying police around 4:00am that the soldiers would join the mutiny if they held on for four more hours. The intercepted calls between army and police officers were provided by MNDF intelligence.

At 10:30am on February 7, mutinying police assaulted Hameed and other senior officers inside the conference room on the 5th floor of the police headquarters and dragged them out “by the cuff”.

Hameed made his way to the office of the Police Commissioner on the 4th floor. At 11:00am, Chief Superintendent Abdulla Fairoosh came into the office, sat down and informed the commissioner that a team was going into the military headquarters to give President Nasheed an ultimatum. Fairoosh asked the commissioner what he intended to do.

“I took that indirectly [to mean] ‘I am taking over, so the commissioner of police should step aside or resign.’”

The commissioner then went to the conference room and made his parting remarks. All commissioned officers in Male’ were present, some in uniform and others in plainclothes. After the commissioner left, a vote was taken among the senior officers to appoint Fairoosh interim commissioner. Two assistant commissioners were present.

After Fairoosh took charge, Chief Superintendent Ahmed Saudhee then told Hameed that he was no longer head of the intelligence department. Hameed was to be replaced by Chief Inspector Abdul Mannan Yoosuf, who had been studying Business Administration in the UK and was in Male’ at the time on holiday.

Following the appointment of Abdulla Riyaz as commissioner on the night of February 8, 2012, Hameed was made a member of the executive team and appointed head of the service development directorate.

Earlier in the day, confronted by thousands of MDP supporters in a march across Male’, Hameed saw that the senior officers were “in shock” and appeared not to have command and control. Individual officers at the scene acted without orders.

As vice chair of the promotion board, Hameed also noted that 1,112 police officers were promoted on March 31, 2012 while only 600 forms were submitted under the normal promotion procedure. Commissioner of Police Riyaz had instructed heads of directorates to submit a list of officers in their departments for promotion.

Under promotion rules that were supposed to have been amended by then, the commissioner is authorised to “deviate from the normal promotion routine” and promote officers who have shown “special” qualities or exceptional performance.

The new lists were hastily approved during a promotion board meeting after midnight on March 31 while the promotion ceremony was scheduled for 10:00am the next morning. The board meeting was chaired first by Commissioner Riyaz and then Deputy Commissioner Hussain Waheed. The latter was receiving phone calls as late as 3:00am to add new names to the list of officers to be promoted.

Hameed’s objection to promoting officers suspected of brutality and breach of ethics on February 6, 7 and 8 was ignored. SO officers involved in the events were given single and double promotions.

“What we saw was that officers with a disciplinary record from the floor to the ceiling were given promotion by the executive board.”

Hameed further noted that failure to preserve CCTV footage from February 7 cast doubt on the “integrity of the current [police] leadership.” The footage was automatically wiped out on March 7, 2012.

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Supreme Court rules secret ballot, dismissal of CSC chair unconstitutional

The Supreme Court on Thursday ruled that contested decisions by parliament to remove Civil Service Commission (CSC) Chair Mohamed Fahmy Hassan and conduct no-confidence votes through secret ballot are unconstitutional.

On December 3, 2012, parliament voted 41-34 to approve amendments to the parliamentary rules of procedure to conduct no-confidence votes to impeach the President and remove cabinet members through secret ballot. The house rules were changed with pending no-confidence motions against President Dr Mohamed Waheed and Home Minister Dr Mohamed Jameel Ahmed submitted by the formerly ruling Maldivian Democratic Party (MDP).

In late November, parliament dismissed Fahmy in a 38-32 vote after the Independent Institutions Committee investigated a complaint of sexual harassment by a female employee of the CSC.

Both moves were challenged at the Supreme Court, which issued injunctions or stay orders to parliament to halt both conducting no-confidence votes through secret ballot and appointing a replacement to the CSC, pending rulings on the legality of the decisions.

In its judgment (Dhivehi) on the constitutionality of secret ballots for no-confidence votes, the Supreme Court ruled 6-1 to strike down the amendment to parliament’s standing orders as unconstitutional. The majority opinion contended that the move contravened article 85 of the constitution as well as parliamentary principles and norms of free and democratic societies.

Article 85 stipulates that meetings of the People’s Majlis and its committees must be open to the public.

In the second judgment (Dhivehi) on Thursday night, the Supreme Court noted that Fahmy was alleged to have committed a criminal offence and contended that the Independent Institutions Committee violated due process and principles of criminal justice procedure in dealing with the accused.

The Supreme Court ruled 6-1 that Fahmy would receive two punishments for the same crime if he was convicted at court following his dismissal by parliament (double jeopardy). Following the judgment, Fahmy would be reinstated and compensated for lost wages since December 2012.

Delivering the judgment, Supreme Court Justice Abdulla Saeed reportedly said that a person should be considered innocent unless proven guilty in a court of law and was entitled to protect his reputation and dignity.

Dissenting opinion

Meanwhile, Justice Ahmed Muthasim Adnan – the only Supreme Court justice with a background in common law – issued dissenting opinions in both cases.

On the constitutionality of the secret ballot, Justice Adnan noted that article 101(f) of the constitution states that “the regulations governing the functioning of the People’s Majlis shall specify the principles and procedures concerning a resolution to remove the President or Vice President from office as provided in this Constitution.”

Unless a clause added to the regulation was explicitly in violation of the constitution, Justice Adnan said that he believed it “could not be challenged in any court in the Maldives.”

He further noted that while article 85 of the constitution requires parliamentary proceedings to be open to the public, 85(b) states that a majority of MPs present and voting could decide to exclude the public or press “if there is a compelling need to do so in the interest of public order or national security.”

Moreover, article 85(c) states, “Article (b) does not prevent the People’s Majlis from specifying additional reasons for excluding the public from all or any part of a committee meeting of the People’s Majlis.”

He added that the secret ballot would be taken at a sitting open to the public.

In the case submitted by Fahmy contesting his dismissal, Justice Adnan’s dissenting opinion noted that article 187(a) of the constitution authorised parliament to remove members of the CSC “on the ground of misconduct, incapacity or incompetence.”

Article 187(b) meanwhile states, “a finding to that effect by a committee of the People’s Majlis pursuant to article (a), and upon the approval of such finding by the People’s Majlis by a majority of those present and voting, calling for the member’s removal from office, such member shall be deemed removed from office.”

Justice Adnan argued that an inquiry by a parliamentary committee into alleged misconduct would not be a criminal investigation. Therefore, he added, the oversight committee would not be required to prove guilt to the extent required at trial before making a decision.

He further noted that parliament’s dismissal under the authority of article 187 and a possible conviction at a late date could not be considered meting out two punishments for the same offence.

Separation of powers

Following the injunctions issued by the Supreme Court in December 2012, MDP MP Eva Abdulla told Minivan News that the supremacy of parliament was at stake in the cases before the apex court.

“By its actions, the Supreme Court is challenging the separation of powers that underpins the constitutional basis of governance,” Eva said.

Meanwhile, Independent MP for Kulhudhufushi South, Mohamed ‘Kutti’ Nasheed, contended in his blog on December 12 that the Supreme Court did not have the legal or constitutional authority to issue the injunctive orders against parliament.

Moreover, the Supreme Court “does not have the power to even accept those cases,” he wrote.

Article 88(b) of the constitution states: “Unless otherwise specified in this constitution, the validity of any proceedings in the People’s Majlis shall not be questioned in any court of law.”

Nasheed argued that decisions made by parliament could not be challenged in court except in instances clearly specified in the constitution, which did not include dismissal of members of independent institutions and amendments to Majlis regulations.

The purpose of article 88 was to prevent parliament’s decisions being challenged or overturned, Nasheed said, as in the absence of such a clause the Supreme Court would become a “People’s Appeal Majlis” with supremacy over the house of elected representatives.

“If every decision of the People’s Majlis is appealed at the Supreme Court in the manner that any judgement by the High Court can be appealed at the Supreme Court, then there is no difference between the People’s Majlis and the High Court,” Nasheed wrote.

This was against the separation of powers envisioned in the constitution, Nasheed said, which vested legislative powers in parliament and clearly specified instances where its decisions could be challenged at court.

Former legal reform minister Nasheed is chair of the Independent Institutions Committee. Asked by the Supreme Court to hand over minutes of the committee inquiry, Nasheed had refused.

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Summary: Testimony of Brigadier General Nilam to Government Oversight Committee

Following is a summary of the testimony (Dhivehi) of Brigadier General Ahmed Nilam of the Maldives National Defence Force (MNDF) to parliament’s Government Oversight Committee on January 9, 2013.

Brigadier General Ahmed Nilam was head of military intelligence until late 2011. At the time of the transfer of power, General Nilam was commander of the marine corp. In the wake of his testimony to the Government Oversight Committee, General Nilam was suspended and relieved of his duties by Defence Minister Colonel (Retired) Mohamed Nazim on January 18, 2013.

As his first intimation of a plot to overthrow the government through the security services, Nilam took note of an opposition demonstration on January 24, 2010, during which Umar Naseer led protesters to the MNDF headquarters and rattled the gates.

“My field officers [in the intelligence department] said they were seeing signs of something abnormal about to happen. But we could not know what it was, right?”

Nilam ordered the gates to be shut before the protesters made their way to the Republic Square or the “green zone” where gatherings are prohibited.

“I see now that there is a connection between the incidents that night and February 6. This is what I feel.”

In November 2010, a senior officer serving under the Vice Chief of Defence Forces Farhath Shaheer shared information of an alleged plot to assassinate President Mohamed Nasheed during a live-fire exercise on November 11, 2010. Based on the forewarning, President Nasheed did not attend the Republic Day function. The case was sent to police for further investigation.

In late 2011, then-Defence Minister Tholhath Ibrahim Kaleyfaan removed Nilam from his post as head of military intelligence. Within three months, he was appointed to two posts before being made commander of the marine corp.

Nilam learned that Tholhath made the decision on his own without consulting the commander-in-chief. Nilam saw that President Nasheed trusted the defence minister.

In November 2011, Nilam sent a six or seven page letter to President Nasheed expressing concern with Tholhath’s actions. The defence minister was interested in “very quickly purchasing expensive instruments.” Tholhath also made a number of changes to the military top brass, shuffling senior officers, including Commander of Special Forces Colonel Giyas.

A month after Nilam was removed as head of intelligence, his former deputy, Colonel Abdulla Zuhuree, was also transferred.

Prior to the arrest of Criminal Court Chief Judge Abdulla Mohamed, General Nilam participated in a meeting on January 15, 2012 with the Supreme Court bench, senior police officers and military officers to discuss national security threats posed by the judiciary.

In a meeting with senior military officers a day before, Tholhath spoke about taking the judge under military custody. Nilam opined that any person could be detained if he was a threat to national security. He however advised against moving too quickly and suggested planning and coordination with other institutions.

But the minister wanted it done immediately and asserted that he would take responsibility “even after 40 years.” Police had officially requested military assistance at the time in accordance with the law.

On the night of February 6, 2012, Nilam was unaware that the military was brought to red alert, the highest security status. He found out later from a timeline of events. Contrary to normal procedure, the duty head did not inform him nor was a message sent.

Nilam was having coffee with Chief of Defence Forces Major General Moosa Ali Jaleel when he saw Specialist Operations (SO) police on television running towards the artificial beach. The generals then made their way to the operation room. Both were in plainclothes. Nilam did not have any operational command at the time.

Shortly afterwards, SO officers returned to the Republic Square and began their protest or strike. Nilam decided against going to the barracks at Kalhuthukkala Koshi for his uniform.

“I felt staying inside would be better than going because it was unclear how this was unfolding. So I stayed as I was. It kept getting dragged on and on. And as I recall the then-President came [to the military headquarters] some time around dawn.”

Fearful of the potential threat to domestic security, Nilam remained inside the operation room and returned to the room despite being sent out six or seven times by Tholhath.

Nilam stayed close to President Nasheed, who was asking the operation commanders to clear the Republic Square of mutinying police. Nilam warned of dangerous consequences if the situation dragged on and worsened. He later learned that the military ranks were not functioning and some soldiers wanted to join the mutiny.

Nilam thought that a violent confrontation between police and the military might have been the desired outcome of the then-opposition. After the break of dawn, President Nasheed went out and addressed the mutinying police but they remained defiant.

More police officers kept joining the protest at Republic Square as false rumours began to circulate. About 45 soldiers from Kalhuthukkala Koshi came to the Republic Square. Nilam learned later that military police opened the gates to let the soldiers out.

Military officers also joined the police officers and opposition activists in taking over state broadcaster MNBC.

The president, defence minister and chief of defence forces were issuing orders because “the [military] lines weren’t working.”

“I was really saddened. This was not something I ever saw inside the military. There has been insubordination. There are former officers here [among MPs on the committee]. There is insubordination. But things have never happened like this in such an operation.”

Nilam saw a president in a “very helpless state”, which was “a sad moment.”

“We are entrusted with the duty and responsibility of protecting the country’s independence and sovereignty. It is truly disturbing to see something like that from [the military].”

The situation inside the barracks was chaotic. Soldiers were filming on their phones or cameras although it was strictly prohibited.

Nilam also learned that the military did not have “any control of [presidential residence] Muleeage after 7:00am or 7:30am in the morning.”

Police and ex-servicemen entered Muleeage after 7:15am on February 7. Nilam heard later that some officers of the Special Protection Group (SPG) guarding the President and Vice-President had joined the mutiny.

He also learned later that First Lady Madam Laila Ali was taken out of the presidential residence in a car whose number plates had been changed to avoid detection.

Nilam was surprised and saddened when the CoNI report did not include any recommendations for the MNDF. He believed it was important to thoroughly investigate the role of the military in the events of the day.

“That is because if something like this happens and it is not investigated, the consequences will be very dangerous. We are in that state now.”

Following the change of government, Defence Minister Nazim asked Nilam if he believed the transfer of power amounted to a coup or a revolution.

Nilam replied, “Looking at it academically, this has all the characteristics of a coup. Some signs are what would happen before while other signs are what occurs during the event. Then we have what happens afterward. I have even looked into this and studied this along principles that academicians would consider. So I told [Nazim] that this has all the characteristics. He didn’t say anything else.”

Under Maldivian law, a “coup d’etat” could not be carried out without the military’s involvement as the offence is specified and prohibited in the Defence Forces Act of 2008.

Inside the military headquarters, Nilam overheard President Nasheed refuse assistance from two foreign nations before he decided to resign.

“[The President] said this is an internal matter. He answered both calls in much the same way.”

Considering the chaotic situation at the Republic Square, there was possibility of bloodshed “if it dragged on” and the president’s life was in danger.

Nilam was present when current Defence Minister Nazim relayed the ultimatum to Tholhath for the president’s “unconditional” resignation.

Nilam saw military officers bang the president’s car with their boots while he was escorted to the President’s Office from the military headquarters. He also noted that current Chief of Defence Forces General Ahmed Shiyam took over as acting chief before President Nasheed officially resigned.

“There are a lot of questions here. I believe that this should be investigated thoroughly and looked into. These are very serious matters.”

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Under-age rape victim convicted of fornication, sentenced to 100 lashes

A 15-year-old rape victim from the island of Feydhoo in Shaviyani Atoll was convicted of premarital sex at the Juvenile Court today and sentenced to 100 lashes and eight months of house arrest.

In June 2012, the girl gave birth to a baby that was discovered buried in the outdoor shower area of her home. Her stepfather was later charged with child sexual abuse, possession of pornographic materials and committing premeditated murder.

Her mother was meanwhile charged with concealing a crime and failing to report child sexual abuse to the authorities.

An official from the Prosecutor General (PG)’s office told Minivan News in January this year that the fornication charges against the minor were related to a separate offence of premarital sex that emerged during the police investigation. The charges were filed on November 25, 2012.

In its verdict delivered today, the Juvenile Court ordered the state to transfer the girl to the Children’s Home in Villigili to enforce the sentence of eight months house arrest, according to local media reports.

The girl reportedly confessed at the trial to having consensual premarital sex.

The Islamic Shariah punishment of flogging would be administered when the girl turns 18. However, the sentence could be implemented earlier should the minor request expedition, a court official explained to local media.

In late January, the PG’s Office told Minivan News that it was reviewing the decision to press charges against the minor. Two hearings at the Juvenile Court were subsequently cancelled upon request by the PG.

However, the trial resumed after the PG decided earlier this month not to withdraw the charges.

Officials from the PG were unavailable today to clarify whether the male offender faced the same charge of premarital sex.

The case of the 15 year-old had prompted concern from the executive following international media coverage. The government announced last month that it would review and “correct” laws that victimise young women and minors who have suffered sexual abuse.

President’s Office Spokesperson Masood Imad told Minivan News that from government’s perspective, the 15 year-old girl was a victim who needed to be protected, not punished by authorities.

“We will be talking with the Ministry of Islamic Affairs over this manner and will review and correct the problem,” he said.

Masood said that the Maldives had experienced a number of similar cases of late where young women had been victimised and punished by authorities – a situation he said the government was looking to prevent.

“We are reviewing this right now and if we have to go to the extent of changing existing laws then we would look to do this,” he said.

“Absolute outrage”

The criminal charges against the minor was slammed by Amnesty International last month, which called the prosecution “an absolute outrage.”

“This is an absolute outrage, regardless of the reason for her charges. Victims of rape or other forms of sexual abuse should be given counselling and support – not charged with a crime,” said Abbas Faiz, Amnesty International’s Maldives Researcher.

“We urge the Maldivian authorities to immediately drop all charges against the girl, ensure her safety and provide her with all necessary support.

“Flogging is a violation of the absolute prohibition on torture and other cruel, inhuman and degrading treatment or punishment. The Maldivian authorities should immediately end its use regardless of circumstances. The fact that this time a 15-year old girl who has suffered terribly is at risk makes it all the more reprehensible,” said Faiz.

“Flogging is not only wrong and humiliating, but can lead to long-term psychological as well as physical scars.”

In response to a Minivan News report in 2009 of an 18 year-old woman fainting after a 100 lashes, Amnesty International called for a moratorium on the “inhumane and degrading punishment.”

Of the 184 people sentenced to public flogging in 2006, 146 were female, making it nine times more likely for women to be punished.

In November 2011, UN High Commissioner for Human Rights Navi Pillay urged the authorities to impose a moratorium on flogging and to foster national dialogue and debate “on this issue of major concern.”

“This practice constitutes one of the most inhumane and degrading forms of violence against women, and should have no place in the legal framework of a democratic country,” the UN human rights chief told MPs during a maiden visit to the Maldives.

Her remarks sparked protests by Islamic groups outside the UN building and drew condemnation from the Islamic Ministry, NGOs and political parties.

According to statistics from the Department of Judicial Administration, almost 90 percent of those convicted of fornication in 2011 was female.

Of 129 fornication cases in 2011, 104 people were sentenced, out of which 93 were female. This included 10 underage girls, 79 women aged 18-40 and and four women above 40 years.

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