Comment: Maldivian Democracy – Where to from here?

“Maldives can never have stability through elections which has opposition Maldivian Democratic Party presidential candidate Mohamed Nasheed’s name on the ballot”

“We will not hand over [power] through an election, [we] will not hand over even if he gets elected”

“Election fraud should be investigated and the election commissioner should resign”

– Progressive Party of Maldives (PPM) vice presidential candidate Dr Mohamed Jameel Ahmed

These are not political statements. This is not political discourse. This is not democratic discourse. We call ourselves a democracy – a young democracy. But these statements are the symptoms and early warning signals of a failing democracy.

Failing democracy

There are different versions and theories on what a ‘true democracy’ is, even though I believe that term is flawed to the core. No system is perfect and a ‘true democracy’ is too ambitious an aspiration to be realistically achievable. At the same time, democracy is also not just giving everyone above 18 a right to vote and a right to represent.

Economist Intelligence Unit (EIU) runs an annual survey for a ‘Democracy Index’, which rates various sovereign countries across the world on how effective they are as democracies. They rate countries on five arameters which are commonly accepted as relevant for judging the strength of democracies: 1) Electoral process and pluralism; 2) Functioning of government; 3) Political participation; 4) Democratic political culture; 5) Civil liberties. While this annual ‘Democracy Index’ typically covers around 160 – 165 countries across the world, the Maldives is not ranked. One can go through the details of this index here and build their own perspective on how well are we doing on this.

My summary view on the state of Maldivian democracy based on an assessment of these parameters is that we are a democracy on ventilator, desperately gasping for life. The statements by a vice presidential candidate highlighted above are a reflection on the sanctity of our electoral process, rather the lack of it. No only this, ours is a democracy where the Supreme Court decides on the sanctity of electoral process based on a ‘secret report’ by the police without even giving a chance to the Elections Commission, or anyone else, to see the report – let alone comment on it. At the same time, one only needs to see through the various actions of the current government to see that we clearly fail on the parameter of functioning of government, with the rampant corruption and decisions that are typically taken under the influence of one of the president’s allies or the other.

President Waheed has been sanctioning millions of dollars’ worth of favours to the people who put him in power – £5million payments to Grant Thornton to stop corruption investigations against Abdulla Yameen, and the arbitrary 99-year lease extension for Mamigili airport are just a couple of cases in point. The recent decision by Waheed’s cabinet to sell MACL shares in the course of a week, while being totally silent on the valuation or process for sale as well as the role of the Majlis or the privatization board in the same is a further example of absolute failure of governance, which is marred by corruption, in our democracy.

Civil liberties, or the lack of them, is the most significant problem for us today. None of the media houses are independent since their owners are aligned with one political party or the other – a case in point is a recent headline in a national electronic newspaper which said “Nasheed doesn’t have time’ for second round presidential debate” while referring to the cancellation of MBC’s presidential debate. Brutal crackdowns on anti-government protestors are a norm of the day and tolerance for the opposition view is totally amiss from governance.

As for a democratic political culture, our country is being run by a ‘president-by-chance’ who has no popular support and who has been totally inept at maintaining public order, largely because he represents the old order and vested interests who brought him to power. It is only political participation that is the last remaining hope for the Maldivian democracy, and I am proud to say that we may be one of the best in the world on this parameter, but I fear we are starting to view our democracy in this very narrow perspective.

Constitutional void or civil disobedience or much more?

It is apparent from the discussion above that Maldivian democracy is faced with a number of challenges that threaten its very existence. What started in February 2012 was a political turmoil. Where we are at today is a constitutional void – where no one knows who has the power on which matters, and everything is a question of interpretation of the constitution. The more worrisome aspect, after this Supreme Court judgement on validity of elections, is where do we go from here?

Whether the Supreme Court had the power to cancel the second round or not is still in question – the executive was only too happy to implement its orders anyhow without regard to the powers of the constitutional institutions such as the elections commission. Whether they were right in annulling the first round, on the basis of a report the existence of which is in question, is an even bigger question. Parliamentary supremacy is a bit of an unknown concept in our democracy and anyone and everyone seems to challenge it based on their convenience – be it challenging the position of the speaker, or validity of seats of opposition MPs, or the simplest of things like not destroying the audio systems just to stop the other side from making their case.

The questions are many and there are no clear answers. Can the elections commission ensure a free and fair election with the high level of control that has now been given to the Maldives police? Will the Maldives’ police, who are led by a man recently reprimanded by integrity commission for his anti-Nasheed activism in the forces, really allow a free and fair election? Will any election in which Nasheed wins, despite any odds, be conceded as a free and fair election? What will deter the losers of the re-election from running to the Supreme Court again pleading some other kind of foul play and getting the elections annulled once again? Will Nasheed supporters accept a defeat calmly and with grace, without crying foul play, having received 45 percent votes in the annulled elections? Now that the sanctity of the electoral process has been undermined significantly, what is the way out of this situation?

Using undue influence over the Supreme Court to play with the electoral process is not an acceptable answer for one side of the political spectrum. Disqualifying the most popular candidate from contesting the elections or not letting him take power – even if he wins the election and possibly even a re-election – is clearly not a plausible answer for the other side. This is a stark conflict and everyone is getting involved. Even the MNDF is getting politicised and polarised, along with the customs, air traffic control, and resort employees. That this conflict will only escalate further is increasingly likely and the recent arson attack on pro-opposition Raajje TV is an early warning signal of how bad things can get, if not checked in time.

Where to from here in search of solutions?

A conflict where a large proportion of people with a political voice start looking at every action of the state with suspicion is mostly avoidable. No one likes conflict and certainly not a violent conflict. With everything that is going on in the rest of the world – in Syria, Egypt and elsewhere – no one wants a conflict in the much more peaceful Maldives. Given the polarised nature of this conflict, it is important for order to be established in the Maldives sooner rather than later. Leaving internal institutions in the Maldives to chance upon a solution after a prolonged conflict is not what is required at present and may even be counter-productive.

Clearly, the Maldives needs the international community’s support to ensure that this conflict is not prolonged and is resolved for good with this round of elections. Moreover, it is not in India’s interests to see any prolonged conflict in its backyard, for such conflicts allow an opportunity to other countries to start playing an active role where they have been largely absent till date. It is important for India to establish diplomatic supremacy once again in the Maldives.

Ever since the suspicious transfer of power in the Maldives in February 2012, Indian engagement in the Maldives has largely been reactive. It has been on the ‘back-foot’ since February 2012 with the rising anti-India voices from some quarters of the political spectrum. President Waheed went back on his word to the Indian prime minister in cancelling the GMR agreement, and the much prolonged ‘Nasheed-holed-up-inside-Indian-high-commission’ drama in February 2013 only exacerbated discord. India has reacted well to manage some of these situations, though Indian diplomacy has failed on a few fronts, particularly in failing to gauge the allegiance of the current government of President Waheed.

The current conflict in the Maldives provides a perfect opportunity for India to take charge of the situation. The re-election is an opportunity to set the Maldives in order and to define Indian diplomatic supremacy in the region. It has to play an active role in building domestic as well as international consensus on whatever is required to ensure that the re-election, now that everyone seems to have accepted it, is free and fair and actually results in a smooth and consensual transfer of power on November 11. The number of diplomatic options India has are endless, but just strongly worded statements don’t seem to be enough of a deterrent to the various political actors in the Maldives. On the other extreme, far-fetched options like an international peace-keeping force or any sort of ‘boots-on-ground’ is totally out of bounds as well. While some sort of economic sanctions are a plausible diplomatic action, these haven’t been much of a deterrent in many cases across the world.

A possible tourism-embargo will hit the various political actors involved in this conflict and would force them to tow the democratic line such that the starkly polarised domestic politics could be sorted out once and for all. This is a call that has been made by the MDP as well, and has been welcomed and criticized in equal measure by various people across the socio-political spectrum in the country. Having said that, it is such details of what and how that India has to play without becoming actively involved in the local politics and without taking political sides. India has to build international consensus on what carrots and which sticks need to be used to ensure that any dubious dealings no longer stymie Maldivian democracy.

Maldivian democracy is on life-support and it needs international help, especially from India, to help it come back to life again after the 11th November.

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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Comment: Conspiracy of silence over GMR arbitration

Amidst the high decibel of the election campaign, it is easy to completely miss out on some critical issues.

This seems to have happened last week, when the Maldives Airport Company Limited (MACL) recorded an early loss in its legal battle with GMR over [President Dr Mohamed] Waheed’s government’s decision to terminate the Male airport concession agreement. There has been no word or confirmation from the Waheed government on this and his eager-than-ever spokespersons are nowhere to be found. This is especially interesting since they have been more than keen to take any credit they can on the entire airport saga.

Per a report in Minivan News, this is an “early legal skirmish” for GMR in its $1.4Bn claim against Government of Maldives and MACL for illegal termination of its concession agreement in December last year. In one of the earlier comment pieces in this same publication, it has been argued how the termination was a political decision, not an economic decision and how politicisation of the airport by Waheed and his ex-allies is systematically destroying our national asset. This latest news now is all the more concerning and I am certainly surprised to see that it hasn’t been picked up by any of the other newspapers which leads me to believe many people didn’t realize what this may mean for us as a nation.

While Minivan News hasn’t highlighted their source for this judicial order. I wish they had.  In this column I will highlight what I believe are the implications of this order.

Legal setback – arbitration panel leaning away from MACL?

No doubt this is a major setback for Waheed and his Attorney General, Azima Shukoor. Waheed’s government has lost the first round of the battle and the first blood has gone to the other side. The judicial order provides early indications as to which way the arbitration panel may be leaning based on the arguments that they have heard from both parties till now.

Waheed government could not convince the tribunal members on the right way to proceed with the case and this would certainly make one nervous about whether they will be able to convince the panel about their legal position that the contract is void. We have to keep in mind that members of the government and their allies were publicly criticising the deal, protests were being staged against GMR and cries of nationalisation were being made just before Azima suddenly pulled the rabbit out of the hat and claimed that there was no contract all this while!

Details of the political campaign run by members of the government are in the public domain, and they raise questions as to whether the contract was invalid or if the lawyers were asked to find ways of canceling it.

Certainty of compensation by Maldives for termination?

The most important part of the article that the tribunal has discussed is awarding three different types of claims according to which way the panel decides on the legal question of whether the contract was void ab initio or not: “GMR-MAHB’s claim for compensation as per the termination clause of its concession agreement, its parallel claim for loss of profits over the lifespan of the agreement due to its termination, and the government’s counter-claim for restitution should the tribunal decide in its favour”. If one thinks deeply about it, this doesn’t sound like good news at all for Waheed and Azima, or for our nation.

If we lose the legal arguments, we will be faced with a US$1.4 billion claim that we may have to pay for how the airport contract was terminated. However, if Azima wins the legal arguments in the panel then it’s the restitution claims that will be relevant. Otherwise, the contract itself has some termination clauses and this is the third type of claim that may be awarded by the panel based on legal arguments. Let’s look at each of these three claims one by one.

GMR’s US$1.4 billion claim is what it is and we will have to wait and watch if they are awarded this claim. The more interesting aspect is what the panel seems to have said on the other two types of claims.

On the termination payments per the contract, I am all but reminded that in a press conference last year Azima herself said that if the contract is cancelled, we may have to pay GMR anywhere between US$600-700 million in compensation. Given that Azima has been maintaining that Nasheed’s government did not do any due diligence while procuring the contract, whereas she has done extensive due diligence before canceling the contract, I am tempted to take her word on the estimated cost of termination. Hence, in this case, we may have to pay GMR around US$600-700 million.

Now, for the worst part and which Azima has argued in court: in case we win the legal arguments in court, the panel will decide for restitution. If one quickly goes to Wikipedia and understands what restitution refers to in legal terms, it means “orders the defendant to give up his/her gains to the claimant… to restore the benefit conferred to the non-breaching party”.

In essence, if restitution is done in this case, the government will have to give back all the money that GMR brought to Maldives with them to invest and GMR will have to give back what they got from Maldives. Even some quick ‘back-of-the-envelope’ calculations reveal that this would still mean paying around US$240 million to GMR!

If one believes their statements that they have already invested ~US$240 million in the airport, then this money will need to be given back to GMR. At the same time, they have also said that they haven’t taken investment out of the airport and whatever they earned was put back in the airport. Hence, we are still looking at a claim of US$240 million that we may need to give GMR even if we win the legal case!

Conspiracy of silence?

During his controversy-ridden reign in which he has lost allies one by one, Waheed has taken a number of suspect decisions which he has been too happy to slip under the carpet. He perhaps thought that the decision to axe the airport contract was a populist decision and he had probably hoped that it would bring him back to power.

This is why his spokespersons as well as the AG were trigger-happy to announce that nothing will happen in the arbitration before next year – “since there is no valid contract, there can be no compensation”.

Now, this early legal setback– which may cost us millions of dollars in damages even if we win the arbitration– has laid bare all the arguments that Azima gave when the contract was cancelled. The shallowness of her arguments has now left the nation with a US$240 million bill in the best case, and more than a billion dollars at worst! So much for the “legal due diligence and advice of foreign lawyers” that she received.

No wonder that there has been no word from the government on this so far. This may be either because they have nothing to say given the early setback that they have received or they would rather push this under the rug and hope they can get through the elections without making any comment which may jeopardise their chances. At the end of it, they seem to have taken advantage of a tight election schedule to hide without giving any explanations whatsoever!

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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