Almost 90 percent of the people found guilty of “Zina” – fornication – and sentenced to flogging in 2011 were female, according to new statistics published by the Department of Judicial Administration last week.
A total of 129 fornication cases were filed last year and 104 people sentenced, out of which 93 were female. This includes 10 underage girls (below 18), 79 women between age 18-40 and and four women above 40 years.
Of the 11 males who were sentenced, only one was a minor, with the others aged between 25-40.
Compared to 2010, the overall sentences in fornication increased by 23 percent in 2011, but the number of males sentenced for flogging decreased by 15 percent while the women increased by 30 percent.
According to Maldivian law, a person found guilty of fornication is subjected to 100 lashes and sentenced to one year of house arrest or banishment while a minor’s flogging is postponed until she or he reaches 18.
It takes four witnesses or a confession to prove the offence in court based on Islamic Sharia. The Maldives’ legal system consists of elements of both common law and Sharia.
Earlier this year, the Maldives made international headlines when a 16 year-old girl was sentenced to 100 lashes and eight months house arrest by Hulhudhufaaru Magistrate Court in Raa Atoll, for fornication while the 29 year-old man was sentenced to 10 years imprisonment after finding him guilty of sexually abusing the girl.
Being a minor, the court stated that the girl’s sentence would be implemented when she turned 18.
After visiting the country in November last year, UN Human Rights Chief Navi Pillay called for a moratorium on corporal punishment, describing it as “inhumane and degrading.”
“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,” said Pillay.
However, her statements and calls for discussion on the issue were met with outrage from the opposition and religious Adhaalath party, giving rise to protests and demonstrations. The Foreign Ministry itself dismissed the calls for discussion on the issue, stating: “There is nothing to debate about in a matter clearly stated in the religion of Islam. No one can argue with God.”
Minivan News could not verify if all the people sentenced last year had been flogged at the time of the report’s release, although former Former Minister of Gender and Family Aneesa Ahmed confirmed that the sentences were being carried out.
The Judicial Sector Statistics Report 2011 highlights the sheer scale of the long-known and unaddressed issues of gender bias in the justice system.
As rape was at the time and is still defined as “forced fornication”, as with any other fornication case, four witnesses or a confession is still required by the court to prove rape.
“In these cases a woman’s accusations need to be verified by two men or four women, thus, rape and sexual violence remain impossible to prove in virtually all cases,” the 2004 study noted.
The prosecutor general’s office had earlier confirmed that as these two necessary elements are almost impossible to find, in all rape cases the suspects are charged with forced sexual misconduct, which carries a lesser punishment.
However if the victim is a minor, the PG says that such cases are tried under the 2009 Act on Stipulating Strict Punishment for Child Abusers.
This is the major reason why no rape cases were found in the new statistics revealed by the judiciary despite the high number of reported rape cases. It is also likely that rapes involving minors have fallen into the category of child abuse while others have been categorised under forced sexual misconduct.
However, its also noteworthy that in 2010, eight men were convicted for forced sexual misconduct but the following year the sentenced decreased by 50 percent. Out of the men charged with forced sexual misconduct in 2011, six walked free while only four were sentenced.
The 2004 study further added at the time the current law establishes a minimum age limit of 18 for a person to receive adult punishments, but one of the three exceptions is “if the woman has had a child.”
The Judicial report 2011 says that 10 females were convicted for “giving birth outside a wedlock”, including a minor – a criminal offense which explicitly is directed at women and carries a sentence of maximum one to two years house arrest.
The UNICEF study explained that the current law allows for a young woman under the age of 18, who has been a victim of sexual abuse and is consequently pregnant, to receive lashings in a public setting.
“The victim must then endure the pain and public humiliation of her situation, both the illegitimate pregnancy and the public lashings, which have significant ramifications for her subsequent life opportunities. The perpetrator, on the other hand, is likely to remain publicly unidentified.” it noted.
Societal challenges in addressing the prevalence of child abuse within the Maldives was the central theme of a one-day contemporary art exhibition held at the National Art Gallery in Male’ on Saturday.
Ismail Asif, who coordinated the exhibition along with a number of fellow local artists, said each installation aimed to focus on fears of how “common” child abuse had become within the Maldives, partly as a result of an unwillingness to discuss and tackle the matter within society.
“[The exhibition] is about trying to break taboos, it really is a challenge to discuss these matters. The system has so many flaws we wanted to depict; these are flaws within the education system, the judicial system and wider society,” he said.
Despite the difficult subject matter, organisers claimed that after three weeks of work, the exhibition, which ran from 4:00pm to 6:00pm, aimed to encourage participation from members of the public to try and encourage discussion about child abuse.
Asif talked about the exhibition’s wider themes, without trying to play down the provocative nature of the installations.
“We very much wanted to focus on participation, normally when it comes to trying to address child abuse as an issue, people will just have a poster or banners they can look at concerning the problem. We wanted to try and give more a sense of looking through the eyes of the victims,” he said.
The exhibition itself combined installations involving a sculpture of a female figure holding up a toilet, depicting what Asif claimed was the discrepancy between national perceptions of the traditional status of local women and their treatment within real life.
Among perhaps the more outré installations on display at the yesterday’s exhibition was a specially-constructed walkway that required members of the public upon entry to pass through a small passageway with artificial hands attached to either side of the exhibit.
Asif said that the exhibit was used to open the event to try and reflect themes concerning harassment of vulnerable young people.
Scale of the problem
In recent years, local authorities and NGOs have released a number of findings trying to detail the extent of child abuse and wider sexual assaults within society.
The state-run Indira Gandhi Memorial Hospital’s (IGMH’s) Family Protection Unit reported in 2010 that the centre was notified of 42 cases of rape between 2005-2010. Most of these cases were found to involve minors.
According to the Human Rights Commission of the Maldives, 13 rape cases were reported last year alone, the majority of which most were gang rapes or assaults involving minors.
Almost one in seven children of secondary school age in the Maldives have been sexually abused at some time in their lives, according to an unpublished 2009 study on violence against minors.
Rates of sexual abuse for girls are almost twice as high than for boys at 20 percent – one in five girls have been sexually abused – while the figure for boys was 11 percent. Girls are particularly at risk in the capital Male’, the report found.
Customs officials at the Male’ Ibrahim Nasir International Airport (INIA) on Thursday seized 11 books about Christianity, typed in Dhivehi, from a Bangladeshi expatriate who came to the Maldives via Sri Lanka.
Speaking with the press last Thursday inside the Customs Building, Chief Customs Officer Ahmed Samah identified the Bangladeshi expat as Jathish Bisvas, 44.
Samah said the 44 year-old man had arrived to the Maldives on a tourist visa and that it was the first time he visited Maldives.
According to Samah, customs officials were suspicious that the expat who had tried to bring the banned items into Maldives had links with a person in Male’. Samah said the Bangladeshi man had made a booking with a hotel in Male’ but did could not identify which hotel it was.
Samah said later the same day a Maldivian national was caught with similar books, after arriving to the Maldives from Sri Lanka.
The books he brought were not typed in Dhivehi, according to Samah.
Furthermore, Samah said it was highly possible that a Maldivian was behind the illegal smuggling operation given the quality of the Dhivehi language used to type the book. He also said it was a “very serious case if a Maldivian is behind this.”
He told the press that it was difficult to identify or provide further details about the suspected Maldivian man.
The pair have been handed over to police and customs and police are conducting a joint investigation into the case.
According to the Maldives Religious Unity Regulations, it is illegal in the Maldives to propagate any faith other than Islam or to engage in any effort to convert anyone to any religion other than Islam. It is also illegal to display in public any symbols or slogans belonging to any religion other than Islam, or creating interest in such articles.
It is also illegal in the Maldives to carry or display in public books on religions (other than Islam) and books and writings that promote and propagate other religions, and the translation into Dhivehi language such books and writings on other religions.
Violation of the Religious Unity Act is subject to two to five years in prison and fines up to MVR 20,000 (US$1300).
The Maldives is to remain on the Commonwealth Ministerial Action Group (CMAG)’s agenda under the item “Matters of Interest to CMAG”, however its suspension from the international body’s democracy and human rights arm has been revoked.
The decision means Foreign Minister Abdul Samad will be able to able to participate in CMAG affairs following the Maldives’ suspension in February over concerns about the nature of the transition of power.
A Commonwealth-backed Commission of National Inquiry (CNI) claimed in August that the transfer of power was legitimate, that former President Nasheed was not under duress, and that there was no police mutiny.
Despite significant reservations regarding evidence and witness statements that had not been considered, Nasheed said he was accepting the findings for political expediency. However it had, he said, left the Maldives “in a very awkward, and in many ways, very comical” situation, “where toppling the government by brute force is taken to be a reasonable course of action. All you have to do find is a narrative for that course of action.”
In the CMAG statement, “Ministers noted the report’s conclusion that the change of President in the Republic of Maldives on 7 February 2012 was legal and constitutional, but also that certain acts of police brutality had occurred during that period which should be further investigated. They looked forward to advice from the Government of Maldives on progress with those investigations.”
CMAG also “underlined their concern that all parties in Maldives needed to work towards resolving the climate of division and discontent in order to bring about lasting national reconciliation.”
“Ministers noted the importance of ensuring that the Majlis worked purposefully on critical legislation, without further risk of disruption. Ministers again urged against any actions that might provoke or incite violence.”
Nasheed is this week facing trial for defaming the Defence Minister Mohamed Nazim for describing him as a “baghee” (traitor), and detaining Chief Judge of the Criminal Court Abdulla Mohamed during his administration. Nasheed’s party have dismissed the charges as an attempt to convict and disqualify Nasheed from the upcoming Presidential elections, using courts loyal to the former 30 year regime.
“Ministers urged party leaders to commit to dialogue, paving the way to credible elections. Ministers emphasised the need to ensure that all parties and leaders are able freely to conduct election campaigns,” the CMAG statement read.
“In accordance with CMAG’s enhanced mandate, as agreed by leaders at the 2011 Commonwealth Heads of Government Meeting, Ministers further agreed that they would continue to engage with Maldives positively and constructively to support Maldives in advancing the Affirmation of Commonwealth Values and Principles, in particular in strengthening the judiciary, in the process of democratic consolidation and in institution building. In this context, Ministers asked the secretary-general to continue to brief the Group on progress in Maldives, including at CMAG’s next meeting,” read the statement.
“Accordingly, CMAG agreed to continue to monitor the situation in Maldives, and to move consideration of Maldives in future to its agenda item “Matters of Interest to CMAG”. Ministers looked forward to Maldives’ resumption of full participation at CMAG’s next meeting, in the absence of any serious concerns.”
On the agenda
The CMAG placed the Maldives on its formal agenda in February although President Waheed’s government has maintained that the group “lacked the mandate“ to to so.
Waheed’s government also spent £75,000 (MVR 1.81 million) on advice from former UK Attorney General and member of the House of Lords, Baroness Patricia Scotland, in a bid to challenge what they deemed was the Commonwealth’s “biased” stance on the Maldives, and has continued to express disapproval at what it terms “interference” by the Commonwealth.
“It is my belief that the Commonwealth and its institutions have treated us very badly,” wrote President Waheed’s Special Advisor Dr Hassan Saeed in a newspaper column.
“I would now argue that if CMAG does not remove the Maldives from its agenda, we should end our relationship with the Commonwealth and look to other relationships that reflect modern realities of the world.”
The Hulhumale Magistrate Court has meanwhile confined Nasheed to Male’ ahead of his trial this week. His legal team have expressed concern over a host of irregularities, such as the appointment of a panel of three judges not from the Hulhulmale court – that they say will deny the former President a fair trial.
The matter is likely to come to a head this week, after Nasheed’s party decided that it would no longer follow any orders given by the courts of the Maldives until the changes proposed by international entities were brought to the Maldivian judicial system.
The party said the decision was reached as to date, they had observed no efforts to improve the judicial system based on the recommendations put forward in reports released by numerous international organisations.
The Maldives National Chamber of Commerce and Industries (MNCCI) has claimed legal wrangling between the government and India-based developer GMR over a multi-million dollar airport development will not harm confidence in the country’s “challenging” investment climate.
Under the terms of the Ibrahim Nasir International Airport (INIA) agreement – the largest ever foreign investment in the Maldives’ history – GMR signed a 25 year concession agreement to develop and manage the site, as well as redevelop the existing terminal by the end of this year.
However, the coalition government of President Dr Mohamed Waheed Hassan since coming to power has continued to press to “re-nationalise” the airport, with the country’s Deputy Tourism Minister this week confirming in Indian media that the administration wouldn’t “rule out the possibility of cancelling the award [to GMR]”.
Both parties are presently involved in an arbitration case in Singapore over the airport development as several government coalition parties including the country’s religious Adhaalath Party (AP) held a gathering in Male’ on Thursday showing a “united stand” on opposing the GMR deal until the airport was “liberated”.
MNCCI Vice President Ishmael Asif contended that ongoing legal disputes linked to both the GMR agreement and another high-profile contract to manage a border control system with Malaysia-based Nexbis were not among concerns foreign investors had raised with the chamber.
“GMR has nothing to do with the investment climate here, at the end of the day it is a personal concern for the company and more a matter of local politics,” he claimed.
When questioned on the perceived financial factors behind the “quite challenging” investment climate, Asif pointed to political unrest in the country in the build up ad aftermath of February’s controversial transfer of power.
“A second factor is that in major investment markets like Europe, the economy is not doing very well, which does have an impact,” he said. “Locally of course, the problem is politics.”
Asif added that among the key concerns raised by foreign investors to the MNCCI about doing business in the Maldives were concerns about locals laws and regulations, particularly regarding depositioning and withdrawing funds.
The MNCCI also questioned the current importance of Sri Lanka and India for investment and trade opportunities in the country, compared to markets like Australia and the Middle East. Asif claimed that India and Sri Lanka mainly traded certain local foodstuffs with the Maldives, rather than providing large-scale investment projects.
“In terms of the affects to the investment climate, I don’t think there will be much of an impact on other investors from the GMR issue,” he said.
Conversely, Asif said that the MNNCI had been concerned about the impact of the GMR deal on local businesses, alleging that a planning council related to the infrastructure group’s bid had not been open to the public or its members.
“The public was kept in the dark over this matter,” he said, adding that local workers were concerned about the pact of GMR’s airport development. “All local businesses had to move out of the airport and were shut down.”
Asif pointed to the case of local enterprises such as MVK Maldives Private Limited, which in December last year was ordered by the Civil Court to vacate the Alpha MVKB Duty Free shop based at INIA after its agreement had expired.
On December 14, company CEO Ibrahim Shafeeq held a protest “to demonstrate our opinions and dislike of what GMR has done to us, and to get public responses.”
Speaking to private broadcaster Raaje TV this week, former Economic Development Minister Mahmoud Razee, who had worked with the previous government and international partners on the GMR agreement denied that the deal had resulted in local enterprises being kicked out.
“The privatisation policy does not itself kick others out. It is about honouring the contract. No one has actually been kicked out, but private parties have opportunities to participate. The issue that has always existed is getting cheap capital for small scale businesses,” he claimed.
Razee claimed that the GMR deal reflected a commitment by the former government to pursue privatisation as outlined in the Maldivian Democratic Party’s (MDP’s) manifesto.
“Firstly, if or when anything is run like a business, private people are more skilled and efficient. They are far more competent and they work for profit unlike the government,” he claimed. “This means it requires less cost for the government, but needs more outside investment or capital. Private people are more skilled and efficient in terms of managing. The end product thus is more beneficial.”
Addressing criticisms from some local politicians that privatisation provided no benefits to the nation, Razee conceded there was an element of truth to the assumption, but stressed it did not reflect longer-term economic benefits.
“Because the investment is huge, the project is big; the first beneficiaries are always the investors. True. The benefits go to the foreigners,” he said. “In foreign countries, they make a consortium, which means the profits are being shared within multiple parties. For example, if a Turkish company is investing here, it doesn’t mean they do everything themselves. If they are developing a property, the construction, or other necessary work is done through local companies.”
Despite the claims, local media reported that a gathering at Male’ artificial beach area went ahead on Thursday (September 27) as part of a protest under the name “The Maldivians’ airport to Maldivians”.
According to local media, of the government-aligned parties represented, only the leaders of the Adhaalath Party such as were witnessed in attendance during the gathering.
“The protest… was not participated [in] by large numbers of people,” according to the Haveeru newspaper.
During the demonstration, a number of speakers reportedly called for action to “regain” the airport from GMR and annul the current development agreement, while claiming the estimated US$700 million required by the company in compensation would be lower.
The gathering is expected to be the first in an ongoing series of events to push for the airport to be “renationalised”.
Both AP President Sheikh Imran Abdulla and Minister of State for Islamic Affairs Mohamed Didi were not responding to calls from Minivan News at the time of press.
Despite these commitments, the Dhivehi Rayyithunge Party (DRP) has said it would not join its fellow government coalition partners in protests to oppose the airport privatisation contract, claiming any resolution to the dispute must be made through the courts.
DRP Spokesperson Ibrahim Shareef has told Minivan News this week that while the party itself questioned if the GMR deal was in the best interest of the public, “due process” had to be followed through proper legal channels in order to establish if any wrong doing had occurred with the airport contract.
The Dhivehi Rayyithunge Party (DRP) will not join its fellow government coalition partners at a gathering in Male’ to oppose an airport privatisation contract with India-based infrastructure group GMR, claiming any resolution to the dispute must be made through the courts.
DRP Spokesperson Ibrahim Shareef has told Minivan News that while the party itself questioned if the GMR deal was in the best interest of the public, “due process” had to be followed through proper legal channels in order to establish if any wrong doing had occurred with the airport contract.
“Right now we do not feel that the best option is to take to the streets on this matter. We do not know what the purpose of this [coalition] gathering is, so we will not be taking part,” he said.
Shareef added that the party’s position remained that the government was bound to the agreement should it fail to prove through due process that the contract to develop and manage Ibrahim Nasir International Airport (INIA) was invalid.
The comments were made as key financial figures within the former government maintained this week that the deal was vital to not only modernise and boost efficiency at the airport, but also to address concerns over present state expenditure through a focus on privatisation.
Under the terms of the agreement – a US$511 million deal representing the largest ever case of foreign investment in the Maldives’ history – GMR agreed to a 25 year concession agreement to develop and manage the site, as well as redevelop the existing terminal by the end of this year.
The document was overseen by the International Finance Corporation (IFC), a member of the World Bank group and the largest global institution focused on private sector projects in developing countries.
However, the Maldives government earlier this month accused the IFC of negligence during the bidding process for INIA – allegations there were rejected by the organisation amidst continued calls from government-aligned parties to renationalise the airport.
With the arbitration ongoing, six government-aligned parties are set to hold a gathering from 9:00pm on Thursday night at the Artificial Beach area of Male’ calling for INIA, as the country’s main airport, to be “returned to Maldivians”.
Through a movement called “Maldivians’ airport back to Maldivians”, the coalition – excluding the DRP – told local media this week that the gathering represents the first in a series of activities aimed at regaining management of the airport.
According to local newspaper Haveeru, Sheikh Imran Abdulla of the government-aligned religious Adhaalath Party (AP) said the gathering was aimed at showing the coalition would take a “united stand” on opposing the GMR deal until the airport was “liberated”.
“Our hope is on the night the true feeling of the Maldivian people would be revealed on the airport issue,” he was quoted as saying by Haveeru.
The coalition movement is also expected to detail what it has claimed are losses sustained to the local economy from the awarding of the company to the Indian infrastructure group.
Sheik Imran was not responding to calls at the time of press. However, fellow AP member and Maldives’ Islamic Affairs Minister, Sheikh Mohamed Shaheem Ali Saeed, said he had “no idea” about any such gathering being held.
Meanwhile Dr Hassan Saeed, head of fellow coalition member the Dhivehi Qaumee Party (DQP), referred a query by Minivan News about the gathering to the party’s Secretary General, Abdulla Ameen. Ameen was not returning calls at the time of press.
Progressive Party of Maldives (PPM) Parliamentary Group Leader Abdulla Yameen meanwhile referred enquiries about the gathering to Secretary General Yumna Maumoon – daughter of former President Maumoon Abdul Gayoom. Yumna was not responding to calls at the time of press.
DRP Spokesperson Shareef claimed that even should the validity of the agreement between GMR and the former government be found to be questionable, it remained for the courts to decide on such a matter. Shareef added that senior members of his party had been penalised for holding such views by political opponents.
“Both [DRP Leader] Ahmed Thasmeen Ali and Parliamentary Speaker Abdulla Shahid have been accused of taking bribes on this matter and trying to obstruct efforts to take the airport,” he said.
Shareef claimed the allegations had been devised by a faction formed in the DRP by members loyal to former party head and national President Gayoom, which later branched off to form the PPM party last year.
“Gayoom’s supporters had wished to take the airport back by force,” he said. “I’m not saying the deal is fair, but first we can look to renegotiate terms and get a new agreement. Also the government has the resources to investigate the deal and make the best decision on how to move forward to benefit the Maldivian people.”
Shareef added that the party had therefore decided against “taking to the streets” with other parties in President Waheed’s coalition government.
“We are not saying that the former government were not involved in something improper with the agreement,” he claimed. “But we do not see the previous government as an MDP government, or the current government as a DRP or PPM government, it is always the government of the Maldives, so if an agreement made by the government is found to be valid, than it must be honoured under the law.”
Privatisation pursuit
Speaking yesterday on private broadcaster Raaje TV, former Economic Development Minister Mahmoud Razee said the GMR deal reflected a commitment by the former government to pursue privatisation as outlined in the MDP’s manifesto.
“Firstly, if or when anything is run like a business, private people are more skilled and efficient. They are far more competent and they work for profit unlike the government,” he claimed. “This means it requires less cost for the government, but needs more outside investment or capital. Private people are more skilled and efficient in terms of managing. The end product thus is more beneficial.”
Addressing criticisms from some local politicians that privatisation provided no benefits to the nation, Razee conceded there was an element of truth to the assumption, but stressed it did not reflect longer-term economic benefits.
“Because the investment is huge, the project is big; the first beneficiaries are always the investors. True. The benefits go to the foreigners,” he said. “In foreign countries, they make a consortium, which means the profits are being shared within multiple parties. For example, if a Turkish company is investing here, it doesn’t mean they do everything themselves. If they are developing a property, the construction, or other necessary work is done through local companies.”
Also speaking during the programme was MDP member and former Minister of Finance and Treasury Mohamed Shihab. Shihab claimed that in cases where there was limited national budgets such as in the development of a new airport terminal, then finance should be sought from outside sources.
He added that as within the case of technology and other expertise, and pointed to local resort groups such as Universal Resorts Maldives as examples in the country’s past where foreign partnerships had benefited the country’s economy.
“Resort owners do [private partnerships] because they profit from it. Let’s conduct a survey among resorts. Definitely the salaries and service charges are higher in foreign managed companies. It is a fact that, countries where foreign investment has been made are far more developed.”
Speaking earlier this year, INIA Chief Executive Officer Andrew Harrison claimed that INIA would remain a Maldivian owned enterprise that would be continuously developed by the company for the duration of the tender.
“We are just the caretakers here,” he said. ”The airport remains and has always been owned by Maldivians.”
Harrison contended that to ensure profitability for its investment in the airport, GMR was itself committed to strengthening the wider Maldivian economy by working with local businesses, industry and contractors.
Maldivian police have revealed that they have arrested 98 prostitutes in Male’ since March this year, including some expatriate males.
According to police, 58 of the alleged prostitutes have now been deported and sent back to their countries.
In one instance police said a Bangladeshi expatriate who was caught and deported had changed his name and crossed the Maldivian border by changing his information. Police said the person was arrested a second time for involvement in prostitution.
Police custody currently hold four Thai women, two Bangladeshi women and men, and three Maldivians in detention, all of them whom arrested in massage parlors on suspicious of being involved in prostitution.
According to the police statement, police have so far confiscated Rf138783 [USD9011] and USD3155 [Rf48587] found in massage parlors and alternative medical centres closed by the police for running prostitution.
Police said that since March, they have closed down 25 businesses operating as brothels in different operations conducted to reduce serious and organised crime.
The statement quoted police Inspector Mohamed Dhaudh as saying that three businesses were shutdown in March, three businesses shutdown in April, five businesses shutdown in May and six businesses shutdown in June, five businesses shutdown in July, one in August and four closed down in September.
Dhaudh said the operations to raid those businesses were mainly conducted by police intelligence and officers from the serious and organised crime department.
After the new government came in to power, police began special operations to curb the rise in prostitution in the Maldives.
In a mega protest held in Male’ on December last year by a coalition of the then-opposition parties, they demanded Mohamed Nasheed’s government close down all the spas and massage parlors in Male’ accused of running prostitution.
This article originally appeared on DhivehiSitee. Republished with permission.
Using the law as an instrument of political power is not a new thing for governments, be they ‘established democracies’ or not. A prime example is how the Bush administration (ab)used the United States Constitution to circumvent international law on acts of war, to justify Guantanamo Bay, torture, extraordinary rendition and to deny justice and human rights to suspected terrorists in the War on Terror.
The government of Dr Waheed – which, incidentally, is enjoying the full backing of the current US administration – too, has proven itself to be a dab hand at (ab)using the law as an instrument of political power. The CoNI Report, which found there was no coup, mutiny or duress involved in the transfer of power on 7 February 2012, is a case in point.
The first part of this series looked at how CoNI approached the investigation with a foregone conclusion: there was no coup. As discussed, CoNI then began a process of putting together all evidence that supported this conclusion while systematically excluding, or discarding as irrelevant, any evidence that refuted or cast doubt over the said predetermined conclusion.
CoNI approached laws relating to the transfer of power on 7 February in the same manner as it did the facts surrounding it. Laws were picked and chosen as applicable only if they supported CoNI’s foregone conclusion: the change of government was Constitutional. Any part of the Constitution or existing laws that could be applied to refute the said conclusion or challenge its validity were ignored, glossed-over, deliberately misquoted, or dismissed as mere ‘protocol’.
Take, for instance, the following statement:
With regard to the idea that there was a ‘coup d’état’, nothing in the Maldives changed in constitutional terms – indeed, the Constitution was precisely followed as prescribed.
Yes, the Constitution remains unchanged. But that does not automatically mean that the transfer of power ‘precisely followed’ the Constitution ‘as prescribed’. This is a conclusion that can only be deemed legal by abusing law and making a mockery of the principles of the rule of law.
CoNI’s use of the law as an instrument of political power is most blatantly evident in the sections of the Report dealing with (a) presidential succession and (b) resignation and succession. It discusses as relevant to this issue six Articles of the Constitution: 108, 100, 112 (b), 112(d), 121, and 123 (b). Each of them appears to have been selected precisely to prove a particular point, which when taken together, supports the CoNI conclusion that the transfer of power was constitutional.
Article 108 is deemed relevant in this section, for instance, solely to remind the people that sometime ago, in 2008, when they voted for Nasheed, they also voted for Waheed as his running mate. As noted by the Legal Review of the Report by a team of Sri Lankan lawyers, it is an inherently limited argument that
[…] purports to construe the change of power or justify the change of power in terms of what had transpired 3 years ago rather than what had transpired in the present.
Regardless, CoNI uses it to demonstrate that, by law, it matters little that they voted for him not as their leader but as the leader’s deputy. Only when considered separately from the fact that thousands of people now suspect the very same deputy of having caused their leader’s downfall—and when taken in isolation from the various other aspects discussed below—does Article 108 allow Waheed to become someone that can even remotely be regarded as an ‘elected’ president.
Article 100–which deals with the legal means of removing a President from office–is mentioned in the Report, but is not discussed as deserving of note. Given the predetermined conclusion of CoNI, that there was no duress involved in the President’s resignation, the Article of the Constitution is indeed irrelevant.
Articles 112 (b) and (d) deal with eventualities requiring the Vice President’s succession to office of the President.
Article 121(a), which deals with details of a President’s resignation letter, meanwhile, helps establish that because Nasheed wrote the letter in his handwriting, it must be valid and legal. Once President’s Nasheed’s claims that he wrote the letter under duress are dismissed as ‘baseless allegations’ (having excluded any evidence to the contrary), then Article 121 makes perfect sense.
The letter is in Nasheed’s handwriting (written under what circumstances matters not) and it was delivered to the leader of the Majlis (how and by whom did not matter). When looked at in this sort of fantastical isolation, Article 121 can, indeed, be interpreted as validating the document as legal.
Article 114, meanwhile, is cited almost in full:
An incoming President or Vice President shall assume office upon taking and subscribing, before the Chief Justice or his designate, at a sitting of the People’s Majlis, the relevant oath of office set out in Schedule 1 of this Constitution.
Interestingly, although cited in the CoNI Report as the law relevant to ‘resignation and succession’, the Report pays scant subsequent attention to it. In fact, much like the JSC’s dismissal of Article 285 of the Constitution as ‘symbolic’, the CoNI Report dismisses the stipulations of Article 114 as mere ‘protocol’.
The Presidential oath, as stated in the Constitution, requires the incoming President to say his own name in the oath. ‘I, Mohamed Waheed Hassan Manik…’ Chief Justice Ahmed Faiz Hussein, who administered the oath, did not include Waheed’s name in its composition. Similar problems affected US President Barack Obama’s swearing in ceremony in January 2009. The remedy then was for Obama to re-take the oath exactly as prescribed in the Constitution. The current Maldivian government, and the CoNI Report, in contrast, chose to ignore the glaring omission in Waheed’s oath, as if it mattered little.
At a stretch, this is a matter that can be dismissed as a breach of protocol.
But the same cannot be said for the requirement in Article 114 that the new President must take the oath of office at a sitting of the People’s Majlis. President Waheed took the oath office at a ceremony held in the privacy of a room in the Majlis premises, with only his wife, the Chief Justice, Speaker Abdulla Shahid and a few administrative staff as audience and witnesses. This is not simply a bungled oath.
Neither is it, as the CoNI Report claims, a ‘possible non-compliance’ of ‘protocols which had been created for general office management.’
Precisely where the presidential oath is taken is not simply a matter of housekeeping, nor merely a matter of deciding on which venue is free or most conveniently accessible for the occasion. If the Constitution were to be ‘followed precisely as prescribed’, and if Waheed has been properly sworn in as the President of the Maldives, it would have been done at a sitting of the people’s Majlis.
Is Waheed a caretaker president?
Something starts to smell really rotten when it comes to issues surrounding this question. First, the Report glosses over the fact that the oath administered to Dr Waheed to enable his accession to the presidency was one meant for a caretaker president.
Take the fact, for example, that although it is Article 114 that CoNI cites in reference to Dr Waheed’s oath, in reality the oath administered to Waheed is the one stipulated in Article 126:
Any person temporarily discharging the duties of the office of the President or Vice President shall take and subscribe before the Chief Justice or his designate, the relevant oath of office set out in Schedule 1 of this Constitution.
This is an oath which is not required to be taken in front of the Majlis, for it is not meant for a President proper. And, although the CoNI report makes no mention whatsoever to Article 126, this is the oath that is administered to Waheed. That is what Speaker Shahid says before the oath is administered. Watch the video:
Having stated that Nasheed has resigned under Article 121(a) of the Constitution, this is what Speaker Shaid says (at 1:11):
I, therefore, request of the Vice President, Dr Mohamed Waheed Hassan Manik, to take the oath as stipulated in Article 126 of the Constitution enabling him to carry out the responsibilities of the President.
Article 126. Not Article 114.
To cite Article 114 to justify an action taken under Article 126, as the CoNI Report did, is to deliberately mislead the public into believing that we have a President proper rather than a Vice President temporarily assigned the responsibility of carrying out the duties of the President—until such time as there could be a president proper.
This deliberate deceiving of the pubic is further shored up by blatant disinformation, or to put it less kindly, by a blatant lie.
Below is a screen shot of an extract from page 22 of the CoNI Report. Note the highlighted section, and what it states as the contents of Article 123(b) of the Constitution.
This is not factual information.
What Article 123(b) says in reality is this:
The ‘subsequent election, permanent incapacity or death’ which the CoNI Report falsely states as contained in Article 123 (b) of the Constitution, in reality, appears in Article 124 (b) in relation to the permanent incapacity of both the President and the Vice President together. It is, therefore, not relevant to the circumstances surrounding the transfer of power on 7 February 2012.
Note that even then, the person who assumes the office of the President does so in a temporary capacity.
If the Constitution were precisely followed as prescribed, as the discussions above show, Waheed is a caretaker president; someone who is temporarily in charge of carrying out the duties of the President until a President proper – that is, a president elected by the people of the Maldives – is sworn in under Article 114.
Even though CoNI and the current Coalition Government, which set CoNI up and also administered the caretaker oath to Dr Waheed, knows this full well, it has chosen to selectively apply parts of the Constitution – and at times deliberately lie – to force the public as a whole to accept him as the ‘elected’ (recall the use of Article 108) President of the Republic of Maldives. Something which he is not.
Why?
Because it is the only ‘legal’ way in which the current government can withhold from the Maldivian people their right to a free and fair election – which must be held as soon as possible – so the caretaker president can be replaced by the President proper, be it Waheed, Nasheed or someone else.
Getting around the mutiny
A group of police and military personnel refused to obey the orders of their Commander in Chief on 6th and 7th February 2012. This is documented in CoNI’s own Timeline, which it describes in the Report as the most solid foundation for its conclusion that there was no coup. Therefore, even for an institution that proved so adapt at twisting the law to suit its facts, there was no getting around the fact that the armed forces—for whatever reason—disobeyed their leader. This was a mutiny:
mutiny |ˈmyoōtn-ē|
noun ( pl. -nies)
an open rebellion against the proper authorities, esp. by soldiers or sailors against their officers : a mutiny by those manning the weapons could trigger a global war | mutiny at sea.
So how does CoNI absolve the mutinying armed forces of any responsibility in the transfer of power? First it points out that ‘there is no definition of the expression “coup d’etat’ in Maldivian law’, implying that because the Maldivian law has so far failed to define the term, no transfer of power, no matter how illegally affected, cannot be deemed a coup.
Then it notes that there are several statutory provisions that do define rebellion as an offence against the State punishable by law, but promptly dismisses them as inapplicable because, even if there was such a thing as a coup, the open rebellion of the armed forces cannot be deemed a coup because it occurred before the coup.
This position is nothing short of ridiculous: the only thing that can be considered a coup under this definition is the actual act of assumption of power by a new President – the act of swearing in, in this case. Everything that comes before it, leads to it, triggers it, is the catalyst of it, and/or is the direct cause of it, according to this position, is irrelevant and inconsequential.
Yet, this is the position CoNI takes: because the rebellion of the armed forces can neverbe a coup per se even if it directly leads to one, any such mutiny cannot be punished as an offence against the State.
By (ab)using the law in this manner, CoNI is thus able to make a military and policecoup d’etat against the State impossible—even if it occurred in broad daylight and was witnessed, in real time, by the entire nation. In this manner, the police and the armed forces, and the three men who commandeered them and guided them through the rebellion, are all absolved of responsibility and made immune from prosecution for not just their disobedience of authority but also its consequences: the end of a democratically elected government.
Given CoNI’s abuse of rule of law – using the law as its primary instrument – it would be a travesty against the very concept of democracy for its Report to be accepted and endorsed as the definitive truth, and as a legally binding document that settles once and for all the many disputes that surround the transfer of power in the Maldives on 7 February.
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Secretary General of the Maldivian National Olympic Committee (NOC) Ahmed Marzook fears that the persistent delaying of the South Asian games will be detrimental for athletes both in the Maldives and throughout the region.
“This is a big blow, and not just for us – it’s about regional sport,” he said. “This is the hope for youth in the region – this is the only thing for youth in the region.”
Marzook’s comments follow India’s decision to delay the hosting of the games for the second time. Originally scheduled for next month, the games had been rescheduled for February 2013 due to this summer Olympic Games.
However, during a teleconference with the Indian Olympic Association last week, Marzook was told that the games could not be held in February, with September 2013 mooted as an alternative.
The NOC has yet to receive official confirmation of the postponement, fuelling concerns that the games may even be pushed back to 2014.
This, explained Marzook, would only exacerbate the budgetary problems that have been caused by the delays.
“In 2014 we will be competing in both the Commonwealth and the Asian games. This will be hard if we have the South Asian Games in the same year – imagine the ticket prices for the delegations,” he said.
The postponement of the South Asian games has already caused the NOC financial problems, with money for training coming from rigid government budgets, and contracts already having been agreed with foreign coaches with February in mind.
Despite the success of the Maldives Olympic team at this year’s London games, the international experience was viewed largely in terms of preparation for the proposed regional games in February.
“The South Asian games are the first steps in terms of international exposure for many athletes,” said Marzook.
Despite regulations which state the eight-nation games must be held every other year, the competition was last held in 2010.
Previous aberrations from the biennial rule came in 2001, when the September 11 attacks caused the postponement of the Islamabad games, and in 2008 when issues surrounding the general elections in Bangladesh resulted in delaying the Dhaka games.
“If India can’t host this, who can,” asked Marzook, who argued that the recent Commonwealth Games in New Delhi meant that all the infrastructure for the event was in place.
Marzook argued that the reason for the delay was infighting between the Indian government and its Olympic association (IOA).
The IOA is currently in the middle of a political storm as, this week, the International Olympic Committee (IOC) insisted on sending international observers for the association’s elections.
Suresh Kalmadi has been President of the IOA since 1996 but was suspended after being arrested and jailed for his part in a corruption scandal surrounding the 2010 Commonwealth Games.
When asked about the delay in the games, Cultural Attache’ at the Indian High Commission in Male’, PC Mishra, said that the there were “no specific reasons” for the postponement.
“It is an administrative process,” said Mishra, who described Marzook’s concerns as “a little bit premature – an overreaction.”
Marzook said that Nepal had offered to step in to host the games in February, but that India had blocked the move.
Nepal, which is due to chair the next SAARC summit in before May 2013, was reported earlier this month to have fallen behind in its preparations owing to the political standoff in the country.
Bangladesh’s Daily Starnewspaper said that Nepal was expected to inform other SAARC foreign ministers of the postponement of the 18th summit at a meeting scheduled to be held alongside the United Nations General Assembly, which is currently meeting in New York.
Despite the uncertainty surrounding Maldivian athletes’ next international tournament, Marzook said that training would continue.
He revealed that arrangements were nearly completed for the intensive training of the country’s two top runners in Jamaica.
Azneem Ahmed and Hassan Saaidh – both members of the bronze medal winning 4x100m relay team in Dhaka – will travel to Jamaica after the NOC secured leave from their respective employers – the Police and the Maldives National Defence Force (MNDF).
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