Month: December 2012

Former President Nasheed’s trial politically motivated: Bar Human Rights Committee

The trial of former President Mohamed Nasheed on charges of illegally detaining a judge appears to be a politically motivated attempt to bar the Maldivian Democratic Party (MDP) candidate from the 2013 presidential election, the Bar Human Rights Committee (BHRC) concluded in a report launched on Thursday (December 13).

The report was compiled by Stephen Cragg on behalf of the BHRC, the international human rights arm of the Bar of England and Wales, following a visit to the Maldives from November 3 to 6 to observe hearings of former President Nasheed’s trial.

“BHRC notes that Mr Nasheed’s lawyers have petitioned the prosecutor-general to review whether the prosecution of Mr Nasheed is in the public interest, and it seems to BHRC that this is an application worthy of very serious consideration,” the report stated.

“BHRC is concerned that a primary motivation behind the present trial is a desire by those in power to exclude Mr Nasheed from standing in the 2013 elections, and notes international opinion that this would not be a positive outcome for the Maldives.”

According to a press release by the BHRC, the report was based on “an investigation into the circumstances surrounding the trial of ex-President Mohamed Nasheed.” The BHRC observer, Stephen Cragg, is a member of the bar and barrister at Doughty Street Chambers.

Former President Nasheed faces criminal charges for the military’s controversial detention of Chief Judge of the Criminal Court Abdulla Mohamed on January 16 this year.

Home Minister Hassan Afeef sought to justify the arrest at the time on the grounds that the judge was a national security threat after he blocked investigation of his misconduct by the judicial watchdog and quashed a police summons for him.

The judge had “taken the entire criminal justice system in his fist,” Afeef said, accusing Abdulla Mohamed of obstructing high-profile corruption cases, releasing murder suspects, colluding with drug traffickers, and barring media from corruption trials.

Judge Abdulla “hijacked the whole court” by deciding that he alone could issue search warrants, Afeef contended, and had arbitrarily suspended court officers.

In the conclusions of the BHRC report, the author observed that the detention of the judge was “not a simple case of abuse of power.”

“Rather, the underlying narrative of the situation is that of a president desperate to bring change to a new democracy after decades of oppression, and finding himself thwarted by the inability of the organs of state set up by the constitution to deliver much needed  reform,” the report stated.

Referring to “the large number of international reports” that have found the Maldivian judiciary to be flawed, the BHRC noted that the Judicial Service Commission (JSC) “failed in its twin tasks of ensuring that the judiciary has the appropriate experience and qualifications, and in bringing to book the judges who fail to fully and fairly implement the rule of law.”

“Implicit in these criticisms is that Mr Nasheed cannot be guaranteed a fair trial,” the report concluded.

The BHRC also expressed concern with the “deterioration of human rights protection in the Maldives since the transfer of power in February 2012” as reported by Amnesty International and the International Federation of Human Rights (FIDH).

“Again, a failure to comply with human rights standards by the Maldivian authorities is a grave threat to the democracy so recently achieved,” the report stated.

“How the Maldives deals with this prosecution and trial (if it goes ahead) may well decide the course of its government for years to come.”

Back in September, the government criticised Amnesty International’s report, “The Other side of Paradise: A Human Rights Crisis in the Maldives”, as being “one sided”.

The BHRC is a UK-based independent body “concerned with protecting the rights of advocates, judges and human rights defenders around the world.”

JSC and failure of oversight

The BHRC report also noted that article 285 of the constitution mandated the JSC to determine whether or not the judges on the bench possessed “the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, [and] high moral character.”

“However, the JSC  failed to bring in any standards in the two years allowed and in August 2010 almost all judges, good and bad, were re-instated in post at that point amidst much controversy,” the report observed.

It added that the International Committee of Jurists (ICJ) expressed concern with the JSC’s failure to “fulfil its constitutional mandate of proper vetting and reappointment of judges.”

“The JSC (made up of politicians, lawyers and judges) has also been criticised as ineffective in its other role of overseeing  complaints about judges. Complaints about the worst judges built up and were not investigated. A large number of complaints were made about the head of the criminal court in Malé, Judge Abdulla Mohamed,” the BHRC report explained.

“In an open letter to parliament in March 2011, former President Nasheed’s member on the JSC and outspoken whistle-blower, Aishath Velezinee, claimed that the politically-manipulated JSC was protecting Judge Abdulla.

She claimed this protection was provided despite the existence of “reasonable proof to show that Chief Judge of the Criminal Court Abdulla Mohamed was systematically committing the atrocity of setting free dangerous criminals and declaring them innocent with complete disregard to the evidence [presented at court].”

Despite Judge Abdulla having been sentenced for a criminal offence, Velezinee wrote that Speaker Abdulla Shahid pushed for his reappointment and later “bequeathed the Criminal Court to Abdulla Mohamed until 2026″ under the Judges Act, which was passed hastily during the constitutional crisis period in July-August 2010.

Velezinee meanwhile told the author of the BHRC report that it was “the State’s duty to remove [Judge Abdulla] from the judiciary”.

“She has written a remarkable memoir of her time on the JSC, describing the machinations and tribulations of the Committee, and its failure to establish ethical or moral standards for judges,” the report noted.

Meanwhile, on January 16, 2012, “frustrated by an inability to remove allegedly bad judges, President Nasheed (or one of his ministers, it is still not entirely clear) ordered the detention of Judge Abdulla,” the BHRC report continued.

“He was taken to an island and kept there for almost three weeks, despite the protests of lawyers and judges. It does not seem that he was badly treated, and the government emphasised the lack of other effective powers to justify its actions.”

It added that the Supreme Court demanded the immediate release of the judge “as he was arrested not in conformity with the laws and regulations, and the acts of MNDF [Maldives National Defence Force] was outside its mandatory power.”

The trial

Former President Nasheed’s trial is set to resume after the Supreme Court on December 5 decided in a 4-3 ruling that the Hulhumale’ Magistrate Court hearing the case was legitimate.

The BHRC report noted that Nasheed was charged under article 81 of the penal code, which states: “It shall be an offence for any public servant to use the authority of his office to intentionally arrest or detain any innocent person in a manner contrary to law. A person guilty of this offence shall be punished with exile or imprisonment for a period not exceeding 3 years or a fine not exceeding MVR 2,000.”

The former President’s legal team informed the author that “a range of defences will be advanced” in his trial.

“For example, is the President a public servant to whom the Article applies? Does the Article relate only to the person who, in fact, takes a person into custody or directly orders an arrest? What effect does the term ‘innocent’ have in the Article?” the report explained.

“The team is to request that the Prosecutor General reconsiders whether the prosecution against Mr Nasheed should proceed, arguing that it is not in the public interest that it should do so. It was explained that if Mr Nasheed is sentenced to more than a year in custody then (even if he is immediately pardoned) he will be excluded from running in the 2013 elections.”

The author of the report also spoke to a number of lawyers, politicians and the Prosecutor General during their visit, and “almost all criticised the failure of the JSC to bring about reform of the judiciary in the way expected by the new constitution.”

“Opinion was split between those who thought there was no option  but to prosecute Nasheed, and those who wanted the wider context to be taken into account by the prosecutor,” the report noted.

“There was a strong  feeling amongst some that the politicians of the old regime had escaped prosecution for much worse abuses of power. The foreign government representatives I spoke to clearly see Nasheed as a force for good in the region and desperately want a solution  to the current proceedings which will allow him to stand in the election next year.”

Independent MP Mohamed ‘Kutti’ Nasheed, chair of parliament’s Independent Institutions Oversight Committee, meanwhile explained that the absence of powers to replace members of the JSC “severely restricted” the parliamentary committee from ensuring that the JSC was functioning effectively.

Nasheed also criticised the Supreme Court for overturning Acts of Parliament that “purported to legislate for the justice system” as part of its stance that “anything to do with the administration of justice was a matter for the [Supreme] Court.”

Former MP Ibrahim Ismail ‘Ibra’, chair of the constitution drafting committee of the Special Majlis, meanwhile contended that the President “had no choice but to arrest Judge Abdulla” as the only option to “remove a rogue judge from the criminal justice system.”

Ibra explained that the “backdrop to President Nasheed taking or authorising the action he did against the judge” was the JSC’s failure to investigate serious complaints, some dating back to 2005.

“However, when the JSC did adjudicate against Judge Abdulla in one case, the Judge went to the civil court and obtained an injunction against the JSC to stop them taking action against the judge. Essentially the system had ground to a halt,” the BHRC report stated.

Prosecutor General Ahmed Muizz however insisted that “it was right that Mr Nasheed should face trial and that even before Mr Nasheed had lost power it was considered the right thing to do.”

“I asked him whether there was a code of practice which governed prosecution decisions. He said that there was but that it was not in the public domain. He said that it was possible for prosecution decisions to take into account the public interest, but was a little vague as to how this was actually done,” the report stated.

“He mentioned that when Mr Nasheed had been president there had been a decision in the public interest not to pursue him in relation to fairly minor electoral offences. He did say that it was possible for the prosecutors to reconsider, following charge, whether a prosecution should continue.”

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Man and woman arrested in Seenu Atoll over buried foetus

A 26-year old male and 20 year-old-female have reportedly been arrested by police in connection with the discovery of a five month-old foetus found buried on a beach on the island of Maradhoo Feydhoo in Seenu Atoll yesterday.

Local media has announced that the two suspects, reported to be a married couple, were presently being held in custody.

Police discovered the foetus buried on a beach on Maradhoo Feydhoo after local witnesses reported a motorist acting suspiciously in the area on Friday evening, according to local newspaper Haveeru.

Police Spokesperson Sub-Inspector Hassan Haneef was not responding to calls at the time of press.

Dr Aishath Rameela, State Minister for Gender, Family, and Human Rights, told Minivan News that her department had not received any official report from the police or the local council on the matter.

Dr Rameela added that the Gender Ministry was awaiting an official report by the Maldives Police Service before it could begin providing assistance in the case.

“Right now as the situation stands, we are not actively involved [with the case]. All we know is that there is a deceased child,” she said, adding that she had, at the time of press, only received information on the case through local media.

“In terms of this case, we don’t know who the mother is or is she is under-age. We also do not know who the culprits may be.”

Dr Rameela added that in cases of under-age pregnancy or suspected child abuse her department worked to support police in their investigations, with law enforcement officials unable to question children without a case worker assigned from the Gender Ministry.

She stressed that the ministry, through 19 island centres across the country, sought to provide protection to child victims of sexual abuse and ensure they remained safe following an incident.

Desperate measures

While police are yet to reveal details of the case, there have been a number of recent incidents reported in media where pregnant women have been forced to take desperate measures, such as self-induced abortions, infanticide or abandoning infants.

In June, police recovered the body of a newborn infant buried in the outdoor shower of a house on Shaviyani Feydhoo island. The baby’s mother was identified as a 15 year-old school student.

In the last two years, three newborns have been found dead in the country, with a further two newborn children discovered abandoned but alive.

Two foetuses were discovered in this two year period, one hidden in a milk tin and the other at the bottom of Male’s municipal swimming pool.  Another fully-developed baby was thrown into a park after having apparently been strangled with underwear tied around its neck.  The two babies found abandoned and alive have since been placed under state care.

The Centre for Community Health and Disease Control (CCHDC) has described these incidents, as well as the figures detailing an increase in the rate of sexually transmitted diseases, as evidence of a sexual health crisis in the Maldives.

Nazeera Najeeb, who leads the reproductive health unit of the CCHDC, told Minivan News in an interview earlier this year that the centre was witnessing an “alarming” increase in cases of underage and unplanned pregnancies, where some girls are getting pregnant “without even knowing it”.

“These unwanted pregnancies are subsequently resulting in more unsafe abortions, baby dumping or infanticide,” she noted.

To curb these perceived problems, Najeeb stressed the need for implementing a comprehensive sex education curriculum in and outside educational institutions to create greater awareness on sexual and reproductive health subjects.

Though the concept of sex education is widely supported by health authorities, including former Health Minister Dr Ahmed Jamsheed, efforts to implement such practices nationally have been limited.

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Dead body found in Male’ Home

The body of an unidentified man was found dead at a property in Lonuziyaaraiy Magu in Male’ on Friday (November 14).

The body was said to have been discovered at around 6:38pm yesterday evening after people in the area spoke of a bad smell coming from the property M. Mizamaange, according to local media.

A resident living at the property where the body was discovered told Sun Online that the deceased man was a Sri Lankan national.  It is not yet known how the man died.

A police spokesperson was not responding to calls at time of press.

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President Waheed commences tour of Gaafu Alifu Atoll

President Dr Mohamed Waheed Hassan has commenced a series of visits to islands in Gaafu Alifu Atoll as part of a tour designed to try outline the key concerns and issues faced by local residents, according to the President’s Office website.

Addressing islanders in Dhevvadhoo, Nilandhoo, Gemanafushi and Kan’duhulhudhoo, President Waheed noted that many islanders in the atoll were still waiting on the provision of basic facilities.

Clean drinking water, efficient sewerage systems and developed harbours were among many of the requests made, the President’s Office website stated.

Whilst noting that these facilities are basic rights, Waheed told the inhabitants of Dhevvadhoo that the government was committed to accommodate these needs.

However, speaking in Kan’duhulhudhoo, Waheed admitted that a lot of the time was given to less important things.

Waheed also noted the importance at present for Maldivians to minimise internal conflicts, lessen political colours and instead raise the national flag above all voices.

Waheed’s visit to Gaafu Alifu Atoll comes after the Maldivian Democratic Party (MDP) – including former President Mohamed Nasheed – recently completed their ‘Journey of Pledges’ to the northern Atolls of the country.

The MDP visited over 40 islands to hear the needs of people, and to find out how many of their pledges had been fulfilled both during Nasheed’s presidency and after his controversial transfer of power on February 7.

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Comment: Human Rights Day 2012 marks exclusion and imposition of government by force

As we look back on this week’s celebration of Human Rights Day 2012, it is important to recall what, beyond the pageantry and back-slapping, this day really stands for.

During the 30-year long dictatorship of President Gayoom, those of us who longed for a fair, just and democratic Maldives would mark Human Rights Day by wearing secretly-printed t-shirts to mark the occasion – printed in stealth, worn in stealth. We took this risk (open advocacy of human rights and political reform was liable to end with a jail-term) because Human Rights Day was, we believed, important – a moment to remember that the outside world stood steadfastly behind our hopes for a better future.

It is therefore difficult, in 2012, not to feel a sense of disappointment – even shame – at what Human Rights Day has become, at least for Maldivians.

Human Rights Day 2012 goes under the banner of “inclusion and the right to participate in public life”.

Over recent days we have heard the UN Resident Coordinator encourage people to play an active role in public life and to hold public servants accountable (no word, however, about securing accountability for the systematic human rights violations that have occurred since February). We have heard the Human Rights Commission of the Maldives warn us that enjoying human rights should not be taken as an excuse to break the law (an unusual message for a national human rights institution to focus on – but not entirely a surprise). We have heard the Commonwealth Secretary-General remind the government (more in hope than expectation) that those responsible for gross human rights violations following February’s coup – mainly police officers guilty of beatings and torture – must be held accountable.

And yet, these platitudes come against a background wherein, in 2012, the majority of Maldivians who voted in 2008/9 have been disenfranchised; wherein those of us who want a new election in order to reassert our fundamental right to choose our government are being routinely beaten, arrested and tortured, wherein members of parliament who have sought to protest against the death of our democracy are being hounded, threatened and chastised as infidels; wherein the presidential candidate of the Maldives’ largest party is being manoeuvred into prison by the ancient regime; wherein the man who stands accused of torturing many over his 30 years of dictatorship announces he is likely to be a presidential candidate, again, and wherein our corrupt and immoral judiciary is openly attacking parliamentary prerogative and the constitutional separation of powers in order to protect those guilty of sexual harassment, and to protect the government from democratic scrutiny.

How is it possible that the UN, the HRCM, and our friends in the international community can let this year’s Human Rights Day pass without any mention of the dismantling of our democratic rights; without any suggestion that in 2012 we have lost, for the foreseeable future, our right to participate in public life and to determine, freely, our government; and without any meaningful call for those who have had their rights violated in 2012 to receive justice and redress?

For those of us who weep for the lost promise of our young democracy; for those of us who flinch at every new injustice heaped upon us; for those of us who wish our former friends in the international community would stand-up for the rights and principles that they purport to uphold; Human Rights Day 2012 will be remembered as nothing more than an empty shell.

Not even worthy of a hidden t-shirt.

Eva Abdulla is an MP in the opposition Maldivian Democratic Party (MDP).

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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MDP requests parliament look into alleged police cover-up of bystander’s death

The opposition Maldivian Democratic Party (MDP) filed a motion Wednesday (December 12) asking parliament to look into the death of Abdulla Gasim Ibrahim, accusing the Maldives Police Service of a cover-up.

Leaked CCTV footage released in early December threw into dispute the official police account of 43-year-old Gasim’s death. Police had initially stated that he had died due to injuries caused in a motorcycle accident, while the footage appears to reveal that a police officer had some involvement in the incident.

In the footage, a police officer is seen attempting to stop a speeding motorcycle suspected of being used by thieves to flee a crime scene.  Using his baton, the officer in the footage appears to hit out at the vehicle’s driver, causing him to lose control of the bike that then collides with Gasim’s motorcycle.

The MDP has submitted a motion to the parliament asking the Committee on Oversight of the Executive to look into the matter, and hold those responsible accountable.

“The police have not shared details of the actual events with either the family or the public. The video footage that was leaked shows that things happened in a way absolutely contrary to the initial reports. That is why we have submitted the motion and asked the parliament to look into this and make the authorities answerable to this,” MDP MP Mohamed Aslam said.

The motion was submitted by Mohamed Aslam and supported by MPs Ilyas Labeeb and Mohamed Rasheed – all from the same party.

Police Integrity Commission (PIC) President Abdulla Waheed stated today that he was out of Male’ on an official trip and was unaware of case proceedings at the moment.

Meanwhile PIC Director General Fathimath Sarira, speaking to Minivan News on December 3, has stated that the commission had previously received the footage and an investigation was nearing the point of conclusion.

Gasim’s family has said they have received no updates to date on how the case was proceeding either from the PIC or the police.

“I don’t know what else we can do. [police] are elusive and very slow, which is why we keep calling back. All I want is justice,” Naseema Khaleel, Gasim’s wife previously stated.

Human Rights Commission of the Maldives (HRCM) Vice President Ahmed Tholal was not responding to calls at the time of press.

The MDP and former President Mohamed Nasheed had previously also released statements condemning the alleged cover-up of the incident, calling on Police Commissioner Abdulla Riyaz to take responsibility for the matter.

“I am shocked and appalled by the leaked video, which appears to show a policeman hitting a motorcyclist in the head with a baton, which led to the death of an innocent bystander,” Nasheed stated at the time.

“Under [President Mohamed] Waheed’s administration, we are seeing a return to the thuggish brutality of Maldives’ authoritarian past. I implore the international community to pressure the Waheed government to immediately and impartially investigate this case, to bring human rights abusers in the security forces to book, to cease its harassment of opposition members, and hold early elections so democracy can be restored.”

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Gayoom labels MDP revolution motion illegal

Former President Maumoon Abdul Gayoom has labelled the motion passed by the Maldivian Democratic Party (MDP) to overthrow the government through a revolution as a “criminal offence”.

Speaking to reporters at a ceremony held at the Progressive Party of Maldives’s (PPM) office, Gayoom – who is the interim President of PPM – insisted that the MDP would not be successful in overthrowing the present government.

“The constitution in any country won’t permit a government to be overthrown from the street. Even in the US, UK, France or India such a thing won’t be allowed, so it is a dangerous notion. In truth they have committed a criminal offence,” Gayoom was quoted as saying by the Haveeru news service.

According to Gayoom, the MDP’s announcement to commit the offence must carry the due penalty, stressing that the idea to bring about a revolution cannot be entertained.

“It is in offence to even speak of such a thing,” he added.

The MDP has insisted that the government of former President Mohamed Nasheed had been removed through a “coup d’etat” on February 7. However, Gayoom denounced these claims, adding that the then President, Mohamed Nasheed had resigned of his own free will.

“He wasn’t taken to a place, tied up and forced. He went home after resigning on television, in front of the people. That does not to constitute to overthrowing a government from the street,” he explained.

The ex-President further said that based on the present political environment in the Maldives “there were no means or chance” to bring about a revolution.

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Parliament tables no-confidence motion against Defence Minister in defiance of Supreme Court injunction

Parliament announced today that a no-confidence motion filed against Defence Minister Colonel (Retired) Mohamed Nazim has been tabled despite a Supreme Court injunction ordering parliament to halt pending no-confidence votes.

The People’s Majlis secretariat revealed that Defence Minister Nazim has been given the required 14-day notice and his ministry also duly informed by Speaker Abdulla Shahid.

Article 101(a) of the constitution states, “At least fourteen days notice of the debate in the People’s Majlis concerning a motion under article (a) shall be given to the concerned member of the cabinet, and he shall have the right to defend himself in the sittings of the People’s Majlis, both orally and in writing.”

The move comes in apparent defiance of an injunction or stay order issued by the Supreme Court to halt conducting no-confidence votes through secret ballot, pending a ruling by the apex court on the constitutionality of the secret vote.

Speaker Abdulla Shahid and Parliament’s Counsellor General Fathimath Filza were not responding to calls from Minivan News at time of press.

The injunction (Dhivehi) was issued in a case filed by Progressive Party of Maldives (PPM) council member and lawyer of former President Maumoon Abdul Gayoom, Mohamed Waheed Ibrahim ‘Wadde’.

Waheed contended that secret votes were unlawful as article 85 of the constitution states that the People’s Majlis or any of its committees “may decide to exclude the public and the press from all or any part of the proceedings if there is a compelling need to do so in the interests of public order or national security.”

Waheed requested the Supreme Court specify the constitutional measure to determine a two-third majority of parliament – required to impeach the president – and to declare that the Majlis decision to approve a secret ballot was unconstitutional.

On December 3, 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.

MPs of the government-aligned Jumhooree Party (JP) and Dhivehi Rayyithunge Party (DRP) joined the formerly ruling Maldivian Democratic Party (MDP) to vote the amendment through.

The no-confidence motion against Defence Minister Nazim was submitted by the MDP earlier this month on the grounds that he misused his authority as acting Transport Minister by using the military to influence termination of commercial contracts.

The MDP has also submitted a no-confidence motion to impeach President Dr Mohamed Waheed Hassan Manik.

The no-confidence motion against Nazim was filed with the signatures of 17 MPs, according to the Majlis secretariat.

Under article 101(a), “A motion expressing want of confidence in a member of the Cabinet may be moved in the People’s Majlis, under the hand of at least ten members, specifying the reasons.”

“Challenging separation of powers”

In a separate ruling, the Supreme Court also issued an injunction ordering parliament not to appoint a new member to the Civil Service Commission (CSC) pending a ruling on the legality of parliament’s dismissal of the CSC’s former chair, Mohamed Fahmy Hassan.

Fahmy had filed a case contesting the legality of his removal from the independent institution on November 20 on the grounds that he had allegedly sexual harassed a female employee.

“What is at stake is the supremacy of the parliament as the representative of the people. By its actions, the Supreme Court is challenging the separation of powers that underpins the constitutional basis of governance,” MDP MP Eva Abdulla told Minivan News yesterday.

In its stay orders, the Supreme Court referred to article 144(b) of the constitution, which states: “When deciding a constitutional matter within its jurisdiction, a court may in connection with a declaration pursuant to the article make any order that is just and equitable, including an […] suspending the declaration of invalidity (of a statute, regulation or action due to inconsistency with the Constitution) for any period and on any conditions, to allow the competent authority to correct the defect.”

Kutti NasheedMeanwhile, Independent MP for Kulhudhufushi South, Mohamed ‘Kutti’ Nasheed, contended in his blog yesterday (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.

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.

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Maldives without budgetary provisions to cover GMR’s US$800m compensation claim

Financial authorities in the Maldives have said no budgetary provisions presently exist to cover an estimated US$800 million in compensation being sought by Indian infrastructure group GMR after the government abruptly terminated its agreement to develop Ibrahim Nasir International Airport (INIA).

Finance Minister Abdulla Jihad told Minivan News today that no mechanism was currently budgeted should the Maldives face a multi-million US dollar bill for evicting GMR, but stressed it was not for the company to decide on any eventual payment.

GMR has said that the proposed US$800 million claim was based on its “provisional estimates” and that the company had also taken into account the Maldives’ ability to cover such payments if compensation was awarded by the Singaporean courts overseeing arbitration.

However, Jihad today played down fears that any potential fine could prove perilous for the Maldives’ economy, as well as attempts to reduce its spiralling budget deficit, stating that any possible fines would be set by the Singaporean arbitration court hearing the dispute.

“We will deal with the matter when we know the amount of compensation to be paid,” he said. “GMR cannot decide, it will be down to the court [hearing the arbitration].”

Jihad also claimed that there had been no communication between GMR and the Maldives government over compensation as the matter was presently being dealt with through arbitration.

“There has been no communication [with GMR] over the levels of compensation,” he said.

Budget battle

With the compensation case pending, the Maldives government is this month attempting to reduce its spending as it also faces calls to cover debts from its neighbours and pressure from the International Monetary Fund (IMF) to reduce a ballooning fiscal deficit and protect dwindling state reserves.

The Indian government last month requested that the Maldives repay US$100 million in treasury bond funds by February 2013 – a matter it claimed was not related to a diplomatic row over the airport dispute at the time. Local media has previously reported that state reserves could fall to just US$140 million (MVR2.2 billion) once the payments are settled.

It is amidst these budgetary challenges that GMR has said it was seeking up to US$800 million in compensation following the termination of its US$511 million concession agreement signed under the former government back in 2010.

“Preliminary estimate”

GMR’s chief Financial Officer (CFO) Sidharath Kapur told Minivan News today that the sum was a “preliminary estimate” based on a number of factors including investments made by the company, debt equity and loss of profits as a result of the contract termination.

Kapur added that on Tuesday (December 11) the company had communicated with Maldives Ministry of Finance by sending an official letter outlining its concerns that the contract had been “wrongfully” terminated without respect for the agreed procedures.

Speaking to the India-based Economic Times newspaper today, Government Spokesperson Masood Imad suggested GMR had been a victim of failing to perform proper due diligence before signing a contract with the former government – which was ousted following a police and military mutiny in February 2012.

A particular point of contention for GMR during the contract’s lifetime was an Airport Development Charge (ADC) – a US$25 fee for outgoing passengers stipulated in the concession agreement – which was blocked by the then-opposition Dhivehi Qaumee Party (DQP) in the Civil Court on the grounds that it was a tax not authorised by parliament.

Former President Nasheed’s administration chose to honour the original contract, and instructed GMR to deduct the ADC revenues from the concession fees due the government, while it sought to appeal the Civil Court ruling.

However, the Nasheed government fell in February 2012 and the opposition inherited the result of its court victory, receiving a succession of bills from the airport developer throughout 2012, despite the government’s insistence that the January 5 letter from MACL outlining the arrangement was no longer valid.

Government spokesperson Imad alleged that the ADC dispute has resulted from a lack of transparency by the former administration. “We feel the former government should have been transparent with GMR on the ADC issue,” he was quoted as telling the Economic Times today.

However, Kapur rejected the governments’ claims, stressing that its tender agreement to develop INIA had been overseen by legal and financial experts including the International Finance Corporation (IFC), a World Bank entity, as well as the certified approval from the former Attorney General Ahmed Ali Sawad.

“The IFC had clearly said that there are no further approvals required for the ADC. We were in compliance with all laws and all approvals had been taken as backed by the then attorney general of the Maldives,” he said. “Beyond that, what further due diligence could we do? Any international bidder would have taken comfort in that level of due diligence.”

With GMR’s calls for compensation currently being heard by the Singaporean judiciary, Kapur said the company believed there was a high probability it would be awarded financial remuneration to be paid by the Maldivian government.

Pointing to the verdict given by the Supreme Court in Singapore earlier this month, Kapur said that in allowing the Maldives government to expropriate the airport, the provision of compensation was required to be given to the company.

“What the appellate court has said is that appropriate compensation must be paid.  [The Maldives government] have the right to do as they wish as long as compensation is paid, this is binding on the Maldivian government,” he said.

While expecting a favourable outcome in its calls for compensation, Kapur added that the company was aware of the Maldives’ present financial vulnerabilities as well as its ability to cover any such payments.

“The possibility of getting compensation is high, but [the Maldives government’s] ability to pay is unknown,” he said.

Kapur added that in other international tribunal cases such as this, there were a number of methods that a court can use to ensure compensation is implemented. However, he said it was still too early to speculate on what form these methods may take in the case of the INIA dispute.

“Specific mechanisms”

Meanwhile, in a letter sent to the Maldives’ Ministry of Finance and Treasury, Andrew Harrison, CEO of the GMR Male International Airport Limited (GMIAL) that ran INIA under the agreement, reiterated the company’s argument that there had been “specific mechanisms” established to terminate the contract under specified circumstances.

“There is no suggestion that any of the circumstances arose,” the letter was reported to have read, according to the Economic Times.

Harrison was also said to have claimed that despite the present government’s stand that the contract was “void ab initio” or invalid from the beginning, the government “also warranted and specifically represented that the Concession Agreement was valid, legal and binding.”

“Further, as part of the closing of the financial transaction on 28 December 2010, the then Attorney General of the Maldives rendered a formal legal opinion confirming that the Concession Agreement was lawful,” the letter was said to state.

Minivan News was trying to obtain a copy of the letter at the time of press.

Smooth takeover

Management of INIA was taken over by the state-owned  Maldives Airports Company Ltd (MACL) on Saturday (December 8 ) after the Singaporean Supreme Court had overturned an injunction blocking the Maldivian government from voiding its concession agreement with GMR.

Both GMR and the MACL have this week praised the management handover as “going smoothly” as the government began planning for the future of INIA beyond the aborted privatisation plan. The termination of GMR’s contract officially ended the largest single foreign investment project in the country’s history.

On Tuesday (December 11), the Maldives cabinet recommended the formation of a government-owned company to run Ibrahim Nasir International Airport (INIA)

Looking towards the future of the airport, the cabinet recommended that Male’ International Airport Ltd be formed with 100 percent government shares, while claiming full authority to operate and develop INIA through a special contract with the Maldives Airports Company Ltd (MACL).

Speaking to Indian media earlier this week, President Dr Mohamed Waheed Hassan Manik has dismissed suggestions that China urged the Maldives to push out the Indian company.

“The only significant cooperation we have with China at this time is through development assistance… like building the museum, housing projects. I don’t think India should worry about it at all,” Waheed was quoted as saying in the Hindu newspaper.

The claims were made as Maldives Defence Minister Colonel (Retired) Mohamed Nazim departed to China for a five-day official visit said to be focused on securing its assistance in developing the Maldivian military.

The President had claimed that the Maldives was presently “not looking for a foreign investor” to develop the international airport, with the government announcing that it was undecided on whether any new privatisation agreement would be sought in future.

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