The Attorney General Azima Shukoor has said she will ask the Supreme Court to rule on whether the laws of the Maldives can be applied to the government’s agreement with GMR concerning the development of Ibrahim Nasir International Airport (INIA), local media has reported.
Shukoor, who was not responding to calls at the time of press today, said a request was sent following the release of a Supreme Court statement yesterday.
“It is against the International laws and the United Nations Charter that any action that undermines any sovereign right of a sovereign state, it is clear that courts of a sovereign nation has the jurisdiction to look into any matter that takes place within the boundaries of that state as according to the constitution and laws of that state,” read the statement.
“Even though a contract has an arbitration clause giving right to arbitrate in a foreign court does not limit a local courts jurisdiction to look into the formed contract, and it is clear that such limitations are in violation of UN Charters principles of sovereign equality, principle of sovereign non intervention within domestic jurisdiction, principle of self determination rights,” read the statement.
Shukoor told Haveeru that if the case could be dealt with by the Maldivian courts, the process would become much easier.
However, she also expressed her confidence that government would be successful in the arbitration case regarding the Airport Development Charge, which was file by GMR in Singapore.
“We can win the case at the Singapore Arbitration even by biding our time. It is quite certain,” she told Haveeru.
The original agreement, argued Azima, was drafted under UK law although both sides agreed to settle any disputes through third party arbitration.
Third party arbitration is often used in order to gain impartial decisions from international experts whilst avoiding the uncertainties and potential limitations of local courts.
One of the world’s leading arbitration companies, the Singapore International Arbitration Centre (SIAC) gives a number of examples of why Singapore is frequently chosen for international arbitration.
Number one in its list is the country’s strong reputation for neutrality, currently placed fifth in Transparency International’s Corruption Perceptions Index, behind New Zealand, Denmark, Finland and Sweden
The Maldives is currently placed 134th in this list alongside Eritrea, Pakistan, and Sierra Leone.
The Maldives judicial system has also faced issues regarding its political independence since the adoption of the 2008 constitution.
A recent report by the International Federation for Human Rights (FIDH) said that “different sections of the judiciary have failed to become fully independent and still lack adequate expertise.”
“According to testimonies from members of the judiciary met by the FIDH team in Male’, under the successive administrations, no political party has actually ever shown any willingness to establish an independent judiciary since each seems to benefit from the existing system,” said the report.
“Moreover, the judiciary is allegedly under the influence of the business sector. For instance, the member of the JSC appointed by the Majlis is also one of the main business tycoon of the country. His presence in the body overseeing the conduct of judges, as well as the general pressure imposed upon the business sector on the judiciary, has therefore been subjected to controversy,” it concluded.
Both civil society groups as well as the current government have acknowledged the need for stronger independent institutions in the country.
President of the Anti Corruption Commission (ACC) Hassan Luthfee told local media yesterday that one of its three cases regarding the GMR deal was nearing completion.
Luthfee, who has recently questioned the ability of the ACC to fulfil its mandate, told Minivan News last week that a high profile case such as this was not easy for the institution to finish which was likely to result in delays.
“Even an international organization such as the International Finance Corporation (IFC) had provided expertise in this case. So when such an allegation of a major criminal offence has been made we must probe the matter quite extensively. This is by far the most high profile and sensitive case. So we must be certain,” he told Haveeru yesterday.
The IFC was forced to defend itself this week after being described by senior cabinet figures as “irresponsible and negligent” during the INIA bidding process.
Shukoor had said last week that as long as the agreement between GMR and the government is not invalidated, the agreement would be “legally binding” despite a “majority of the people” who wish to “terminate the agreement immediately”.
She also expressed the government’s concern about the effect on investor confidence that may result if the agreement was terminated.
Independent MP Mohamed Nasheed today told local media that, despite indicating its willingness to do so, the Majlis had not at present become a party to the 1958 New York Arbitration Convention which deals with the recognition and enforcement of arbitration awards.
Nasheed argued that the Maldivian constitution requires citizens to act in accordance with international conventions which have been backed by domestic legislation.
He added, however, that the Maldives’ Arbitration Act was still in the committee stage.
Nasheed was not responding to calls at the time of press.