The Commission of National Inquiry (CNI) has released its report into the circumstances surrounding the controversial resignation of former President Mohamed Nasheed and the transfer of power on February 7.
The CNI was initially a three member panel (Dr Ibrahim Yasir, Dr Ali Fawaz Shareef and chairman Ismail Shafeeu), formed by incoming President Mohamed Waheed Hassan to examine the circumstances surrounding his own succession to the Presidency.
Nasheed and the ousted Maldivian Democratic Party (MDP) have maintained that the former President’s resignation took place under duress during a police and military mutiny, and that Dr Waheed’s government was illegitimate.
The MDP and the Commonwealth subsequently challenged the impartiality of the CNI, and it was reformed to include retired Singaporean judge G. P. Selvam and a representative of Nasheed’s, Ahmed ‘Gahaa’ Saeed.
Retired Court of Appeal judge from New Zealand, Sir Bruce Robertson, and Canadian UN Legal Advisor Professor John Packer, were appointed as international advisers representing the Commonwealth and UN respectively.
Nasheed’s representative Saeed resigned from the CNI on the evening of August 29, denouncing its credibility and alleging that the final report excluded testimony from key witnesses as well as crucial photo, audio and video evidence.
The investigation did not consider the police crackdown on demonstrators on February 8, focusing largely on the events of February 6-7.
According to the published report, which was delivered by Selvam to President Waheed on Thursday morning, the change of government was “legal and constitutional”, and the events of February 6-7 “were, in large measure, reactions to the actions of President Nasheed.”
“The resignation of President Nasheed was voluntary and of his own free will. It was not caused by any illegal coercion or intimidation,” the report claimed.
In addition, “There were acts of police brutality on 6, 7 and 8 February 2012 that must be investigated and pursued further by the relevant authorities.”
The report dismissed the MDP’s allegations that the government’s ousting was a ‘coup d’état’, stating that the Constitution “was precisely followed as prescribed.”
“There appears nothing contestable in constitutional terms under the generic notion of a ‘coup d’état’ that is alleged to have occurred – quite to the contrary, in fact,” the report claimed.
“In terms of the democratic intent and legitimacy of the authority of the Presidency, as foreseen in the Constitution, President Waheed properly succeeded President Nasheed.”
“As President Nasheed clearly resigned and now challenges the voluntariness and legitimacy of his action, the onus is on him to establish illegal coercion or unlawful intimidation.”
In the course of its work the CNI interviewed 293 witnesses, 15 on multiple occasions. It also reviewed documentary evidence.
“The Commission notes that in many disputes, there can be difficulty in getting to what actually historically occurred as opposed to what an individual now honestly and sincerely believes to have happened,” the CNI report stated.
“Many people have heavy commitments to certain positions and on occasion their recollections were simply wrong. They had a recall that could not be correct when viewed alongside videos, photographs and other evidence. It is unhelpful to call this ‘lying’ but it must be allowed for as conclusions are sought,” it noted.
“Many people seem to think that because an allegation has been made, someone is under an obligation to counter or undermine it. When the allegation lacks substance or reality, nothing is required in response.”
The timeline produced by the three member panel meanwhile faced “virtually no challenge of substance”, and the reformed commission “affirms its own reliance on the timeline.”
Definitions: Not a coup, not under duress, not a mutiny
Regarding Nasheed’s allegation that his resignation was under duress, the report stated that “because of the seriousness of the charge, [the] person who alleges illegal duress or intimidation carries the legal burden as well as the evidentiary burden of proof.”
“It is an inevitable conclusion of the totality of the credible evidence that the only available firearms which were anywhere near the President between 4.37 am and 1:30 pm on 7 February 2012 were those which were carried by his SPG [bodyguards]. There is no evidence to suggest that the arms in possession of the SPG were a threat to him,” the report stated, in its conclusion.
“The Commission does not accept that his activities were closely monitored or that the military or the three civilians were issuing orders. Even if they had been, that does not signify coercion.”
The report dismissed claims by former Foreign Minister Ahmed Naseem that Brigader General Ahmed Shiyam was armed with a pistol in the company of Nasheed.
“Yet another witness, the Minister of Tourism in President Nasheed’s government, Maryam Zulfa, said that it was Riyaz who had a gun. This was because according to her there was a bulge in the pant pocket of Riyaz,” the report stated.
“The Commission is forced to conclude that this is evidence which although it may be the presently-held view of those people, is so inconsistent with the totality of the material that it cannot be relied upon.”
“All the credible evidence showed that neither [retired Colonel] Nazim, nor anyone else, delivered the threat alleged by President Nasheed.”
The report noted that coercion “as a result of unlawful activities by other people was a constant theme from many witnesses.”
“Because illegal or unlawful acts or omissions were going on in the community, it seemed to be the view of a number of witnesses that this had the effect of coercing the President to resign. The Commission does not comment on the allegations of such activities because they are not within our mandate but there is clear and unequivocal evidence before us that there are serious allegations of wrongdoing by the military, the police and private citizens. For the Maldives to move forward, these matters must be addressed.
“However, the Commission is unable to see how it can be contended that such wrongdoings perpetrated upon others can be said to have any coercive effect upon the President.”
“Indeed, until the time of his resignation, President Nasheed possessed of many powers under the Constitution that he could have utilized including the lawful use of force. He chose not to.
“That decision may be classified as praiseworthy, but he cannot now contend that because he made those choices, that he was ‘forced’ into resigning because of what others were doing around him,” the report stated.
Definition of a coup
The report also reviewed several definitions of the term “coup d’état”.
The World Book definition, “a sudden take-over of a country’s government by a group of conspirators. Usually, the conspirators are public officials who infiltrate and then use their country’s armed forces, police, and communications to seize power”, was rejected in favour of “whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way, that is in a way not prescribed by the first order itself.”
The report also defined the word “mutiny” as “under the law of the Maldives an internal matter within the military. Its aim is not to remove the President from office or to overthrow the government.”
As for the police, “The Maldives Police Act 2008 does not contain the offence of mutiny by police. So the offence of mutiny is confined to the military. Any illegal subordination by a policeman would be an internal matter subject to disciplinary proceedings.”
Nasheed provided the commission with a “with a list of some 67 names, whose bank accounts and telephone logs he requested be scrutinised. These allegations were unsupported by any evidence,” the report stated.
“All sorts of allegations were made against Retired Colonel Nazim on how he purportedly stalked President Nasheed, controlled his movements and dictated what he should say. Nazim, it was said, even wanted the pen used by President Nasheed to write his resignation. There was ample credible evidence rebutting these false allegations.
“Such allegations are very easy to make and some naively suggested that if the Commission trolled through scores of bank accounts, telephone records, SMS logs and intelligence reports, all would be revealed.
“The Commission lacks the ability to do so comprehensively, although when it made specific requests in individual cases, information was provided and revealed nothing of consequence.
“Aslam, while appearing before the Commission, read about an SMS attributed to Mr Saleem, the Permanent Secretary of the Ministry of Environment. The SMS spoke of a distribution of MVR 2.4 million (US$155,640) to the ‘mutinying’ policemen. The Commission summoned Mr Saleem. He debunked the message effortlessly, claiming that he did not recall sending such a message.”
“After hearing him, the Commission would not invade and investigate the privacy and personal affairs of all and sundry as desired by President Nasheed and his aides in the absence of minimally credible supporting evidence,” the report said.
“A coup d’état required positive action against President Nasheed. Non-action and inaction cannot constitute a coup d’état. Moreover, the Constitution does not call for loyalty of anyone to the President. It calls for the loyalty to the Constitution.
“In sum, the Commission concludes that there was no illegal coercion or intimidation nor any coup d’état. The Commission has received no evidence supporting or to substantiate these allegations. This disposes the main mandate of the Commission.”