Former SAARC Secretary General and dismissed Human Rights Minister Fathimath Dhiyana Saeed has filed a lawsuit against the Speaker of Parliament Abdulla Shahid over his decision in February 2012 to declare the presidency vacant.
The suit also asks the court to declare illegitimate the transfer of power following former President Mohamed Nasheed’s controversial resignation.
Saeed, along with her associates, previously attempted to file a similar case at the High Court requesting it rule that former President Mohamed Nasheed’s resignation was obtained under duress.
The group of attorneys claimed that following their assessment of the events that led to the former president’s controversial resignation, several legal inconsistencies and lapses that suggested the transfer of power took place illegally.
However the High Court refused to accept the case claiming that it did not have jurisdiction to look into the matter. However, Dhiyana had at the time contended that she was of the view that High Court did have the jurisdiction.
Former President Mohamed Nasheed resigned following a 22-day continuous anti-government protest led by religious scholars and opposition leaders with the backing of mutinying police and military officers, that began in mid-January 2012. The protest flared after Nasheed’s controversial detention of Chief Judge of the Criminal Court Abdulla Mohamed.
Following his resignation, Nasheed claimed to have been forced to resign under duress, and declared that his government had been toppled in a bloodless coup d’etat.
According to Saeed, the new Civil Court case was a modified version of the case first rejected by the High Court. She also announced the case had been accepted by the Civil Court.
Saeed told Haveeru that it was fundamental in a democratic society for people to have the right to cast their vote. She claimed that people had elected Nasheed for a term of five years, and forcing him to prematurely submit his resignation in a coercive environment was disregarding the right for people to vote and elect their ruler.
Prior to declaring that this right had been grossly disregarded, she argued that it was important for the court declare that President Mohamed Waheed Hassan’s ascension to presidency was illegal and that his government therefore was illegitimate.
Speaker Shahid recently defected from the government-aligned Dhivehi Rayyithunge Party (DRP) to Nasheed’s MDP and is currently actively campaigning for Nasheed’s bid for the presidency in 2013.
However Dhiyana Saeed stated that Shahid was the person under the Article 121 of the constitution who was to declare vacant of the office of president, should an incumbent president resign or vacate the office.
“It was the Speaker of Parliament who declared the office of president vacant, be it had he done it knowingly, mistakenly or unknowingly,” Saeed told Haveeru. “This doesn’t mean Shahid committed a criminal offense. It also does not mean that he partook in the events or that he made the decision [maliciously].”
She further contended that Speaker Shahid had failed to look into the circumstances surrounding Nasheed’s resignation before making the declaration.
Saeed told Minivan News on Sunday that she and the counsel have “stopped short of asking for Nasheed’s reinstatement”, claiming that she did not have “the locus standi to ask for a particular relief”.
“If the ruling comes in our favour, it might be possible for Nasheed to institute a second proceeding for reinstatement. As far as this case is concerned, our interest is in the rule of law and invoking constitutional process to uphold the legal order as stipulated by the constitution,” Saeed told Minivan News.
Dhiyana Saeed, formerly a member of current President Mohamed Waheed’s cabinet and one of the earliest critics of Nasheed’s decision to detain Judge Abdulla, has also released a personal memoir explaining her interpretation of Waheed’s ascension to power. In the memoir, Saeed alleged that Nasheed’s political rivals had conspired to assassinate him.
Saeed alleged that the controversial transfer of presidential power on February 7 was the result of a premeditated and well-orchestrated plan, and questioned the findings of the Commonwealth-backed Commission of National Inquiry (CNI), which had declared that there was no coup and Nasheed had resigned voluntarily.
Parliament’s Executive Oversight Committee’s review of the report revealed several concerns including omission of key evidence and witness statements.
He added that many interviewed by the committee claimed the CNI report lacked “key information they had given [the CNI panel]” while “others claimed their information was wrongly presented”.
To support its claims, the parliamentary select committee released audio recordings of all the statements given by the witnesses. These included former police and military chiefs and officers, who claimed that Nasheed had no option but to resign.
Leaked statements to the CNI given by key witnesses of the events, including senior police and military officials, also suggested that the transfer of power took place illegitimately.
In the transcript of the statement given to CNI by MNDF Staff Sergeant Shafraz Naeem – the commander of the riot squad of the Bandara Koshi (BK) Battalion on the day – said that he also believed that Nasheed was ousted in a coup.
“In my view this was a coup. Why? I could see it from the way they handled everything, their attitude, how cool and calm all the officers were. I could tell from how cool General Shiyam was inside the MNDF. They did nothing. This is not how a uniformed officer should behave,” he told the CNI.
Meanwhile former President Nasheed told the CNI that he was forced to resign, as he believed his life was at stake on February 7 if he did not.
“In essence, my statement is very small. I was forced to resign. I resigned under duress. I was threatened. If I did not resign within a stipulated period it would endanger mine and my family’s life. I understood they were going to harm a number of other citizens, party members. They were going to literally sack the town. I felt that I had no other option, other than to resign,” he said.
On September 2012, following the release of the report, a legal analysis of the CNI’s report by a team of high-profile Sri Lankan legal professionals – including the country’s former Attorney General concluded that the report was “selective”, “flawed”, and “exceeded its mandate”.
“The report offends the fundamental tenets of natural justice, transparency and good governance, including the right to see adverse material, which undermines the salutary tenets of the Rule of Law,” observed the report.
The Sri Lankan legal team also contended that “there is evidence to demonstrate that there was in fact adequate evidence to suggest that duress (or even ‘coercion’ and/ or illegal coercion as used by CNI) is attributable to the resignation of President Nasheed.”