No Maldivian statute requiring citizens to observe diplomatic law: High Court

The High Court has today (August 21) ruled that the Maldivian citizens are “not required” to act in compliance with Vienna Convention on Diplomatic Relations (VCDR), as no national law currently exists in the country that requires enforcement of the convention.

The High Court’s ruling came alongside a decision made regarding an appeal case filed at the court concerning breach of a lease agreement between an individual named Mohamed Shareef and the High Commission of India.

During the hearings of the appeal case, the appellant Shareef’s lawyer claimed that in February 2006 the Indian High Commission, on behalf of the President of India, had entered into the agreement with Shareef concerning the leasing of Dhivehige of Henveiru Ward – the residence of the Indian High Commissioner to the Maldives.

According to the lawyer, the parties had agreed to specific terms that need to be fulfilled before the contract could be set aside, but the High Commission had dishonored those terms when it vacated the premises on September 2009 – claiming to have terminated the contract.

In breach of contractual duty, Shareef sued the High Commission in the Civil Court, claiming damages worth US$196,101 (MVR3,023,877.42). The claims included US$193,666 (MVR 2,986,329.72) as rent owed for the remainder of the contract period, while US$ 2,435 (MVR 37,547.7) was sought for refurbishment of the premises.

In 2010, the Civil Court rejected the case claiming that it did not have jurisdiction to look into the matter as the VCDR – to which the Maldives is a party – included immunity for diplomatic missions and diplomatic agents.

The court argued that these immunities had also been “implicitly incorporated” into the contract between the parties, with the result being that the Civil Court would be in violation of the treaty should it proceed with the case.

During the appeal, the Attorney General’s Office also intervened, admitting in court that national legislation was required to enforce an international treaty as well as requesting that the court make a decision on whether treaties such as the VCDR had been ratified prior to the enactment of the current constitution in 2008.

The Maldives ratified the 1961 VCDR in October 2007 under the leadership of then Foreign Affairs Minister Abdulla Shahid – now Speaker of Parliament. The convention outlays a framework for diplomatic relations between independent countries, and specifies privileges and immunities granted diplomatic premises.

Overruling the Civil Court decision, the High Court in today’s verdict claimed that under Article 93 of the Constitution, Maldivian citizens shall only be required to act in compliance with treaties ratified by the state and provided for in laws enacted by the parliament. The High Court claimed that no such law had been introduced.

Article 93(a) of the constitution states: “Treaties entered into by the Executive in the name of the State with foreign states and international organizations shall be approved by the People’s Majlis, and shall come into force only in accordance with the decision of the People’s Majlis.”

Article 93(b) states: “Despite the provisions of article (a), citizens shall only be required to act in compliance with treaties ratified by the State as provided for in a law enacted by the People’s Majlis”.

Issuing the final verdict, the High Court invalidated the Civil Court’s decision to dismiss the case in favour of Shareef.

However, both the High Court and the Attorney General’s verdict noted that such a case could strain the bilateral relations between India and Maldives. In hope of avoiding this, a period of three months has been given for the parties to come to an out-of-court settlement.

Should the parties not be able to come to an agreement within the given three months, the High Court in its verdict ruled that Civil Court has the jurisdiction to proceed with the case.

Meanwhile an official from the Indian High Commission said that it did not wish to comment on the matter while it remains in the court.


President appoints deputy attorney general, UAE ambassador

President Dr Mohamed Waheed appointed Ahmed Usham as Deputy Attorney General (AG) on Thursday (August 15).

The appointment of Usham, who had previously held the role of Deputy Solicitor General at the AG’s Office, has been made at the rank of a state minister, according to the President’s Office.

President Waheed also appointed Dr Aishath Shehenaz Adam as the Ambassador of the Maldives to the United Arab Emirates (UAE) on Thursday.


Government paid Baroness Scotland £50,000 in excess of agreed consultancy fee

The government paid former UK Attorney General and member of the House of Lords, Baroness Patricia Scotland, £50,000 (MVR1.25 million) in excess of an agreed fee for legal advice concerning the Maldives’ suspension from the Commonwealth Ministerial Action Group (CMAG), the 2012 audit report of the Attorney General’s Office (AGO) has revealed.

The audit report (Dhivehi) made public yesterday (June 11) revealed that a terms of reference (ToR) to hire an unnamed foreign legal expert was signed by the AGO on May 28, 2012, after the Maldives was suspended from CMAG – the Commonwealth’s human rights and democracy arm – and placed on its formal agenda following former President Mohamed Nasheed’s allegation that he resigned “under duress” on February 7, 2012 amid a violent mutiny by sections of the police and military.

Auditors discovered that the legal expert – revealed in the media at the time to be Baroness Scotland – was paid £50,000 without signing a formal agreement in addition to a consultancy fee of £75,000 (MVR 1.81 million) agreed upon in the ToR.

“The Attorney General’s Office informed [auditors] that the fee paid in excess of the agreed upon fee was for further advisory and drafting work that was required,” the audit report stated. “However, we note that this additional legal advice could not be discerned [from any documentation].”

As the additional fee was 66 percent of the consultancy fee included in the ToR, “this office believes that the work could not be done without both parties signing an agreement in accordance with section 8.22 of the public finance regulations.”

Section 8.22 stipulates that consultancy work needs to assigned on the basis of a contract with specific terms mutually agreed upon.

Auditor General Niyaz Ibrahim therefore recommended legal action against the responsible officials as the excess amount was paid in violation of article 47(b) of the Public Finance Act.

The audit report also noted that the AGO spent MVR108,902 (US$7,062) on plane tickets and accommodation for Baroness Scotland and her assistant for a visit to the Maldives, despite the lack of provisions for the expenses in the ToR.

The Auditor General’s Office recommended that such expenses for amenities along with fees for any additional work should be stated in the contract.

The report also revealed that the AGO spent MVR 16.9 million (US$1 million) in excess of the annual budget for the office approved by parliament.

A total of MVR 16.3 million was spent with approval from the finance ministry for consultancy work by foreign legal experts, the report noted.

The Auditor General’s Office contended that the expenditure in excess of the approved budget was in violation of article 96(c) of the constitution, the Public Finance Act, and public finance regulations.

Article 96(c) of the constitution states, “No supplementary expenditures shall be added to an approved budget without further approval by the People’s Majlis. Expenditures included in the budget shall be applied solely for the specified purpose.”

Among the cases for which the AGO sought foreign legal assistance were the termination of a concession agreement with Indian infrastructure giant GMR to develop the international airport, disputes concerning a border control agreement with Malaysian firm Nexbis and payments owed for the “Maldives Asset Tracing, Recovery and Repatriation Engagement” investigation launched in 2010 by the now-dissolved Presidential Commission.

The audit report revealed that a ToR was signed with a Singaporean law firm on March 1, 2012 for legal assistance concerning the contract disputes involving GMR and Nexbis.

Following the cancellation of the concession agreement with GMR, the law firm was retained under a second ToR for the arbitration process currently ongoing in Singapore.

The audit found that neither the fee nor expenses for the lawyers were stipulated in the ToR as required under section 8.22 of the public finance regulations.

Instead, the Singaporean law firm was to bill the AGO for its services at a price of its choosing, the report stated.

The AGO paid the firm a total of MVR 7.1 million (US$460,440) in 2012 for legal assistance and other expenses.

A British lawyer was also hired in November 2012 until the conclusion of the arbitration process involving the GMR contract without signing an agreement stipulating the price as required by the public finance regulations.

The AGO paid the lawyer MVR 1.2 million (US$77,821) in 2012.

The Auditor General recommended legal action against the responsible officials at the AGO in accordance with article 48 of the Public Finance Act.

Among other cases flagged in the audit report as ostensible violations of public finance law, auditors discovered that the AGO spent MVR 76,810 (US$4,981) for purchases and services without approval from senior officials as required by section 8.05 of the public finance regulations.

Moreover, the AGO bought airplane tickets worth MVR 45,994 (US$2,982) without seeking prices from at least three parties as required by section 5.03 of the public finance regulations.

Baroness Scotland

In August 2012, Minivan News obtained the terms of reference document for the contract, which was signed by then-Deputy Attorney General, Aishath Bisham, who succeeded Aishath Azima Shukoor in April 2013.

The leaked document also included a letter in Dhivehi sent from the Attorney General’s office to Finance Minister Abdulla Jihad requesting authorisation for Baroness Scotland’s “unprecedented work/expense” following her visit to the Maldives.

“There was no contract made. With this letter we ask if attached terms of reference are sufficient as a contract,” the AGO wrote.

Following media reports in the UK, then-Attorney General Azima insisted that the expenses for Baroness Scotland were made out of the proper budget code with approval from the finance ministry.

Baroness Scotland came under fire in the UK press after the story emerged in the Daily MailThe Mail established that the peer and former Attorney General had not listed the payment from the Maldives on the House of Lords’ register of members’ interests.

“Her entry says she has set up a firm to provide ‘private consultancy services’ but says it is ‘not trading at present’,” the Daily Mail reported.

In a statement, Baroness Scotland confirmed she had been “instructed by the Attorney General of the Maldives to give legal advice”, and slammed the leak of the terms of reference and “all communications passing between myself and the Attorney General, whether written or oral, pertaining to the nature and extent of that advice, as confidential and legally privileged.”

She additionally claimed to have been approached by both the government and the opposition, and said she had accepted an invitation to chair a roundtable “at which all parties are to be invited.”

“I am a senior barrister with specific expertise in the area of constitutional law, criminal and civil law reform, and am skilled in mediation,” she explained.

Baroness Scotland was previously scrutinised by the UK press in 2009 after she was found to have been employing an illegal immigrant as a housekeeper in her London home.

As the story emerged, MPs from the UK’s Conservative Party – which has long backed Nasheed and the Maldivian Democratic Party (MDP) – seized the opportunity to attack the former UK Labour Party Cabinet Minister.

Conservative MP Karen Lumley told the Daily Mail that is was “disgusting that a former British attorney-general should take a well-paid job advising the new regime, which has no democratic mandate. President Nasheed was overthrown in a coup and the Maldives is now very unstable. Many of my friends there have been arrested by the new regime.”

Conservative MP John Glen told the paper that Baroness Scotland should “hang her head in shame”.

“What happened in the Maldives was a military coup,” he said, adding that it was “outrageous” that the former AG should be “advising a regime responsible for ousting a democratically-elected president.”

Former Maldives High Commissioner to the UK, Dr Farahanaz Faizal, described the government’s employment of Baroness Scotland as “absolutely shocking. If the government wanted legal advice to support the AG’s Office, the proper way is to request the UK government bilaterally.”

“To think that someone of her calibre would undertake an assignment to check if Foreign Ministers of Australia, Canada, Bangladesh, Jamaica, and others of CMAG had acted against their mandate is disgraceful,” Dr Faizal said.

Protesting that “disturbs public” against constitution: Attorney General files case

The Attorney General’s Office has submitted a case claiming that causing public disturbances in the name of political protest is against the constitution.

The case, submitted in September, requests the Supreme Court to rule that such protests are against some articles of the constitution.

This includes disturbing the public, using foul language, protesting in a manner that instills fear into the hearts of children and the elderly.

Deputy Leader of Dhivehi Rayyithunge Party (DRP) Dr Abdullah Mausoom said that people should have the right to the protest, but argued that Maldivians also “don’t want their daily lives disrupted.”

“We have such polarised parties here that are from one extreme to the other, it is expected that people protest.

“However when it disrupts the lives of people, like how the Maldivian Democratic Party (MDP) camped in one of the parks for weeks, it’s not right,” Mausoom added.

Earlier this year, the MDP set up a protest camp in the surf point area of the city following former president Mohamed Nasheed’s controversial resignation.

In March, security forces cleared the area in response to the violence that had engulfed the city on the morning of the raid, a police spokesperson told Minivan News at the time.

Police alleged that people had been committing crimes and threatening police before retreating to the MDP camp. The MDP claimed the action was a clamp down on freedom of assembly.

Police completely cleared the tsunami monument camp after Attorney General Azima Shukoor told the press that the area belonged to the Maldives National Defence Force (MNDF), and claimed that Male’ City Council did not have authority to give the area to the MDP.

In May, a second MDP camp at Usfasgandu was raided by police after a search warrant was obtained from the Criminal Court.

Reasons for the search as stated on the warrant included: “suspected criminal activity”, “damage to public property”, and “suspected black magic performed in the area”.

President’s Office Spokesman Masood Imad, told Minivan News that the government fully supports the right to protest, but it needs to be done in such a manner that does not negatively affect the lives of others.

He said: “A protest should be about changing something. A protest conducted in residential areas has nothing to do with parliament. Public protest and public nuisance are two very different things.”

The MDP meanwhile likened the move to Bahrain’s recent efforts to outlaw protesting.

“The MDP strongly condemns efforts to restrict freedom to assembly by the government. One of the most fundamental clauses in the new constitution is the right to protest and we are witnessing democratic gains fast slipping,” said MDP Spokesperson Hamid Abdul Ghafoor.

The AG office details that the activities detailed in their case breached the right to live, the right to privacy, the right to freedom of expression, the right to form political parties, the right to assembly and the right to provide special protection to children and the elderly.

All Supreme Court judges will be on the bench presiding over this case. The hearing has now been scheduled for Monday.


Police signed housing scheme MoU without legal advice from AG office

The Attorney General’s Office stated Monday that the Maldives Police Service had not obtained legal advice from them before signing a memorandum of understanding (MoU) regarding the police housing scheme.

The AG office told local media that they had commented on the draft MoU submitted by the MPS, informing them that some necessary information was missing. They had not heard back from the police on the matter. The AG office said it learned about the signing of the MoU only through media reports following the event.

However, Police Media Official Sub-Inspector Hassan Haneef told Minivan News today that they had discussed with all relevant entities before signing the MoU.

When asked if the police had received or responded to the comments on the MoU sent by the AG office, Haneef said, “We have no further comments to make on whatever the AG office has to say. That’s up to them. Our official response is that we have sought legal advice from those we have to consult, as per the constitution.”

Maldives Police Services signed this MoU with the Housing Development Finance Corporation (HDFC) and the Housing Development Corporation (HDC) on 13th September 2012, according to media reports. The MoU was an agreement to build 300 flats in Hulhumale’ for the use of police officers.

Speaking at the ceremony, Commissioner of Police Abdulla Riyaz has said they hoped to complete the 300 flats within a span of two years.

Minister of Home Affairs Mohamed Jameel Ahmed has said that this was in accordance with President Waheed’s pledge upon assuming office of providing housing for police officers.

HDFC has also introduced a loan scheme for police officers in August, where officers can obtain loans to build houses owned by them.

Attorney General Azima Shukoor was not responding to calls at the time of press.


Government departments strike over salaries

Staff at several government departments, including the fisheries ministry and the attorney general’s office, have gone on strike in protest at the restoration of salaries for only some areas of government.

Staff a some of the other ministries, including the tourism ministry, are rumoured to be deciding whether they should take part.

Yesterday salaries were restored for staff at the independent commissions, courts, parliament and the judicial services. The president announced over the weekend that the remaining civil servant salaries will be restored in April if the country’s economy has stabilised.

A senior staff member from the attorney general’s office told Minivan News that more than 40 people working at the office were participating the strike, and would continue to do so until their received the restored salaries.

“We will come to the office every day, but we won’t be doing any work,” he said, claiming that the strikers were just trying to get their legal rights.

A senior staff member from the fisheries ministry confirmed that most of the civil servants at the ministry were on strike, including the management.

Some of the ministry’s senior staff had threatened legal action against the strikers, he said.

”We are working legally to get our rights,” he claimed, explaining that civil servants were present at the office but were refusing to work.

A civil servant working in the tourism ministry said staff were planning to sent a letter to the Civil Service Commission (CSC) about the issue.

”We will decide to strike or not depending on the answer we get,” she said.

The economic ministry said that all of its staffs were present and all of them were working “as normal.” A staff member said that they were not planning to strike.

Spokesman for the Dhivehi Rayyithunge Party (DRP) Ibrahim Shareef said that no legal action could be taken against the civil servants protesting.

”It is a right for the civl servants according to the law,” Shareef said, but added that the DRP had not yet decided whether to support the strike.

CSC spokesman Mohamed Fahmy Hassan said the CSC had yet to discuss the issue in detail but was currently “definitely not calling for strikes”, and was instead trying to solve the dispute through administrative and legal means.

“We have stated very openly that if we cannot solve it administratively, we will take the issue to court until we get a verdict,” he said.

Strikes would disrupt the services provided by the ministries and inconvenience the public, he added.

“I think the fact that some salaries have been restored has made it harder to persuade civil servants that the country has a financial problem. It’s very unfair what’s happened.”

State Minister for Finance Ahmed Assad said that civil servants were entitled to strike for their rights.

”We have not decided to change any of our decisions yet,” Assad said, refusing to answer more questions “as it is too early to say anything.”