A probe by parliament’s Executive Oversight Committee into the Commission of National Inquiry (CoNI) report is meeting resistance from high level government officials, members have claimed.
Attorney General (AG) Aishath Azima Shakoor issued a letter to the Majlis Speaker Abdulla Shahid stating that the probe into the Commonwealth-backed report was a violation of the Parliamentary rules of procedure, local media reported.
“The work carried out by the Parliament’s Government Accountability Committee is out of the mandate assigned to it under the Parliament rules of procedure,” Shakoor told Haveeru.
“I stress that the committees do not possess the authority to deal with this report in any other manner.”
According to Maldivian Democratic Party (MDP) Spokesperson MP Hamid Abdul Ghafoor, the committee has been a bipartisan effort following the “house rules” of Parliamentary procedure.
Nine of the 11 members, including MPs of the government-aligned Dhivehi Raiythaungee Party (DRP) and Progressive Party of the Maldives (PPM), were present on Tuesday (January 15).
The committee has been conducting a “normal” probe since December 2012 to determine whether former President Mohamed Nasheed’s resignation was made under duress, Ghafoor said.
“It is rather bizarre that after two weeks of committee meetings the Attorney General is suddenly opposed to business as usual. These allegations have arisen after hearings with people involved in the coup, such as Commissioner of Police Abdulla Riyaz, Minister of Defence Mohamed Nazim, and Chief of Defence Force Major General Ahmed Shiyam.”
Shiyam and Nazim refused to cooperate with the Committee, as advised by their lawyers. In response, the Committee filed a motion on Wednesday (January 16) requesting the Prosecutor General forward charges against them for violating the constitution with their non-compliance.
Meanwhile, President Mohamed Waheed refused to provide the interviews, tapes and statements given to the CoNI as per the Committee’s request, local media reports. The Committee made two previous requests in December 2012 before it adjourned for 10 days.
“Parliament’s job is oversight over the executive [branch] rather than the executive having oversight over us. Dr Waheed does not understand that basic concept of democracy,” Ghafoor told Minivan News.
“The Attorney General is doing the same, she has the general concept [of democracy] wrong. I don’t see what mandate she has to comment on procedures of parliament or question the powers of the committee,” he added.
According to Ghafoor, the committee will continue to conduct the CoNI probe – as they believe they are operating “by the book” – and compile the report. Their findings will then be sent to the Parliament floor, where the Majlis will accept or reject it.
Attorney General Shukoor was not responding to calls at time of press.
This article originally appeared on DhivehiSitee. Republished with permission.
Using the law as an instrument of political power is not a new thing for governments, be they ‘established democracies’ or not. A prime example is how the Bush administration (ab)used the United States Constitution to circumvent international law on acts of war, to justify Guantanamo Bay, torture, extraordinary rendition and to deny justice and human rights to suspected terrorists in the War on Terror.
The government of Dr Waheed – which, incidentally, is enjoying the full backing of the current US administration – too, has proven itself to be a dab hand at (ab)using the law as an instrument of political power. The CoNI Report, which found there was no coup, mutiny or duress involved in the transfer of power on 7 February 2012, is a case in point.
The first part of this series looked at how CoNI approached the investigation with a foregone conclusion: there was no coup. As discussed, CoNI then began a process of putting together all evidence that supported this conclusion while systematically excluding, or discarding as irrelevant, any evidence that refuted or cast doubt over the said predetermined conclusion.
CoNI approached laws relating to the transfer of power on 7 February in the same manner as it did the facts surrounding it. Laws were picked and chosen as applicable only if they supported CoNI’s foregone conclusion: the change of government was Constitutional. Any part of the Constitution or existing laws that could be applied to refute the said conclusion or challenge its validity were ignored, glossed-over, deliberately misquoted, or dismissed as mere ‘protocol’.
Take, for instance, the following statement:
With regard to the idea that there was a ‘coup d’état’, nothing in the Maldives changed in constitutional terms – indeed, the Constitution was precisely followed as prescribed.
Yes, the Constitution remains unchanged. But that does not automatically mean that the transfer of power ‘precisely followed’ the Constitution ‘as prescribed’. This is a conclusion that can only be deemed legal by abusing law and making a mockery of the principles of the rule of law.
CoNI’s use of the law as an instrument of political power is most blatantly evident in the sections of the Report dealing with (a) presidential succession and (b) resignation and succession. It discusses as relevant to this issue six Articles of the Constitution: 108, 100, 112 (b), 112(d), 121, and 123 (b). Each of them appears to have been selected precisely to prove a particular point, which when taken together, supports the CoNI conclusion that the transfer of power was constitutional.
Article 108 is deemed relevant in this section, for instance, solely to remind the people that sometime ago, in 2008, when they voted for Nasheed, they also voted for Waheed as his running mate. As noted by the Legal Review of the Report by a team of Sri Lankan lawyers, it is an inherently limited argument that
[…] purports to construe the change of power or justify the change of power in terms of what had transpired 3 years ago rather than what had transpired in the present.
Regardless, CoNI uses it to demonstrate that, by law, it matters little that they voted for him not as their leader but as the leader’s deputy. Only when considered separately from the fact that thousands of people now suspect the very same deputy of having caused their leader’s downfall—and when taken in isolation from the various other aspects discussed below—does Article 108 allow Waheed to become someone that can even remotely be regarded as an ‘elected’ president.
Article 100–which deals with the legal means of removing a President from office–is mentioned in the Report, but is not discussed as deserving of note. Given the predetermined conclusion of CoNI, that there was no duress involved in the President’s resignation, the Article of the Constitution is indeed irrelevant.
Articles 112 (b) and (d) deal with eventualities requiring the Vice President’s succession to office of the President.
Article 121(a), which deals with details of a President’s resignation letter, meanwhile, helps establish that because Nasheed wrote the letter in his handwriting, it must be valid and legal. Once President’s Nasheed’s claims that he wrote the letter under duress are dismissed as ‘baseless allegations’ (having excluded any evidence to the contrary), then Article 121 makes perfect sense.
The letter is in Nasheed’s handwriting (written under what circumstances matters not) and it was delivered to the leader of the Majlis (how and by whom did not matter). When looked at in this sort of fantastical isolation, Article 121 can, indeed, be interpreted as validating the document as legal.
Article 114, meanwhile, is cited almost in full:
An incoming President or Vice President shall assume office upon taking and subscribing, before the Chief Justice or his designate, at a sitting of the People’s Majlis, the relevant oath of office set out in Schedule 1 of this Constitution.
Interestingly, although cited in the CoNI Report as the law relevant to ‘resignation and succession’, the Report pays scant subsequent attention to it. In fact, much like the JSC’s dismissal of Article 285 of the Constitution as ‘symbolic’, the CoNI Report dismisses the stipulations of Article 114 as mere ‘protocol’.
The Presidential oath, as stated in the Constitution, requires the incoming President to say his own name in the oath. ‘I, Mohamed Waheed Hassan Manik…’ Chief Justice Ahmed Faiz Hussein, who administered the oath, did not include Waheed’s name in its composition. Similar problems affected US President Barack Obama’s swearing in ceremony in January 2009. The remedy then was for Obama to re-take the oath exactly as prescribed in the Constitution. The current Maldivian government, and the CoNI Report, in contrast, chose to ignore the glaring omission in Waheed’s oath, as if it mattered little.
At a stretch, this is a matter that can be dismissed as a breach of protocol.
But the same cannot be said for the requirement in Article 114 that the new President must take the oath of office at a sitting of the People’s Majlis. President Waheed took the oath office at a ceremony held in the privacy of a room in the Majlis premises, with only his wife, the Chief Justice, Speaker Abdulla Shahid and a few administrative staff as audience and witnesses. This is not simply a bungled oath.
Neither is it, as the CoNI Report claims, a ‘possible non-compliance’ of ‘protocols which had been created for general office management.’
Precisely where the presidential oath is taken is not simply a matter of housekeeping, nor merely a matter of deciding on which venue is free or most conveniently accessible for the occasion. If the Constitution were to be ‘followed precisely as prescribed’, and if Waheed has been properly sworn in as the President of the Maldives, it would have been done at a sitting of the people’s Majlis.
Is Waheed a caretaker president?
Something starts to smell really rotten when it comes to issues surrounding this question. First, the Report glosses over the fact that the oath administered to Dr Waheed to enable his accession to the presidency was one meant for a caretaker president.
Take the fact, for example, that although it is Article 114 that CoNI cites in reference to Dr Waheed’s oath, in reality the oath administered to Waheed is the one stipulated in Article 126:
Any person temporarily discharging the duties of the office of the President or Vice President shall take and subscribe before the Chief Justice or his designate, the relevant oath of office set out in Schedule 1 of this Constitution.
This is an oath which is not required to be taken in front of the Majlis, for it is not meant for a President proper. And, although the CoNI report makes no mention whatsoever to Article 126, this is the oath that is administered to Waheed. That is what Speaker Shahid says before the oath is administered. Watch the video:
Having stated that Nasheed has resigned under Article 121(a) of the Constitution, this is what Speaker Shaid says (at 1:11):
I, therefore, request of the Vice President, Dr Mohamed Waheed Hassan Manik, to take the oath as stipulated in Article 126 of the Constitution enabling him to carry out the responsibilities of the President.
Article 126. Not Article 114.
To cite Article 114 to justify an action taken under Article 126, as the CoNI Report did, is to deliberately mislead the public into believing that we have a President proper rather than a Vice President temporarily assigned the responsibility of carrying out the duties of the President—until such time as there could be a president proper.
This deliberate deceiving of the pubic is further shored up by blatant disinformation, or to put it less kindly, by a blatant lie.
Below is a screen shot of an extract from page 22 of the CoNI Report. Note the highlighted section, and what it states as the contents of Article 123(b) of the Constitution.
This is not factual information.
What Article 123(b) says in reality is this:
The ‘subsequent election, permanent incapacity or death’ which the CoNI Report falsely states as contained in Article 123 (b) of the Constitution, in reality, appears in Article 124 (b) in relation to the permanent incapacity of both the President and the Vice President together. It is, therefore, not relevant to the circumstances surrounding the transfer of power on 7 February 2012.
Note that even then, the person who assumes the office of the President does so in a temporary capacity.
If the Constitution were precisely followed as prescribed, as the discussions above show, Waheed is a caretaker president; someone who is temporarily in charge of carrying out the duties of the President until a President proper – that is, a president elected by the people of the Maldives – is sworn in under Article 114.
Even though CoNI and the current Coalition Government, which set CoNI up and also administered the caretaker oath to Dr Waheed, knows this full well, it has chosen to selectively apply parts of the Constitution – and at times deliberately lie – to force the public as a whole to accept him as the ‘elected’ (recall the use of Article 108) President of the Republic of Maldives. Something which he is not.
Why?
Because it is the only ‘legal’ way in which the current government can withhold from the Maldivian people their right to a free and fair election – which must be held as soon as possible – so the caretaker president can be replaced by the President proper, be it Waheed, Nasheed or someone else.
Getting around the mutiny
A group of police and military personnel refused to obey the orders of their Commander in Chief on 6th and 7th February 2012. This is documented in CoNI’s own Timeline, which it describes in the Report as the most solid foundation for its conclusion that there was no coup. Therefore, even for an institution that proved so adapt at twisting the law to suit its facts, there was no getting around the fact that the armed forces—for whatever reason—disobeyed their leader. This was a mutiny:
mutiny |ˈmyoōtn-ē|
noun ( pl. -nies)
an open rebellion against the proper authorities, esp. by soldiers or sailors against their officers : a mutiny by those manning the weapons could trigger a global war | mutiny at sea.
So how does CoNI absolve the mutinying armed forces of any responsibility in the transfer of power? First it points out that ‘there is no definition of the expression “coup d’etat’ in Maldivian law’, implying that because the Maldivian law has so far failed to define the term, no transfer of power, no matter how illegally affected, cannot be deemed a coup.
Then it notes that there are several statutory provisions that do define rebellion as an offence against the State punishable by law, but promptly dismisses them as inapplicable because, even if there was such a thing as a coup, the open rebellion of the armed forces cannot be deemed a coup because it occurred before the coup.
This position is nothing short of ridiculous: the only thing that can be considered a coup under this definition is the actual act of assumption of power by a new President – the act of swearing in, in this case. Everything that comes before it, leads to it, triggers it, is the catalyst of it, and/or is the direct cause of it, according to this position, is irrelevant and inconsequential.
Yet, this is the position CoNI takes: because the rebellion of the armed forces can neverbe a coup per se even if it directly leads to one, any such mutiny cannot be punished as an offence against the State.
By (ab)using the law in this manner, CoNI is thus able to make a military and policecoup d’etat against the State impossible—even if it occurred in broad daylight and was witnessed, in real time, by the entire nation. In this manner, the police and the armed forces, and the three men who commandeered them and guided them through the rebellion, are all absolved of responsibility and made immune from prosecution for not just their disobedience of authority but also its consequences: the end of a democratically elected government.
Given CoNI’s abuse of rule of law – using the law as its primary instrument – it would be a travesty against the very concept of democracy for its Report to be accepted and endorsed as the definitive truth, and as a legally binding document that settles once and for all the many disputes that surround the transfer of power in the Maldives on 7 February.
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]
This article originally appeared on DhivehiSitee. Republished with permission.
There are no facts, only interpretations.
– Frederich Nietzsche
When the allegation lacks substance or reality, nothing is required in response.
– Commission of National Inquiry (CoNI)
The idea that an objective truth can exist independent of political power is a myth dating back to Plato. On the contrary, truth and political power are intricately woven together—one cannot exist without the other. Instead of an ‘objective truth’, what becomes accepted as ‘reality’ is based on what those in power are willing to include as ‘true’ and what they exclude as ‘false’ in what they say and do about a given issue. While such power/truth relations are normally hidden from surface observations and casual scrutiny, the Report of the Commission of National Inquiry, Maldives is a document that blatantly demonstrates how ‘truth’ is produced in this manner and how the truth so constructed is used to exercise power and control over society.
It is CoNI’s conclusion that there was “No coup, no duress, no mutiny” in the Maldives on 7 February 2012. To arrive at this ‘truth’, the CoNI Report excludes all information it regards as false and includes only what it deems true according to preconceived notions and beliefs. “When the allegation lacks substance or reality”, it states, “nothing is required in response.” How CoNI decided what ‘lacks substance or reality’ and, therefore, can be dismissed as not worthy of a response, is not explained. It is an arbitrary measurement, composed and set up by the Commission according to a standard that itself decided on, and which it decided not to make public.
Some statements contained in the report, however, do provide an indication as to the criteria used by CoNI to decide which of the 293 witnesses it interviewed were telling the truth, and which of them were judged as simply repeating ‘hearsay’ or enthusiastically relaying fantasies of a confused mind susceptible to suggestion.
Take, for example, the following statement:
Just as a question has no evidential value unless the person answering accepts or adopts the fact contained in the question, allegations have no evidential value just because someone has articulated them repeatedly.
What does this confused and confusing statement mean? If a question is being asked in order to establish the facts of an event, why then does the question itself contain a fact that the answer must first accept for it to be considered valid? Is CoNI saying that a decision was made from the very beginning to exclude as invalid all the answers that did not first accept ‘the fact’—as stated in CoNI’s findings—that ‘there was no coup’?
How much evidence was excluded on this basis? Is this the grounds on which the evidence of Nasheed’s wife, Laila, for instance, was given no consideration by CoNI? In an investigation of the validity of Nasheed’s claim that he resigned under duress, fearful not just of a public bloodbath but also for the safety of himself and his family, would the evidence of his wife not be essential to verifying his explanation?
It is not just Laila’s evidence that seems to have no place in CoNI’s deliberations. Although one of the appendices to the report provides a list of 49 pieces of documentary evidence submitted by various witnesses, there are only seven such documents it refers to as having ‘comprehensively reviewed by the Commission’.
Of these, what it relied on most was its own Timeline, published on 6 June 2012, over two months before it completed its deliberations. [The English translation of the Timeline published on the CoNI website on its official letterhead was copied verbatim—except for an occasional substitution of a word here and there—from Dhivehi Sitee with neither permission nor acknowledgement, or shame for that matter.]
According to the CoNI Report this Timeline, published prior to interviewing some of the most important witnesses to the events of 7 February, was the truest document of them all. There was nothing anybody could say to challenge its version of events, for it contained CoNI’s ‘truth’.
It must be noted also that despite the many alternative scenarios which have been produced internally and internationally, there has been virtually no challenge of any substance to what was recorded in the Timeline.
Indeed. Not when all evidence that was excluded from the Timeline remained excluded as unworthy of inclusion.
This is an analysis of some of the most blatant exclusions of fact the CoNI Report relied upon to construct a particular ‘truth’ about the events of 7th February 2012. It is part one in a series of in-depth analyses of the CoNI Report which, if accepted in its current form as ‘what really happened’ in the Maldives on that day, renders the 2008 Constitution of the Maldives meaningless and creates the conditions in which the illegal overthrow of a government can be deemed legal.
Azra Naseem holds a doctorate in International Relations.
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]
“What happened in the Maldives on 7 February this year has been the subject of constant debate ever since. The completion of the investigation into these events last month did little other than confirm the one thing that everybody already knew: that the winners of the power struggle that day were those who found themselves in charge come 8 February,” writes Daniel Bosley for Himal Southasian magazine.
“The old maxim that history is written by the victors appeared to have been borne out as the Commission of National Inquiry (CoNI) not only absolved all those in the current government of any wrongdoing in the suspicious ousting of former president Mohamed Nasheed, but also laid upon Nasheed the blame for all the events preceding his resignation.
After a quasi-legal investigation, the final report read more like a political justification for the removal of an opponent than a genuine attempt to untangle the confusion surrounding the events, which many believe to have been a coup d’état.
After half a year, the addition of two new members, and an additional month’s delay, the commission’s credibility was already under question. It came as no surprise, then, that the final draft brought no real agreement over the circumstances surrounding Mohamed Waheed Hassan’s ascension to the presidency.
What the CoNI report has done, however, is to enter the first official account of the fateful day’s events in the ledger of Maldivian history. Anti-climactic and unsatisfactory, can the CoNI still mark the beginning of a new chapter in Maldivian democracy?” Read more
“When is a coup not a coup? This vexed question has been exercising the citizens of the Maldives ever since their first democratically elected president, Mohamed Nasheed, was driven from office in February amid a violent rampage by police mutineers,” writes Simon Tisdall for the UK’s Guardian newspaper.
“His successor, former vice-president Mohamed Waheed, claims to hold power legitimately. Opponents including members of Nasheed’s Maldivian Democratic party (MDP) say Waheed now oversees a “police state” and warn of deepening political rifts and ever greater human rights abuses.
The crisis that erupted in the Indian Ocean republic eight months ago caused widespread alarm. Nasheed, a former political prisoner, was voted into office in 2008 after 30 years of autocratic rule by Maumoon Abdul Gayoom.
The result was widely hailed as a triumph for democracy. But the old regime took defeat badly. Resentment turned into open revolt after Nasheed ordered the detention of the chief justice of the criminal court, who was suspected of obstructing investigations into bribery and corruption allegations involving former regime figures.”
A legal analysis of the Commission of National Inquiry’s (CNI) final report by a team of high-profile Sri Lankan legal professionals – including the country’s former Attorney General – has been prepared upon the request of the Maldivian Democratic Party (MDP).
The scathing report accuses the commission of exceeding its mandate, selectively gathering and acting upon evidence, and failing to adequately address the fundamental issue with which it was charged: determining whether former President Mohamed Nasheed resigned under duress.
“[The CNI] appears to have abdicated its duty to objectively and reasonably bring its collective mind to bear on whether or not there was duress involved in the purported resignation of President Nasheed,” concludes the the detailed report.
The CNI report had stated that Nasheed’s resignation was “voluntary and of his own free will,” adding: “It was not caused by any illegal coercion or intimidation”.
The legal analysis’ authors include two Sri Lankan Supreme Court attorneys – Anita Perera and Senany Dayaratne – and the former Sri Lankan Attorney General Shibly Aziz.
“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.”
The Sri Lankan legal team also believe “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.”
Last week’s official release of the CNI report was preceded by the resignation of one of the commission’s five members.
Ahmed ‘Gahaa’ Saeed – Nasheed’s nomination to the commission – resigned after viewing the first draft compiled by the Singaporean co-chair, retired Supreme Court Judge G.P. Selvam.
“I feel compelled to formally register with you a number of issues that I believe, if left unaddressed, will seriously undermine the credibility of the report,” Saeed wrote to his colleagues on August 26.
“I also believe these matters defeat the purpose for which the CNI was established,” he added.
Saeed’s concerns – which included withheld evidence, non-examination and obstruction of witnesses, and overlooked evidence – appear to have been substantiated by the Sri Lankan analysis.
The MDP had previously commissioned a legal report by a team of Danish experts which concluded that Nasheed had resigned under duress.
“To the extent that a ‘coup d’etat’ can be defined as the ‘illegitimate overthrow of a government’, we must therefore also consider the events as a coup d’etat,” read the analysis, titled ‘Arrested Democracy’.
Exceeded mandate, flawed report
The Sri Lankan analysis focuses on five main areas: the CNI’s compliance with its mandate, the procedure pursued in exercising this mandate, the evidence gathering process, the adherence to the “imperative dictates” of natural justice, and the legal issues which ensue from this.
In addressing the issue of the mandate, the analysis states the following: “It must be emphasised that the mandate granted to the Commission, is not to investigate whether the ouster of President Nasheed is politically justified, nor is it an evaluation of the manner in which the President discharged his powers and duties during his period of office.”
The report opines that the CNI simultaneously expanded its mandate to include additional concepts such as ‘common-good and public interest’, whilst restricting itself to completion in a timely manner in order to move the country forward.
The analysis argues that “without any explanation or rationale” the CNI focussed only on the physical threats to Nasheed without considering the context of pressures which were “exerted on the ability of the President to lawfully administer the country” in the period under review – January 14 to February 7.
Procedure and evidence
“It is respectfully submitted that the Report, which was compiled and released in less than two months, cannot be relied on as a credible analysis of the legality of the change of power as it has, inter alia, not provided objective reasons for the way in which it has selected or afforded weight to the evidence considered for its conclusions; has deviated from the critical issues it was required to consider in terms of its mandate and appeared to have conferred on itself an objective of ascertaining a political justification for the change of government rather than analysing, as it was required to do, the legality of the said change.”
In analysing the evidence gathering aspect, the analysis provides a table of “numerous glaring omissions” which include:
No testimony from deputy leader of the Progressive Party of Maldives (PPM) Umar Naseer, or consideration of public statements calling for, and taking credit for, the overthrow of the government.
No examination of the role of then Vice-President Dr Mohamed Waheed Hassan on February 7 and his meeting with opposition leaders on January 30.
No mention of the leaders of some opposition parties openly joining protesters on the morning of February 7, and the fact that some were inside the police headquarters “conspiring alongside certain senior police officers.”
No inclusion of the account of Nasheed’s wife, Madam Laila Ali, despite the basis of coercion adopted by the CNI including threats to Nasheed’s family.
No analysis as to why Mohamed Nazim, currently the Defence Minister but a civilian on the morning of February 7, announced the appointment of acting heads of the police and military before Nasheed had resigned.
No testimony from key witnesses, such as Chief of Defence Brg. Gen. Moosa Ali Jaleel and Deputy Police Commissioner Ahmed Muneer, despite CNI’s procedural rules prescribing “rigorous deliberation” on obtained evidence.
Statements from key personnel like Male’ Area Commander Ibrahim Didi and Commissioner of Police Ahmed Faseeh were not taken August 27.
The report also repeats the concerns of ‘Gahaa’ Saeed that vital CCTV footage was not obtained by the commission.
“In view of the totality of the foregoing, it is submitted that CNI failed, and/or neglected, to take such steps as are necessary to ensure a full evaluation of all relevant evidence and/or expressly account for any limitations therein,” it states.
Natural Justice
Citing the dictates of natural justice, the analysis argues that the CNI impinged on the right to a fair hearing and the rules against bias.
The Sri Lankan experts argued that, as the report at various time treats Nasheed as a witness, a complainant, and as the accused, he ought to have been afforded greater opportunity to give evidence and to defend himself.
“The Report appears to depict the President as the accused in an investigation that, however, was never designed or intended to place any culpability on anyone, unless the Commissioners so misconceived their writ,” the authors stated.
The analysts also point out that the events of February 8 were treated as stand-alone incidents and not used to contextualise the climate in which the previous day’s events tool place.
They also argue that the CNI’s conclusion that the events of February 6 and 7 were responses to Nasheed’s actions implies that he got what he deserved, and was therefore “tainted with manifest bias.”
“The report further purports to create a strange burden of proof that no evidence is required to prove or disprove allegations, if the commission is of the opinion that the allegation is lacking in substance or reality,” read the analysis.
“It appears therefore, regrettably, that the commission appears to have adopted the whims of its preconceived notions, rather than the requirements of its mandate, in determining the evidence it will consider in compiling the Report,” it continued.
Legal issues
The legal issues concomitant with the CNI’s conclusions include the use of a draft penal code from 2004 to support the claim that Maldivian law does not define a coup d’etat.
It is also suggested that the CNI failed to consider the principle of duress as referred to in its original mandate, instead interchanging the term with ‘coercion’ which has a far narrower scope involving only threat to life limb or liberty.
It is argued that restricting illegal pressure to physical threats is not appropriate in a political context.
The legal analysis concludes that the evidence seen “gives strong credence to the claim that President Nasheed was under duress when he tendered his resignation”, even when considered in terms of the ‘coercion’ used by the CNI.
Regarding the claims that the events could not have amounted to a coup d’etat, the Sri Lankan team argued that there is no provision in Maldivian law which corroborates the CNI’s rationale that a Vice President can succeed a President based solely on the fact he was elected on the same ballot.
“The limitations of such an argument lie in the fact that it purports to construe the change of power or justify the change of power in terms of what had transpired 3 years ago rather than what had transpired in the present,” said the Sri Lankan report.
“The simple question that [the CNI] needed to answer to ascertain whether there was a coup was who controlled the communications and defense functions of the country – who was the police and military personnel listening to, who was occupying the national television promises immediately before President Nasheed’s resignation,” it continues
The analysis further suggests the CNI became overly focused on dispelling accusations of a coup, rather than simply determining whether the transfer of power was legal, the two not being mutually exclusive.
The analysis also adds that, just because a coup is not defined in Maldivian law, it does not mean it is not prohibited, suggesting that the penal code provides multiple provisions prohibiting unauthorised challenges to governmental authority.
The CNI’s claims that an army mutiny is an internal military matter is dismissed in the analysis by pointing out the president’s position as Commander-in-Chief.
It also suggests that the inability of the president to control his army is a “universally accepted hallmark” of a coup.
The constitutionality of the transfer is also challenged on the grounds that the permanent, as opposed to temporary, resignation and swearing in of presidents must take place before the People’s Majlis, as prescribed in Article 114 of the constitution.
“These authors observe therefore, that CONI could not have conclusively arrived at a finding that all constitutional provisions were duly complied with and further observe that such inconsistency cannot in any way be dismissed as a failure to comply with a mere protocol.”
“More importantly this also confirms the state of affairs that may have prevailed at the time of resignation where the persons who were desirous of bringing a change in the presidency were willing to sidestep constitutional requirements to replace President Nasheed,” concludes the analysis.
On the night of August 29, groups of uniformed officials of the Maldives Police Service were observed going around Malé in trucks, singing songs and mocking opposition MDP activists – the same ones they brutalised in a nationally televised theatre of violence during the events of February 7th and 8th.
The next morning, large groups of uniformed police were huddled together on the streets in their riot gear, their faces concealed by balaclavas, while the country awaited an announcement from the Commission of National Inquiry (CoNI) appointed by the Waheed regime to ‘investigate’ the controversial transfer of power.
The announcement surprised exactly nobody; the council of pigs had found in favour of Napoleon. There was no coup, it ruled. In fact, there wasn’t even a police mutiny. And if there was one, it didn’t quite break any law, the report found.
By evening, the Waheed regime’s Police Service – now apparently empowered to make their own laws – had declared that calling them ‘traitors’ was now a crime, and any person indulging in the act would be arrested.
The declaration followed in the footsteps of two citizens being arrested in recent days for the offence of calling Waheed a ‘traitor’. Journalists witnessed one lady being taken away on 30th August, allegedly for the crime of taking photographs of the police.
Over the course of the day, scores of MDP protesters would be detained by the police in ancticipation of large scale protests against the findings of the report, and the continued demands for early elections.
With the international community apparently eager to wash its hands off the Maldives, there will be plenty of time and opportunity for the police to deal with troublesome critics over the remainder of Waheed’s rule.
The CoNI Report
Ahmed ‘Gahaa’ Saeed, the sole representative of President Nasheed on the 5 member Commission, resigned the day before the report was to be made public. In a press conference following the publication of the report, Saeed pointed out what appear to be serious lapses in gathering evidence and recording testimony in preparation of the final report.
Among them, he highlighted that CCTV footage was provided for only 3 out of 8 cameras around the MNDF area, and even those had hours of footage edited out. No sufficient explanation was given by the security forces.
The Commission was not provided any CCTV footage by the Police and the President’s office, according to Saeed. Nor was CoNI granted access to information gathered by the Police Integrity Commission.
Furthermore, no interviews were held with any official of the notorious ‘Special Operations’, the highly trained riot control force that played a crucial role in the ouster of the first democratically elected government, as well as the subsequent targeted attacks on civilians, MDP leaders and party activists. Also missing was the testimony of Umar Naseer, the Deputy Leader of PPM who has publicly declared his role in the overthrow of the elected government, and revealed the existence of a ‘command centre’.
According to Saeed, other prominent interviewees alleged to have played a role in the coup d’etat appeared to have been coached, with all of them giving standard, non-commmital responses.
None of these alleged lapses or limitations were highlighted in the final report.
Illegal duress
Section 4F of the report, defining ‘Coercion in Law’ begins as follows:
“Coercion, as used in the Decree, refers to the American legal concept of illegal duress or the English legal concept of intimidation. This is a real threat delivered by one or more wrongdoers to another to harm and injure the latter or his family if the victim does not do something as demanded”
But surprisingly, the report makes no mention of the leaked audio recordings, first aired by Australia’s SBS Dateline program, that clearly reveal the President pleading for the safety of his family in return for his resignation on the morning of February 7.
There were a few other sections of the report that raises eyebrows. Regarding an allegation about an SMS purpotedly sent by the then Permanent Secretary at the Ministry of Environment, allegedly asking for the disbursement of 2.4 million Rufiyaa to the mutinying cops, the Commission had this to report:
“[Mr. Saleem] 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…”
While the first sentence suggests some truly extraordinary levels of trust placed by the Commission in the testimony of the accused, the second reveals an inexplicable reluctance in pursuing every possible avenue of inquiry to uncover all relevant facts behind the power transfer – which, by definition, was the Commission’s job.
Furthermore, the report seems to paint a picture that the President was completely secure and faced no threat inside the MNDF HQ, when in reality it is undisputed that sections of the already outnumbered military had broken ranks and joined with the hostile police and opposition protesters in rioting outside.
Video recordings aired on National television showed military officers refusing to obey the President’s orders. Retired colonel Mohamed Nazim, in the video clip where he is seen addressing the mutinying forces outside, talks about being received warmly inside the MNDF HQ.
Indeed the CoNI report itself quotes him as saying “When I entered the military headquarters I was given a very happy scene. Everyone within the military lifted me up and very completely revealed their support for me. God willing, things will happen today as we want”.
If one is familiar with the fate of former Maldivian rulers facing chaotic mobs, then one realizes that guns were not necessary to threaten the President’s life. All that was required was for a solitary soldier to throw open the gates.
The report itself states elsewhere that all command and control was lost.
All of this appears entirely contradictory to the conclusions of the report that asserts that President Nasheed remained in control and had legal options to employ force to deal with the situation, which he refused to do – and therefore could not claim he resigned under duress.
This lends some credence to President Nasheed’s claims that the report was prepared with the political situation in mind, rather than with any serious ambition of uncovering facts.
Options before the MDP: Way forward
It is unrealistic to imagine that ordinary civilians, no matter how numerous or passionate, can topple a regime that is protected by a modern, trained, unsympathetic – and in this case, hostile – police and armed security forces.
The police have superior training, equipment, strategy, organization, intelligence gathering and other resources to counter and defeat any move that civilian protestors could possibly make. The same forces that protected the dictator Gayoom against an overwhelming tide of unpopularity can sufficiently protect his alleged puppet.
Given these realities, it is wise that President Nasheed has chosen to make a major concession and accept the findings of the report, while calling to implement its much welcome recommendations that include the strengthening of various institutions such as the HRCM, Police Integrity Commission, JSC and the Judiciary while also calling for swift action to be taken against rogue cops, who the report acknowledges had engaged in acts of brutality towards civilians.
While there remain serious injustices to be addressed and plenty of reasons for the MDP to be rightfully outraged, the path forward necessarily involves having to break the political gridlock that has paralyzed the nation since late last year.
It is clearly in the best interests of the public that the All Party talks resume and the daily business of running the nation and fixing the economy take centre stage again.
There are important lessons to learn from February 7. President Nasheed and the MDP need to introspect and reflect on their own considerable mistakes and poor judgments. The most important among them, perhaps, is committing to uphold the rule of law without any compromises, no matter how morally justifiable it may be.
With under a year left for the next scheduled elections, the MDP would be well advised to direct its efforts and resources on going back to the people and rallying them behind larger ideals.
Ultimately, one must remember that it was the people who handed a mandate to President Nasheed in 2008, and despite the ugly precedent set by the police and military, it will hopefully be the people once again who will make the decision in 2013.
So long, and thanks for all the democracy
With the publication of the CoNI report, and the apparent willingness of the international community to confer the same legitimacy on Waheed that it once granted the iron-fisted Gayoom – ostensibly with ‘stability’ in mind – the clocks have effectively been turned back a few years.
The Maldives’ unprecedented democratic revolution that began in the early 2000’s has ended prematurely, and many of the gains made since then have now effectively been reversed.
After three years, the Police have once again become an entity to be feared and loathed. The familiar intimidation of the media, and bullying tactics that were so widely prevalent during the Gayoom dictatorship is also back.
Waheed’s regime has been outright hostile to the free media, repeatedly barring the only opposition-aligned TV station from covering President’s office press conferences, and permanently withdrawing police protection for the channel’s reporters – despite explicit constitutional safeguards upholding media freedom. There is plenty of visual evidence of Raajje TV’s reporters being harassed and pepper sprayed at close range by the police; targeted attacks on the station by pro-government goons in August forced the station to interrupt services.
Citizens now face arrest for merely calling Waheed and his police forces ‘traitors’, whereas his regime regularly and unapologetically refers to citizens demanding early elections as ‘terrorists’.
The runaway judiciary remains weak and ineffectual, and there is no longer an elected President in power with any interest in fixing this crucial, but broken third leg of the base on which the country’s democracy was built to stand.
With a spineless media, a lethargic civil society, an incompetent Judiciary, weak institutions and watchdogs, a heavily politicized Police and military, not to mention the overarching influence of money and corruption in the whole process, the gargantuan task of achieving practical democracy in the Maldives appears forbidding, if not downright impossible.
To sow the seeds for a new revolution, the MDP needs to go back to the grassroots and educate the public.
February 7: the legacy
February 7 has left in its wake some very unwelcome precedents and niggling questions.
First among them is the newly acquired role of the police and military in determining the transfer of power, which the constitution had originally envisaged as being the sole prerogative of the voting public.
Will all future governments of the Maldives be required to buy the loyalty of the uniformed services with a range of perks, pay hikes, unprecedented promotions and turning a blind eye to their excesses and brutality in order to remain in power, as demonstrated by the Waheed regime?
Shall the Maldives follow in the footsteps of Pakistan that, over 65 years since independence, has failed to see a single democratically elected government complete a full term?
Finally, will the Maldivian judiciary ever become a house of justice for the public? Or will it remain perpetually overrun by incompetent fools, resistant to any external attempt bring them in line with the ideals enshrined in the constitution?
Does the Maldivian public really stand a chance to complete the democratic transition process we embarked on nearly a decade ago? Or will the next guy to attempt this Herculean task also pay the same price that Mohamed Nasheed did?
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]
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.
Report findings
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.”
Witnesses “lying”
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.”
CNI conclusions
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.”
The President’s Office has extended invitations to eight political parties to attend a meeting on Thursday (August 30) to discuss how to proceed following the release of the Commission of National Inquiry (CNI) report.
The eight parties who have been invited are the Maldivian Democratic Party (MDP), Progressive Party of Maldives (PPM), Dhivehi Rayyithunge Party (DRP), Qaumee Party (DQP), Adhaalath Party (AP), People’s Alliance (PA), the Maldives Reform Movement (MRM) and Jumhooree Party (JP). President Waheed’s National Unity Party, along with other small parties were not included in the invitation.
The meeting is scheduled to be held on Thursday at the Bandos Island Resort and Spa. The CNI report is scheduled to be released to the public the same day.
President’s Office Media Secretary Masood Imad ahs told Minivan news that any party involved with the All Party Talks prior to their suspension back in June were included in this invitation. He also said that any party that has been excluded was made on the basis that the organisations lack leadership. Speaking further, he said “President Waheed has always advised against street protests. Even though MDP has again started demonstrating, President Waheed is showing restraint and putting in a lot of effort to make sure the party talks are successful.”
DRP Leader Thasmeen Ali has previously stated that the party is open to discussions. However, he expressed concern that this week’s statement from President Nasheed’s appointee to the CNI, Gahaa Ahmed Saeed, may cause complications at the all-party talks.
Chief Spokesperson of Jumhooree Party, Moosa Rameez told Minivan News today that the party always welcomes discussion and as such will be participating in the talks. Regarding the MDP’s ongoing demonstrations, Rameez said “I don’t think anybody should be making an issue out of a group of people practicing a right guaranteed to them in the constitution. As long as the demonstrations are peaceful and fall within the laws of the country, I personally see no reason why this should at all have an effect on the discussions we are to have among political leaders.”
Speaking on behalf of MDP, former Minister of Tourism, Arts and Culture, Dr Mariyam Zulfa told Minivan News today that since the President’s Office had sent the invitation for All Party Talks specifically to party Chairperson, Moosa ‘Reeko’ Manik.
Manik will himself be attending the talks for the MDP. Dr Zulfa added that she didn’t believe the recommencement of direct action would have an adverse effect on the all-party talks as the invitation letter did not specify any such requirements.
“The only legal remedy for an unlawful change of power is going for early elections. We hope that the discussions are open to this option,” she said.
PPM Interim Deputy Leader Umar Naseer and Parliamentary Group Leader Abdulla Yameen were not responding to calls to Minivan News at time of press.
DQP’s Parliament Member Riyaz Rasheed and General Secretary Abdulla Ameen were also not responding when contacted.
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