Tag: constitution

Protests disrupting services on Maafaru: Home Ministry

The Ministry of Home Affairs “expressed concern” about the prevention of islanders’ basic needs being met on the island of Maafaru in Noonu Atoll, with ongoing protests having resulted in the island council office, health center, and school closings, local media reported.

A statement issued by the Ministry of Home Affairs Thursday (January 17) stated the provision of these services is obligated under the constitution and subsequent laws, as well as that the obstruction of these [fundamental human] rights is equivalent to denying citizens of their rights.

Therefore, necessary legal actions will be taken to restore the provision of these services without discrimination to all citizens, according to Sun Online.

The ministry added that planned government projects to provide basic services are based on income received by the state.

The government also said they “will always welcome peaceful assembly” since this right is guaranteed in the Maldivian constitution, according to local media.

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Bill submitted to ban import of pork and alcohol

Maldivian Democratic Party (MDP) MP Nazim Rashad has submitted a bill to the Majlis calling for the prohibition of pork and alcohol imports to the country.

When presenting the bill, Nazim argued that the import of these products violates article 10(b) of the constitution which states that “no law contrary to any tenet of Islam shall be enacted in the Maldives.”

“We often hear rumours that people have alcohol at home in their fridge, available any time. We’ve heard that kids take alcohol to school to drink during their break. The issue is more serious than we think, it should not be ignored,” Nazim told the house.

Consumption of intoxicants or pork products are prohibited under Islamic law, although these products are available to foreign tourists in the country’s resorts.

When in charge, the MDP government announced it was considering banning pork and alcohol product in response to the December 23 coalition‘s campaign to protect Islam.

After being asked in January for a consultative opinion over whether the Maldives could import pork and alcohol without violating the nation’s Shariah-based constitution, the Supreme Court unanimously rejected the case on the grounds that the matter did not need to be addressed at the Supreme Court level.

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Comment: Impunity can only be matched with impunity

This article originally appeared on Ibra’s Blog. Republished with permission.

Many of my friends and colleagues, especially my ‘twitter friends’ have been inquiring me of late, about my view of President Nasheed’s decision to disregard a summons by ‘Hulhumale’ Court’.

I myself have been pondering over it as my initial reaction was that President Nasheed should not have done it. However, when I looked at the issue dispassionately and in the context of many anomalies in the Criminal Justice System of the Maldives, the case does not appear to be so simple. In fact it is rather complex, and adds to the myriad of convoluted issues we are being forced to grapple with.

It is so complex that the 140 meagre characters that twitter gives us is barely enough to expound on this particular problem. At best, it is a unique and delightful academic issue to ponder. What I write below is not meant to be a legal discourse, but more an academic and intellectual approach to analyse a social problem.

It is not helpful to consider President Nasheed’s decision to ignore the court summons just by itself to fully understand the phenomenon. One needs to consider a host of other issues to grasp the enormity of the situation.

On the face of it, anyone who is summoned by the courts should willingly do so, and anyone disobeying an order by the court should rightfully be held in contempt of court and punished for it. This is necessary for the upholding of the rule of law.

However, one needs to also consider the basic assumptions underlying these powers of the courts and the reasons for granting the courts such powers.

Among many, the following assumptions are made in relation to the courts:

  • The courts will not act outside the jurisdictions granted to them by law, and any ultra vires orders by courts do not constitute a valid order which falls within the concept of contempt of court
  • The courts will apply same procedures to all, and are bound by law to do so, and will not be selective in the application of law and procedures
  • The courts shall not display any bias in any way towards or against any person, and most importantly will not be seen or perceived to be biased in any way

There are many other such assumptions, but I limit this discussion to the above three assumptions.

Firstly, on the matter of jurisdictions:

  • There is huge contention whether Hulhumale’ Court has been granted powers by the law to try any case whatsoever. The Constitution says very clearly that trial courts will be defined and created by Law. When Parliament created courts by the Judicature Act, there was no “Hulhumale’ Court” designated as a Magistrates Court.The Supreme Court itself is still sitting on the case of the validity of the Hulhumale’ Court. It was created by the Judicial Service Commission (JSC), without authority derived from Law. Therefore the validity of any orders or judgments issued by this court is questionable, and the Constitution says no one has to obey any unlawful orders, i.e, orders which are not derived from law. Therefore, President Nasheed’s decision to ignore the summons has more than reasonable legal grounds.
  • The Judicature Act does make some provision for Superior Courts (Criminal Court, Civil Court, Family Court and Juvenile Court only) to appoint a panel of judges for some cases. Such panel has to be decided by the entire bench or Chief Judge of that court. In this case, a panel of judges from other courts was appointed by the JSC to Hulhumale’ Court. JSC does not have that authority by Law.If Hulhumale’ Court is legitimate, and is a Magistrate’s court, it would be the only Magistrate Court in Male’, and per the Judicature Act, would not have any other court to tie up to in order to convene a panel of judges. If it is considered part of Kaafu Atoll, then the panel should be convened from among magistrates assigned to Magistrate Courts operating within Kaafu Atoll, and the Chief Magistrate for Kaafu Atoll should convene the panel. The panel of judges convened now was convened by the JSC, and the panel includes judges from other atolls.
  • The Hulhumale’ court issued a travel ban order to President Nasheed, without ever summoning him to court, and in his absence, before any charges had been presented before him. No court has the power to issue such an order under any law. The court could have issued such a bail condition after the first hearing, if there was reasonable justification to believe President Nasheed might flee the country or he might present a security risk for the community through further criminal activity.

On the basis of the above, there is more than ample grounds to contend that the summons was issued by an Unlawful Panel of Judges, sitting in an Unlawful Court, which had already issued an Unconstitutional restraining order which was ultra vires

Secondly, on the matter of selective application of procedure:

  • Deputy Speaker of the Majlis Ahmed Nazim defied 11 summons and only appeared in court for the 12th summons. No action was taken against him.
  • An order for Abdulla Hameed (Gayyoom’s brother who now resides in Sri Lanka) to be brought to court was issued by the Criminal Court a long time ago. However the Court has not provided an English translation of the Court Order to be submitted to Interpol. Nor have the Police contacted Sri Lankan authorities to repatriate him under the bilateral agreement which allows that. It should be noted that Sandhaan Ahmed Didi was repatriated from Sri Lanka airport under the same agreement, without even a court order, or charges being laid against him.
  • There are numerous cases of prominent politicians and business tycoons disobeying court summons, and to date no one has been convicted for contempt of court for this offence. This leads to the argument that not appearing before the court on account of a summons is not an offence for which people are prosecuted even though it is a prosecutable offence. By past practice and hence precedent and customary practice, no one has to appear before the court every time a summons is issued.

Based on the above, there is more than ample grounds for President Nasheed to claim that there is no need for him to appear before the Court at the Court’s convenience and his inconvenience. Further, there is a rightful claim that the court has already exercised bias against him and that it is unlikely that he will receive a fair trial. More importantly, the fundamental principal of equal application of law and procedure has been seriously compromised.

Thirdly, on the matter of bias:

  • Ample demonstration of bias has been made in the above paragraphs to start with
  • One of the three judges on the bench has wrongfully authorised detention of President Nasheed before, and can be considered as biased against him
  • One other judge already has cases of misconduct being investigated against him by the JSC
  • The third judge is reportedly a classmate of Abdulla Mohamed in the Mauhadh Dhiraasaathul Islamiyya
  • Thus there is a widely held perception that President Nasheed will not be accorded a fair trial. One of the Principles of Natural Justice is that not only should justice be done, but it must be seen to be done too
  • When over 2000 cases are waiting to be prosecuted (including murder, rape, child molestation, child abuse and other serious white collar crimes) at the Prosecutor General’s Office, one asks the question why has this case been expedited beyond normal protocol

Thus there are grounds to argue that a panel of judges who issued ultra vires restraining orders on no demonstrated reasonable grounds cannot be expected to give a fair trial or judgment.

Thus, it would appear to be a reasonable decision on the part of President Nasheed that since he is not being summoned by a legitimate court, by legitimate judges through legitimate procedures, he is unlikely to get justice; and that his appearance before the court will simply whitewash a huge injustice to him, and therefore he will not appear before the court and face the consequences and fight it in his own way.

This is just a very summary description of what I think are some relevant issues surrounding the situation.

The legitimacy of courts and their orders and decisions lie in the courts and their actions being within the framework of the law, which is applied equally to all. An ultra vires decision of the court is no different from a decision by an individual to disobey the decision of the court itself.

Hence my tweet : Impunity can only be matched with impunity.

When legal systems break down to the level we are seeing, laws are not worth the paper they are written on. Anarchy rules, which comes from a very primitive instinct within human beings : survive any which way one can.

We enact laws and try to uphold the rule of law to move away from this and live in a civilised fashion. For rule of law to be upheld, all public institutions and officials have to abide by it.

It is extremely fragile. If just one disregards the rule of law and the issue is not rectified quickly, it spreads rapidly like a cancer and destroys the whole system, paving the way for anarchy. I think we are fast approaching that point. The final signs, that of treating human life with impunity on account of difference of opinion is already here. The rest is likely to follow soon.

The outlook is appears to be rather bleak. But from a systems theory perspective, this had to happen. All vestiges which held the faulty system had to break before reformation could take place. There will be chaos. There already is. It may worsen. And then, if we are lucky, out of chaos will emerge order. But what kind of order it will be depends on which paradigm wins. At this point in time, I would tentatively suggest it may be religious extremism.

Ibrahim ‘Ibra’ Ismail of the former Chairman of the Constitutional Drafting Committee of the Special Majlis, responsible for drafting the 2008 constitution

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]

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“Too little, too late”: President’s Office dismisses chances of MDP coalition

President Dr Mohamed Waheed Hassan has decided not to include the Maldivian Democratic Party (MDP) in his national unity government, his advisor Ahmed ‘Topi’ Thaufeeg has told local media.

“It is too little, too late”, said President’s Office Spokesman Masood Imad, adding, “[the MDP] remain a viable opposition.”

Immediately after his accession to the presidency, Waheed announced that he would leave some cabinet posts vacant for the MDP.

However, feeling President Waheed to have taken power illegally, the MDP refused these overtures.

After the Commission of National Inquiry (CNI) concluded that the transfer of power on February 7 did not amount to a coup, MDP Chairman ‘Reeko’ Moosa Manik attended the newly-coined ‘Leader’s Dialogue’ meeting on Sunday.

Whilst local media had reported that Moosa requested a place for the MDP in the current government, Moosa himself told Minivan News yesterday that he had only asked for clarification on the MDPs position – whether it should be considered the ruling, or the opposition party.

Responding to this argument, Masood today said: “The point here is that the MDP fails to understand is that this is not a parliamentary system, it is a presidential system.”

This constitutional problem was also included in the observations of the CNI’s international observers.

“There are tensions within the Constitution itself with a Presidential system engrafted onto a Parliamentary system which will always be problematic,” commented Sir Bruce Robertson and Professor John Packer.

MDP Spokesman Hamid Abdul Ghafoor, who described some of the observers comments as “mocking a young democracy”,  today said the party’s National Executive Committee (NEC) will discuss requesting a Supreme Court ruling on its role in the government.

“We don’t know who we are in government,” said Ghafoor.

“This is a sticky problem. The CNI’s assumptions are that the government has not changed, so it is the President’s prerogative to deliver on the MDP manifesto,” he continued.

President Waheed and his Gaumee Ittihad Party (GIP) joined the former coalition government, which included the MDP, the Jumhooree Party (JP) and the Adhaalath Party, to win the 2008 elections.

The coalition, however, began to break up after only 21 days when the JP withdrew. The Adhaalath Party was the last part to withdraw from the coalition in September 2011.

Local media today reported the Adhaalath party as having publicly lauded Waheed’s decision.

Sun Online reported Deputy Leader of Dhivehi Rayyithunge Party (DRP) Ibrahim Shareef as saying that the MDP ought to be allowed into the government if it adapts its policies.

Ghafoor interpreted these comments as evidence that certain leaders are “jittery”: “They want to straighten this out”.

The issue of a constitution comprising elements of both presidential and parliamentary systems was discussed by Waheed his official visit to India in May.

“You know our constitution is pretty much a cut-and-paste constitution. We have elements of parliamentary system as well as presidential system,” Waheed told the diplomatic community in New Delhi.

“The presidency is very much fashioned after presidency in the United States, and the parliament functions as a parliamentary system like in the UK. So there are issues that have to be resolved around that,” he continued.

Ghafoor also drew comparisons with the US system, arguing that after the 1974 resignation of President Richard Nixon, his Vice-President and successor Gerald Ford did not reshuffle the executive.

Referring to the MDP’s purported requests to join the current government, Masood said, “If they are allowed to join the current government now – where is democracy?”

“We are one year away from elections where we can let the Maldivian people decide,” he added.

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Decentralisation Act not unconstitutional, Supreme Court rules

The Supreme Court ruled on Thursday that provisions of the Decentralisation Act were not in conflict with the constitution.

In March 2011, former State Minister for Home Affairs Mohamed ‘Monaza’ Naeem filed a case at the apex court arguing that some provisions of the Act contradicted the unitary nature of the Maldivian state as laid out in the constitution, and requested the conflicting articles to be struck down.

Naeem had argued that the Local Government Authority (LGA) created by the Decentralisation Act was not answerable to any government minister while article 140 of the constitution states that, “A member of the cabinet shall be given responsibility for each authority or institute established by the government or the People’s Majlis, except for independent institutions specified in this constitution or established pursuant law. Such member of the cabinet must take responsibility for the operation of such authority or institution and must be accountable for it.”

The Supreme Court bench that heard the case ruled unanimously that the LGA was not unconstitutional as it was not necessary for a minister to be the administrative head of such an authority or office.

The Justices further noted that article 140 did not envision a cabinet minister to be responsible for elected councils.

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Comment: Challenges to an infant democracy

The following speech was delivered to India-based think tank, the Observer Research Foundation (ORF) on August 3, 2012.  The original transcript can be read here.

It’s an honour and a great pleasure for me to speak to you at the Observer Research Foundation (ORF), this morning.

As many of you would know the Maldives has recently experienced significant political change. In 2008, we ratified a new constitution, based on the principles of a modern democracy and had the first multi-party election.

This election resulted in a historic change of a 30-year regime. However, despite the change, the aspirations of the people for a more democratic future did not materialize. On top of that just after 3 years into his presidency the new President Mr Nasheed resigned. And now he is challenging the circumstances that led to his resignation and this has created further political disharmony and tensions.

Today, I would like to briefly share with you some of the challenges that the Maldives faces as an infant democracy. None of the challenges will be of great surprise to you. Indeed you have faced very grave challenges yourself.

Today, you have emerged as a mature democracy, making rapid strides in your developmental efforts. This is a source of great inspiration not only to the Maldives, but to all emerging democracies around the world.

Ladies and gentlemen, in a few days the Maldives will celebrate the 4th Anniversary of our new constitution. The process of constitutional enactment in the Maldives included a referendum on the system of government. The people favored a presidential system to a parliamentary system. We all had high hopes for our new constitution, and for a smooth transition from a largely autocratic system to a multi-party democracy.

The new constitution stipulates the separation of powers and for the first time it guaranteed fundamental rights and freedoms. It mandates the formation of independent commissions and other institutions that are vital for a democracy to function well.

The new constitution also introduced the concept of decentralised governance of atolls and islands by elected local councils instead of the traditional presidential appointees. The initial major test for the new constitution was the first multi-party presidential election.

After a strong contest with 6 candidates representing a wide range of Maldivian opinion, that election ended President Gayoom’s 30 years of rule and Mr Mohamed Nasheed, the Maldivian Democratic Party (MDP) candidate, supported by a coalition of other parties was sworn in, on November 11 2008, as the 4th President of the Maldives. However, after just over 3 years into his 5-year term, President Nasheed resigned on 7th February.

As stipulated in the new constitution, the Vice President, Dr Mohamed Waheed Hassan Manik, was then sworn in as the 5th President of the Maldives.

President Nasheed resigned in front of the media accompanied by his cabinet, saying he resigned for the national good. However, the next day he argued that he resigned under duress.

This has created substantial controversy and has led to the establishment of a Commission of National Inquiry to look in to the circumstances of the transfer of power. This has been the subject of a lot of speculation and featured in the media and discussions in India and elsewhere.

As I said earlier the people had high hopes for our new political system. The people expected vast improvements over the previous system of governance; they did not want law and order to be influenced by politics; they wanted the judiciary to be free from political and other influences; they wanted job security in the public sector to be independent from politics; they wanted to see greater transparency in awarding public sector contracts; they wanted a system of local governance where things that are directly related to their welfare to be, by and large, determined by their representatives at the local level; the people wanted a free and fair media; and most of all they wanted their life to be better under the new democratic system.

These aspirations were not met. This was because, the new government on the one hand, did not have the sincerity to see through the democratic process that we adopted. On the other hand there was a tendency to carry out reforms regardless of the means by which those reforms were implemented.

This increased the room for corrupt practices and other inefficiencies resulting from moral hazard. I believe, in lending support to the democratic process, the means of achieving national development objectives is as important as the ends of development themselves.

From the outset, the new government was not sufficiently sensitive to the values of sincerity and patience. It is important to underline the fundamental importance of these values in making the system work. The people need to be reassured that democracy can meet their needs in their day to day lives and serve to fulfill their aspirations for a better future.

If we are to be a successful modern multi-party democracy we need to give the people confidence that the vision and ideals that inspired the 2008 constitution are still relevant.

Let me explain in some detail some of the instances where these important fundamentals were breached by the Nasheed government.

Historians, legal and constitutional experts, and indeed citizens more generally, I’m sure would agree that the establishment and maintenance of the rule of law is a fundamental pillar of democracy.

One of the major challenges that the Maldives faces, even today is maintaining the rule of law. The people were fed up with the earlier system where the executive had a direct influence on the police service and the criminal justice system. The new constitution introduced a very different criminal justice system with a number of safeguards. For instance the establishment of an independent judiciary, and an independent prosecutor general among other measures, were impartial mechanisms to dispense justice.

The parliament had also established an independent Police Integrity Commission, which was important in setting the parameters for these institutions to function within a democratic framework. Where there is no rule of law there cannot be a meaningful or successful democracy. However, Mr Nasheed – when it suited him, totally disregarded this key principle.

A landmark transition towards democracy was the formation of a police service in 2008, accountable to the Home Ministry, ending the decades old system of military having to attend to the policing function as well. Before this positive change, the outgoing government of President Gayoom was blamed for alleged police brutality. This was a key theme of the MDP presidential campaign in 2008.

With Nasheed’s government in place, Maldivians anticipated that the military and police would be freed from any attempt by the government to use them to promote any political agenda or ends. Sadly that assumption proved to be wrong. The police and in some cases even the military were mobilized on many unlawful political tasks, some of which even defied Maldivian Supreme Court rulings.

In any consideration of the events of earlier this year, it should always be remembered that the nationwide protests and demonstrations that lasted 22 days in Male’, leading up to President Nasheed’s resignation was sparked by the unlawful detention and arrest of a Senior Judge of the Criminal Court by the military while President Nasheed was the head of the armed forces.

Therefore, despite important institutional changes, the Nasheed government influenced the police to act in ways that were favourable to MDP. As such, when MDP conducted demonstrations they received preferential treatment, while opposition rallies were summarily dispersed.

Ladies and gentlemen, Let me now turn to a brief consideration of the influence of politics on the civil service. In the Maldives, where the civil service is the single largest employer, any policy that impacts the civil service has an immediate and lasting effect on the welfare of a significant proportion of the workforce.

Prior to the Civil Service Act of 2007, the appointment, dismissal and the setting of remunerations and all other benefits related to them were directly controlled by the President’s Office.

However, with the enactment of the Civil Service Act, an independent Civil Service Commission answerable to the parliament was established with total responsibility to oversee the functioning of the civil service.

Yet, President Nasheed’s government undermined the role of the civil service. Firstly, this was by drastically increasing the number of political appointees, both by making new appointments at executive levels and by registering existing civil service employees as political appointees. This increased the number of public service employees that were directly under the purview of the executive.

Secondly, the president formed public corporations which did not come under the purview of the civil service. This enabled the executive to control large numbers of public sector employees. One example of this was the National Health Service, which was brought under a system of health services corporations and made responsible for providing health services to the community.

This meant that large numbers of civil service employees in the health sector were shifted to the health corporations. This, in turn, meant that a large number of public sector employees were suddenly dependent on the executive for their livelihood. These tactics enabled the executive to exercise undue political influence on a large number of public employees and, in effect, compromised the effectiveness of the Civil Service Act.

Ladies and gentlemen.  One of the positive changes people anticipated as a result of the new constitution was the system of decentralised local governance. However, when the first local council election delivered an overwhelming victory for the opposition the decentralisation process was slowed down by the Nasheed government.

Elected local councils are, by law, empowered to carry out many aspects of governance at the local level, yet with many of the councils having at the time a non MDP majority, the government refused to decentralise power.

Instead former President Nasheed created national administrative centers, accountable just to him. This added an overbearing administrative layer to the existing structure of decentralisation. Such actions were undemocratic, partisan and led to a waste of resources at a financially difficult time.

Another key aspect of a modern democracy was the establishment of an independent media. A free and an independent media, which is often referred to as the fourth pillar of the state, received considerable attention during the process of democratic change in the Maldives.

A free and an independent media provide the necessary checks and balances within the democratic system of governance. This led to the creation of the institutional framework that governed the operation of free media, and created the space for the development of private media, particularly the development of private radio and television for the first time in the Maldives. This also led to the establishment of the concept of an impartial public broadcaster that was essentially free from political influence.

During the 30 year rule of President Gayoom, state media was used largely as a propaganda tool for the regime. This was seen as a very visible example of the absence of democracy in the Maldives at the time. One of the strongest demands when people were calling for democratic reform from 2003 onwards was for a free and independent media.

It should be noted that one of the key points in the MDP’s 2008 manifesto was a pledge to establish a public broadcaster by the parliament. However, when the MDP government came in to power they refused to transfer the assets of the state broadcasting corporation to the new statutory body, the MBC (or, the Maldives Broadcasting Corporation), that was formed as the public broadcaster. The MDP government essentially refused to comply with the legislation simply because the members of the MBC board of directors appointed by parliament was not to their liking.

These, ladies and gentlemen, are some of the key challenges confronting the Maldives as the country faces a new dawn of democracy.

Let me conclude by making a few remarks about the way forward.

The year 2008 saw the beginning of a democratic transition in the Maldives. The enactment of the new constitution was the crucial first step of this transition from an autocratic system to a modern democracy. Enacting the constitution itself however, is not sufficient to establish a functioning modern democracy.

Democratic transition is a process that needs a number of further steps in order for it to be successful. Some of these steps are outlined in the constitution. They include holding the first multi-party presidential election, the establishment of the Supreme Court, holding of the first multi-party parliamentary elections, setting up various independent bodies, holding of the first local council elections and the enactment of various pieces of legislations. Further, it is also important to strengthen the democratic institutions through capacity building.

Some of this work has already been completed. The remaining tasks need to be undertaken and completed over the coming months and years.

As the Maldives heads towards its second presidential elections under our new constitution, much needs to be done to rebuild people’s confidence at this stage of our infant democracy.

To develop such confidence amongst the people the leadership must show commitment and conviction in adhering to the principles of democracy. The leadership must have the courage to see through the process of democratic change.

Unfortunately, the first government under the new democratic constitution did not display the courage and patience to follow the path of democratic governance. As a result it has held up the transition process.

The way forward has been further complicated because of the current political tensions resulting from President Nasheed’s contention that he was forced to resign. This has resulted in further widening the political polarization within Maldives society.

Further, there is a very real fear that the people are getting increasingly frustrated that their aspirations are not being met. And when there is political instability it can undermine economic prosperity which can have a direct impact on the quality of life.

Therefore, it is important to have dialogue among the main stakeholders in order to create stability and reduce political tension. If the parties are unable to reach an amicable solution, meaningful progress in the democratic transition can only happen after the presidential elections due next year.

On a positive note, despite the frustrations, I believe, the peoples aspirations for democratisation has not changed.

We appreciate the continuous engagement by the government of India to facilitate an early resolution to the political stalemate in Maldives, particularly the timely engagement through repeated visits by the Foreign Secretary, His Excellency Mr Ranjan Mathai.

I also commend the important role of the Indian High Commissioner in the Maldives, His Excellency, Mr Mullay, for his dedication and hard work during these trying times. Also I greatly appreciate his efforts to enhance relations between our two countries, sometimes under very difficult circumstances.

The road to democracy is no doubt, long and hard, with many challenges along the way. But through persistence and good will, I’m sure the fruits of democracy will be as sweet as the future is bright.

Ahmed Thasmeen Ali is an MP and leader of the government-aligned Dhivehi Rayithunge Party (DRP).

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]

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Canadian government’s statement “misleading”, “one-sided”: Maldives Foreign Ministry

The Maldivian government has expressed “disappointment” over a “misleading” statement by the Canadian Foreign Ministry, which accused it of threatening to arrest its political opponents with a view to eliminating former President Mohamed Nasheed’s candidacy in an upcoming election.

Canadian Foreign Minister John Baird, a member of the Commonwealth Ministerial Action Group (CMAG), issued a statement on July 27, in which he stated “It is clear that the arrests of senior officials of the Nasheed government are politically motivated. Such actions are completely unacceptable and must be reversed.”

“The threats of the present government to arrest its opponents, including former President Nasheed – the only democratically elected president in the last four decades – so as to prevent his candidacy, undermine that government’s credibility and violate its undertakings to the Commonwealth Ministerial Action Group,” Baird said.

“The Maldives has been given the benefit of the doubt by the Commonwealth so far. Continued intimidation, illegal arrests and other authoritarian tactics by the present government may require the Commonwealth to consider a different approach, in our view.”

Canada’s statement preceded a rally by former President Maumoon Abdul Gayoom’s government-aligned Progressive Party of the Maldives (PPM), at which senior party figures blasted the government for not being able to “put down” Nasheed “and his 200 hounds”, and called for the ousted President to be “put in solitary confinement”.

On July 24, former Justice Minister under Gayoom and current Home Minister Dr Mohamed Jameel, described Nasheed, his party and the Raajje TV station as “enemies of the state.”

“We will take action against whoever incites violence against the police, no matter who it is or what kind of position they hold or have held in the past,” Jameel vowed.

Following Nasheed’s resignation under controversial circumstances on February 7, the Criminal Court issued a warrant for Nasheed’s arrest.

Nasheed’s government had detained Chief Judge of the Criminal Court Abdulla Mohamed, accusing him of “taking the entire judicial system in his fist” in order to protect the remnants of Gayoom’s administration from prosecution for corruption and human rights abuses.

The warrant was never acted on by the police, amid tense confrontations outside Nasheed’s residence.

However police this week ordered Nasheed to attend police headquarters on August 2, to answer allegations in a tapped phone conversation that he had request supporters “fight back” against police.

“The Waheed administration is currently demonstrating a clear pattern of abuse of power and tactics aimed at removing President Nasheed from the upcoming Presidential race,” claimed MDP Spokesperson, MP Hamid Abdul Ghafoor, who was himself recently arrested.

“The letter to summon President Nasheed is baseless and fails to state any specific charges. The letter refers indirectly to attacks on police, vandalising of police property and claims that their observations have led them to believe President Nasheed is responsible for such events.

“This summons is an attempt by the Government to thwart the progress of the Commission of National Inquiry and former President Nasheed’s participation in upcoming elections. Furthermore, members of the security forces have openly issued death threats to President Nasheed.

“In the absence of any specific criminal charges, “we are of the opinion that the only safe course of action will be for President Nasheed to provide a written statement without physically entering the police station,” Ghafoor said.

However in its response to the Canadian government, the Maldives’ Foreign Ministry said it “would like to make it very clear to the members of the international community that the government has not arrested, nor has it made any threat of arresting, its political opponents.” the Maldives Foreign Ministry responded.

Instead, the Ministry stated, “it is the prerogative of the Prosecutor General to decide on whom and when to charge an individual of criminal offence.”

“As part of a reform programme launched in 2004, the Maldives adopted a new Constitution with clear separation of powers between the executive, judicial, and legislative branches of government.

“The Constitution also established several new State-bodies, such as the Prosecutor General, and the Human Rights Commission of Maldives. These institutions are fully independent from the Executive branch of the government, and indeed assert their independence.

“Now that these institutions are independent, everyone, including our valuable friends in the international community, should be prepared to accept the decisions of these institutions,” the Ministry said.

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Parliament discusses creation of new ministries

Parliament this morning sent the Vice President and cabinet ministers’ appointment to the Government Oversight Committee, during the second sitting of the first session of the year.

Deputy Speaker of parliament Ahmed Nazim led the sitting this morning and Maldivian Democratic Party (MDP) MPs have been cooperating, although the MDP Parliamentary Group has decided not to cooperate with any bills sent to the parliament by the government alleging that the current government is unconstitutional.

The constitution obliges the President to submit the cabinet ministers appointment to the parliament within seven days of making appointments for approval.

Deputy Speaker Nazim today at the starting of the parliament meeting announced that many resolutions submitted to the parliament during the days of former President Mohamed Nasheed had been withdrawn by the MPs who presented those resolutions.

During today’s sitting parliament debated an the issue sent by the government to bring amendments to the government infrastructure.

The new government has proposed to change the names of the Ministry of Health and Family to the Ministry of Health, and the Ministry of Housing and Environment to the Ministry of Housing and Infrastructure.

The government has also proposed to create two new Ministries called the Ministry of Gender, Family and Human Rights, and the Ministry of Environment and Energy.

Speaking during the parliament sitting MDP Chairperson ‘Reeko’ Moosa Manki contended that the annual budget approved by parliament did not have the funds to create the new two ministries, and that if those two ministries were created it would be an unlawful action.

He said that if the government created the two new ministries it would be a violation of the budget approved by parliament, and that it would prove to the citizens that this is an unconstitutional government.

Jumhoree Party (JP) Leader and MP ‘Burma’ Gasim Ibrahim responded saying that although the budget approved for the year did not have the budget to create two new ministries, the ministries could be created by borrowing money from the budget already allocated for the Health Ministry and Housing Ministry.

Gasim said the money could be taken from the state contingency budget as well, and said there was no legal obstruction in creating the new two ministries.

Parliament’s first sitting of the first session for the year was disrupted by MDP MPs who staged protest inside the parliament following the alleged coup.

MDP MPs obstructed President Dr Mohamed Waheed Hassan from delivering his presidential address to the opening session of parliament, contending that his appointment was illegitimate as former President Mohamed Nasheed had been forced to resign in a police and military-led coup.

During a second attempt on March 19, Dr Waheed was able to deliver a truncated version of his address, over the heckling of MDP MPs and large protest gatherings outside.

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Comment: Getting constitutional with Waheed

Dr Waheed has often reiterated that no matter what the findings are of a formal enquiry into the events that led to Mohamed Nasheed’s resignation, his own legitimacy as President of the Maldives remains beyond question.

He bases this claim to legitimacy on the constitution. How much substance does the claim have?

Article 121 of the constitution states the President can quit by submitting his resignation written ‘under his own hand’ to the Speaker of the Majlis. The office of the President becomes vacant as soon as the Speaker receives the resignation letter.

Article 112 (d), meanwhile, states that if the office of the President becomes vacant ‘for any reason’, the Vice President shall succeed to the office of the President.

Nasheed wrote his resignation letter, did he not? Waheed was sworn in as president after the Speaker received the letter, was he not? This means he is the legitimate president, does it not?

Technically, yes. And only if we assume, like Waheed does, that the constitution does not give a damn about whether or not the hand that wrote the president’s resignation letter was forced.

Such narrow constructions of the constitution, although incompatible with the ethos of a new democracy committed to its consolidation, are popular weapons for instating the legitimacy of this new regime.

It has, for example, continuously invoked Article 110 as a reason why elections cannot be held earlier than July-September 2013 without first enacting a constitutional amendment.

Article 110 states that elections for the office of President must be held within 120 days to 30 days before the end of a given five year term. It assumes things are going according to plan and, to ensure the smooth transition of power, it provides a timeframe within which the handover of power can take place democratically, through the ballot box.

The new regime has taken this clause of the constitution to mean that it forbids elections until 120 days before the expiry of a natural five-year term, no matter what.

If this were so, why does Article 125(c) of the Constitution foresee circumstances ‘where fresh elections have to be held for any reason during the currency of an ongoing presidential term’?

Where then is the legal basis for the argument being made by Waheed and the current regime that holding early elections will require a constitutional amendment?

Another question about Waheed and the constitution is: what type of president is he? Is he a caretaker president, or is he president proper?

Article 114 of the constitution says that an incoming president can assume office once he takes his oath before the Chief Justice, ‘at a sitting of the People’s Majlis’.

The Chief Justice administered the oath of office for Waheed’s presidency. And Speaker Abdulla Shajid was present. But it was not done ‘at a sitting of the People’s Majlis’.

According to the constitution this is a type of oath administered not to an incoming president proper, but to ‘any person temporarily discharging the duties of the office of the President’ (Article 126).

Furthermore, the only circumstance in which the constitution envisages the need for such a caretaker is if the offices of both the President and the Vice President become vacant at the same time (Article 125(a)).

By overseeing a caretaker oath for Waheed, did the Speaker of the Majlis de facto deem the offices of both the president and the vice president vacant on 7 February? If not, why was Waheed not sworn in before the Majlis?

Most importantly, if the constitution is to be upheld, such a caretaker figure can only remain as the country’s leader for a maximum period of 60 days.

Elections must be held within that period for both President and Vice President.

So why are fresh elections not being held before 7 April? And again, why is it being said that the constitution cannot accommodate early elections without an amendment?

And, if Waheed took office as a ‘person temporarily discharging the duties of the office of the President’ (Article 126), what business does he have purging the government of high-ranking MDP members, installing a brand new cabinet, and modifying or reversing most major policies pursued by the legitimate government he was supposed to be taking care of?

If President Nasheed resigned voluntarily and Waheed acceded to the position constitutionally, then Waheed’s first trip to the Majlis should not, and cannot, be to address it as President.

Without the Majlis first witnessing him taking the oath, it has no business accepting him as President.

One final question on Waheed and the constitution: if Waheed were such a stickler for it, and were he such a committed democrat, why is he turning a blind eye and a deaf ear to the thousands of people demanding ‘elections now’?

Article 125 of the constitution provides him with the perfect opportunity to give people what they want. All he has to do is resign for there to be an election within 60 days.

Can Waheed take a hit for the greater good? Or is his commitment to democracy as much of a chimera as the ninety-percent support he claims to have?

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]

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