Nasheed resigned “under duress”, security forces “more like militia”: Danish legal experts

Former President Mohamed Nasheed resigned “under duress” in a “coup d’état” on February 7, a report by Danish legal experts has concluded.

The report, titled “Arrested Democracy,” was compiled at the request of Nasheed’s Maldivian Democratic Party (MDP), and authored by an independent team of international lawyers and human rights experts headed by Associate Professor of International Law at Copenhagen University, Anders Henriksen.

It analyses the legality of Nasheed’s resignation under international law and the subsequent actions taken by the security forces against anti-government protesters, and is based on testimonies collected during a field visit in June 2012, as well as news articles, written materials and video footage.

Whilst the report concluded Nasheed was ousted in a coup d’état, the authors could not determine “with absolute certainty” whether the coup was pre-planned. However, the report finds “the factual circumstances surrounding the resignation of President Nasheed extremely damaging to the credibility of the new government and its claim that it did not instigate the transfer of power in the Maldives.”

The report further states that new President Dr Mohamed Waheed Hassan’s refusal to hold new elections “violate the right of the Maldivian people to democratic governance as manifested in Article 25 of the United Nations Covenant on Civil and Political Rights and in the right to self-determination.”

It also condemned and detailed a number of human rights violations committed by the Maldivian security forces, observing that “since the transfer of power the Maldivian security forces seem to have acted more like a militia for the new government than as a neutral police service for all Maldivians.”

Security forces have violated rights to freedom of association, speech, and assembly and right to personal security “by resorting to excessive use of force; discriminating against protesters based on their viewpoints; restricting demonstrations without a legitimate reason and for failing to distinguish between those protesters that cause trouble and those that are peaceful,” the report said.

Noting that no security official has been held accountable for human rights abuses since the controversial transfer of power, the authors stated that the Maldives government must take the “overall responsibility for the human rights violations in the Maldives over the course of the last six months.”

Recommending fresh elections to resolve the current political crisis in the Maldives, the authors state: “The new government must call for new elections and it must do so rather sooner than later. The longer it waits, the longer it prevents the Maldivian people from determining their own future.”

Members of the MDP have released two reports concerning the transfer of power on February 7. A report produced by former Environment Minister Mohamed Aslam and former National Security Advisor Ameen Faisal in June outlined what the MDP government knew of the then-opposition’s plan to topple the government by soliciting “about 500 police officers” to mutiny against Nasheed’s administration. A few days later, MDP lawyer and MP Mariya Ahmed Didi released a report outlining criminal charges against President Dr Waheed, arguing he had played “a pivotal role” in the “unlawful overthrow” of Nasheed’s administration and in doing so had violated Article 30 of the Penal Code.

Coup d’état

Nasheed had no choice but to accept a demand for his resignation on February 7 following “the revolt by the Maldivian Police Services and the seemingly unwillingness or inability of the Maldivian Military to restore law and order,” the report states.

“We conclude that President Nasheed resigned as President of the Maldives under duress, and that his resignation cannot be considered voluntary or otherwise ‘in accordance with law,’” the report observes, and goes on to state; “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.”

Although the authors could not conclusively determine whether the coup was pre-planned, they argue that “it should not be for the opposition to prove that the new government under the presidency of Dr. Waheed orchestrated the forced resignation by President Nasheed, but rather for Dr. Waheed and his new government to prove that they did not.”

The report calls for early elections, stating that elected politicians must consult their constituents in time of extraordinary crisis.

“When the elected politicians have a valid disagreement on the political legitimacy of the democratic process and when that disagreement threatens to jeopardize the entire constitutional system, it should be for the people – and not simply the ruling politicians themselves – to decide on the direction society should take,” the report states.

“More like militia”

The report details human rights violations committed by the security forces since the transfer of power and said the security forces acted “more like a militia for the new government than as a neutral police service for all Maldivians.”

Maldivian security forces have violated the rights to freedom of speech, association, assembly and the right to personal security by resorting to excessive force, the report states. It further argues that such violations have made protesters reluctant to exercise their legitimate rights.

“We find, in other words, that the acts of the security forces have had a ‘chilling effect’ on the enjoyment of fundamental freedoms in the Maldives.

“The reported conduct of the security forces does not correspond with their obligation to allow protests to take place unless compelling information offers a legitimate reason for restriction. Indeed, when judged by the information available, it seems as if the security forces have been more focused on repressing demonstrations rather than ensuring the safety of the participating individuals,” the report notes.

Security forces have used “excessive and indiscriminate use” of batons and sticks, pepper spray and tear gas, and if such instruments have been used for no apparent reason, then “the security forces may very well have violated the prohibition against inhuman and degrading treatment under the UN Covenant on Civil and Political Rights and the UN Convention against Torture,” the authors said.

The report claims the security forces’ targeting of anti-government protesters “appear to be systematic and not just the result of sporadic acts of ill disciplined officers.”

“Some responsibility for the worsening human rights record among the security forces must rest with the leadership of these forces who have clearly failed to make sure that their personnel have discharge their duties in compliance with applicable democratic and human rights standards. The security forces do not appear to operate under a coherent and well-principled policy for the use of force policy and there also seems to be lack of comprehensive protocol governing the treatment of protesters and the handling of public demonstrations.

“Overall responsibility for the numerous human rights violations in the Maldives over the course of the last six months must however, rest with the new Maldivian government who are ultimately responsible for the acts perpetrated by its security agencies. The government appears to have taken no concrete actions in order to stop the violence against the anti-government protesters nor has it distanced it from it.

“In a controversial move, the government has actually just recently allowed for the introduction of new types of non-lethal weapons, including the use of electroshock taser-guns and mace spray, for use by the Maldivian security forces,” the report observes.

The authors also criticize the Maldivian Human Rights Commission (HRCM), claiming that although the commission is “competent to look into complaints of human rights violations, in the Maldives, we are not entirely persuaded by their willingness and ability to condct sufficiently thorough investigations of the events that have occurred in the Maldives since the transfer of power.”

The authors recommend “fundamental democratic reform” of the Maldivian security forces, claiming that the two institutions were not immune from manipulation and exploitation by influential political actors. “Both institutions clearly suffer from a lack of basic understading of their proper role in a democracy,” the report stated.

In addition to Henrikson, Attorney-at law, LL.M., Rasmus Kieffer-Kristensen, and Asia-expert & Senior Policy Fellow Jonas Parello Plesner participated in authoring the report.