Home Minister Dr Mohamed Jameel Ahmed has claimed it is a religious obligation to bar former President Mohamed Nasheed from contesting the upcoming presidential elections, scheduled to take place on September 7.
Speaking at a rally held by Progressive Party of Maldives’ (PPM) presidential primary candidate Abdulla Yameen on Saturday (March 9), Jameel accused Nasheed of being a “coward” who ran away after resigning from power, adding that he no longer had the courage to lead the country.
Highlighting Nasheed’s recent stay in the Indian High Commission, Jameel stated that “it was a shame that Nasheed fled when he was supposed to face justice,” before claiming that he would not give the opportunity for someone like Nasheed to come to power.
“Nasheed of Canaryge does not have any chance to come to power. We would not give that chance [to him]. That is something we ought to do. It is both a national and a religious Farḍ (obligation),” he said.
According to local media, the Home Minister stated that “if we complete that task,” God would grant success to those leaders in the upcoming presidential election.
Jameel claimed the country had fallen into a “deep mess” in almost all areas, adding that the country is desperate for a determined leader who can revive the economy.
He contended that Nasheed did not have the qualities the country was expecting from its future leader.
“Unlike Nasheed, President Maumoon Abdul Gayoom whom Nasheed is saying that he would beat easily, had the courage to appear before police for questioning when he was called in,” Jameel said.
He argued that anyone other than Nasheed possesses courage to face law and justice.
Jameel – a former Justice Minister under President Maumoon Abdul Gayoom’s 30 year autocracy – has previously expressed urgency in concluding Nasheed’s trial before the upcoming elections.
In January, Jameel told local media that it was “crucial to conclude the case against Nasheed before the approaching presidential elections, in the interests of the nation and to maintain peace in it.”
“Every single day that goes by without the case being concluded contributes to creating doubt in the Maldivian people’s minds about the judiciary,” the home minister said at the time.
In January 2012, Jameel – who served as vice president of Dhivehi Quamee Party (DQP) – was questioned by police after Nasheed’s government accused DQP of attempting to incite religious hatred.
Home Minister Mohamed Jameel Ahmed was not responding to calls from Minivan News at time of press.
Maldives must curb external interference in its internal affairs
Also speaking at the rally on Saturday (March 9), half-brother to former President Gayoom, Abdulla Yameen, claimed that there was no need to allow “outside influence” in the internal affairs of the country.
The PPM presidential primary candidate said that should he be elected, he would protect the independence and sovereignty of the Maldives against the most powerful of nations.
Yameen’s comments come after Nasheed sought refuge in the Indian High Commission in Male’ last month.
For 11 days the former President stayed inside the high commission building, subsequently avoiding a trial hearing at Hulhumale’ Magistrate Court.
Earlier this month Nasheed, who exited the Indian High Commission on February 23, was detained by police and produced at Hulhumale’ court, despite an alleged “understanding” between India and Maldives that he would be able to compete in the upcoming elections.
Nasheed is facing criminal charges over the controversial detention of Chief Judge of Criminal Court Abdulla Mohamed during the last days of his presidency.
Speaking at the campaign rally, Yameen criticised the Prosecutor General’s (PG) statement made on March 7, which stated that the PG did not object to delaying the trial until presidential elections scheduled for later this year are over.
“The PG is not entirely an independent individual. The PG becomes independent when he executes his responsibilities in accordance with these procedures. The PG cannot say that he has no reservations in delaying Nasheed’s trial for four weeks.
“The PG cannot say for instance that it is alright to put off the trial after the elections. This is something that the PG cannot say,” Yameen was quoted as saying in local media.
Yameen stated that an impartial trial against Nasheed must be held for his actions, and that any other presidential candidate should be held liable for their actions at any given time.
“Why can’t the foreign ambassadors accept the fact that anyone [competing for the Presidential elections] who violates the law must be disqualified.
“We also might fail to meet the criteria. In such a society it is possible for us to violate an individual’s right. If so even I must spend the day in court. How can Nasheed be an exception,” local newspaper Haveeru quoted Yameen as saying.
Minister of State for Home Affairs Abdulla Mohamed has challenged President Mohamed Waheed Hassan Manik over his stated attempts to review the flogging sentence given to a 15 year-old rape victim by the Juvenile Court, for an unrelated case of fornication.
The criticism follows a tweet by President Waheed in which he stated that he would push to review the Juvenile Court’s sentence of 100 lashes and eight months’ house arrest against the minor.
Mohamed, who is also the Vice President of the Civil Society Coalition, told local media that it was “not acceptable” that the country’s president was making remarks against a penalty proscribed in Islam and called for Waheed to repent.
The case has attracted widespread criticism from the international community, with Amnesty International launching a petition demanding the government repeal the sentence.
The Maldivian government – which is currently vying for re-election to the UN Human Rights Council, launched its campaign in Geneva on February 28 on a platform of “women and children’s rights and the rights of persons with disability” – has expressed “deep concern” at the decision to prosecute the girl.
“Though the flogging will be deferred until the girl turns 18, the government believes she is the victim of sexual abuse and should be treated as such by the state and the society and therefore, her rights should be fully protected,” said the President’s Office in a statement.
“The government is of the view that the case merits appeal. The girl is under state care and the government will facilitate and supervise her appeal of the case, via the girl’s lawyer, to ensure that justice is done and her rights are protected,” the statement added.
State Minister Abdulla’s comments echo similar sentiments made by the religious-conservative Adhaalath Party (AP), which issued a statement declaring that the girl “deserves the punishment” under Islamic Sharia law.
Local media reported Mohamed as saying he intended to meet with President Waheed in order to ask him to publicly apologise for his comments.
Mohamed further stated that the girl – who had also been raped by her stepfather – should be punished for committing and confessing to the sin of fornication, and that this penalty must not be challenged, local media reported.
The UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, arrived in the Maldives on Saturday (February 16) for a visit scheduled to last until February 24.
During her visit, Knaul will “examine measures taken to ensure the independence of the judiciary, prosecutors and lawyers, as well as their protection, and the obstacles encountered for an adequate, impartial and independent administration of justice”, the UN said in a statement.
Knaul, a judge from Brazil, will then submit her report and recommendations to the government and the UN Human Rights Council.
“The Committee is also concerned that such a situation undermines the judicial protection of human rights and fundamental freedoms in the [Maldives]. The [Maldives] should take effective measures to reform the composition and the functioning of the Judicial Service Commission (JSC),” the UN report stated.
“It should also guarantee its independence and facilitate the impartiality and integrity of the Judiciary, so as to effectively protect human rights through the judicial process,” it added.
Although unrelated, Knaul’s visit comes days after former President Mohamed Nasheed sought refuge from a court summons inside the Indian High Commission in Male’.
The Hulhumale’ Magistrate Court, which is trying Nasheed for his detention of Chief Criminal Court Judge Abdulla Mohamed during his final days in office, was created by the Judicial Services Commission (JSC).
The JSC, which includes several of Nasheed’s direct political opponents including rival presidential candidate Gasim Ibrahim, also appointed the three-member panel of judges overhearing Nasheed’s trial.
Parliament’s Independent Institutions Oversight Committee had declared that the JSC’s creation of the Hulhumale’ Magistrate Court was unconstitutional.
However, the Supreme Court declared parliament overruled, issuing a statement that “no institution should meddle with the business of the courts”, and claiming that as it held authority over “constitutional and legal affairs” it would “not allow such interference to take place.”
“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” the Supreme Court stated.
A subsequent request by the JSC that the Supreme Court bench rule on the court’s legitimacy resulted in a four to three vote in favour. The casting vote was made by Supreme Court Judge Adam Mohamed, also President of the JSC.
A troubled judiciary
Besides the UN Human Rights Committee, numerous international organisations and reports have challenged the political independence of the JSC and the judiciary.
A report by independent observers of the Nasheed trial from the UK Bar Human Rights Committee concluded that “a primary motivation behind the present trial is a desire by those in power to exclude Mr Nasheed from standing in the 2013 elections, and notes international opinion that this would not be a positive outcome for the Maldives.”
“How often do ordinary Maldivians look to the courts for justice? Is there a sense that ‘We [Maldivians] have an independent judiciary that is capable of resolving problems?’ I think the answer is no,” surmised Roger Normand, former Director of the ICJ’s Asia Pacific operations at the time.
“Historically, [independent resolution] has not been the role of judges [in the Maldives]. Judges were an outcome or a product of the executive power. This is not a controversial statement, this is an outline of what their legal role was in the previous [government],” Normand said.
The ICJ was highly critical of the the JSC, which it said was “unable to carry out its functions” to impartially vet and reappoint judges on the basis of qualification and background.
“To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment,” Normand said.
Former JSC member and whistleblower Aishath Velezinee first raised problems in the judiciary and JSC in August 2010.
“My experience, from being part of the complaints committee in the JSC, is that whenever a complaint is received, we have two judges on the complaints committee who will defend the [accused] judge, trashing the complainant, and talk about ‘taking action’ against these people ‘who are picking on judges’,” said Velezinee, in a 2010 interview.
“Then they will put out a press release: ‘Nobody should interfere with work of judges.’ Their interpretation is that ‘nobody should criticise us. We are above and beyond the law.’”
A more recent report produced by local NGO the Raajje Foundation and supported by the UNDP and the US State Department, noted that the JSC’s mission under the 2008 constitution to ensure the new judiciary was was clean, competent, and protected from political influence, “has sadly gone unfulfilled.”
“The courts have essentially been able to capture the JSC so as to ensure that the old judiciary remained in place under the new constitutional order,” the report noted, predicting the most likely national outcome a cycle of failed states.
President Dr Mohamed Waheed Hassan Manik has insisted on the government’s independence of the judiciary, stating that the court case “”has nothing to do with my government. Upholding the rule of law means nobody is above the law. I would like to assure the people of Maldives that the law and order will be maintained,” he said, in a statement on Sunday.
“My government has upheld the rule of law and respected all independent institutions. I am pleased to note that unlike in the past, within the last year, the President has not interfered in the work of the judiciary, the police, or the independent commissions,” Waheed’s statement read.
Meanwhile, Home Minister Mohamed Jameel – formerly Justice Minister under the 30 year autocracy of Maumoon Abdul Gayoom – told local media that it was “crucial [the judiciary] conclude the case against Nasheed before the approaching presidential elections, in the interests of the nation and to maintain peace in it.”
“Every single day that goes by without the case being concluded contributes to creating doubt in the Maldivian people’s minds about the judiciary,” Jameel said.
Kirsty Brimelow QC is one of three UK legal experts on former President Mohamed Nasheed’s legal team. The new government has pursued criminal charges against Nasheed for his decision to detain Chief Judge of the Criminal Court, Abdulla Mohamed, charges Nasheed contends are a politically-motivated attempt to prevent him from contesting the 2013 Presidential elections.
Brimelow is an experienced criminal law specialist with expertise in international human rights, and has worked in a number of small island states including Jamaica, Trinidad and Tobago.
JJ Robinson: How much background knowledge did you have on the political situation in the Maldives prior to deciding to join Nasheed’s defence team?
Kirsty Brimelow: Very little other than the usual views of the Maldives as beautiful islands for romantic holidays – I had never been here before. I had heard about the climate change aspect of Maldives at the time of the Copenhagen summit – it was something I remember reading about. I thought that it would be terrible if Male’ was under water in 20 years.
JJ: How much had you followed the February 2012 transfer of power?
KB: No I hadn’t followed it. When I was contacted [to join Nasheed’s legal team] I looked it all up. I don’t know if it was reported in English newspapers. I don’t remember reading anything about it. At the time the news was dominated by news of Syria and starvation in the world’s youngest democracy, Sudan. I think they dominated the headlines, and the London Olympics more than anything else that was going on.
JJ: What was behind your decision to join Nasheed’s legal team?
KB: As an international lawyer there is a real interest in how rule of law operates in different jurisdictions. In recent years I’ve done a lot of work in small island states – I am Legal Advisor to the Constitution Commission of Fiji, I worked in Trinidad and Tobago as part of the team defending the chief justice, and was appointed Counsel to a Commmision of Inquiry into a massive international fraud inquiry in Antigua. I have also worked in Jamaica.
I suppose I am interested in the Maldives as a new democracy, and how that struggle is being played out. I am also really interested in the Maldives both as international and human rights lawyer. I have real interest in fairness of procedures and that there are independent and impartial judges. No court system can operate if you have biased judges, or judges who are of a standard such that justice cannot be carried out.
JJ: How much do you know about the Maldivian judiciary and its condition?
KB: I’ve read a couple of reports which have the same conclusion – that the judiciary is not functioning at a level that can deliver justice. But I read these reports as background – I have really been concentrating on this specific case.
JJ: The Maldivian Democratic Party (MDP) have made a case on the basis of challenging the legitimacy of the Hulhumale Magistrate Court where Nasheed is being tried, rather than defending the specific charges against him. Do you think this is a good approach, and can you argue that in court: “I don’t respect your legitimacy, your honour”?
KB: There are different arguments going on at the moment. The high court application [regarding the legitimacy of the Hulhumale Court] is a legitimate argument accepted as such by the Attorney General. It is a jurisdictional public law matter now removed from criminal law.
The validity of the jurisdiction of courts is fundamental – people can’t just set up their own courts because they feel like it, and they can’t just put in who they like as judges of that court. It has to be done in a transparent and independent way in order for the courts to have any respect.
JJ: Why should courts care about the respect of the public?
KB: The general public in any democratic society cares about its justice system because that underpins its democratic society. If you think your justice system is corrupt – that whatever evidence you have when you’re in court will be ignored because you have a corrupt system – then that is bad for democracy.
Democracy can’t survive with a corrupt justice system. I think people do care about that. But obviously the select people who want to keep it corrupt, don’t.
JJ: This is the first time there has been foreign legal representation applying to appear in the Criminal Court, as far as I’m aware. Are you allowed in?
KB: At the moment there is apparently a policy that says you have to be Maldivian and/or married to a Maldivian to appear in court. It is very restrictive. It is going to be a matter we are going to challenge.
It obviously depends on the particular country, but most small island states have developed a system where foreign lawyers are able to practice within that system on a case by case basis. For example I have appeared [in court] in the Caribbean. The reason is that the smaller the place the smaller the pool of lawyers, and the bigger the case, the more political difficulties and influences that could be brought to bear on people from that society. So if you bring someone in from outside it can bring the balance back.
It is also a good way to increase knowledge and expertise. For example my knowledge is based on international human rights law, whereas if you are practicing in a small state you don’t have that comfort of being able to specialise. International law is not foreign law – it is part of the law of the Maldives, and to develop it you need that knowledge running through [the system]. The way you do that is allow international lawyers.
The Maldivian lawyers I’m working with are keen to make the application so that I could represent President Nasheed in court together with them. It would be their application on my behalf.
JJ: Dhivehi can make the country quite inaccessible to outsiders – to what extent is that a challenge in this case?
KB: Of course it’s a challenge and as to how it would operate [in court], nobody’s ever tried it before. As far as I understand English is widely spoken fluently, and i’m told many Maldivians prefer to speak English. Obviously it would have to be translated in court – but that happens in many jurisdictions with no difficulty. I don’t see it as meaning that the position would be impossible – there would have to be systems in place.
JJ: The judges on the panel hearing Nasheed’s trial were appointed by the Judicial Services Commission (JSC), and include two of Nasheed’s direct political opponents – Jumhoree Party Leader Gasim Ibrahim and Speaker of Parliament, Dhivehi Rayithunge Party (DRP) MP Abdulla Shahid. In this environment, and given the politicisation of the case, is it reasonable to expect that Nasheed can have a fair trial at all in the Maldives?
KB: I think at present if the trial were to go ahead in the Hulhumale Court, as presently constituted, there are real issues as to whether there is any chance at all as to whether Nasheed will have a fair trial. There are real issues and real concerns.
JJ: What is the approach then? The MDP has challenged the court’s legitimacy, but what about defending Nasheed’s decision to detain the Chief Judge of the Crimnial Court? Would you advise defending these charges or lean towards challenging the court’s legitimacy?
KB: Nasheed at his recent rally said that based on the evidence served against him, he should be acquitted.
The trial has two aspects: there are real issues as to fairness and those aspects fall into two categories, which relate to the court itself, which will be argued further, and the second aspect relates to the ability of President Nasheed to properly defend himself. I can’t go into details because those submissions have not been made to the trial court.
JJ: How similar are the challenges in the Maldives compared to other small island states?
KB: Each place is very different – but a common thread is the real difficulty getting a neutral tribunal to consider the evidence. Most countries have a problem where so much is in the newspapers already that people have formed opinions by the time the matter comes to court. In fact the trial is run in the newspaper, usually against the defendant, who isn’t in a position to present his defence in the newspaper as well, so it becomes one-sided and by the time the case comes to court people have the view that the person is guilty.
That would not happen in a larger jurisdiction where there are all sorts of laws to prevent people coming to court with a closed mind. That’s a problem here.
The Maldives has specific problems, such as those documented issues in relation to the judiciary, and those issues are quite extreme and are not found in many other small island states I’ve worked in. Many of those states such as Jamaica have a strong judiciary.
JJ: What would be some of those concerning issues?
KB: I don’t want to be upsetting the trial. I can quote from the reports though. Things like the statistics of those serving in the judiciary with criminal convictions and so on. It must be a concern to a fair minded observer as to what sort of justice is being dispensed if you are appearing before someone with criminal convictions, for example. That kind of thing is what I mean.
JJ: To what extent do you think the trial of Nasheed could be a catalyst for judicial reform in the Maldives?
KB: I think it is an important trial for the Maldives, and it could be a catalyst for reform in that the issues which are being raised are fundamental to a functioning justice system, and they are serious, so it should at the very least trigger debate in parliament in a democratic country.
There has to be a robust system which will regulate judges objectively, so someone coming to court can have faith in the system. If there is no check on judges in terms of their independence and honesty, as well as ability, then the courts just simply become a means of reaching a preordained result that everyone has already predicted.
Then quite simply it is not a justice system – it is a figleaf. Everything else flows from that – stability, fairness in terms of elections, parliament; if you’ve got a vacuum in your justice system you quite simply don’t have democracy.
You have to have a robust system to deal with complaints [against the judiciary]. In international law and particularly the Convention of Civil and Political Rights it sets out that privileges and immunities for judges can only go so far, and that they are not meant to stretch to afford protection ‘no matter what’.
My interest is in fair trial procedures, and that fair trial rights are upheld. There are real issues in this case, which is why I’m part of the legal team.
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.
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:
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]
When a traffic policeman raises his hand, encased in neat white gloves, all traffic automatically comes to a halt.
Obedience is ingrained in us. We barely stop to think why. Had it been otherwise we would no doubt be in the middle of a perpetual traffic jam.
When a policeman raises his hand, it is not a simple gesture of someone lifting his hand. Behind the gesture lies the authority of the people, a functioning system, an elected government and the goodwill of the masses. The combined moral authority of the people are reflected in that simple gesture.
Today, life is no longer simple anymore. Until February 7, 2012, the Maldivian people lived with the assurance that their interests were represented by a government elected by the majority; that the people’s will was reflected in the way they were governed. Everything turned topsy-turvy on February 7, when President Nasheed resigned office and his Vice President Dr Mohamed Waheed Hassan Manik assumed the mantle of government.
The transition of power would not have caused ripples or raised eye-brows unless the very next day President Nasheed claimed that he had resigned under duress. His resignation had been forced.
In the light of President Nasheed’s statement and after a clear look at the events leading to his ‘resignation’, it wasn’t difficult to believe that indeed Nasheed’s resignation was coerced. What followed afterwards – the appointment of Nazim as the Defense Minister and Abdulla Riyaz as the Police Commissioner – removed any reservations to the contrary.
The security forces – comprising of the Maldives Police Service and the Maldives National Defense Force (MNDF) were instrumental in forcing the President’s resignation. All the circumstantial evidence combined with the data compiled by the media further confirmed Nasheed’s allegations.
All doubts were removed when former police sergeant and Acting Deputy Leader of the PPM, Umar Naseer – known to friends and foes alike as a weapon of mass destruction – blatantly confirmed his active involvement in the overthrow of Nasheed’s government on national TV – “spilling the beans”, as CNN aptly defined it.
During his three years in office President Nasheed worked hard to deliver on his election pledges. He was a symbol of hope for the downtrodden masses whose cause he championed. For 30 years the Maldivian people had lived a hand-to-mouth existence, brutally repressed by the dictator Gayoom. According to the UN 42 percent of the people lived below the poverty line.
Given the role played by the security forces in ousting a vastly popular government, the police and the military have become villains overnight. When the policeman lifts his white-gloved hand he is no longer able to covey the moral authority to instill obedience amongst the masses.
Up until February 7, the military were looked up to by the people for their professionalism and generally enjoyed the respect of the population. Even the youth who sought a career in the armed services were proud to be a part of this elite corps. The military, as a rule, upheld high ethical standards.
Except for a few among the military high command and the police services, the security forces were uninvolved in the intrigue that brought down Nasheed’s government. There was little doubt that the top brass were bought; they had sold not only their souls but had betrayed the confidence and trust of their subordinates, the rank and file of the armed forces.
Those youth, who had pledged their lives to uphold the tenets of Islam and defend the country were being labeled ‘turncoats’, a title they did not deserve as they were as much in the dark as everyone else. The greed of a few commanders who defiled the military’s code of honor had put the stamp of betrayal on the entire armed forces.
The coup has had certain unforeseen influences on the public psyche too. The MDP, led by the ousted President Nasheed doubled in membership overnight. Quite suddenly, public involvement grew by leaps and bounds.
Consequently, civil disobedience has taken root in the public psyche. The security forces are openly scoffed at by the public – the label ‘rebel’, ‘turncoat’, now precedes any description of the police and the military.
Maldivians, as a rule, are apt to shy away from violence. Even under the present trying circumstances violence has yet to be a part of the equation. Even though there have been isolated incidents of violent behavior both on the part of the police and the public, violence is frowned upon by all parties concerned.
There is a very clear demarcation line between civil disobedience and civil war. Unlike Syria, Egypt or other Muslim States where the freedom movement has escalated into unbridled violence and civil war, the Maldives is unlikely to go the same route.
Even if the worst case scenario is considered – let’s say Waheed’s regime refuses to set an early election date – with the security forces unable to contain a public uprising and the use of force becomes mandatory, the decision is likely to result in the fall of the government.
A limited population ensures a close-knit society. Members of the security forces and the general public are bound by close family ties making it virtually impossible for any member of the security forces to implement a ‘shoot order’ even if President Waheed were dumb enough or desperate enough to issue such an order.
Any member of the security forces taking aim on a member of the public will in all probability find his colleague’s gun aimed at his own head. Who else but a madman will aim at a crowd, when the likelihood of shooting a brother, sister, cousin or a close relative is almost a dead certainty?
Civil disobedience, led by the MDP, is here to stay. The protests are gaining ground day by day; each day resulting in the increase in members on the streets. The cycle has taken on a natural life of its own and the pace is being set by the members arrested on a daily basis.
It is only a matter of time before push comes to shove. Waheed’s regime, tottering on the brink, is clearly headed up the creek without a paddle. For Waheed, there is but a single option. Like Humpty Dumpty, he can only fall.
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]
Former President Mohamed Nasheed attended police headquarters this afternoon, following a request made by police in a letter sent earlier this week.
Maldivian Democratic Party (MDP) Youth Wing Leader Aminath Shauna told Minivan News that while the letter was not an official police summons, it accused Nasheed of orchestrating violence against police and vandalism of police property since May 29.
The letter was signed by Deputy Head of Specialist Crime Command, Superintendent Mohamed Riyaz, said Shauna.
She added that Nasheed had decided to attend the station against the advice of both his legal team and the MDP’s National Council, over fears for his safety.
In a statement on July 31, the MDP accused President Mohamed Waheed’s administration of “demonstrating a clear pattern of abuse of power and tactics aimed at removing President Nasheed from the upcoming Presidential race.”
“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,” the party stated. The MDP added that the work of the Commonwealth-sanctioned Commission of National Inquiry (CNI) into the controversial circumstances surrounding Nasheed’s resignation was ongoing.
“Upon assessment of the facts surrounding the summons, we conclude that 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,” the party said.
“In the absence of any specific criminal charge for which he is being investigated, and since the stated purpose of the summons is merely to question President Nasheed and obtain a written statement from him, 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.”
The party expressed “extreme concern” for Nasheed’s “personal safety”, observing that he had been “assaulted by the police on various occasions since his resignation from office, and these instances are still being investigated by the Police Integrity Commission.”
Police responded by issuing a statement “to clear the allegations of possible torture, inhumane and degrading treatment by police, raised by the MDP and supporters of Nasheed, after a police summon notice was sent [to the former president].”
“The summon notice is for the investigation of a case lodged against Nasheed for inciting violence against law enforcement official since 29 May 2012. It is suspected that the civil disorder and several physical attacks committed against police officers, and the damages to police vehicles and infrastructures are the outcome of the call by Nasheed to commit such offences,” police stated.
“Thereby, Maldives Police Service has commenced an investigation and the summon notice was issued in furtherance of it, for Nasheed to appear on 02 August 2012 at 1000 hours. However, upon a request made by Nasheed, the time on the summon notice is delayed to 1400 hours on the same day.”
“The Maldives Police Service ensures the safety and security of Nasheed from the moment of his arrival to the police headquarters, and has invited the Human Rights Commission of the Maldives, Police Integrity Commission, and Maldivian Democracy Network (an NGO) to observe police actions during Nasheed’s investigation process. The Human Rights Commission of the Maldives and Police Integrity Commission have accepted this offer.
“[The MPS] assures concerned parties and individuals that whoever is summoned to the police would be treated in accordance with the law; with dignity, respect for human rights and within police code of conduct and code of ethics.”
Political tensions on the streets of Male’ rose as word spread of the former President’s impending summons.
Protesters initially gathered outside Nasheed’s family of residence, Canaryge, to block any attempts by police to arrest the former President.
However, by early afternoon Nasheed left for police headquarters in the company of his legal team, flanked by several hundred supporters.
After Nasheed entered Republic Square, police barricaded the surrounding streets leading to the large open area.
MDP supporters quickly gathered on the street of Chaandhanee Magu, a busy road full of stores directly aimed at tourists.
Nasheed left police headquarters around 5:40pm, joining more than a thousand cheering supporters gathered at the police barricades near Seagull cafe.
Reporters from the MDP-aligned Raajje TV meanwhile claimed not to have been allowed past police barricades with other media.
Nasheed resigned on February 7 amidst a police and military mutiny, after several weeks of protests by 300-400 opposition supporters over his detention of Chief Judge of the Criminal Court, Abdulla Mohamed.
Following his resignation, the Criminal Court quickly issued a warrant for Nasheed’s arrest, however it was not acted upon by police after MDP supporters gathered outside his family residence.
The same day, police claimed to have discovered bottles of alcohol in the Presidential residence. That case, together with Nasheed’s detention of the judge, was sent to the Prosecutor General (PG)’s Office.
Earlier in July, the PG sent the judge case to Hulhumale’ magistrate court for trial, stating that filing it in the Criminal Court would represent a conflict of interest because it concerned the chief judge. However, the case was returned by the magistrate court, which claimed it was outside its jurisdiction.
Last week, police released a tapped phone conversation in which Nasheed was heard to call for supporters to “fight back” against police, after their dismantling of the party’s protest site at Usfasgandu on charges that the area was being used for the practice of black magic.
The arrest of Nasheed ahead of elections – early or otherwise – appears to be a ‘red line’ for many elements of the international community.
Canadian Foreign Ministry John Baird on July 27 accused the Maldivian government of seeking to arrest its political opponents and eliminate Nasheed’s candidacy in the upcoming election.
Baird, a member of the Commonwealth Ministerial Action Group (CMAG), noted that “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.”
Maldives Ministry of Foreign Affairs responded by claiming that the Canadian statement was “misleading”, and insisted that “it is the prerogative of the Prosecutor General to decide on whom and when to charge an individual of criminal offence.”
“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 stated.
The Maldives Association of Tourism Industry (MATI) has issued a statement expressing “serious concern” over what it describes as a “concerted international campaign” against several of the country’s resort operators.
MATI claimed that calls from the Maldives Tourism Advisory (MTA) for tourists to avoid certain properties on the basis of ownership were “libelous in the extreme”, as the allegations against the tourist resort operators “have not been proven either through an investigation or a court of law.”
The MTA website features a ‘traffic light’ system with “red” resorts recently appearing to have been expanded to include an assortment of 18 properties owned by Vice President Waheed Deen and senior figures associated with the new ruling coalition, including Jumhoree Party (JP) Leader Gasim Ibrahim, Progressive Party of the Maldives (PPM) MP Abdulla Jabir, and Hussain ‘Champa’ Afeef.
MATI claimed that “unsubstantiated charges directed at some resort operators [will] result not only in loss of business at their resorts, but in loss of reputation and standing in international markets and the global community.”
“A call to boycott the resorts could [also] lead to enormous loss of business and lay-off of resort staff and support workers, not to mention those several small businesses that cater to the tourism industry that will be affected.”
The resort body accused the campaigners of “not having the decency to come out in the open” and “hiding behind the safe veil of the internet.”
“It is our belief that the several accusations and charges directed at the operators of resort businesses must be proven in a court of law before these businesses are subject to industrial action or denunciation.”
The MTA yesterday released a statement in response to MATI, emphasising that it was not calling for a boycott but rather “supplementing” existing travel advice from the UK’s Foreign and Commonwealth Office (FCO).
“Visitors choosing to be selective and avoiding resorts tainted by the actions of their owners might lead to some loss of business to these resorts, but we are quite convinced that it would not have an overall impact on the economy of the Maldives,” the MTA said in a statement. “Nor would it seriously affect the prospects of employment for Maldivians. This is proven by the government’s own figures showing a healthy increase in tourism arrivals.”
“While MATI mentions investigations of resort owners in a “court of law” it can clearly be seen that the Maldivian judiciary would be an inappropriate institution for such an investigation, given that one of MATI’s senior members (and whose resorts we recommend avoiding) sits on the Judicial Services Commission (JSC), the body tasked with overseeing the judiciary,” the MTA noted.
“”The only ‘investigation’ that we are aware of at present is the Commission of National Inquiry (CNI). This is deemed to be neither serious, timely nor unbiased by international observers and most Maldivians. No serious efforts have been made to address the deficiencies in this investigation, and they do not involve the resort owners mentioned in the MTA.
“The MTA always carefully considers all the available facts from several sources when recommending resorts to be avoided. There is no necessity to await ‘investigations’ and “courts of law” (as the MATI statement suggests) as MTA recommendations are based on important information that serves to enable visitor choice.”
Quarterly tourism figures published by the Maldives Marketing and Public Relations Corporation (MMPRC) showed a 3.3 percent rise in visitor arrivals compared to the same period in 2011, however this was lower than the 12.6 percent growth seen in the first quarter of 2011 compared to 2010.
Growth in Chinese arrivals slowed dramatically due to cancelled charter flights, while several of the country’s mainstay markets declined – including Italy, France and the UK. Russian, German, Swiss and Middle Eastern arrivals showed strong increases.
Tourism Minister Ahmed Adheeb and former Tourism Minister Dr Mariyam Zulfa were not responding at time of press.