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Nasheed case proceedings against laws and norms: Nasheed’s legal team

Former President Mohamed Nasheed’s legal team has expressed concern that Nasheed is not being given the opportunity to have a fair trial.

At a press briefing held on Wednesday they detailed concerns about the procedural and legal matters around the case against Nasheed, stating much of the proceedings were against both the constitution and the laws of the Maldives.

Nasheed has been currently placed under island arrest, with regard to a case concerning his arrest of Criminal Court Chief Judge Abdulla Mohamed last year.

Hulhumale’ court’s legality in question

Member of Nasheed’s legal team Hisaan Hussain voiced concerns that the Hulhumale’ Magistrate Court, tasked with presiding over the case, was formed unconstitutionally. Quoting Article 141 (a) of the Constitution and Articles 53 (b) and 62 of the Maldives Judicature Act, Hisaan stated that it was clear the Hulhumale’ Magistrate Court was established out of the boundaries of law.

Hassan also noted that there was an existing case in the Supreme Court, where the court had been asked to rule on whether the Hulhumale’ Magistrate Court had been formed in accordance with existing laws. She said that although they did not know who had filed the case, it had been filed prior to the decision to have the court preside over the case against Nasheed. The Supreme Court has not yet made a ruling on the case.

However, an official from the Hulhumale’ Court who did not wish to identify himself said to Minivan News today, “We are not officially aware that such a case regarding this court exists.”

He further said that the Department of Judicial Administration was mandated to provide details on similar issues to the media.

However, Department of Judicial Administration’s Spokesperson Latheefa Gasim said that they did not wish to comment on the issue at this point in time.

Panel of Three

Former Minister of Youth and Sports and member of Nasheed’s legal team, Hassan Latheef stated that the panel of three magistrates which are to preside over the case was selected in violation of Article 67 of the Judicature Act, which specifically outlines how magistrates can be assigned to courts. He said that none of the three magistrates assigned by JSC were appointed to the Hulhumale’ Magistrate Court.

Latheef said that in contrast to international practices, the magistrates for this particular case had been “handpicked from around the country”. According to him, this was in direct violation of the Maldives Judge’s Act.

In addition to this, Hassan revealed that one of the three magistrates assigned by the Judicial Services Commission (JSC) was currently being investigated by the commission on two different offenses, a charge of corruption and of sexual offence.

Latheef further said since the strongest penalty against Nasheed in this case was a 3 year jail sentence, the case could not be considered an offence serious enough to warrant three magistrates to preside over it. He confirmed that this was the first time a case regarding an offence against Article 81 of the Penal Code was being overseen by a panel, rather than a single judge.

The legal team noted that they believed Nasheed was being discriminated against due to his political views. They pointed out that this was in violation of Article 17 of the constitution.

JSC Media Officer Hassan Zaheen spoke to Minivan News today regarding the concerns raised by MDP.

“It is not MDP that gets to decide whether or not a panel needs to be formed. In Islamic Shariah there is nothing to stop us from doing something just because it hasn’t been done before,” he said.

Zaheen further stated that it was constitutional to bring in magistrates from any part of the country to sit on the case and that this was clearly defined in law.

“JSC can bring in judges from anywhere, as long as they are of the same level. It is clearly defined in the Judges Act, or the Judicature Act, or some relevant law. These are all magistrates,” he said.

Zaheen denied that Nasheed was being discriminated against.

“Has another president of Maldives had a criminal case against him? No. Now, if a similar case has not occurred before, there is no room to claim there is discrimination. What are they comparing with?”

Violation of fundamental rights

Nasheed’s legal team expressed concern that the case was being handled outside of all norms.

They pointed out that the Prosecutor General, Human Rights Commission of the Maldives (HRCM) and the Ministry of Gender, Family and Human Rights had so far stayed silent on the matter, although it was within their mandate to protect the rights of the people.

Media Official of the Prosecutor General’s Office Hussain Nashid declined from commenting to the media.

“I will not comment about a case which is in the courts currently. The PG office will make whatever necessary statements during court sessions only.”

HRCM and the Human Rights Ministry were unable to comment on the matter at the time of press.

In January, a group of lawyers had forwarded this same case, concerning the arrest and detention of Criminal Court Chief Judge Abdulla Mohamed to the International Criminal Court.

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Court orders former President Nasheed confined to Male

The Hulhumale Magistrate Court has ordered that former President Mohamed Nasheed be confined to Male’, ahead of a court case concerning his detention of Chief Judge Abdulla Mohamed while in office.

“It’s a notice to the accused issued by the Hulhumale’ court and restricts his movements to Male’ City. The notice says he can only travel out of Male’ City with the prior permission of the Hulhumale’ Court,” said Chairperson of Nasheed’s Maldivian Democratic Party (MDP), Mariya Ahmed Didi.

Meanwhile, Nasheed was also summoned to the Civil Court on October 2 accused of defamation, for allegedly calling Defence Minister Mohamed Nazim a “traitor”. Police Commissioner Abdulla Riyaz has filed a similar case.

The restriction on Nasheed’s movements comes days before the party is due to begin its election campaign in the southern atolls, and days after Nasheed’s return from the UK where he met Foreign Secretary William Hague and spoke at the Royal Commonwealth Society.

“This is very serious for us as a party, because we have a huge campaign coming up in the south, from October 1-13,” explained the party’s spokesperson, Hamid Abdul Ghafoor, observing that a third of the party’s MPs also faced court action.

“We plan to visit most of the islands in the southern two provinces, and it’s all been scheduled. This all looks very ‘Myanmar’ – using the courts and administrative manipulation to restrict political party activity. At a time when President Waheed is lobbying the Commonwealth to remove the Maldives from its human rights watch-list, his regime has detained the leader of the opposition.”

President’s Office Media Secretary Masood Imad told Reuters that the ruling was a judicial matter and that the government would not interfere.

However Ghafoor contended that while “Waheed likes to hide behind the fig leaf of judicial independence, the UN Human Rights Council, Amnesty International and other NGOs have highlighted that the judiciary is bias and effectively controlled by elements in the regime.”

The Department of Judicial Administration has meanwhile told local media that the travel ban was routine for defendents in upcoming court cases.

“It is standard procedure followed by all courts to necessitate those accused in a case to obtain permission from the relevant court to leave the country under Article 23 and 24 of the Court regulation,” a court official told Haveeru.

Nasheed, together with former Chief of Defense Forces Moosa Ali Jaleel, retired Brigadier-General Ibrahim Mohamed Didi and Colonel Mohamed Ziyad, are accused of illegally detaining Chief Criminal Court Judge Abdulla Mohamed during Nasheed’s final days in office.

Nasheed’s government accused the judge of political bias, obstructing police, stalling cases, having links with organised crime and “taking the entire criminal justice system in his fist” so as to protect key figures of the former dictatorship from human rights and corruption cases.

Nasheed justified the judge’s arrest based on his constitutional mandate to protect the constitution, after the Judicial Services Commission (JSC) complied with an injunction from the civil court preventing further investigation of the judge for ethical misconduct, and the failure of Parliament’s Independent Commissions Committee to hold the judicial watchdog accountable.
The then-opposition began nightly protests over the matter, while the government sought assistance from the UN and Commonwealth for urgent judicial reform. However Nasheed resigned on February 7 amid a police and military mutiny the day after the Commonwealth team arrived.

General Didi, who was serving as the Male’ area commander at the time of Judge Abdulla’s arrest, penned his “premature” resignation” after 32 years of service in the military upon the Prosecutor decision to prosecute him.

Ex-Chief of Defence Force Jaleel had also retired following the controversial transfer of power on February 7, while Colonel Ziyad has maintained he would be present in his uniform to defend himself in the court.

The case was sent to Hulhumale Court rather than the Criminal Court in Male’ due to apparent concerns over a conflict of interest, however it was initially rejected by the court on the courts it did not have the jurisdiction to hear the case.

The court was obliged to accept the case on resubmission by the Prosecutor General after a High Court appeal. Despite the case being sent to Hulhumale, the trial is to be held in the Justice Building in Male’.

Nasheed has specifically been charged with violating Article 81 of the Penal Code, which states that the detention of a government employee who has not been found guilty of a crime is illegal.

If found guilty, Nasheed will face a jail sentence or banishment for three years or a Rf 3000 (US$193.5) fine, a sentence that would bar him from contesting the elections.

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Comment: Law as an instrument of political power – CoNI and the coup, part two

This article originally appeared on DhivehiSitee. Republished with permission.

Using the law as an instrument of political power is not a new thing for governments, be they ‘established democracies’ or not.  A prime example is how the Bush administration (ab)used the United States Constitution to circumvent international law on acts of war, to justify Guantanamo Bay, torture, extraordinary rendition and to deny justice and human rights to suspected terrorists in the War on Terror.

The government of Dr Waheed – which, incidentally, is enjoying the full backing of the current US administration – too, has proven itself to be a dab hand at (ab)using the law as an instrument of political power. The CoNI Report, which found there was no coup, mutiny or duress involved in the transfer of power on 7 February 2012, is a case in point.

The first part of this series looked at how CoNI approached the investigation with a foregone conclusion: there was no coup. As discussed, CoNI then began a process of putting together all evidence that supported this conclusion while systematically excluding, or discarding as irrelevant, any evidence that refuted or cast doubt over the said predetermined conclusion.

CoNI approached laws relating to the transfer of power on 7 February in the same manner as it did the facts surrounding it. Laws were picked and chosen as applicable only if they supported CoNI’s foregone conclusion: the change of government was Constitutional. Any part of the Constitution or existing laws that could be applied to refute the said conclusion or challenge its validity were ignored, glossed-over, deliberately misquoted, or dismissed as mere ‘protocol’.

Take, for instance, the following statement:

With regard to the idea that there was a ‘coup d’état’, nothing in the Maldives changed in constitutional terms – indeed, the Constitution was precisely followed as prescribed.

Yes, the Constitution remains unchanged. But that does not automatically mean that the transfer of power ‘precisely followed’ the Constitution ‘as prescribed’. This is a conclusion that can only be deemed legal by abusing law and making a mockery of the principles of the rule of law.

CoNI’s use of the law as an instrument of political power is most blatantly evident in the sections of the Report dealing with (a) presidential succession and (b) resignation and succession. It discusses as relevant to this issue six Articles of the Constitution: 108, 100, 112 (b),  112(d), 121, and 123 (b). Each of them appears to have been selected precisely to prove a particular point, which when taken together, supports the CoNI conclusion that the transfer of power was constitutional.

Article 108 is deemed relevant in this section, for instance, solely to remind the people that sometime ago, in 2008, when they voted for Nasheed, they also voted for Waheed as his running mate. As noted by the Legal Review of the Report by a team of Sri Lankan lawyers, it is an inherently limited argument that

[…] purports to construe the change of power or justify the change of power in terms of what had transpired 3 years ago rather than what had transpired in the present.

Regardless, CoNI uses it to demonstrate that, by law, it matters little that they voted for him not as their leader but as the leader’s deputy. Only when considered separately from the fact that thousands of people now suspect the very same deputy of having caused their leader’s downfall—and when taken in isolation from the various other aspects discussed below—does Article 108 allow Waheed to become someone that can even remotely be regarded as an ‘elected’ president.

Article 100–which deals with the legal means of removing a President from office–is mentioned in the Report, but is not discussed as deserving of note. Given the predetermined conclusion of CoNI, that there was no duress involved in the President’s resignation, the Article of the Constitution is indeed irrelevant.

Articles 112 (b) and (d) deal with eventualities requiring the Vice President’s succession to office of the President.

Article 121(a), which deals with details of a President’s resignation letter, meanwhile, helps establish that because Nasheed wrote the letter in his handwriting, it must be valid and legal. Once President’s Nasheed’s claims that he wrote the letter under duress are dismissed as ‘baseless allegations’ (having excluded any evidence to the contrary), then Article 121 makes perfect sense.

The letter is in Nasheed’s handwriting (written under what circumstances matters not) and it was delivered to the leader of the Majlis (how and by whom did not matter). When looked at in this sort of fantastical isolation, Article 121 can, indeed, be interpreted as validating the document as legal.

Article 114, meanwhile, is cited almost in full:

An incoming President or Vice President shall assume office upon taking and subscribing, before the Chief Justice or his designate, at a sitting of the People’s Majlis, the relevant oath of office set out in Schedule 1 of this Constitution.

Interestingly, although cited in the CoNI Report as the law relevant to ‘resignation and succession’, the Report pays scant subsequent attention to it. In fact, much like the JSC’s dismissal of Article 285 of the Constitution as ‘symbolic’, the CoNI Report dismisses the stipulations of Article 114 as mere ‘protocol’.

The Presidential oath, as stated in the Constitution, requires the incoming President to say his own name in the oath. ‘I, Mohamed Waheed Hassan Manik…’ Chief Justice Ahmed Faiz Hussein, who administered the oath,  did not include Waheed’s name in its composition. Similar problems affected US President Barack Obama’s swearing in ceremony in January 2009. The remedy then was for Obama to re-take the oath exactly as prescribed in the Constitution. The current Maldivian government, and the CoNI Report, in contrast, chose to ignore the glaring omission in Waheed’s oath, as if it mattered little.

At a stretch, this is a matter that can be dismissed as a breach of protocol.

But the same cannot be said for the requirement in Article 114 that the new President must take the oath of office at a sitting of the People’s Majlis.  President Waheed took the oath office at a ceremony held in the privacy of a room in the Majlis premises, with only his wife, the Chief Justice, Speaker Abdulla Shahid and a few administrative staff as audience and witnesses. This is not simply a bungled oath.

Neither is it, as the CoNI Report claims, a ‘possible non-compliance’ of ‘protocols which had been created for general office management.’

Precisely where the presidential oath is taken is not simply a matter of housekeeping, nor merely a matter of deciding on which venue is free or most conveniently accessible for the occasion. If the Constitution were to be ‘followed precisely as prescribed’, and if Waheed has been properly sworn in as the President of the Maldives, it would have been done at a sitting of the people’s Majlis.

Is Waheed a caretaker president?

Something starts to smell really rotten when it comes to issues surrounding this question. First, the Report glosses over the fact that the oath administered to Dr Waheed to enable his accession to the presidency was one meant for a caretaker president.

Take the fact, for example, that although it is Article 114 that CoNI cites in reference to Dr Waheed’s oath, in reality the oath administered to Waheed is the one stipulated in Article 126:

Any person temporarily discharging the duties of the office of the President or Vice President shall take and subscribe before the Chief Justice or his designate, the relevant oath of office set out in Schedule 1 of this Constitution.

This is an oath which is not required to be taken in front of the Majlis, for it is not meant for a President proper. And, although the CoNI report makes no mention whatsoever to Article 126, this is the oath that is administered to Waheed. That is what Speaker Shahid says before the oath is administered. Watch the video:

Having stated that Nasheed has resigned under Article 121(a) of the Constitution, this is what Speaker Shaid says (at 1:11):

I, therefore, request of the Vice President, Dr Mohamed Waheed Hassan Manik, to take the oath as stipulated in Article 126 of the Constitution enabling him to carry out the responsibilities of the President.

Article 126. Not Article 114.

To cite Article 114 to justify an action taken under Article 126, as the CoNI Report did, is to deliberately mislead the public into believing that we have a President proper rather than a Vice President temporarily assigned the responsibility of carrying out the duties of the President—until such time as there could be a president proper.

This deliberate deceiving of the pubic is further shored up by blatant disinformation, or to put it less kindly, by a blatant lie.

Below is a screen shot of an extract from page 22 of the CoNI Report. Note the highlighted section, and what it states as the contents of Article 123(b) of the Constitution.

CoNI misleads

This is not factual information.

What Article 123(b) says in reality is this:

The ‘subsequent election, permanent incapacity or death’ which the CoNI Report falsely states as contained in Article 123 (b) of the Constitution, in reality, appears in Article 124 (b) in relation to the permanent incapacity of both the President and the Vice President together. It is, therefore, not relevant to the circumstances surrounding the transfer of power on 7 February 2012.

Note that even then, the person who assumes the office of the President does so in a temporary capacity.

If the Constitution were precisely followed as prescribed, as the discussions above show, Waheed is a caretaker president; someone who is temporarily in charge of carrying out the duties of the President until a President proper – that is, a president elected by the people of the Maldives – is sworn in under Article 114.

Even though CoNI and the current Coalition Government, which set CoNI up and also administered the caretaker oath to Dr Waheed, knows this full well, it has chosen to selectively apply parts of the Constitution – and at times deliberately lie – to force the public as a whole to accept him as the ‘elected’ (recall the use of Article 108) President of the Republic of Maldives. Something which he is not.

Why?

Because it is the only ‘legal’ way in which the current government can withhold from the Maldivian people their right to a free and fair election – which must be held as soon as possible – so the caretaker president can be replaced by the President proper, be it Waheed, Nasheed or someone else.

Getting around the mutiny

A group of police and military personnel refused to obey the orders of their Commander in Chief on 6th and 7th February 2012. This is documented in CoNI’s own Timeline, which it describes in the Report as the most solid foundation for its conclusion that there was no coup. Therefore, even for an institution that proved so adapt at twisting the law to suit its facts, there was no getting around the fact that the armed forces—for whatever reason—disobeyed their leader. This was a mutiny:

mutiny |ˈmyoōtn-ē|

noun ( pl. -nies)

an open rebellion against the proper authorities, esp. by soldiers or sailors against their officers : a mutiny by those manning the weapons could trigger a global war | mutiny at sea.

So how does CoNI absolve the mutinying armed forces of any responsibility in the transfer of power? First it points out that ‘there is no definition of the expression “coup d’etat’ in Maldivian law’, implying that because the Maldivian law has so far failed to define the term, no transfer of power, no matter how illegally affected, cannot be deemed a coup.

Then it notes that there are several statutory provisions that do define rebellion as an offence against the State punishable by law, but promptly dismisses them as inapplicable because, even if there was such a thing as a coup, the open rebellion of the armed forces cannot be deemed a coup because it occurred before the coup.

This position is nothing short of ridiculous: the only thing that can be considered a coup under this definition is the actual act of assumption of power by a new President – the act of swearing in, in this case. Everything that comes before it, leads to it, triggers it, is the catalyst of it, and/or is the direct cause of it, according to this position, is irrelevant and inconsequential.

Yet, this is the position CoNI takes: because the rebellion of the armed forces can neverbe a coup per se even if it directly leads to one, any such mutiny cannot be punished as an offence against the State.

By (ab)using the law in this manner, CoNI is thus able to make a military and policecoup d’etat against the State impossible—even if it occurred in broad daylight and was witnessed, in real time, by the entire nation. In this manner, the police and the armed forces, and the three men who commandeered them and guided them through the rebellion, are all absolved of responsibility and made immune from prosecution for not just their disobedience of authority but also its consequences: the end of a democratically elected government.

Given CoNI’s abuse of rule of law – using the law as its primary instrument – it would be a travesty against the very concept of democracy for its Report to be accepted and endorsed as the definitive truth, and as a legally binding document that settles once and for all the many disputes that surround the transfer of power in the Maldives on 7 February.

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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Nasheed fighting back: ETN Global Travel News

Speaking in London after meetings with British and Commonwealth officials, former Maldivian President Mohamed Nasheed said that despite his reservations regarding the decision of the Commission of National Inquiry (CNI), he no longer expected the international community to say it was a coup or to attempt his reinstatement, reports Rita Payne for ETN Global Travel Industry News.

He was, however, worried that a standard had been set by the President of the Maldives who is accused of being the perpetrator of the coup.

“I can understand that in a diabolical sense in some rationale, because if the Commonwealth says that it was a coup, they must correct it, and that in their mind can be very untidy, so they would rather say yes it was constitutional – but this means that we have not been able to break from our traditions of the mob taking over and forcing governments or power to be transferred.”

Nasheed argued passionately for the Commonwealth Ministerial Action Group not to drop the Maldives from its agenda when it meets in New York this week. He feared that the Commonwealth would send out the wrong signal if the transfer of power in the Maldives was deemed to be legitimate and it no longer monitored the observance of democratic and civil rights in the country.

“If we are off the CMAG agenda, I can’t see how focus can be brought upon the situation and issues in the Maldives. We must remain on the CMAG agenda. I would be with the view that if the CMAG cannot be engaged in the Maldives and if they remove the Maldives from their agenda I don’t think that any dialogue would continue, and I feel that we would all end up in jail. So it’s really up to the international community and more specifically the Commonwealth countries to decide if they would want to support democracy in the Maldives.”

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No party members on Judgement Day: Vice President

Vice President Mohamed Waheed Deen has stated that political parties should refrain from breaking up unity among the people. He stated that all Maldivians belong to “one family” and should have a sense of kinship.

Speaking at the inauguration of the 5th Meeting of SAARC Ministers of Interior and Home, Waheed Deen said that Maldivians used to treat each other with respect and empathy, but that these traits were no longer present.

“We cannot even distinguish who among us are friends anymore. However, Judgement Day is a day in which we can no longer stay with members of our parties,” Waheed Deen said.

Waheed Deen stated that regardless of differences that could be seen at present, all humans come from the same roots. He noted that for this reason everyone needs to treat each other with mutual respect. Waheed Deen stated that politics and political ideologies were no reason to cause animosity between people.

Speaking about the objectives of the SAARC Home Ministers’ meeting, Waheed Deen stated that the main issues to be covered were the global concerns around internal and external security and safety.

The vice president expressed hope that discussions would be held, and solutions would be put forward for issues of high concern to the Maldives; including piracy, drug trafficking, human trafficking and terrorism.

Waheed Deen repeatedly stressed on the importance of mutual respect and unity, stating it would lead to faster national development.

SAARC Secretary General Ahmed Saleem and Minister of Home Affairs Mohamed Jameel Ahmed also spoke at the meeting today. The issues of numerous security risks in the region were highlighted in both speeches, along with the intention to discuss the matter further during today’s meeting.

The 5th Meeting of SAARC Ministers of Interior and Home is being held at Bandos Island Resort and Spa, owned by Vice President Waheed Deen.

Earlier this week, the Fifth Meeting of the SAARC Immigration Authorities was also conducted. Immigration Controller Mohamed Ali expressed concern over illegal immigration to Europe and money laundering through Maldives.

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Maldives a mid-point for illegal immigration to Europe, money laundering: Immigration Controller

Controller of Immigration Mohamed Ali  on Monday expressed concern that the Maldives was being used as a mid-point for money laundering and illegal immigration to Europe.

Speaking at the Fifth Meeting of the SAARC Immigration Authorities, Ali said that while it was a rising concern that illegal immigrants were making their way to Europe via the Maldives, there was also the matter of African nationals attempting to enter the Maldives itself illegally.

Ali pointed out that people from African countries like Nigeria were entering the Maldives, which he said would lead to problems.

“Now for example, if people like those from Nigeria start entering the Maldives, you all know what sort of problems this can give rise to. That is because Nigerians don’t have much of a reputation when it comes to certain things,” the Controller said.

Stating there was a chance that Maldivians were involved in assisting the illegal immigration, Ali said this should therefore be a matter of huge concern for the country.

“We haven’t received any information about Al-Qaeda. Nevertheless, we have been getting other sorts of information,” Ali said.

“There is all sorts of organised crime coming in now from all sides. It isn’t just terrorism,” he said.

Ali went on to say that people on the Interpol watch-list had been intercepted attempting to enter the Maldives a number of times. A few of these persons have been found after entering the country.

He highlighted the importance of working more closely with Interpol and of strengthening the border control system in order to prevent such crimes from continuing.

Speaking to Minivan News today, Mohamed Ali further said that he hoped the Maldives Monetary Authority (MMA) would now consider the implications of money laundering happening in the country.

“What I meant to say is that there are risks of all these activities happening in the Maldives. Our intention is for MMA to plan and start taking action about the issue of money laundering,” Ali said.

The current border control system is operated by Nexbis, and is at present a contentious matter. The Anti-Corruption Commission has recently approached parliament’s Finance Committee about the issue.

The Maldives has meanwhile been on the US State Department’s tier 2 watch list for human trafficking for three years’ running.

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Police investigating MDP MP Sameer for “creating public mistrust” towards the Supreme Court

The Maldives Police Service are investigating MDP MP Ahmed Sameer over allegations of creating public mistrust towards the Supreme Court.

Sameer is Vice Chair of parliament’s Independent Commissions Oversight Committee, responsible for oversight of the judicial watchdog, among others.

The case was filed by the Department of Judicial Administration on September 12, with reference to an interview Sameer had given to local newspaper Haveeru.

The interview, published on 6 September, focused on the Supreme Court ruling against Anti-Corruption Commission (ACC) regarding the border control system, and the ensuing statement by ACC.

In the interview, Sameer is quoted as saying, “I am concerned that the Supreme Court has not considered the ACC’s mandate, it’s future and it’s objective. The Supreme Court will need to take responsibility for the all barriers to stopping corruption caused by this ruling.

“The commission has now been made a toothless lion. That isn’t right. The ACC must have the authority to obtain court orders. It won’t be easy to do this through the PG everytime,” he continued.

Sameer had further described the court ruling as having a personal prejudice behind it. He said, “I see it as a personal decision. This is because at a time when ACC is investigating corruption allegations against the Supreme Court itself, the court has made a ruling which takes away the ACC’s powers.”

Haveeru Deputy Editor, Hussain Fiyaz Moosa, was summoned to police offices on Monday. He was asked for confirmation as to whether the quotes attributed to Sameer in the article were actually said by him.

Police Media Official Sub-Inspector Hassan Haneef has said that the investigation is ongoing. He confirmed that Sameer had not yet been summoned for questioning.

Department of Judicial Administration has earlier filed a case against MDP Chairperson and MP ‘Reeko’ Moosa Manik, who is now to appear in court for having ‘opened his own court’ last year.

MP Ahmed Sameer’s phone was switched off at the time of press. Local media has reported that he is out of the country.

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Comment: Demand to nationalise airport threatens relationship with India

The sudden and inexplicable way in which an ‘investor-row’ involving the Indian infrastructure group, GMR, is getting a new twist in recent days in Maldives, if unchecked, has the potential to rock bilateral relations.

Coming just days after the successful visit of Indian Defence Minister A K Antony to the atoll-nation, the demands for the ‘nationalisation’ of the Ibrahim Nasir International Airport (INIA) in Male has left a bad taste. The larger questions however concern the internal political dynamics of Maldives, whose emerging international economic image could impact on the investment-climate when the nation can ill-afford any reversal in FDI inflows.

It was Antony’s second visit to Maldives in three years as Defence Minister, and the only one from another nation holding the post to have visited Maldives in recent history. It was also the first visit by an Indian Minister after the regime-change in Male in February this year.

Going by the joint statement issued on the occasion, the visit and the discussions reportedly were productive for both sides, indicating a greater level of security cooperation between the two South Asian neighbours. Among others, India has promised a new Defence Ministry building, an additional helicopter for the fledgling air arm of the Maldivian National Defence Force (MNDF) and naval personnel to help with the maintenance of the Maldivian fleet.

Minister Antony used the occasion to inaugurate the India-aided military hospital in Male with expert personnel on hand, and also laid the foundation for a police training school.

There is an acknowledged need for greater professionalisation of the Maldivian security forces. It has become necessary in the light of the events of the past years and more, when it became clear that the bifurcation of what once used to be known as the National Security Service (NSS) has not served the purpose. In a fledgling multi-party democracy, the uniformed forces came to be a burden to transition even after electoral changes had effected a quiet political transition three years ago.

The Maldives also wants military hospitals in the atolls, which could then be thrown open for serving the common man in the remote islands. Given the increasing levels of bilateral security cooperation between the two countries, New Delhi will also be posting a Defence Attache at the Indian High Commission in Male. At present, the Indian Defence Attache at Colombo, Sri Lanka, is also in charge of India’s specific security interests in Maldives.

Increasing relevance of sea-lines

The Indian initiatives come in the wake of the bilateral, bi-annual Dhosti-XI Coast Guard exercises that were put in place after the coup bid in 1988, which was aborted after India rushed immediate military help. This year’s edition of the exercises also involved neighbouring Sri Lanka, considering that all three nations face shared threats to peace and tranquillity of their shared Indian Ocean waters. Indications were that extra-territorial nations had shown an interest in these maritime exercises, which were promptly kept out, given the immediacy and relevance of the issues, like ‘Somali piracy’ in the shared neighbourhood.

The realisation in India and Maldives for increased offshore military cooperation flows from the increasing relevance of the Indian Ocean sea-lines to the overall geo-strategic concerns of the global community, starting with ‘energy security’. It has been equally reflected in on-shore policy and decision-making in New Delhi, which used to be reciprocated in more than a full measure in Male over the past decades.

In recent times, however, the non-security centric Indian interests and concerns in Maldives have seen enough ups and downs, threatening to unsettle the process, time and again.

This has often resulted in the Governments and policy-makers of the two countries having to start clearing the mess already generated before they could start off on something new. This has had the potential to put the clock back on bilateral cooperation. The delays often get attributed to India, particularly the institutionalised democratic decision-making processes inherent to the Westminster model of parliamentary democracy. Oftentimes, the reverse may be true. The current criticism and opposition to the INIA project, coming as it does from most partners in the government of President Mohamed Waheed, is only the latest in the series, but it also has the potential to rock the boat more violently than in the past, for a variety of reasons.

One agreement, multiple crises

All this does not mean that the government, polity and people of Maldives may not have reservations about the ‘INIA agreement’, which essentially is a lease deed with elements of large-scale investments for modernisation, thrown in, for the tourism-driven economy to upgrade the Male airport to international standards.

Some of the issues being flagged two years after the signing of the agreement – and after substantial progress has been made on the ground – are factors the like of which are involved in any private sector investment in any country. It would be more so when those investments are of overseas origin.

Maldivian political parties that were opposed to the airport contract, when signed, are in power at present. If nothing else, their constituencies would expect them to review the policy that they had derided when in the opposition.

In the Indian context, the ‘civilian nuclear deal’ with the US, and the on-going opposition protests against the sanctioning of ‘FDI in retail trade’, can be parallels. If any or many of them are to return to power at a future date, the political opposition in the country would be called upon to revisit their positions on such issues. Either they accept the ground realities as they existed at that time, or revise the government policy on issues of the kind. These are different from other charges of corruption, for these ones do not involve any complaints of fiscal wrong-doing or loss to the government, per se.

Unlike in India, on the airport deal in Maldives, policy issues, allegations of procedural violations, possibilities of other wrong-doing and loss to the government have all been aired already. Some of them, like the charge that the previous government had circumvented constitutional mandates and legal provisions in the process, or had not acted with care on the prioritisation of contractual conditions and obligations all relate to the domestic front. What they may have to deal with the foreign investor, India’s GMR in this case, are something flowing from the former, but are also independent of the same.

The current phase of the protests owe to President Waheed Hassan’s letter to all parties participating in his government for their views on the matter, for the government to put the inherited problem in the backburner to the mutual satisfaction of all stake-holders. At the end of the day, the airport deal is huge and unprecedented in procedural and financial terms for the country. There is also a need to evolve national consensus on issues and procedures in particular if a successor government has to uphold the national commitments made by a predecessor.

It should in context involve the opposition Maldivian Democratic Party (MDP) of predecessor Mohamed Nasheed at some stage, if ‘consensus-building’ has to make sense to the domestic constituencies and means commitment for the investor company from overseas, from whichever part of the world they come from. It was in the absence of such a consensus when the Nasheed government cleared the deal that the entire issue has been raked up all over again by a successor-government. ‘Due diligence’ became a possibly casualty to political expediency, all round.

The result is that the same agreement has come to be played out politically for a second time in as many years. Earlier, when the agreement was ready for signing, it brought together the divided opposition parties on the same firing-line against the government. They cited various violations of laws and procedures. The after-thought of a parliamentary legislation, directing prior legislative clearance for ‘transfer of national assets’ to private parties, led to the government of the day crying foul, and all 13 nominated members of the cabinet quitting in haste.

Today, when all those parties are in government together, the revival of the issue has threatened the government. One of the government partners, namely, the Dhivehi Rayaththunge Party (DRP) has argued that the government would not have the kind of monies required to pay back the contractor if the deal was rescinded. A few others have called for the ‘nationalisation’ of the airport while some have described it more clearly and carefully as ‘taking it back’. In the process, attributing motives to the DRP leadership and the questioning of their ‘nationalism’ have begun threatening the stability of the government.

That the inherent differences within the ruling coalition cannot but come out in the open once the common adversary in President Nasheed and his MDP had been neutralised was known even to a casual observer of coalition politics the world over. It is written into any coalition arrangement. In Maldives, it reflects a perception of lessening political challenge posed by the MDP, among the partners in the ruling alliance. Such perceptions and decisions based on such perceptions can come to trouble the alliance, just as a perception of a ‘social alliance’ that the MDP thought it had at its disposal when in power failed the party when and where it mattered.

Not different from tourism FDI

This is not the first time that Maldives is faced with policy issues pertaining to overseas’ investments. FDI has been at the centre of the resorts-driven tourism industry, which in turn continues to be the backbone of Maldivian economy over the past decades. The country is yet to find a substitute or a supplementary to the same. So dependent has the economy been on tourism that every global meltdown and every tsunami-like natural catastrophe has upset the Maldivian apple-cart, thankfully to revive in good time and through innovative approaches.

Yet, when the tourism economy evolved, the policy involved long-term lease of individual islands/islets for the foreign investor to build his resort, market it mostly to foreigners, and also repatriate his profits in dollars, and without going through the Maldivian banking system. There were no tabs or restrictions other than the payment of ‘bed tax’ on a pro rata basis to the Maldivian government. The policy has paid very rich dividends to the economy of Maldives, changed the face of the country and has inspired individual Maldivians to aspire for more.

The evolution and implementation of the nation’s tourism policy owed mainly to the presence of a strong and single leadership at the helm through those formative years of what should be acclaimed as the modern, Maldivian economic success story. President Maumoon Abdul Gayoom’s three-decade long rule also helped reach out modern education and healthcare across the atolls, but through the state system. The Gayoom regime adopted a combination of divergent economic policies that benefited the nation on the fiscal front and the people on the socio-economic front.

Through the Gayoom initiative, an imaginative mix of overboard globalisation in the South Asian region of the times at the level of revenue-generation and the socialistic pattern of distribution of the nation’s income made wonders. Neighbouring Sri Lanka was the closest (in terms of geography) and immediate (chronologically) neighbour to experiment with market capitalism. Yet, close to 35 years down the line, the results of the combination are mixed at best in Sri Lanka. In Maldives, however, it has been an unqualified success.

Under the Maldivian scheme, tourism industry, structured as a policy and product of the norms of market economy generated funds for the government to take the benefits of education and healthcare to the largest yet dispersed sections of a dis-spirited society. The benefits in terms of national growth and individual’s development have all occurred in front of the present-day generation, and they have relished and cherished them, too. It is the model that could be said to have been applied to the airport modernisation lease contract, too, though on details of procedure and benefits, there could be differences, both of concepts and of consequent opinions.

In a limited way at least, the airport development and long-lease of the existing reconstruction and accompanying reimbursement of the investment should thus be seen as an extension of the previous policy that the Nasheed government had inherited and explored for further exploitation for the medium and long-term benefits of the people at large. On a related issue, of course, the Nasheed government may have departed from the set norms and practices that did rise the hackles then as now. Included in the list was the decision to grant resort licenses in ‘inhabited islands’, interfering with local culture and also the Islamic tenets against sale and consumption of liquor.

‘Nationalism’ and ‘nationalism’

It is in this context a closer look needs to be given to the demands for the ‘nationalisation’ of the airport. For starters, INIA continues to be owned by the Maldivian State and Government, the GMR has been given only a long lease of the same. To demand ‘nationalisation’ would thus be a travesty of the truth, and challenges the nation’s inherent and inalienable right – which anyway has not been alienated. In a nation where the State owns all the land, such a construct could also hit at (though not at all in the legal sense) later claims for a return of the property to the State when due. If nothing else, it could create a mood of resignation, not just of reservation if only over decades, which in turn is at the heart of the current protests, instead.

GMR at no point in time is known to have demanded ownership of the airport, to begin with. It is thus clear that the State cannot nationalise what it already owns, and continues to own. Worse still, given the traditional meaning attaching to a terminology like ‘nationalisation’, street-demands for the same in the context of INIA could sent jitters down the spines of all those who have already invested hugely on the resort-islands, benefitting all stake-holders in the process.

Unless otherwise proscribed, what may apply to other lessees of islands should apply to whichever lessee of the airport islands, be – as long as it is for development against the payment of lease money and on prescribed conditions for a fixed period of time. The reverse should also be true the same way – what is sought to be applicable to the single largest investor in the nation’s history could be applied to lesser mortals without anyone being wiser of any unforeseeable situation when an agreement is signed or a situation is created, later.

It is not unlikely that there may still be a need for the Maldivian Government to revisit the lease-policies as a whole and applying the yardstick to the GMR deal too. Whether such changes could be specific to a particular project or agreement, or can have retrospective effect is a question that needs to be agitated in the context of the individuality or otherwise of individual agreements involved. However, responsibility needs to be restored to the national dialogue and clarity evolved through a consensus process, lest any foreign investor – existing one or a future one – would have doubts of his own on entry-exit terms and timelines.

Product of sweat and toil

All this does not preclude the present-day sentiments attaching to what has since been rechristened as INIA in the living generation of middle-aged Maldivians and above, particularly so those in Male. The airport was a product of their sweat and toil, and literally so. As students and youth in their growing-up years, they had contributed physical labour and whatever a poor nation could afford for the up-gradation of the airport in the mid-Seventies. Both sentimentally and politically, it had contributed in some ways to the Independence of the Maldivian protectorate from the British ‘Protector’. The airport is thus of a sentimental value to many grown-up in the country.

All this should not mean that the ‘sovereignty’ of the Maldivian state and the security of its territory should be reduced to be identified with the airport near-exclusively in parlour discussions, if not national discourses. If the argument is that the INIA is a tool for defending the sovereignty of the nation and its territorial integrity, there are other, smaller airports across the country, including those for the dozens of hovercraft dotting the lower skies, which are all vehicles of economic growth, not military-threat. So has been INIA, barring the one occasion, when the Indian Air Force (IAF) was called upon to defend the airport and the nation through it, from marauding mercenaries in 1988.

Yet in the new millennium for those who made the airport possible in the first place, and their younger generation to confuse ‘nationalism’ with ‘sovereignty’, raising arguments based on such perceptions would not help the nation, after a point. The spirit and phraseology are not inter-changeable, nor can they be inter-mingled in legal and commercial terms, either. Arguments thus based on non-existent linkages could make for good politics, but would not contribute to good policy. They have to be separated and addressed as individual aspects – but addressed they should be.

Despite a further expansion and growth of resort-tourism in the country, the limitations for the future are being systematically exposed. The Maldives does not have answers to the ever-increasing demands on the economy, whose expansionist pace is slowly coming to a grinding halt. With no scope for unlimited advent of manufacturing or even the services sector, as a money-spinner and/or forex-earner, the country would have to look at infrastructure as a source for attracting investments and creating the kind of jobs that the average Maldivian youth will be happy with, and paid for, in full measure.

Reviewing investment policy is one thing, but revisiting an individual contract is another. The two shall not meet – and the nation cannot afford it if the matter is allowed to drag on either. The alternative should be to learn from the mistakes, if any, and apply correctives where possible to the issues on hand – and also in revisiting the policy for the future. That alone would help.

Profitability, vulnerability

It is in this context investments from across the world have to be assessed for their overall profitability for the Maldivian people and economy, and the relative vulnerability that such arrangements could throw the nation into. In the current phase of the expansion of the Maldivian economy and growth, small-time investments in international/regional relevance would not suffice, as used to be the case for the funds requiring for putting up a resort or two. Either foreign governments or international agencies will have to put in the money, which will be in the form of repayable credit, even if at a low rate of interest and over the long term.

The alternative, which comes without any political or fiscal tag, over the medium and the long-term, is to encourage FDI, particularly in the infrastructure sector, where the foreign investors’ perceived propensity for political mischief over time would be minimal, as against their investments in the stock market, for instance. There are no repayment-tags attaching to such investments, but for the licensed fees, which however have to be negotiated with care and foresight.

Over time, the experiences of other nations have shown that investor-nations have often used their investments and repayments to muscle their political way in the host-nation, through the short, medium and long-terms. In their case, the repayment terms and schedules hang over the nations’ head like the Damocles’ Sword. Against this, overseas-investor has often been seen as a friend and advocate of the host-nation in his native land, in political, economic and security terms. The lessor-nation does not have to repay him with interest, with profligacy and bad-planning in the interim adding to the fiscal and economic vows of Governments as mightier nations have been over the past years.

In its place, a carefully-negotiated lease agreement provides for his recouping his investment-cost with interest over in a calibrated time-period. What may thus be required at the moment is re-negotiation of the INIA agreement on the one hand, and the need for the Maldivian government and legislature to fix certain loopholes that they might have found in their existing policies and procedures, possibly with the view to evolving a consensus approach, which had eluded the nation on this score in the past. Therein may lie the solution now to the Maldivian airport row, too – not elsewhere or otherwise!

The writer is a Senior Fellow at Observer Research Foundation.

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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ACC approaches Finance Committee over Nexbis system

The Anti-Corruption Commission (ACC) has told Parliament’s Finance Committee that the deal with Malaysian mobile security provider Nexbis will cost the Maldives MVR 2.5 billion (US$162 million) in potential lost revenue over the lifetime of the contract.

The border control system is now up and running at Ibrahim Nasir International Airport (INIA), after a Supreme Court ruling in early September favouring Nexbis ended almost two years of efforts by the ACC to block the project.

Under the ‘build operate and transfer’ (BOT) agreement with Nexbis, the government is obliged to pay Nexbis US$2 for every foreign passenger processed and US$15 for every work permit for the 20 year lifespan of the contract. Nexbis remains responsible for the upgrading, servicing and administration of the system.

Former Immigration Controller Abdulla Shahid has expressed concern over both the cost and necessity of the project, calculating that with continued growth in tourist numbers Nexbis would be earning US$200 million in revenue over the 20 year lifespan of the agreement.

At five percent, royalties to the government would come to US$10 million, Shahid said, when there was little reason for the government not be earning the revenue itself by operating a system given by a donor country.

“The option was there to establish the system for free,” stated ACC President Hassan Luthfee, revealing that the US government had offered a free system in 2009.

“Even the Indian government had offered to do it for free. On the other hand this could have been done for MVR2.3-2.5 million. So we can’t believe that this should be done at such a high cost,” Luthfee told the committee.

Other contentions raised by the ACC included a “questionable” project evaluation, which the commission alleged violated protocols of the National Planning Council.

“The National Planning Council’s protocols say that anything passed by the council cannot be changed by any other relevant institution unless it is sanctioned by the Council itself or the ministerial cabinet. But without following the said two protocols, Immigration made major changes to the proposal,” ACC’s investigation officer Mohamed Sodig was reported as saying in local media.

Evaluations and bid criteria had been unclear, the ACC alleged, further claiming that the validity of the Nexbis bid had been 90 days which had expired at the time the price bids were opened.

“We tried to determine whether the validity of the proposal or bid of Nexbis had been extended. However, we failed to find a single document that had done so, and marks had been given for Nexbis’ price bid,” Sodig was reported as stating.

The commission also claimed that minutes for one government meeting to discuss the project had taken place during prayer time on Friday October 15, 2010, which the commission claimed was “highly suspicious in a 100 percent Muslim country”.

The ACC also contended that the charging of a fee for passengers and foreign workers constituted a tax and was in violation of Article 97 of the constitution, requiring parliamentary approval for new or altered taxation. In an apparent precedent, a similar ruling from the Civil Court in late 2011 overruled airport developer GMR’s ability to levy an Airport Development Charge (ADC), despite this being stipulated in the developer’s concession agreement with the government.

The Supreme Court has meanwhile cleared the way for the border control project, invalidating an earlier injunction from the High Court.

The move prompted complaints from the ACC, which expressed concern and frustration over the decision stating that it has put the commission in a state of limbo and deprived it of purpose.

“If this institution is simply an investigative body, then there is no purpose for our presence,” he said. “Even the police investigate cases, don’t they? So it is more cost effective for this state to have only the police to investigate cases instead of the ACC,” Luthfee said at the time.

Outside the dispute over its legality, with the project now running the collection of biometric data by immigration allows the government to identify people without paper documents – useful in a country where a third the population are imported workers, and where the confiscation of passports by employers is common practice.

The reaction from tourists to the new system has however been mixed.

“The immigration process now takes a lot of time to complete because they must now take fingerprints and pictures of people entering the country,” observed a German visitor.

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