The Maldivian Democratic Party (MDP) has called for protests following the arrest of former President Mohamed Nasheed by masked riot police on Monday morning.
Nasheed was in the Dhoonidhoo island detention centre on Monday night, awaiting his trial on Tuesday.
“October 8, 2012 will be remembered as the day that democracy died in the Maldives,” said MDP spokesperson Hamid Abdul Ghafoor in a statement.
“The reality is it has been on life-support since February, but today the plug was pulled and the lights turned off,” Ghafoor said.
Thirty-four members of the MDP’s National Council met following Nasheed’s arrest and declared that they would present information about Nasheed’s situation at 8:00pm on Monday evening, before calling for protests.
Nasheed defied a travel ban and multiple summons from the Hulhumale’ Magistrate Court, after his party disputed the legitimacy of the court and labelled the charges against him as a politically-motivated effort to sabotage the party’s southern atoll election campaign, and Nasheed’s candidacy in the next presidential election.
“There is huge contention whether Hulhumale’ Court has been granted powers by the law to try any case whatsoever,” wrote former chair of the committee that drafted the 2008 constitution, Ibrahim ‘Ibra’ Ismail.
“The Constitution says very clearly that trial courts will be defined and created by law. When Parliament created courts by the Judicature Act, there was no “Hulhumale’ Court” designated as a Magistrates Court. The Supreme Court itself is still sitting on the case of the validity of the Hulhumale’ Court. It was created by the Judicial Service Commission (JSC), without authority derived from law,” wrote Ismail.
“Therefore the validity of any orders or judgements issued by this court is questionable, and the Constitution says no one has to obey any unlawful orders, ie orders which are not derived from law. Therefore, President Nasheed’s decision to ignore the summons has more than reasonable legal grounds,” he stated.
Ismail further noted that court summons were routinely ignored without consequence by political figures allied with the current government, observing that People’s Alliance (PA) MP and Deputy Speaker of Parliament Ahmed Nazim had defied 11 summons before appearing in court over corruption charges.
“Impunity can only be matched by impunity,” Ismail stated.
“The outlook appears to be rather bleak. There will be chaos. There already is. It may worsen. And then, if we are lucky, out of chaos will emerge order. But what kind of order it will be depends on which paradigm wins. At this point in time, I would tentatively suggest it may be religious extremism.”
Morning arrest
Nasheed was arrested on the southern island of Fares-Mathoda, where he was reportedly scheduled to meet the Danish Ambassador, and was put on a speedboat bound for Male’ where he is due to appear in court on Tuesday.
Saleema Mohamed, a participant of the campaign trip, was inside the living room when the police entered the house, noted an MDP statement.
“They pushed their way in, hurting anyone inside the house. Minister Aslam asked them repeatedly to calm down and to not hurt anyone. He was saying: ‘this is my house’. The police shoved him and pushed him and he fell on the glass table and broke the table,” Saleema said.
According to the party’s statement, “the police forcefully entered Aslam’s house, barging onlookers out of the way. They used shields, batons as well as foul language at the people gathered near the house. Nasheed’s former Minister of Foreign Affairs, Ahmed Naseem, and former Press Secretary Mohamed Zuhair, were pepper sprayed by the police and violently dragged from the house, while the police also removed members of parliament from the scene.”
Police Spokesperson Sub-Inspector Hassan Haneef earlier stated that “there was no trouble. Nasheed was very cooperative,” but was unable to confirm whether police had used pepper spray.
President’s Office Media Secretary Masood Imad said the office wished to “stay clear of this matter.”
“We have asked the Maldives Police Service to notify media of any developments. We know as much as the [media] about developments,” he said.
Defence Minister Mohamed Nazim has meanwhile launched a second case against former President Nasheed, seeking MVR 3.75 million (US$243,506) in compensation for defamation after Nasheed called him a “baghee” (traitor).
Nasheed’s lawyer, former Human Resources Minister Hassan Latheef, said Nasheed would defend himself by proving that the allegations were true.
US Embassy statement
The US Embassy in Colombo has issued a statement urging “all parties to find a way forward that respects Maldivian democratic institutions, the rule of law and the Maldivian constitution, as well as protects human rights and fundamental freedoms.”
“We urge all sides to remain calm, reject the use of violence and to avoid rhetoric that could increase tensions. It is our expectation that former President Nasheed be given every due process that the law allows,” the embassy stated.
“In response to statements that somehow the United States was involved in the detention of former President Nasheed, the Embassy strongly denies that claim,” it added.
“We note that all US law enforcement cooperation [with the Maldives] includes activities that focus on professionalisation and professional development of the police and places special emphasis on the need to adhere to international standards of human rights and the strengthening of democratic institutions and the rule of law.”
Masked police in gas masks and riot gear have stormed a house on Fares-Mathoda in Gaaf Dhaal Atoll and taken former President Mohamed Nasheed into custody.
The arrest follows the Hulhumale Magistrate Court yesterday issuing a warrant for Nasheed’s arrest and presentation in court on Tuesday October 9.
Maldivian Democratic Party (MDP) MPs Imthiyaz Fahmy and Ilyas Labeeb were also taken into custody, along with former Minister of Environment Mohamed Aslam.
An MDP source on the island told Minivan News the three were not arrested but had accompanied Nasheed voluntarily.
“They did not want to let him be taken alone,” said the source, claiming that 50 police were involved in the operation to break down the door and take the country’s first democratically-elected President into custody.
MDP Chairperson Reeko Moosa Manik said police broke down the door of the house and pepper sprayed the former President.
“Everybody was masked and in riot gear, and we couldn’t identify any of the police officers,” Moosa said.
Police Sub-Inspector Hassan Haneef confirmed that Nasheed would be returned to Male’ where he will be presented in court tomorrow.
Haneef said that Nasheed had been taken at around 9:45am.
“There was no trouble. Nasheed was very cooperative,” Haneef said, but was unable to confirm whether police had used pepper spray.
President’s Office Spokesperson Abbas Adil Riza tweeted on October 5 that “After Tuesday morning either you are with us or with the enemy. There is no negotiation or middle ground after Tuesday,” however Minivan News is trying to confirm whether Riza was referring to the trial of Nasheed or last week’s murder of Progressive Party of the Maldives (PPM), Dr Afrasheem Ali.
Riza was not responding at time of press. However President’s Office Media Secretary Masood Imad told Minivan News that the government had not been contacted by any foreign governments or international organisations expressing concern over the detention of the former President.
“We have asked the Maldives Police Service to notify media of any developments. The President’s Office wishes to stay clear of this matter,” he said. “We know as much as the [media] about developments right now.”
Masood added that he had been informed that despite allegations raised by the MDP concerning alleged use of excessive force to seize the former president, police authorities had said insisted that officers had acted with restraint.
“I’m told [Nasheed] asked for a box of cigarettes, a request that [officers] granted. He was given Benson and Hedges as I understand,” Masood said.
Charges against Nasheed
The issuing of the warrant – exactly seven months after Nasheed’s ousting – follows his defiance of a court-ordered travel ban outside the capital Male’, and two court summons.
The MDP has disputed the legitimacy of the Hulhumale court and three-member panel of judges appointed to oversee the proceedings, and sought to appeal in the High Court.
The party today called on the Supreme Court to declare the Hulhumale Court illegitimate, and announced its intention to launch protests.
The specific charge against the former President concerns his detention of Chief Judge of the Criminal Court, Abdulla Mohamed, during his final days in office.
Nasheed’s government justified the judge’s detention on the basis of national security, claiming he had “taken the entire criminal justice system in his fist”, and that the institutions mandated with keeping the judiciary accountable – the Judicial Services Commission (JSC) and Parliament’s Independent Commissions Committee – were politically manipulated by the former regime.
The state alleges that Nasheed violated 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 MVR 3000 (US$193.5) fine, a sentence that would bar him from contesting future elections.
Nasheed and his Maldivian Democratic Party (MDP) reacted last week by rejecting the authority of the country’s lower courts, contending that the trial was a politically-motivated attempt to prevent Nasheed from running in the 2013 Presidential election.
The MDP said yesterday that the party was “deeply disturbed and worried” about the decision to arrest the party’s presidential candidate, “and produce him to a widely disputed court.”
“The MDP notes with grave concern the state proceeds to prosecute President Nasheed while the UNHRC, ICJ, CoNI report, Amnesty International, FIDH, other leading human rights groups and our bilateral partners have expressed deep concerns over the independence and competence of the Maldivian judiciary,” the party said.
“We are currently on presidential campaign trail by boats in the Southern atolls. This trip has been organized for months and immediately after the dates of the trip were announced, the courts decided to summon our candidate to a court that is unlawfully established. Leading experts and lawyers have questioned the legitimacy of this court,” MDP spokesperson Hamid Abdul Ghafoor.
“This is not about justice. This is a politically motivated trial to invalidate our candidate’s candidacy and to deliberately disrupt the MDP’s presidential campaign. We are in the largest voting centers and it is very clear who will win the elections. They can only win the elections by invalidating his candidacy. We are deeply disturbed by the developing situation. We do not believe he will have a fair trial,” said Ghafoor.
Return to prison
Nasheed became the Maldives’ first democratically elected President in 2008, ending the 30 year rule of Maumoon Abdul Gayoom, Asia’s longest serving leader.
Under Gayoom’s rule Nasheed spent 18 months in jail, including long periods in solitary confinement, and was declared an Amnesty prisoner of conscience.
He resigned from office on February 7 after police and military officers joined forces with opposition demonstrators and assaulted the country’s military headquarters and state broadcaster. Leadership passed to his Vice President, Dr Mohamed Waheed Hassan.
A Commonwealth-backed domestic inquiry in August concluded that the transfer of power was legitimate, however the MDP alleged key testimonies were overlooked and evidence dismissed.
The controversial transfer of power has resulted in months of political instability and a growing culture of violence and impunity in the Maldives, more famous for its upmarket tourist resorts and celebrity clientele.
A moderate Islamic scholar and MP of the government-aligned Progressive Party of the Maldives (PPM), Dr Afrasheem Ali, was stabbed to death outside his home on October 1, the country’s 10th murder this year.
Nasheed arrest follows the resignation yesterday of Head of the Police Integrity Commission (PIC) Shahinda Ismail, citing “major differences in opinion” with other PIC members.
A PIC report into police brutality during the February 8 crackdown contained contradictory findings, alleging that police action was justified by destruction of property. However Commissioner Shahinda disavowed the finding and stated that the police action was against the law as there was no evidence of illegal activity by demonstrators.
Shahinda’s husband, Deputy Prosecutor General Hussain Shameen, also resigned, claiming he was going to study for his masters in the UK.
Today’s scheduled hearing of former Minister of Defence Tholhath Ibrahim Kaleyfaan and Maldives National Defence Force (MNDF) Colonel Mohamed Ziyad has been postponed after one of the three judges on the panel took sick leave, local media has reported.
Thalhath and Ziyad join other MNDF officers Moosa Ali Jaleel and Ibrahim Mohamed Didi (retired) as well as former President Mohamed Nasheed in being charged with Article 81 of the penal code.
Haveeru reported that no new date has been set.
If found guilty, Nasheed and Tholhath will face a jail sentence or banishment for three years or a Rf 3000 fine (US$193.5).
Nasheed’s hearing was scheduled for Monday was cancelled after he failed to present himself in court and instead left Male’ to campaign in the southern atolls, in defiance of a travel ban.
The department of judicial administration yesterday confirmed that police were to produce Nasheed at a rescheduled hearing at 4:00pm on Sunday, October 7.
Nasheed’s legal team last week voiced concerns that the Hulhumale’ Magistrate Court had been assembled illegally, with judges “handpicked” in contravention of the Judicature Act.
Additional reporting Daniel Bosley, Mariyath Mohamed and Mohamed Naahii.
Former President Mohamed Nasheed departed Male’ today to participate in his party’s ‘Vaudhuge Dhathuru’ (Journey of Pledges) campaign in the southern atolls, defying a court order that he remain in the capital.
Nasheed’s departure contravenes an order from the Hulhumale Magistrate Court last week that Nasheed be confined to Male’ ahead of his court trial, which was to be conducted at 4:00pm today.
Journalists in the courtroom were required to undergo heavy security screening and were stripped of mobile phones, recording equipment and notepads. However, 20 minutes later a court official stated that the hearing was cancelled as the defendant and his lawyers had failed to appear. A new date was not set.
Nasheed meanwhile held a rally from atop a yellow flagged dhoni in front of 500 demonstrators near the petrol jetty in the south of Male’, before departing with five vessels and hundreds of supporters. Minivan News observed no police presence in the area.
“Once they started to set up a fabricated court, bring in judges who are not judges of that court, and the whole structure of it is so… politically motivated, it is very obvious it is not meant to serve justice,” Nasheed told the BBC.
“We intend to find out in this trip to what extent we were able to fulfil our pledges during this party’s period in government,” Nasheed told his supporters. “This is a journey of pledges. This is a journey for justice. This is a journey where we become one with the citizens.”
The party and its senior leadership will visit over 30 islands during the 14 day trip, taking in the atolls of Gaafu Alif, Gaafu Dhaalu, Fuvahmulah and Addu.
Meanwhile, the court hearing was to be the first in the case concerning Nasheed’s detention of Chief Judge of the Criminal Court, Abdulla Mohamed, while in office.
Nasheed also faces charges of defaming Police Commissioner Abdulla Riyaz and Defence Minister Mohamed Nazim as “traitors”, following February 7’s controversial transfer of power. The first hearing in Riyaz’s case has been postponed indefinitely.
Nasheed’s Maldivian Democratic Party (MDP) has expressed deep concern over the legality of the court’s procedures regarding the trials, which it contends are a politically-motivated attempt to convict the former president and prevent him from running in future Presidential elections.
Following the court-ordered travel ban on Nasheed ahead of the party’s southern atoll election campaign, the MDP announced that it would no longer recognise the authority of the courts in the Maldives until changes proposed by international entities were brought to the judicial system.
“This all looks very ‘Myanmar’ – using the courts and administrative manipulation to restrict political party activity,” said MDP MP and Spokesperson Hamid Abdul Ghafoor at the time.
“While President Waheed was lobbying the Commonwealth to remove the Maldives from its human rights watch-list, his regime had detained the leader of the opposition.”
“Canada is deeply troubled by the reported September 25 travel ban of former President Nasheed in Malé,” said Baird.
“The recently adopted Commission of National Inquiry (CNI) report has raised substantial concerns about the independence of the judiciary. That too causes Canada grave concern as we strive to assure independent open elections in the Maldives,” he added.
“President Waheed offered no substantial defence of these questions, which is a telling response in itself,” said Baird. “Canada finds the declining state of democratic values in the Maldives alarming and deeply troubling.”
The court has maintained that the travel restriction is normal procedure for defendants ahead of court trials.
The case
Nasheed’s controversial decision to detain Judge Abdulla in January 2012 followed the judge’s repeated release of former Justice Minister – and current Home Minister – Dr Mohamed Jameel, in December 2011, whom the government had accused of inciting religious hatred over the publication of his party’s pamphlet, ‘President Nasheed’s devious plot to destroy the Islamic faith of Maldivians’.
Nasheed’s government further 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, among other allegations.
Nasheed justified the judge’s arrest based on his constitutional mandate to protect the constitution. Judge Abdulla had in September 2011 received an injunction from the Civil Court preventing his investigation by the Judicial Services Commission (JSC), the watchdog tasked with overseeing the judiciary, which complied with the ruling.
Parliament’s Independent Commissions Committee, the body mandated with holding the judicial watchdog accountable, took no interest in the matter.
The then-opposition began nightly protests over the judge’s detention, 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.
Judge Abdulla was released, and the Criminal Court issued a warrant for Nasheed’s arrest. The warrant was not acted upon.
Former Defence Minister Tholhath, former Chief of Defence Force Major General Moosa Ali Jaleel, Brigadier Ibrahim Mohamed Didi and Colonel Mohamed Ziyad are also facing charges for their role in detaining Judge Abdulla in January 2012.
The charges include a breach of article 81 of the Penal Code: “Arresting an innocent person intentionally and unlawfully by a state employee with the legal authority or power vested to him by his position is an offence. Punishment for a person guilty of this offence is imprisonment or banishment for 3 years or a fine of MVR 2000 (US$129.70).”
“The full story”
Former President’s Member on the JSC, Aishath Velezinee, has written a book extensively documenting the watchdog body’s undermining of judicial independence, and complicity in sabotaging the separation of powers.
Over 80 pages, backed up with documents, evidence and letters, The Failed Silent Coup: in Defeat They Reached for the Gun recounts the experience of the outspoken whistleblower as she attempted to stop the commission from re-appointing unqualified and ethically-suspect judges loyal to former President Maumoon Abdul Gayoom, after it dismissed the professional and ethical standards demanded by Article 285 of the constitution as “symbolic”.
That moment at the conclusion of the constitutional interim period marked the collapse of the new constitution and resulted in the appointment of a illegitimate judiciary, Velezinee contends, and set in motion a chain of events that ultimately led to President Mohamed Nasheed’s arrest of Abdulla Mohamed two years later.
According to Velezinee, “the assumption that Abdulla Mohamed is a constitutionally appointed judge is based on a false premise, a political creation [which] ignores all evidence refuting this.”
“Judge Abdulla Mohamed is at the centre of this story. I believe it is the State’s duty to remove him from the judiciary. He may have the legal knowledge required of a judge; but, as the State knows full well, he has failed to reach the ethical standards equally essential for a seat on the bench.
“A judge without ethics is a judge open to influence. Such a figure on the bench obstructs justice, and taints the judiciary. These are the reasons why the Constitution links a judge’s professional qualifications with his or her moral standards,” she wrote.
“There is no legal way in which the Civil Court can rule that the Judicial Service Commission cannot take action against Abdulla Mohamed. This decision says judges are above even the Constitution. Where, with what protection, does that leave the people?” Velezinee asked.
“The Judicial Service Commission bears the responsibility for removing Abdulla Mohamed from the bench. Stories about him have circulated in the media and among the general public since 2009, but the Commission took no notice. It was blind to Abdulla Mohamed’s frequent forays outside of the ethical standards required of a judge. It ignored his politically charged rulings and media appearances.
“Abdulla Mohamed is a man who had a criminal conviction even when he was first appointed to the bench during President Maumoon Abdul Gayoom’s time. Several complaints of alleged judicial misconduct are pending against him. The Judicial Service Commission has ignored them all. What it did, instead, is grant him tenure – a lifetime on the bench for a man such as Abdulla Mohamed. In doing so, the Judicial Service Commission clearly failed to carry out its constitutional responsibilities. It violated the Constitution and rendered it powerless.”
Talk about spoiling the mood: If you’re going to the Maldives for a romantic getaway, the islands’ deposed president has a great suggestion for you: Settle into your hotel room, then watch his trial on TV, reports Katrina Brown Hunt for Travel and Leisure.
Depending on whom you ask, Mohamed Nasheed either stepped down, or was ousted, from office earlier this year. Either way, he is now facing charges of abusing his power and will be tried by what he calls a “kangaroo court.”
The former prez says that tourists should know that some luxury resorts may have backed his coup after he had hoped to market the islands – which has long attracted both honeymooners and A-list guests such as Tom Cruise, Jennifer Aniston and Mick Jagger—to more middle-income travelers.
While normally we wouldn’t advise holing up with the telly during an island getaway, this trial could have compelling entertainment value, kangaroos notwithstanding, thanks to the colorful Nasheed.
While still in power, for instance, Nasheed once held a cabinet meeting underwater, to call attention to climate change. Today, he’s also concerned that the current administration wants to do away with kissing on beaches. “We grew up kissing each other on the beach,” he told reporters, “so it seems strange that our children won’t be allowed to do it.” Strange indeed.
“Canada with others fought to keep Maldives on the Commonwealth Ministerial Action Group agenda, and we are glad it remains there,” said Canadian Foreign Minister and member of the Commonwealth Ministerial Action Group (CMAG), John Baird.
“We will continue to focus on anti-democratic activities in the Maldives, especially in terms of police brutality, and intimidation of opposition parliamentarians,” said Baird in a statement released by the Canadian government.
“Canada is deeply troubled by the reported September 25 travel ban of former President Nasheed in Malé,” he added.
Baird’s statement evinces a level of confusion following CMAG’s decision yesterday to revoke the Maldives’ suspension from participation in the group’s affairs, whilst retaining it under the ‘matters of interest’ on its agenda.
Local media immediately ran with the headline “CMAG removes Maldives from official agenda” whilst the Home Minister Mohamed Jameel Ahmed tweeted, “Congratulating Maldives, CMAG has removed Maldives from its Agenda, it proves that the current government is for Rule of Law.”
Baird, present at yesterday’s meeting alongside President Dr Mohamed Waheed Hassan, expressed his concern at Waheed’s response when he was asked “about the persecution of 19 Maldives Democratic Party (MDP) politicians and party officials.”
“President Waheed offered no substantial defence of these questions, which is a telling response in itself,” said Baird. “Canada finds the declining state of democratic values in the Maldives alarming and deeply troubling.”
“The recently adopted Commission of National Inquiry report has raised substantial concerns about the independence of the judiciary. That too causes Canada grave concern as we strive to assure independent open elections in the Maldives,” he added.
The MDP last week documented such instances of perceived harassment in a press release titled “Immunity Watch Maldives”.
The CMAG meeting coincided with a nationwide demonstration by Nasheed’s Maldivian Democratic Party (MDP) in protest against Nasheed’s travel ban which the courts have defended as standard practice.
MDP spokesman Imthiyaz Fahmy told Minivan News that the 7,000 people marched around the island yesterday afternoon what he described as “one of the biggest [protests] in recent times.”
He stated that there had been no confrontations with police, a fact confirmed by Police Spokesman Sub–Inspector Hassan Haneef who confirmed that there had been no arrests.
At the MDP’s National Executive Council, local media reported former Minister of Housing Mohamed Aslam as saying that Nasheed would not comply with the court-issued travel ban following the party’s decision to reject the authority of the courts.
“We are prepared to do the necessary to get him onboard. We are willing to sacrifice, to ensure that Nasheed does not lose his presidential candidacy. We will not give in. We are prepared follow Nasheed to prison,” Aslam is reported as saying.
Nasheed’s legal team expressed its deep concerns over the legality of the court’s procedures regarding Nasheed’s multiple trials regarding defamation of cabinet ministers and the detention of Chief Judge Abdulla Mohamed.
Nasheed was scheduled to travel to the Southern atolls as part of his campaign for the constitutionally mandated elections in 12 months time.
Imthiyaz confirmed that Nasheed would be travelling with the party on Monday although he was unsure as to whether the former president would be in court tomorrow for the first of his two defamation cases.
Nasheed had previously requested that the criminal case regarding Abdulla Mohamed be expedited and was reported as being keen to have his day in court.
Baird’s statement pledged Canada’s intention to “forcefully” raise its concerns at subsequent CMAG meetings in order to ensure the Commonwealth’s values of democracy, human rights and the rule of law are not violated.
CMAG’s power to protect these values was strengthened during a meeting of the Commonwealth Heads of Government (CHOGM) in Perth in 2009.
During a speech made during the United Nations General Assembly (UNGA) earlier this week, President Waheed made aimed a thinly veiled attack at the Commonwealth, questioning the 54-member organisation’s commitment to equity and the rule of law.
Previous expressions of concern regarding politicisation of the legal process made by Baird at the beginning of August were condemned by the Maldivian government as “one-sided” and “misleading”.
This article originally appeared on DhivehiSitee. Republished with permission.
Using the law as an instrument of political power is not a new thing for governments, be they ‘established democracies’ or not. A prime example is how the Bush administration (ab)used the United States Constitution to circumvent international law on acts of war, to justify Guantanamo Bay, torture, extraordinary rendition and to deny justice and human rights to suspected terrorists in the War on Terror.
The government of Dr Waheed – which, incidentally, is enjoying the full backing of the current US administration – too, has proven itself to be a dab hand at (ab)using the law as an instrument of political power. The CoNI Report, which found there was no coup, mutiny or duress involved in the transfer of power on 7 February 2012, is a case in point.
The first part of this series looked at how CoNI approached the investigation with a foregone conclusion: there was no coup. As discussed, CoNI then began a process of putting together all evidence that supported this conclusion while systematically excluding, or discarding as irrelevant, any evidence that refuted or cast doubt over the said predetermined conclusion.
CoNI approached laws relating to the transfer of power on 7 February in the same manner as it did the facts surrounding it. Laws were picked and chosen as applicable only if they supported CoNI’s foregone conclusion: the change of government was Constitutional. Any part of the Constitution or existing laws that could be applied to refute the said conclusion or challenge its validity were ignored, glossed-over, deliberately misquoted, or dismissed as mere ‘protocol’.
Take, for instance, the following statement:
With regard to the idea that there was a ‘coup d’état’, nothing in the Maldives changed in constitutional terms – indeed, the Constitution was precisely followed as prescribed.
Yes, the Constitution remains unchanged. But that does not automatically mean that the transfer of power ‘precisely followed’ the Constitution ‘as prescribed’. This is a conclusion that can only be deemed legal by abusing law and making a mockery of the principles of the rule of law.
CoNI’s use of the law as an instrument of political power is most blatantly evident in the sections of the Report dealing with (a) presidential succession and (b) resignation and succession. It discusses as relevant to this issue six Articles of the Constitution: 108, 100, 112 (b), 112(d), 121, and 123 (b). Each of them appears to have been selected precisely to prove a particular point, which when taken together, supports the CoNI conclusion that the transfer of power was constitutional.
Article 108 is deemed relevant in this section, for instance, solely to remind the people that sometime ago, in 2008, when they voted for Nasheed, they also voted for Waheed as his running mate. As noted by the Legal Review of the Report by a team of Sri Lankan lawyers, it is an inherently limited argument that
[…] purports to construe the change of power or justify the change of power in terms of what had transpired 3 years ago rather than what had transpired in the present.
Regardless, CoNI uses it to demonstrate that, by law, it matters little that they voted for him not as their leader but as the leader’s deputy. Only when considered separately from the fact that thousands of people now suspect the very same deputy of having caused their leader’s downfall—and when taken in isolation from the various other aspects discussed below—does Article 108 allow Waheed to become someone that can even remotely be regarded as an ‘elected’ president.
Article 100–which deals with the legal means of removing a President from office–is mentioned in the Report, but is not discussed as deserving of note. Given the predetermined conclusion of CoNI, that there was no duress involved in the President’s resignation, the Article of the Constitution is indeed irrelevant.
Articles 112 (b) and (d) deal with eventualities requiring the Vice President’s succession to office of the President.
Article 121(a), which deals with details of a President’s resignation letter, meanwhile, helps establish that because Nasheed wrote the letter in his handwriting, it must be valid and legal. Once President’s Nasheed’s claims that he wrote the letter under duress are dismissed as ‘baseless allegations’ (having excluded any evidence to the contrary), then Article 121 makes perfect sense.
The letter is in Nasheed’s handwriting (written under what circumstances matters not) and it was delivered to the leader of the Majlis (how and by whom did not matter). When looked at in this sort of fantastical isolation, Article 121 can, indeed, be interpreted as validating the document as legal.
Article 114, meanwhile, is cited almost in full:
An incoming President or Vice President shall assume office upon taking and subscribing, before the Chief Justice or his designate, at a sitting of the People’s Majlis, the relevant oath of office set out in Schedule 1 of this Constitution.
Interestingly, although cited in the CoNI Report as the law relevant to ‘resignation and succession’, the Report pays scant subsequent attention to it. In fact, much like the JSC’s dismissal of Article 285 of the Constitution as ‘symbolic’, the CoNI Report dismisses the stipulations of Article 114 as mere ‘protocol’.
The Presidential oath, as stated in the Constitution, requires the incoming President to say his own name in the oath. ‘I, Mohamed Waheed Hassan Manik…’ Chief Justice Ahmed Faiz Hussein, who administered the oath, did not include Waheed’s name in its composition. Similar problems affected US President Barack Obama’s swearing in ceremony in January 2009. The remedy then was for Obama to re-take the oath exactly as prescribed in the Constitution. The current Maldivian government, and the CoNI Report, in contrast, chose to ignore the glaring omission in Waheed’s oath, as if it mattered little.
At a stretch, this is a matter that can be dismissed as a breach of protocol.
But the same cannot be said for the requirement in Article 114 that the new President must take the oath of office at a sitting of the People’s Majlis. President Waheed took the oath office at a ceremony held in the privacy of a room in the Majlis premises, with only his wife, the Chief Justice, Speaker Abdulla Shahid and a few administrative staff as audience and witnesses. This is not simply a bungled oath.
Neither is it, as the CoNI Report claims, a ‘possible non-compliance’ of ‘protocols which had been created for general office management.’
Precisely where the presidential oath is taken is not simply a matter of housekeeping, nor merely a matter of deciding on which venue is free or most conveniently accessible for the occasion. If the Constitution were to be ‘followed precisely as prescribed’, and if Waheed has been properly sworn in as the President of the Maldives, it would have been done at a sitting of the people’s Majlis.
Is Waheed a caretaker president?
Something starts to smell really rotten when it comes to issues surrounding this question. First, the Report glosses over the fact that the oath administered to Dr Waheed to enable his accession to the presidency was one meant for a caretaker president.
Take the fact, for example, that although it is Article 114 that CoNI cites in reference to Dr Waheed’s oath, in reality the oath administered to Waheed is the one stipulated in Article 126:
Any person temporarily discharging the duties of the office of the President or Vice President shall take and subscribe before the Chief Justice or his designate, the relevant oath of office set out in Schedule 1 of this Constitution.
This is an oath which is not required to be taken in front of the Majlis, for it is not meant for a President proper. And, although the CoNI report makes no mention whatsoever to Article 126, this is the oath that is administered to Waheed. That is what Speaker Shahid says before the oath is administered. Watch the video:
Having stated that Nasheed has resigned under Article 121(a) of the Constitution, this is what Speaker Shaid says (at 1:11):
I, therefore, request of the Vice President, Dr Mohamed Waheed Hassan Manik, to take the oath as stipulated in Article 126 of the Constitution enabling him to carry out the responsibilities of the President.
Article 126. Not Article 114.
To cite Article 114 to justify an action taken under Article 126, as the CoNI Report did, is to deliberately mislead the public into believing that we have a President proper rather than a Vice President temporarily assigned the responsibility of carrying out the duties of the President—until such time as there could be a president proper.
This deliberate deceiving of the pubic is further shored up by blatant disinformation, or to put it less kindly, by a blatant lie.
Below is a screen shot of an extract from page 22 of the CoNI Report. Note the highlighted section, and what it states as the contents of Article 123(b) of the Constitution.
This is not factual information.
What Article 123(b) says in reality is this:
The ‘subsequent election, permanent incapacity or death’ which the CoNI Report falsely states as contained in Article 123 (b) of the Constitution, in reality, appears in Article 124 (b) in relation to the permanent incapacity of both the President and the Vice President together. It is, therefore, not relevant to the circumstances surrounding the transfer of power on 7 February 2012.
Note that even then, the person who assumes the office of the President does so in a temporary capacity.
If the Constitution were precisely followed as prescribed, as the discussions above show, Waheed is a caretaker president; someone who is temporarily in charge of carrying out the duties of the President until a President proper – that is, a president elected by the people of the Maldives – is sworn in under Article 114.
Even though CoNI and the current Coalition Government, which set CoNI up and also administered the caretaker oath to Dr Waheed, knows this full well, it has chosen to selectively apply parts of the Constitution – and at times deliberately lie – to force the public as a whole to accept him as the ‘elected’ (recall the use of Article 108) President of the Republic of Maldives. Something which he is not.
Why?
Because it is the only ‘legal’ way in which the current government can withhold from the Maldivian people their right to a free and fair election – which must be held as soon as possible – so the caretaker president can be replaced by the President proper, be it Waheed, Nasheed or someone else.
Getting around the mutiny
A group of police and military personnel refused to obey the orders of their Commander in Chief on 6th and 7th February 2012. This is documented in CoNI’s own Timeline, which it describes in the Report as the most solid foundation for its conclusion that there was no coup. Therefore, even for an institution that proved so adapt at twisting the law to suit its facts, there was no getting around the fact that the armed forces—for whatever reason—disobeyed their leader. This was a mutiny:
mutiny |ˈmyoōtn-ē|
noun ( pl. -nies)
an open rebellion against the proper authorities, esp. by soldiers or sailors against their officers : a mutiny by those manning the weapons could trigger a global war | mutiny at sea.
So how does CoNI absolve the mutinying armed forces of any responsibility in the transfer of power? First it points out that ‘there is no definition of the expression “coup d’etat’ in Maldivian law’, implying that because the Maldivian law has so far failed to define the term, no transfer of power, no matter how illegally affected, cannot be deemed a coup.
Then it notes that there are several statutory provisions that do define rebellion as an offence against the State punishable by law, but promptly dismisses them as inapplicable because, even if there was such a thing as a coup, the open rebellion of the armed forces cannot be deemed a coup because it occurred before the coup.
This position is nothing short of ridiculous: the only thing that can be considered a coup under this definition is the actual act of assumption of power by a new President – the act of swearing in, in this case. Everything that comes before it, leads to it, triggers it, is the catalyst of it, and/or is the direct cause of it, according to this position, is irrelevant and inconsequential.
Yet, this is the position CoNI takes: because the rebellion of the armed forces can neverbe a coup per se even if it directly leads to one, any such mutiny cannot be punished as an offence against the State.
By (ab)using the law in this manner, CoNI is thus able to make a military and policecoup d’etat against the State impossible—even if it occurred in broad daylight and was witnessed, in real time, by the entire nation. In this manner, the police and the armed forces, and the three men who commandeered them and guided them through the rebellion, are all absolved of responsibility and made immune from prosecution for not just their disobedience of authority but also its consequences: the end of a democratically elected government.
Given CoNI’s abuse of rule of law – using the law as its primary instrument – it would be a travesty against the very concept of democracy for its Report to be accepted and endorsed as the definitive truth, and as a legally binding document that settles once and for all the many disputes that surround the transfer of power in the Maldives on 7 February.
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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.”
President Dr Mohamed Waheed Hassan yesterday met with Secretary General of the United Nations Ban Ki-Moon in New York.
“Today I met with UNSG Ban Ki-moon,” read the President’s official Twitter feed. “Now that transfer of power is proven legitimate, he said it is time to move ahead with the nation.”
Waheed is in New York to address the 67th session of the United Nations General Assembly (UNGA) which opened last Tuesday.
“I will focus my address on the present treatment of smaller nations and special efforts to maintain independence and sovereignty of such nations. I will also touch on the way Maldives was treated by some of the larger countries,” he told Haveeru before his departure.
He is also reported to be attending the Commonwealth Ministerial Action Group (CMAG) meeting which meets annually in the wings of the UNGA.
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