GMR-Maldives arbitration to begin mid 2014: Attorney General’s Office

The Attorney General’s (AG’s) Office has confirmed that an arbitration case concerning the government’s decision to void its concession agreement with Indian Infrastructure giant GMR will begin by the middle of next year.

Deputy Solicitor General Ahmed Usham today told Minivan News that both parties had agreed to commence proceedings by the middle of 2014 and were now waiting on arbitrators to confirm the exact schedule for when their respective cases would be presented.

The initial agreement was reached after representatives for the state and GMR met in London, England on April 10 for a preliminary procedural meeting.  A timetable was agreed upon for holding hearings over the cancellation of a US$511 million contract to develop and manage a new terminal at Ibrahim Nasir International Airport (INIA).

Usham said that the hearing in London last week had been focused solely on establishing a timetable for when arbitration will begin proper in Singapore.

“It is quite straight forward in these procedural hearings.  We discussed the schedule for hearings, such as when cases would be presented, as well as when parties can reply and make counter claims,” he said. “These arbitrators are quite busy, so it can be difficult to manage time in their schedules.”

The AG’s Office has previously claimed that the Maldives will be represented by Singapore National University Professor M Sonaraja, while former Chief Justice of the UK, Lord Nicholas Addison Phillips, will represent GMR.

The arbitrator mutually agreed by both GMR and the government is retired senior UK Judge, Lord Leonard Hubert Hoffman.

Concession agreement

In 2010, GMR-Malaysia Airports Holdings Berhad (MAHB) consortium, the government of former President Mohamed Nasheed and Maldives Airport Company Limited (MACL) entered into a 25-year concession agreement worth US$511 million (MVR 7.787 billion). The agreement charged the GMR-MAHB Consortium with the management and upgrading of INIA within the 25 year contract period.

However, in November 2012, the government of President Dr Mohamed Waheed Hassan Manik declared the developer’s concession agreement void and ordered it to leave the country within seven days.

A last minute injunction from the Singapore High Court during arbitration proceedings was overturned on December 6, after Singapore’s Chief Justice Sundaresh Menon declared that “the Maldives government has the power to do what it wants, including expropriating the airport.”

GMR is seeking US$800 million in compensation for the sudden termination, while the Maldivian government is contending that it owes nothing as the contract was void ab initio – meaning the contract was invalid from the outset.

Should the argument of void ab initio fail, the government has claimed the second legal grounds on which it would argue in favour of termination of the contract would be that the contract had been ‘frustrated’.

‘Frustration of a contract’ is an English contract law doctrine which acts as a device to set aside contracts where an unforeseen event either renders contractual obligations impossible, or radically changes the party’s principle purpose for entering into the contract.

“The government has given a seven day notice to GMR to leave the airport. The agreement states that GMR should be given a 30 day notice but the government believes that since the contract is void, it need not be followed,” said then Attorney General Azima Shukoor.

The awarding of the bid in 2010 was overseen by the World Bank’s International Finance Corporation (IFC), which the Waheed government has accused of being “negligent” and “irresponsible”.

Should the matter be decided in the government’s favour, uncertainty remains as to the potential impact on foreign investor sentiment given the prospect of sudden asset seizure under the ‘void ab initio’ precedent.

If decided in GMR’s favour, the outcome of the case could potentially see the Maldives facing sovereign bankruptcy, with millions of dollars in additional debt emptying the state’s already dwindling reserves, crippling the country’s ability to obtain further credit, and potentially sparking an economic or currency crisis.


Small and Medium Enterprises Bill ratified by president

The Small and Medium Enterprises Bill was ratified by President Dr Mohamed Waheed yesterday (April 14) after being approved by parliament last month.

The bill, now published in the Government Gazette, outlines policies targeted at developing small, medium and micro-scale businesses in the country.

According to the President’s Office website, the bill includes numerous measures such as, outlining how to promote and develop small to medium size business.  Methods for monitoring and evaluating the effectiveness of government policies to support small and medium business are also included.

Other key considerations in the bill include supporting the sector to become sufficiently “innovative” and broad, while also ensure long-term national and international competitiveness.

The bill also calls for the establishment of a government-backed centralised registration system for companies, according to the President’s Office.


“Weakening faith” opportunity for foreign powers to influence Maldives: President Waheed

President Dr Mohamed Waheed has today spoken of his concern that the “weakening faith” of Maldivians was allowing unspecified “foreign powers” to increase their influence over the country’s  internal affairs.

Despite the number of differing political beliefs currently held by Maldivians, president Waheed called on the public to ensure that Islam and “national interest” were always their foremost priorities.

“Our national anthem, national flag, and national colours that symbolize the country should come first,” read an official statement quoting Dr Waheed that was posted on the President’s Office website today.

The opposition Maldivian Democratic Party (MDP) has meanwhile questioned President Waheed’s religious convictions, accusing him of being “double-faced” by trying to appeal to Islamists in the country for political gain, while claiming his comments more resembled the words of a “dictator”.

President Waheed made the comments today as he visited the island of Alifushi in North Maalhosmadulu Atoll as part of a tour to survey and break ground on a number of development projects in the area such as school and hospital constructions.

Speaking to local people on the island, President Waheed said that foreign powers would always seek to try and influence the country during times of conflict and instability.

Stressing the need for unity at both a national and community level, he therefore urged the public to try to prevent political views from coming between families.

President’s Office Media Secretary Masood Imad, who had not travelled with the president to Alifushi today, said he was not aware of the nature of the president’s comments when contacted this afternoon. Masood was not responding to calls for further clarification at time of press.

Unifying force

Meanwhile, MDP MP Hamid Abdul Ghafoor today rejected suggestions that President Waheed stood as a unifying force for Islam in the Maldives, accusing him of politicising the nation’s faith for his own gain.

“It is the mark of his total weakness in politics that [President Waheed] has put himself in this position,” he said. “There is no currency among the public in what he says.”

Hamid claimed that many Maldivians were aware that the president had sought to “play Islam” for political gain since he took office following the controversial transfer of power in February 2012.

President Waheed, who served as vice president under the former government, came to power after the resignation of former President Mohamed Nasheed following a mutiny by sections of the police and military.

Nasheed later alleged he had resigned under duress in what both himself and the MDP contend was a “coup d’etat”, despite a Commonwealth-backed Commission of National Inquiry (CNI) later concluding that President Waheed had come to power constitutionally.

Hamid alleged that President Waheed remained a “coup leader”, who had been backed by key businessmen in the country linked to its lucrative tourism industry.

“What is most bizarre is that it was certain tourism oligarchs who brought him to power.”

Coalition agreement

Just last month, President Waheed announced he would be forming a coalition between his Gaumee Ithihaad Party (GIP) and the religious conservative Adhaalath Party (AP) ahead of presidential elections scheduled for later this year.

The AP, one of five parties in the country meeting a recently approved regulation requiring any registered political body to have 10,000 registered members, is part of the coalition government of President Waheed following last year’s change in government.

Both Adhalaath and GIP do not presently have any elected members in parliament.

The religious conservative party was previously a coalition partner in the government of former President Nasheed, later leaving the government citing concerns at what it alleged were the irreligious practices of the administration.

This led the AP in December 2011 to join then fellow opposition parties – now members of Waheed’s unity government – and a number of NGOs to gather in Male’ with thousands of people to “defend Islam”.

During the same day, Nasheed’s MDP held their own rally held at the artificial beach area in Male’ claiming his government would continue to practice a “tolerant form” of Islam, reminding listeners that Islam in the Maldives has traditionally been tolerant.

“We can’t achieve development by going backwards to the Stone Age or being ignorant,” Nasheed said at the time.

Shortly after coming to power in February 2012, flanked by members of the new government’s coalition, President Waheed gave a speech calling on supporters to “Be courageous; today you are all mujaheddin”.

“Extremism” fears

Earlier this week, Dr Ahmed Shaheed, former Foreign Minister under both the governments of former Presidents Nasheed and Maumoon Abdul Gayoom, alleged that anti-semitism, racism, xenophobia and religious intolerance were “deeply entrenched” in political parties currently opposed to the MDP.

Dr Shaheed’s comments followed reports in local media summarising US Embassy cables first published by Wikileaks in 2009, and discussed during the then-opposition parliament’s efforts to impeach the foreign minister.

In particular, the Maldivian government’s engagement with Israel was the subject of a parliamentary debate November 9, 2009, in which Shaheed narrowly avoided impeachment following a no-confidence motion.

Opposition to the Maldives’ recognition of Israel was seized by then opposition groups in December 2011 as a sign of the Nasheed government’s “anti-Islamic” policies.

However, Dr Shaheed claimed that “Growing extremism hurts the Maldives rather than anybody else, because whenever a state is unable to deliver what is in the public interest due to intimidation from others, it is the state that suffers.”

Meanwhile, a recent report on extremism in the Maldives published in US West Point military academy’s Combating Terrorism Center (CTC) Sentinel has warned that growing religious extremism and political uncertainty in the country risk negatively affecting the country’s tourism industry.

“Despite its reputation as an idyllic paradise popular among Western tourists, political and religious developments in the Maldives should be monitored closely,” the report concluded.


President Waheed commences North Maalhosmadulu Atoll tour

President Dr Mohamed Waheed has today commenced a tour of North Maalhosmadulu Atoll in order to review the progress of island developments in the area.

According to the President’s Office website, he will be accompanied during the trip by First Lady Ilham Hussain.


Kuwait pledges to assist Maldives with infrastructure development

Amir of Kuwait Sheikh Sabah Al-Ahmad Al-Jaber had pledged to assist the Maldives with unspecified infrastructure projects following a meeting yesterday (April 2) with President Dr Mohamed Waheed, according to the President’s Office.

President Waheed met with the amir at the Bayan Palace as part of his official visit to Kuwait.

The president has also met with Kuwaiti Prime Minister Sheikh Jaber Al-Mubarak Al-Hamad Al-Sabah and National Assembly Speaker Ali Fahad Al-Rashed during the visit.


President Waheed to form election coalition with religious conservative Adhaalath Party

President Dr Mohamed Waheed has announced plans to form a coalition between his Gaumee Ithihaad Party (GIP) and the religious conservative Adhaalath Party (AP), ahead of presidential elections scheduled for later this year.

Writing on his personal Twitter account Thursday (March 28), President Waheed welcomed the support of the  AP, while expressing hope other undisclosed parties would be making similar announcements at a later date.

The AP tweeted the same day that its council have approved the coalition with the current president ahead of the September this year.

By yesterday (March 29), the AP tweeted that it aimed to “form a large, strong coalition” including other parties in the country to try and provide stability and prosperity in the Maldives following the presidential race.

The AP, one of five parties in the country meeting a recently approved regulation requiring any registered political body to have 10,000 registered members, is part of the coalition government of President Waheed following the controversial transfer of power that brought him into office in February 2012.

Both Adhalaath and GIP do not presently have any elected members in parliament.

The religious conservative party was previously a coalition partner in the government of former President Mohamed Nasheed, later leaving the government citing concerns at what it alleged were the irreligious practices of the administration.

This led the AP in December 2011 to join then fellow opposition parties – now members of Waheed’s unity government – and a number of NGOs to gather in Male’ with thousands of people to “defend Islam”.

During the same day, Nasheed’s MDP held their own rally held at the Artificial Beach area in Male’ claiming his government would continue to practice a “tolerant form” of Islam, reminding listeners that Islam in the Maldives has traditionally been tolerant.

“We can’t achieve development by going backwards to the Stone Age or being ignorant,” Nasheed said at the time.

Shortly after coming to power in February 2012, flanked by members of the new government’s coalition, President Waheed gave a speech calling on supporters to “Be courageous; today you are all mujaheddin”.

GIP Spokesperson Abbas Adil Riza, President’s Office Media Secretary Masood Imad and President of the Adhaalath Party Sheikh Imran Abdulla were not responding to calls regarding the coalition announcement today.

Diverging opinions

Despite the agreement to cooperate between the two parties, Waheed and the AP differ in their reaction to the recent controversial sentencing of a 15 year old rape victim to 100 lashes for fornication with another man.

President Waheed’s  stated on his official Twitter account at the time: “I am saddened by the sentence of flogging handed to a minor. Govt will push for review of this position.”

The Foreign Ministry subsequently expressed “deep concern by the prosecution and the Juvenile Court’s sentence to flog a 15 year-old girl on the charges of pre-marital sex.”

“Though the flogging will be deferred until the girl turns 18, the government believes she is the victim of sexual abuse and should be treated as such by the state and the society and therefore, her rights should be fully protected. The Government is of the view that the case merits appeal. The girl is under state care and the government will facilitate and supervise her appeal of the case, via the girl’s lawyer, to ensure that justice is done and her rights are protected,” the Ministry stated.

The President’s Office also recently announced it was looking at the possibility of bringing about reform to potentially bring an end to the use of punishments like flogging in the country’s justice system.

However the Adhaalath Party has publicly endorsed the sentence, stating that the girl “deserves the punishment”, as outlined under Islamic Sharia.

The party, members of which largely dominate the Maldives’ Ministry of Islamic Affairs, stated that the sentence of flogging had not been passed against the minor for being sexually abused by her stepfather, but rather for the consensual sex to which she had confessed to having to authorities.

“The purpose of penalties like these in Islamic Sharia is to maintain order in society and to save it from sinful acts. It is not at all an act of violence. We must turn a deaf ear to the international organisations which are calling to abolish these penalties, labeling them degrading and inhumane acts or torture,” read a statement from the party.

“If such sinful activities are to become this common, the society will break down and we may become deserving of divine wrath,” the Adhaalath Party stated.

Coalition potential

Of the parties yet to announce candidates to stand during the upcoming presidential elections, Dr Hassan Saeed, Leader of the government-aligned Dhivehi Qaumee Party (DQP) and People’s Alliance MP Ahmed Nazim were not responding to calls regarding President Waheed’s announcement today.

Earlier this month, the government-aligned Dhivehi Rayithunge Party (DRP) ruled out a coalition with the Progressive Party of Maldives (PPM) ahead of elections, despite being open to collaboration with other parties.

Both the PPM and DRP serve within President Waheed’s national unity government.

The DRP has also previously ruled out a collaboration with the opposition Maldivian Democratic Party (MDP).


President Waheed returns to Maldives following US visit

President Dr Mohamed Waheed Hassan yesterday returned to the Maldives with First Lady Madam Ilham Hussain after concluding a visit to the US.

The president, who has been in the US since late last month when he spoke during the meeting of the 67th UN General Assembly, was met upon his return by Vice President Mohamed Waheed Deen.

During an address to the UN General Assembly last month, President Waheed said his government’s dealings with powerful international actors since coming to office during February’s controversial transfer of power had “not been pleasant”.

“We believe that the story of the Maldives needs to be told. It is a lesson to be learnt by other small states. The application of the rule of law is to protect the smaller and the weaker; to prevent small justice being served to small states,” said the president at the time.

The comments were made at a high level meeting designed to reaffirm global commitment to the rule of law in order to further the UN’s goals of international peace, human rights, and development.

During the visit, Waheed also attended a Commonwealth’s Ministerial Action Group (CMAG) meeting that saw the country’s suspension from the international body’s democracy and human rights arm revoked.  However, the Maldives has remained on the body’s agenda under the item “Matters of Interest to CMAG”.


MDP would consider halting protests for “substantial” high-level talks

The Maldivian Democratic Party (MDP) has said it will not rule out halting ongoing protests to facilitate fresh “high-level talks” with its political rivals, but would only do so should it see  “substantial” commitments from government-aligned parties.

President Dr Mohamed Waheed Hassan’s government meanwhile stated it will not consider reconvening talks between senior politicians and former President Mohamed Nasheed until he ceases the alleged “harassment” and “threats of violence” against its ministers.

Proposed “Roadmap” talks were launched in February with the stated aim of overcoming the political deadlock resulting from the controversial transfer of power that brought President Dr Mohamed Waheed Hassan into office. Former President Nasheed and his party  continue to allege that Waheed came to power in  a “coup d’etat” – and that the government is illegitimate.

Convenor of the roadmap talks, Ahmed Mujuthaba, on July 12 announced that a series of “high-level” discussions will be held between President Waheed and the leaders of the country’s man political parties after 16 previous attempts had resulted in “no breakthrough.”

The last round of the UN-mediated talks, held at Vice President Waheed Deen’s Bandos Island Resort and Spa in early June, collapsed after parties aligned with the government presented the ousted Maldivian Democratic Party (MDP) with a list of 30 demands.

The list included calls that the MDP “stop practising black magic and sorcery”, “stop the use of sexual and erotic tools”, and “not walk in groups of more than 10”.

MDP MP and Spokesperson Hamid Abdul Ghafoor told Minivan News today that while the party’s protests that it maintains are “largely peaceful” were “totally within” the law, it would not be a “big deal” to stop the street demonstrations if it would help secure meaningful talks.

However, Ghafoor claimed that the party was ultimately sceptical over the commitment of government-aligned parties to ensure “substantial” and “worthwhile” dialogue.

“We have always maintained dialogue is the best way to proceed in the current situation,” he claimed. “What we have seen in the last party talks has just been ridiculous demands such as the issues about keeping crows and using black magic. We found out as a party that we are not dealing with serious people.”

According to documents said to have been provided to the international community by the Ministry of Foreign Affairs, former President Nasheed has over the last week offered to stop ongoing street demonstrations to facilitate high level talks – but only if certain conditions are met by his political rivals.

The conditions stated in the document include addressing possible outcomes of the Commission of National Inquiry (CNI) presently investigating the events during and leading up to February’s transfer of power.  The CNI has been given a deadline of the end of August to concludes its report.

The MDP is also said to have requested allowing only the participation of parties with an elected parliamentary representative to attend the talks.  Such a condition would effectively rule out the participation of President Waheed.

Speaking to Minivan News today, President’s Office Spokesperson Abbas Adil Riza claimed that the government had been attempting since February 16 this year to hold high-level talks with the opposition Maldivian Democratic Party (MDP) to facilitate talks on resolving the current political situation.

However, he denied that the government had called for an end to the MDP’s ongoing protests, claiming instead that it was more concerned by the alleged “unlawful” behaviour of opposition supporters such as in the “harassment” of government officials during demonstrations in recent weeks.

“There has been harassment on several occasions of late by the MDP,” he claimed. “The government will not yield to threats of violence.”

Abbas claimed that in negotiating over continuing potential talks, the government had also refused to negotiate regarding addressing any potential outcomes of the CNI.

“Nasheed has continued to insist on doing this,” he claimed. “But we have said that we refuse to interfere with the country’s judiciary.   We have been clear that we will not negotiate on the CNI or do anything that may compromise its work.”

In a statement released last week, the government called for Nasheed and his supporters to stop “violent activities” in order to ensure any high-level  talks could conclude “fruitfully”.

“Former President Nasheed’s supporters have been agitating and protesting on the streets at times with violent incidences for the past two weeks,” the statement read. “He and his supporters have been harassing government officials for the past five months indulging in violent attacks including the burning of the gender minister’s car, a police motorcycle and a newly constructed police building.”

Foreign Ministry view

According to a Ministry of Foreign Affairs briefing, discussions took place last Thursday, (July 26) between Ahmed Mujuthaba, President Waheed and UN Resident Coordinator Andrew Cox to convey a message that Nasheed would conditionally agree to end the MDP protests.

According to the document, the conditions set by the MDP required high level talks to resume at the “highest Level”, with the discussions taking into account the outcomes of the CNI’s findings on top of the existing six-point agenda set for the all-party talks.

The government was said to have responded the following day with five conditions that included:

  • All talks are held in the Maldives
  • The nine parties previously involved in the talks should continue to take part
  • Participants must be at the level of party deputy leaders or higher
  • The previous six-point agenda remained in place without adding the CNI to the discussion or anything that might “influence” its conclusions
  • The MDP agree in writing not to continue street protests for a “period of time” before talks resume

The briefing document claimed the MDP responded by calling on the government to only allow political parties with a parliamentary representation in the discussions. The opposition party said it would then put a stop to ongoing protests that have taken place over the last few weeks once talks continued.

The opposition party also said to have called for any agreed agenda to include the outcomes of the CNI.

By Sunday (July 29), the government was claimed to have responded that talks between the MDP and coalition parties be conducted on the basis of a “two-track” system based around political discussions and parliament.  The government also called for all parties including the MDP to refrain from holding protests.

The proposal was also said to have called for the agenda on the previous all party talks to remain unchanged, with the MDP addressing any issues regarding the CNI through parliament.


Comment: A case for ‘institutional reforms’ in the Maldives

The January 16 arrest of Criminal Court Chief Justice Abdulla Mohamed, and the subsequent prosecution of former President Mohammed Nasheed and certain senior officials should now indicate the kind of ‘institutional reforms’ that the Maldives requires.

The current political impasse has had its immediate origins purportedly in the arrest of Judge Abdullah and may continue with subsequent criminal charges facing President Nasheed for his part in the detention.  Therefore the need for addressing these issues is urgent.

Yet, this should be attempted with the full realisation that Rome cannot be built in a day, as the erstwhile ruling Maldivian Democratic Party (MDP) might have hoped for.

In all fairness, the political crisis leading to the controversial February 7 resignation of President Nasheed did not have its origins in the arrest of Judge Abdullah. Nor would it have been the end-game.

Yet, it purportedly alienated one more section of the Maldivian society, this time the legal fraternity. Some saw it as a diversionary tactic at best when the Nasheed Government was besieged by the political opposition. It gave an additional cause for the ‘December 23 movement’ of Islamic NGOs to press their demand for President Nasheed’s exit.

The movement from the very beginning had the blessings and participation of the otherwise diverse and at times desperate group of opposition parties in the country. This fact should not be overlooked either.

The arrest of Justice Abdulla by the Maldivian National Defence Force (MNDF), the nation’s armed forces, raises questions. So has the criminal case against President Nasheed and others.

The MNDF was created in 2004 by bifurcating the notorious National Security Service (NSS) under then President Maumoon Abdul Gayoom. This was done precisely with the intention of ending the misuse and abuse of the NSS, which at the time had policing powers, rights and responsibilities, as well. The bifurcation involved the creation of a Maldivian Police Force, which had the policing powers, and the MNDF was made the nation’s armed forces, as in any other country. But old habits did not die either then, or since.

Politicisation of security forces

Justice Abdulla’s arrest, those of two opposition leaders, namely, Abdullah Yameen of the People’s Alliance (PA) and Gasim Ibrahim of the  Jumhoree Party (JP) in mid-2010, and also a day-long closure of the nation’s Supreme Court all involved the MNDF.  Though these detentions should have stopped with the police.

Even after bifurcation of the NSS and the emergence of multi-party democracy, in that order, the Government is excessively dependent on the MNDF for law and order duties. At the institutional-level, the MNDF and the MPF have continued to take orders from the government of the day.

At the personal-level, this may have become possible only with top-level transfers with every change of government and change of ministers’ loyalty, leading to constant and confusing politicisation of the security forces in the country.

It does not stop there. Apart from President Nasheed and his Defence Minister, the Attorney-General had also named then MNDF chief, Major General Moosa Ali Jaleel, Brigader General Ibrahim Mohamed Didi, heading the troops in the national capital, and Colonel Mohamed Ziyad for the arrest of Justice Abdulla.

They were removed from their positions immediately after the Waheed Government took over. So was then Commissioner of Police of Male.

This was a repeat of the situation when President Nasheed assumed office. In the present case however, Brigader General Didi had played a key role in defence of Male when Sri Lankan Tamil mercenaries attacked Male in 1988. He was posted back to Addu City in the South after President Nasheed’s resignation, and lost no time in resigning from the armed forces after three-plus decades of service after the government moved the Hulhulumale court’. To the local media, he said that he did not want to compromise the dignity of his office and uniform by appearing as an accused in a civilian court.

Through the past months since President Nasheed resigned from office, the MDP has charged both the MNDF and police with being part of the conspiracy to overthrow his Government along with their political opponents.

Obviously, they have the respective leaderships of these forces at the time in mind. As they are also not tired of pointing out, elements within the two uniformed services had indeed joined the street-protests demanding his resignation since the night before he quit office.

This can demoralise the already demoralised forces. It could cause more problems than solving any, even as the nation is inching towards fresh presidential polls – either when due in the second half of next year, or earlier, as demanded by the MDP.

The circumstances under which President Nasheed resigned are the subject matter of an independent probe by a Commission of Inquiry (CNI), to which the MDP, as also the Commonwealth have named two members, since.

Pending the inquiry, the MDP has not stopped repeating those charges, or adding fresh ones, particularly with regard to the party’s street-protests to permit or regulate which there are no specific laws in the country. That way, a whole spectrum of legislation needs to be drafted or amended by Parliament, combining the demands of a modern nation with the customs and traditions that have the sanction of law, as elsewhere.

Conflict of interest

Various charges of misconduct and maleficence had been laid against Justice Abdulla prior to his arrest. At present, Presidential Advisor, Dr Hassan Saeed had laid out charges against Justice when he was the Attorney-General under President Gayoom.

The Supreme Court, a creature of the 2008 Constitution, too had occasions to pull him up. So did the Judicial Services Commission (JSC), another controversial institution in which the ruling Maldivian Democratic Party of President Nasheed did not have faith in despite its constitutional character.

Throughout the period of Justice Abdulla’s detention during the Nasheed regime and after his release and resumption of office under the incumbent dispensation of President Mohammed Waheed Hassan Manik, the MDP has claimed that he was a ‘threat to national security’. This was at variance with -or, was it in addition to  the earlier allegations against Justice Abdulla?

If the new charge was true, the MDP Government did not substantiate it. If it were true still, the question arises how a successor Government could take a narrow view of things and order the judge’s release and immediate reinstatement.

The recent report of the Maldivian National Human Rights Commission (NHRC) says that Justice Abdulla had to undergo mental torture and harassment in detention, and efforts also were made to persuade him to leave the country. It ruled out physical torture of any nature, however.

As promised on assuming office, the new Government has since moved the courts, charging President Nasheed, Minister Tholhath and three senior military officials of the time, among others, with unlawful detention of Judge Abdullah. To pre-empt charges of ‘conflict of interest’ the Government moved the Magistrate Court in suburban Hulhulumale Island, off the national capital of Male, where Justice Abdulla is seated.

However, the magistrate ruled that he could not assume jurisdiction to try the case without Chief Justice Abdulla assigning the same, and the Judicial Services Commission too endorsed it. The Magistrate has not dismissed the petition but has only returned the same to the Prosecutor-General’s office, with the indication for the latter to rectify the process.

It was commendable that the Government had thought about the possibilities of ‘conflict of interest’ issue being whipped up if Justice Abdulla had tried this case. Yet, judicial systems across the democratic world dictate that such charges are laid by the other party to a criminal case. Better still, in most such cases, the Judge concerned would recuse himself when the situation so demanded.

The short-cut approach adopted by the Government should be seen as a part of the institutional weakness that haunts the process. As such, no motives need to be attributed to the same at this stage, to that limited extent again.

Banishment as a punishment

It is likely that the Government will revive the case against President Nasheed at the appropriate judicial forum. If courts found him guilty, President Nasheed would be barred from contesting elections. Already, the MDP has declared that the party would not participate in any presidential polls where President Nasheed is barred from contesting. Be it as it may, the law relating to the offence for which President Nasheed is being charged with is a fit case for review and reform, it would seem.

The section provides for ‘banishment’ for a term, or imprisonment for three years, or a fine of Rf 2000. If sentenced to more than 12 months, President Nasheed cannot contest elections until after the completion of three years, or he has been granted a pardon (by the President).

It is very likely that no other democracy, and certainly not in the South Asian region, still has ‘banishment’ as a part of its penal provisions. In the Maldives, not only banishment but ‘house arrest’ also continues on the statute book, as a punishment for crimes. Contemporary history is replete with instances where either or both punishments have been freely handed down to political adversaries of the Government, since the pre-democracy days, dating beyond President Gayoom’s 30-year rule.

Other areas of law, like banking, labour all need to be updated.  The same can be said for legislation outlining migration and property too.

The MDP that has been talking vociferously in favour of fast-tracking legal and judicial reforms has been concentrating mostly on individuals, not necessarily institutions and certainly not processes, which alone add to the value of democracies.

Other parties are not doing that either. They seem to derive comfort from the status quo, not necessarily because they favour it but mostly because the complexities of the social and political issues that such reforms could throw up may be too much for the polity to address.  Conversely, the reforms process thus far has introduced institutions that are superfluous for a nation of 350,000 people. The number of commissions serving and servicing the Government employees, including the police, is a case in point.

Yet, neither has the credibility of the ‘integrity commissions’ been ensured, nor have they been allowed to settle down without continued criticism of their functioning.

The MDP calls it ‘institutional reforms’, the new Government of President Waheed says there is need for ‘institutional empowerment’. In relation to institutions like the higher judiciary, enough time has not been given for either.

The Supreme Court itself is a creature of the new Constitution, and the law provides for a seven-year term for ‘capacity-building’ in judiciary across the country. No efforts seem to have been made in this regard, nor any attention known to have been given on the kind of reforms or empowerment that is needed, and methods of doing it within the seven-year period.

After the change of leadership, both sides seem to have stopped talking about their respective positions on the issue. The All-Party Roadmap Talks was set up to address such issues, but it has grabbled only with trivial issues, in comparison.

Discussing trivia, instead

There needs to be a greater realisation in all sections of the nation’s policy and society that democracy is not a half-way house, to be built, abandoned, and re-built at whim. It is an evolutionary process, with which individual societies experiment a perceived format and make adjustments and amendments as their nation’s circumstances demanded.

There are no successful models, or failed models in democracies, for an intended democracy to pick off the shelf and display the wares. It has to be meticulously worked upon, brick by brick.

A generation can at best lay strong foundations, but it would be for the future ones to build upon it, brick by brick, floor after one more floor. There would be no finality still, as democracies evolve and need to evolve with the new generation, lest they should be rendered redundant and be described as ‘autocracy’ of some kind or the other.

That has also been the Maldivian experience, through much of the 20th century. The advent of a new generation, a new century does not make for the experience. It can at best be a cause for experimentation. In all this, a nation’s patience is the key.

It is not that the current crop of leaders in Maldivian polity does not understand. The agenda for the Roadmap Talks that they agreed upon after the change of Government in February focusses on much of what needs to be done.

The prioritisation of the agenda also underscored their understanding of the evolving situation, overall. Yet, on the ground, they are talking politics, not policies. This does not mean that the events leading up to the February 7 resignation of President Nasheed need not be gone into.

It is not about individuals again, but about institutions, including the Presidency and the armed forces, in situations that the Constitution-makers had not provided for but wanted to avoid in the first place. The findings of the CNI could thus form a part of the Roadmap agenda, as much needs to be done on institution-building, all-round, if the new-generation Maldivian dream of democracy has to be nourished and cherished.

The writer is a Senior Fellow at Observer Research Foundation

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