Maldives: What Now After SC Confirming Nasheed’s Prison Term? – Analysis

By N. Sathiya Moorthy*

In a none-too-unexpected but delayed decision, the Maldives Supreme Court upheld the trial court’s order, sentencing former President Mohammed Nasheed, to 13-year prison-term in the ‘Judge Abdulla abduction case’. With this, la affaire Nasheed seems set for taking a fuller politico-diplomatic turn, and at the international level.

A five-judge full bench of the Supreme Court (SC), headed by Chief Justice (CJ) Abdulla Saeed gave a point-by-point rebuttal of a series of procedural lapses alleged by the Nasheed defence, both in the trial court and later in the appeals. Going by media reports, the apex court seemed silent on the legality and constitutionality of the application of the nation’s anti-terror law in the case.

The bench also did not seem to have addressed the ‘procedural irregularities’ in the state’s withdrawal of the pending/ongoing trial under normal criminal/penal laws, and the filing of a fresh case under anti-terror law. The SC verdict, read out by CJ Saeed, held that the trial court was right in dismissing the defence demand for fresh documents after the conversion of the original case into a terror case.

In doing so, the bench did not seem to have explained, how, for instance, the two cases could be considered one and the same, as the original case had been withdrawn – and that the documents evidence submitted in one could be deemed to be relevant to the other, too. More importantly, conversion of an ordinary criminal case into one under anti-terror law had changed the entire scope of the case. From a defence perspective, they would have required time to study the new legal situation – which the Bench seems to concede was not given.

The bench also upheld the intermittent High Court (HC) order, dismissing the unilateral state appeal against the trial court order for want of locus standi. As the SC observed, Nasheed’s defence team first and later he pulled out of the trial halfway. Later, he also refused to appeal his conviction and sentence in the HC. If under international pressure, the government of President Abdulla Yameen was seen as suo motu appealing the trial court verdict in the HC, Nasheed also seemed to have done so, for the same reason, viz the SC appeal stage.

Pending the SC hearings and verdict, the UN Working Group on Arbitrary Detentions (WGAD) had stated that Judge Abdulla’s (midnight) arrest by the nation’s armed forces, MNDF, and solitary detention in an island, were ordered by a ‘third party’ and as President, Nasheed, could not have been held accountable. However, video evidence produced at the trial showed President Nasheed (still in office) as declaring in public rallies that he was aware of Judge Abdulla’s detention and that he would do so, ‘again and again, if necessary’.

Then Defence Minister, Tholath Ibrahim, had also told the court that he had given written directions to the MNDF to arrest and detain Judge Abdulla. Tholath Ibrahim is serving a 10-year prison-term, also under ‘converted terrorism’ case in the ‘Abdulla abduction case’. The Commonwealth-initiated ‘Commission for National Inquiry’ (CoNI), set up by President Waheed Hussain, too had relied on Tholath’s evidence while upholding the legality and constitutionality of power-transfer involving Nasheed’s resignation on 7 February 2012.

As ‘Maldivian irony’ would have it, Judge Abdulla’s ‘abduction’ followed hours after his ordering bail for a then opposition leader, Ahmed Jameel Mohammed. Jameel went on to become President Yameen’s running-mate and Vice-President, to go on self-exile and be impeached in 2015. At present, Jameel heads the Maldives Joint Opposition (MJO), with Nasheed as patron, to take on Yameen and ‘restore’ democracy in the country.

The Nasheed defence has since said that the SC verdict has now cleared the way for them to take up the Nasheed issue with the international community. It is however unclear if they have a legal case to take up at international judicial fora against a civil court order of the highest category, and based on local laws, practices and ‘procedures’. The alternative would be for the Nasheed team would continue to fight a politico-diplomatic battle, with the support and help of friendly (western) governments.

For the Yameen leadership, the SC verdict has meant that the road may have been cleared for it to ask Nasheed to return home and serve out the remaining part of his sentence. Failing this, the Maldives government has the option to asking the UK to ‘extradite’ Nasheed. It could also seek to apply ‘diplomatic pressure’ through friendly neighbours like India and Sri Lanka, which had reportedly argued Nasheed’s case for ‘medical leave’, in the first place.

An extreme step from the Yameen leadership’s perspective could be to move the Commonwealth, among other world bodies, to ‘persuade’ the nominal head of the global body of erstwhile British colonies, to send back Nasheed, convicted and sentenced for an ‘act of terror’, as defined and upheld under local laws. If it came to that, such a course could set off diplomatic cross-currents within the organisation, ahead of the September meeting of the Commonwealth Ministerial Action Group (CMAG).

For now, the Maldivian government has maintained stoic silence to Commonwealth Secretary-General, Baroness Patricia Scotland’s nomination of former Kenyan Chief Justice Willy Mutunga as a ‘special envoy’ for Maldives. With the SC order in its hand, the Maldivian government’s next move will be keenly watched as much as the next decision(s) of the Nasheed camp on the one hand, and the initiatives, if any, of the international community.

Under pressure from the international community after the trial court verdict for granting presidential clemency to Nasheed, Yameen had said that he would consider the same after the appeals-stage had been completed. However, quietly and very significantly, he recently changed the clemency law to provide for applications only after a convict had served at least half his/her term.

Nasheed’s 13-year term had commenced only in March 2015, followed by the ‘medical leave’ in London (not excluding a few weeks of ‘house arrest’ in capital Male, allowed under the local law). Even without ‘terrorism’ conviction and 13-year prison-term, Nasheed might have been ‘disqualified’ to contest the 2018 presidential polls for ordinary criminal law sentencing in the ‘Judge Abdulla case’ – depending on the length of sentence and consequent time run-ins.

Ahead of the SC verdict, Nasheed’s MDP-MJO had called for a civil disobedience movement from 15 July, as if to take their political battle to Maldives, where it belonged – from overseas, where they had taken it, especially after Nasheed moved to the UK, on ‘medical leave’. The MDP has also taken up the case of Humam, after the Supreme Court confirmed death sentence for the murder of parliamentarian and religious scholar, Afrasheem Ali, in 2012.

Originally, the MDP had come down heavily on the Government of then President Waheed, for delay in capturing the killer. Now, with the SC verdict, the party has pointed out – and, rightly so – that Humam, a ‘hired killer’, would have to be executed within 30 days of the SC confirmation, but without the police having got to the real conspirators and culprits.

The MDP has already moved the Parliamentary Committee on Government Oversight on the Humam verdict. MP Eva Abdulla, a Nasheed kin, has pointed to the SC Bench refusing to accept a Sharia-based victim family’s appeal for delaying the verdict, saying it was submitted after office hours, but the Bench going on to pronounce its verdict at 2 am.

It is too early to predict the public mood and reaction viz the Nasheed case verdict on the one hand, and the Humam verdict, the first ‘execution’ since 1953, if it came to that. In 2004, the nascent and disparate pro-democracy movement against President Maumoon Gayoom’s regime drew a lot of strength from the ‘custodial death’ of Evan Naseem, jailed for boot-legging.

With the Nasheed case coming to an undramatic end, and the Yameen leadership continuing its silence on the issue of Commonwealth speculation envoy, India too has its hands full. Its posturing, if any, ahead of the September CMAG meeting, and position when it happens has consequences for domestic politics in Maldives, bilateral relations and regional stability, apart from possible future of the Commonwealth itself.

*N. Sathiya Moorthy is Director, Chennai Chapter of the Observer Research Foundation. He can be reached at: [email protected])