Maldives: CoNI Report Holds Power-Transfer Legal – Analysis

By N Sathiya Moorthy

The five-member Commission of National Inquiry (CoNI), attested by the international community, has found no proof to a plot or coup d’etat behind the sudden resignation of then Maldivian President Mohammed ‘Anni’ Nasheed on February 7. Instead, it found evidence of indiscipline in the ranks of the Maldivian National Defence Force (MNDF), whose legality could not be extended to the Maldivian Police Force (MPF), whose elements had participated in the Opposition political protests, demanding such resignation.

“There was no illegal coercion or intimidation, nor any coupd’etat. The Commission has received no evidence supporting or to substantiate these allegations,” said the 62-page report presented to President Mohammed Waheed Hassan Manik by CoNI Co-Chair and Commonwealth nominee G P Selvam, a retired Judge from Singapore on Thursday “A coup d’ etat required a positive action against President Nasheed. Non-action and inaction cannot constitute a coup d’etat. Moreover, the Constitution does not call for loyalty of anyone to the President. It calls for loyalty to the Constitution,” the Commission said further, after discussing the meaning and application of the term in various circumstances. This observation becomes relevant in the context of President Nasheed’s claims and charges since a day after his resignation that the circumstances constituted a “classic case” of a coup.

“There appears nothing contestable in constitutional terms under the generic notion of a ‘coup d’état’ that is alleged to have occurred – quite to the contrary, in fact,” the report said. “In terms of the democratic intent and legitimacy of the authority of the presidency, as foreseen in the Constitution, President Waheed properly succeeded President Nasheed…As President Nasheed clearly resigned and now challenges the voluntariness and legitimacy of his action, the onus is on him to establish illegal coercion or unlawful intimidation.” In this context, Parliament Speaker AbdullahShahid’s office issued a statement after the publication of the CoNI Report that the Constitution did not empower him to change the rules of presidential resignations. Instead, it conferred on the Speaker of the People’s Majlis only the powers to swear-in a new President, then Vice-President Waheed in this case.

The report has thus silenced further questions on the constitutionality and legality of the post-resignation succession by then Vice-President Waheed. “As there was no illegally coerced resignation of the President on February 7, and as the subsequent transfer of power followed precisely the prescriptions of the Constitution, the Commission has no recommendation on these matters,” it said, while indicating the need for capacity-building in the Maldivian Police Force in particular The commission also recommended the need for improving the image of the Maldivian judiciary, as a performer, and recommended the need for what could be dubbed as ‘institutional reforms’, about which the Governments of Presidents Nasheed and Waheed have made repeated references.The report itself concludes by saying, “Overall, Maldives needs to be assisted in strengthening the rule of law such that the institutions of the State may enjoy the public confidence necessary for a democratic society.”

The report otherwise found no evidence to link any of the 67 persons named by President Nasheed to any coup of any kind. The list included President Waheed and former President MaumoonGayoom. Specific instances of examination of SMS messages, bank transactions and other material sought by President Nasheed showed up nothing to substantiate his claim of a coup, the Commission said. Hence that line of examination was not pursued after a point, the probe team indicated. In particular, it contested President Nasheed’s claim that present-day Defence Minister and retired Army Colonel, Ahmed Nazim, had threatened him personally, pointing out that they had met for the first time on the occasion only after he had submitted his resignation.

The commission also cited evidence given by then MDP Defence Minister TholathIbrahim Kaleyfaanuthat he had not said anything of the kind to Home Minister Afeef, who had attested to President Nasheed’s claims in this regard at the probe. Other witnessed also did not back President Nasheed in it, the probe found. Independent of their diverse positions before the CoNI, both President Nasheed and Tholath have been charged before a suburban Hulhulumale court with the illegal detention of Criminal Court Chief Judge Abdulla Mohammed on January 16, contributing in a way to the events of February 6-8. With the High Court since upholding the jurisdictional aspects after the lower court had doubted the same, the Government can be expected to proceed vigorously in the matter.

India vindicated

Though CoNI was only a fact-finding mission with no legal trappings, its findings could be said to be a 4-1 ruling, after Ahmed ‘Gahaa’ Sayeed, nominee of President Nasheed’s Maldivian Democratic Party (MDP) quit the panel after having accessed the draft, prepared by Judge Selvam and going to town on its purported contents, out of turn and in violation of the confidentiality principle governing such conduct. President Nasheed himself had then called for a people’s overthrow of the ‘illegal government’. However, the MDP has also expressed the hope that the post-publication all-party conference called by President Waheed would be free and fair. Reports from the national capital of Male indicate that there is palpable tension in the air, after the MDP went on the protest-mode all over again.

The security forces have since indicated that they would not like to take chances this time. Caught unawares by the belated MDP reaction to the resignation a day after, on February 8, and the way street-violence and arson spread across the Indian Ocean archipelago, the security forces had indicated that they would swing into action without notice this time, if violence erupted. They had maintained a relatively low profile through the various phases of MDP street protests since, but this trend may not continue. While the CoNI Report has reprimanded them for using excessive force on February 8, armed now with the probe finding that it was not a coup after all, the Government too would not hesitate to treat MDP protests as a law and order problem, and not any more as a legitimate political protest, as earlier. Sections within the multi-party political leadership in the Government had sought to dub the unprecedented February 8 violence as ‘terrorism’ and have been urging the authorities to initiate legal action, accordingly.

In this, the Government may be encouraged to act but also be restrained at the same time from over-reacting by the international community’s response to the CoNI Report. As was the case with the early recognition conferred on the Waheed presidency, and thus attesting to the non-controversial nature of President Nasheed’s resignation until it was whipped up later, India called upon the stake-holders in Maldives to accept the CoNI Report. Now after the report was out, the MDP has dubbed it as ‘legitimising the coup’. However, once the MDP’s mood became known with ‘Gahaa’ Sayeed’s pre-publication pronouncements on the report, New Delhi also called for restraint on all sides. India was the first country to recognise the transfer of power as legal and constitutional, and the probe report in a way has thus vindicated the same. The crucial decision at the critical hour in contemporary Maldivian history also helped the international community engage the new Government in Male, in ways its political adversaries in the MDP wanted engaged.

“We believe it is essential for all stakeholders to demonstrate a sense of responsibility in respecting the outcome of the Commission’s report, and to express views on the report of the CoNI with calm and restraint,” the Indian statement said ahead of the publication of the report. “Actions that might adversely impact on the atmosphere of peace and tranquillity in Maldives need to be avoided,” it urged. The statement expressed the Indian hope that “all political parties in Maldives would take up the issues arising out of the C0NI report through a peaceful political dialogue, to make a way forward for resolving the political situation in the country.”

In this context, the Indian statement referred to President Waheed’s New Delhi visit in early May. “We have also held dialogue with the leaders of main political parties in that country. India remains committed to extending its fullest support and cooperation for the continued stability, peace, progress and prosperity of Maldives,” the statement said further. To India’s credit, and of its diplomatic corps, the CoNI report has attested the Indian position from the very start that the transfer of power was constitutional and President Waheed’s succession was legitimate. As may be recalled, President Nasheed and the MDP beginning days after the transfer of power began claiming that India was “not fully informed” about the developments when it chose to recognise the Waheed presidency, and even named Indian officials in this regard.

The US, UN Secretary-General Ban Ki-moon, among others, too have welcomed the CoNI findings after they were released. They too had recognised the Waheed regime without much loss of time. The Commonwealth and UN observers in the CoNI team too have endorsed the findings wholesale. As may be recalled, the Nasheed camp had received international sympathy when the coup charge came to be made, and the UN and the Commonwealth Ministerial Action Group (CMAG) in particular had called for free and fair probe into those allegations. Later, when President Waheed named his team, they argued the MDP case for representation and international participation in the probe.

Now with the CoNI report finding no proof to substantiate President Nasheed’s legal and political charges, Minister of State for Foreign Affairs, DunyaMaumoon, has lost no time since in urging the CMAG to remove Maldives from its list, indicating that there was no need in the first place to have put the country there in the first place. It is not unlikely that elements from within the present Government and the parties that they represent may go overboard on the early inferences of a section of the international community and their insistence on an independent probe, which however has vindicated their claims. There could thus be a demand elsewhere that the international community did not resort to sweeping positions on internal matters of individual nations without ascertaining the facts on the ground, as should have been seen and perceived.

Where from here?

In an address to the nation after receiving the report from Justice Selvam, President Waheed said that the events of February 6-7 were in large measure reactions to the actions of President Nasheed.”It has now become clear that the transfer of power on 7 February was legitimate,” the President said. “Therefore it is time to stop questioning the legitimacy of the Government. It is time to stop illegal activities and activities that go against generally acceptable social norms. With the CoNI’s report, many things have become clear. The Maldivian people too would come to understand this once they read the report. This is now the time to stop brutality. This is the time for political leaders to show their leadership and the time to put the nation’s interest before individual interests. This is the time to learn from lessons of the past and the time for peaceful dialogue and constructive consultation.”

In this context, President said that he would implement the five recommendations contained in the CoNI report. He also referred to the dead-locked parliamentary proceedings, and added: “It is imperative that sittings of the People’s Majlisresume in order implement these reforms.”

President Dr Waheed said that the consultative process that he had earlier initiated with the political parties would recommence tonight with a fresh resolve. “I am hopeful that the consultations amongst parties would happen in a cordial and friendly environment,” he hoped.

Apart from the five-point recommendations, the CoNI report is significant and even more relevant in the context of establishing that there was no plot or coup behind President Nasheed’s resignation, and particularly no role for his constitutionally-mandated successor. Pending the probe, the MDP had variously demanded early polls to the presidency if CoNI upheld the plot theory, shifting gears more recently to seek President Nasheed’s reinstatement, without reference to President Waheed’s original offer in this regard. The Constitution does not provide for either, and even early elections would require a constitutional amendment with two-thirds majority in the Majlis. The CoNI findings have thus also cleared the lingering residues of tentativeness attaching to the Waheed presidency.

In political terms, however, the non-tentative nature of the findings could contribute to instability of a different kind. With presidential polls now not expected before they become due in the July-November window next year, Government parties would return to the inevitable game of political one-upmanship against one another in the interim. The inherent nature of the Maldivian electoral politics, as brought out in the very first democratic polls of 2008, implied coalition at the hustings, which President Nasheed breached after assuming office. With the upcoming presidential polls still being seen as wide open, unhidden aspirations among the Government party leaders and the tentative nature of their approach to identifying partner or partners could jeopardise the functioning of the Government between now and then, particularly when political stability and fiscal management are crying for immediate and forceful attention. Any wrong and prolonged move by them could prove their detractors right, though not necessarily in a way that the latter might have wanted.

There is a need however for the Government in the post-CoNI months not to convert their urge for speedy justice into political witch-hunting of sorts. While civil laws and criminal investigations can be citied to justify politically-motivated decisions of the kind, it should not lead to further destabilisation of the infant democracy, which cannot be allowed totter on endlessly for no fault of the system or the scheme, but only of the adoption, adaptation and implementation of the same. Both the polity and society in the country are going through the processes of democracy learning and democratic co-existence. There is no room in multi-party democracies for competitive witch-hunting, which elsewhere has destabilises polities and destroyed societies. President Waheed, in his wisdom, as the voice of sanity should provide the balanced approach that the nation can do with. The healthy precedent set by President Nasheed on assuming office, and declaring that the Government would not go after predecessor President Gayoom, should be a pointer for Governments now and in the future. They also can learn from the intervening decisions and actions of the Nasheed Government, which is what contributed to the present situation.

The MDP and President Nasheed may be expected to use the available time until next year’s polls, to restructuring the party and make it more widely acceptable than already. They got the probe they wanted, but they may not have got the probe report they had hoped for. That should not egg them on to the streets all over again, when their political detractors now in power may be offered legal teeth and political justification to deal with such situations in ways they are dealt with in other democracies, too. Instead, as President Nasheed had outlined after his recent visit to India, the MDP should accept the CoNI finding with grace and dignity that both deserve, and address greater aspects of democratic duties that the party’s unassailable position as the nation’s first and largest democratic political party entails and expects.

With the uni-dimensional focus of the party and the nation remaining on President Nasheed in the years after he assumed office, the MDP also needs to look at new strategies to reach out to those voters now falling behind the pale of the ‘Anni charisma’, which is as deep as it is wide. In the process, the party could be expected to introspect on what had gone wrong through the past years, and where correctives need to be applied in terms of concepts and perspectives, beliefs and policies, programmes and propaganda. In doing so, the party should be able to identify second-rung leaders capable of shouldering not only organisational responsibilities but also sharing President Nasheed’s exclusive burden of being the MDP’s sole vote-catcher when it can do with more votes, too.

In an era of high-tech communication and conveyance, Maldives, unlike many other Third World democracies in the post-War era, has telescoped its democratic experience. Translated, it meant that the pains were as quick as coming as the benefits. Through the smooth transfer of power, first in the election of President Nasheed, later in the succession by President Waheed, and now through the universality of acceptability for the CoNI report, the country has proved that it is up to the task of nation-building in a multi-party system, as different from a single-leader scheme, which had ruled Maldives for generations and centuries before it. Hiccups remain, and would continue into the distant future, but then that is also what popular democracy is all about. Maldives and Maldivians would have to make the required changes in their own perceptions and behaviours, based on experiences elsewhere and their own exposure now.

(The writer is a Senior Fellow at Observer Research Foundation)