Maldives Democracy Takes Another Twist With Nasheed, Others Freed By SC – Analysis

By N. Sathiya Moorthy

Thursday, February 1, 2018, will be unlike any other day in the history of the Indian Ocean archipelago – if only a shade less celebratory than the first multi-party, democratic presidential polls of 2008. In a surprise decision, posted on its website, the five-judge full Bench of the Maldivian Supreme Court unanimously ordered freedom for former President Mohammed ‘Anni’ Nasheed, and all other Opposition leaders. It also restored the membership of 12 parliamentarians disqualified by the Election Commission for ‘defection’ at the behest of President Abdulla Yameen’s faction of the ruling Progressive Party of Maldives (PPM).

The court order, freeing the Opposition leaders, including Jumhooree Party’s (JP) Gasim Ibrahim, religion-centric Adhaalath Party (AP) and Yameen’s nephew, Faaris Maumoon, in turn the heir-apparent of the President’s half-brother and long-term predecessor, Maumoon Abdul Gayoom, brought celebratory crowds to the streets. This in turn brought the riots police, who in turn tried to break up the Opposition cadres and supporters, took at least some of them into custody and also burst teargas shells, a rare event in law-maintenance in the country.

For their part, both the Government and the Opposition have been circumspect and cautious. After initially declaring that they were trying to verify the authenticity of the Supreme Court’s web-posting, the Government said that they were “currently working to vet and clarify tonight’s Supreme Court ruling…and comply with the ruling, in line with proper procedure and the rule of law”. Both Nasheed and Gayoom tweeted caution to their supporters, with the former saying that he would abide by ‘advice’ of his party and coalition partners, and not rush to the country, from his self-exile in the UK, where he has obtained ‘political asylum’.

‘Retrial’ still

According to the Maldives Independent, the Supreme Court decision also covered former vice-president, Ahmed Adheeb, ex-defence  minister, Mohamad Nazim, then prosecutor-general Muhuthaz Muhusin, and magistrate Ahmed Nihan. But the order is seemingly silent if the court had gone through the procedures and hearings in arriving at the conclusion it has since announced. If not, this could well have other consequences, if the Yameen government still chose to react that way.

The operative part of the court verdict read thus: “After considering the cases submitted to the Supreme Court about violations of the Constitution of the Republic of Maldives and human rights treaties that the Maldives is party to, to conduct politically motivated investigations followed by trials where prosecutors and judges were unduly influenced, the Supreme Court has found that these cases have to be retried according to legal standards,” In context, the Supreme Court said that all those named “should be freed immediately in order to facilitate the retrial and investigation of the cases according to law”.

This could well mean that the Supreme Court has not acquitted all those being ordered free now, from the basic charges levelled against each one of them. Instead, it has only found fault with the procedures adopted.  For instance, the court has not ruled that the case, conviction and 13-year jail term handed down to Nasheed in the ‘Judge Abdulla abduction case’ was bad in law. If anything, it has not even specifically explained the reasons for ordering his freedom.

The Government statement could thus imply that they may seek detailed orders in each of these cases, and consider ‘court-acceptable’ ways of reopening the trial against each one of them, afresh. In Nasheed’s case, for instance, if the SC holds that his trial and conviction under the terrorism law was bad in law and under the Constitution, unless it also holds that no fresh trial was now possible, the Government may still consider the option.

In a nation where Islamic Shariat still has some place in court proceedings, despite the over-arching presence of constantly-updated penal and criminal procedure codes, the views of Judge Abdullah, allegedly Nasheed’s ‘victim’ may have a procedural value if Yameen were still intend on reopening the Nasheed case. Though not on the same lines, the Government could well look for loopholes of other kinds to proceed against others who have since been ‘freed’, after possibly seeking a detailed verdict from the Supreme Court – which however would be a political/personal decision for Yameen to make.

Where it all began

The current turn of events began with all four Opposition leaders, namely, Nasheed, Gayoom, Gasim and Imran Abdulla, moving a joint petition before the Supreme Court, seeking a direction for Yameen to step down, against the various charges of corruption, theft of government properties and  acting against the law, though without citing any specific case. Later, the Opposition explained that they had to move the Supreme Court as Parliament had been rendered ‘ineffectual’.

That all was not well for Yameen this time became clear when incumbent Law Minister Azima Shakoor, attorney-general under President Mohammed Waheed, claimed that the Supreme Court could not ‘impeach’ the President, or rule on the matter until Parliament had cleared it. Yameen himself reacted sharply around the time, declaring that under the Constitution, he had the responsibility to hold the judiciary, police and other institutions of the State accountable and responsible. He also said that police men did not have freedom to political views and activities.

The Maldivian police seem a divided house, what with an early statement that they would enforce the Supreme Court orders, followed by anti-riot action on the ground. In between, Yameen sacked the police commissioner, Ahmed Areef, the nation’s top cop, with the Government claiming that the President was unable to reach him.  After this, the riot police went into action on the streets and a police statement said: “We will use force and will not be responsible for any damage inflicted by using force.”

Incidentally, the Government’s early reaction to the Supreme Court ruling was conveyed by attorney-general Mohamed Anil at a news briefing chaired by defence minister Adam Shareef, where army chief, Maj-Gen Ahmed Shiyam, was conspicuous by his prominent presence. Unconnected with the news briefing, the Opposition lost no time in declaring their intention to move a no-trust motion against attorney-general Anil, a member of the Yameen Cabinet under the law.

Fragile still

From among the four-party Joint Opposition, MDP’s Nasheed was the first one to react, saying that the best thing now was for President Yameen to quit office, gracefully. From the international community, Colombo-based American Ambassador Atul Keshap promptly welcomed the Supreme Court decision and urged the Maldivian army and police to help enforce the same, if at all.

Close to 12 hours after the events unfolding in its ‘traditional sphere of influence’, India waited to comment on the Maldivian developments, as on most occasions. So are those of China and Saudi Arabia, Yameen’s known backers, who may do more possibly than say more. It is not unlikely, China, unused to the nuances of global diplomacy beyond a point, may even dump Yameen, as it has since done with former President Mahinda Rajpaksa in neighbouring Sri Lanka — but may wait as much without being seen as ‘interfering in the internal affairs’ of Maldives just now.

For all the celebrations in the Opposition camp, there is need for greater clarity, both on the Supreme Court’s orders and the future course of judicial, legal and political action. It remains to be seen if the court would take up the joint Opposition leaders’ petition to institute a probe against Yameen, and if so the procedure it would follow. The court also has to clarify the kind of ‘retrial and investigations’ it has in mind for the ‘freed’ leaders, individually more than collectively, and how the Government proposes to take them forward, if Yameen does not oblige them by stepping down.

The Supreme Court orders do not upturn a constitutional amendment passed by Parliament at Yameen’s behest, fixing a 65-year upper-limit for the presidency and vice-presidency, thus ‘disqualifying’ Gayoom and Gasim — that too with Nasheed’s MDP support in Parliament. There is also no knowing what a ‘re-trial’ may have in store for Nasheed and others.

Though Nasheed, even if found guilty, that too between now and the presidential polls, due in November, could contest the polls if fined MRV 1,000 as mentioned under the penal code as it stood at the time, any full, three-year jail-term under the common, criminal law could still lead to his disqualification. What more, both Nasheed and Gasim, now overseas, would have to return home to face re-trial when they could be arraigned for contempt of court after they ‘wantonly’ over-stayed their ‘prison leave’ for obtaining medical treatment, overseas.

If Yameen refuses to oblige the Opposition by quitting office early on, or take refuge overseas, say in friendly Saudi Arabia, if not China (which may be circumspect in the matter, even more), then any possible impeachment, requiring a two-thirds majority in the 85-member Parliament is not going to be as easy as being made out to be in some circles. While the Supreme Court may have woken up to the cause of democracy, and Maldives’ commitment(s) to international law and treaties, as cited in the 1 February order, individual MPs, especially from Yameen’s camp, starting with the five-member Maldivian Development Alliance (MDA), may still weigh their options and also the final legal and political fate of Nasheed and the rest before deciding to help vote out Yameen – where again, the Supreme Court has the final say.

Those that have hailed the Supreme Court verdict now cannot condemn it if it were to rule again any impeachment move against Yameen. It is in this context that the Opposition bid to ‘impeach’ attorney-general Anil becomes a first step as it required only a simple majority in Parliament, which they now have with court-ordered membership-restoration of 12. For now, the nation will have to await word from all five Supreme Court judges that Thursday’s ruling was  theirs and that they stood by it, still.

But Yameen too would require parliamentarry approval for a new appointment for president of the nation’s Election Commission (EC) after incumbent, Ahmed Sulaiman quit, reportedly on demand, again in the midst of other developments just ahead of the Supreme Court’s order.  Though both sides have maintained silence on another of Yameen loyalist’s exit, local media claiimed that the decision followed  the EC’s slow pace in holding fresh polls  to the 12 parliamentary vacancies, which it had fast-tracked  earlier.

This apart, the Joint Opposition would have to prove that they are still united to face the electorate, whether or not Yameen is still eligible to contest the elections. In the nation’s democratic past of 10 years now, the Opposition to the incumbent President of the day has fought more among themselves, and making only ‘strategic sacrifices’ in the decisive second-round, but without the winner not making good his promises to his ‘new-found’ allies, leading to political turmoil of their times.

To this end, Nasheed and Gasim, at first look, may want Yameen’s impeachment or disqualification otherwise, followed by their electoral rights, to be restored before they could think of the presidential polls. Gayoom need not be overly concerned about it all, as such a turn of events could make son Faaris the front-runner for the common Opposition candidate, as the cases against him, including the one for which he was arrested after obtaining bail in another, only a week back, are not as easy to prove as in the case of the rest.

It is another matter, in the past week, Yameen also touched a raw nerve, when the police arrested two of Gayoom’s aides for alleged bid to topple Yameen, as was the case against Faaris, leading to speculation  that he might not stop until taking octogenarian half-brother too into custody. Though Gayoom made more enemies than among fellow Maldivians in the later years of his 30-year presidency, yet, there is a lot of respect for the man, his socio-economic missions in the betterment of the nation and its people – and now his age, too – especially in spheres and circles where it matters.