By N Sathiya Moorthy
The Opposition Maldivian Democratic Party (MDP) has to be congratulated for the belated decision to return to Parliament and the reported interest in reviving the all-party talks. Already, Parliament has reconvened and the Government parties, it can be expected, would process the suggestion for reviving the talks once President Mohammed Waheed returns home from his US trip.
The MDP’s participation in Parliament and promise to rejoin the talks – the latter reportedly indicated to PPM parliamentary group leader Abdulla Yameen by none other than former President Mohammed Nasheed – are clear on specifics. The party wants both Parliament and the political negotiations to address reforms to ‘independent constitutional institutions’ as indicated by the report of the Commission of National Inquiry (CoNI).
The report, as may be recalled, had upheld the constitutional validity of power-transfer effected on President Nasheed’s resignation on February 7 and had recommended on issues of common concern, over which there has been across-the-board unanimity of sorts. There are differences over phraseology and details – as between the need for ‘institutional reforms’, as sought by the MDP and ‘institutional empowerment’ – but no political party in the Government has seriously contested the need for a re-look at the independent institutions and their functioning.
In fact, parties are also united on the need for looking at the CoNI recommendations in this regard. It is not impossible to achieve much of this before the deadline possibly set by the presidential polls due this time next year, if political parties put ‘national interest’ and ‘national reconciliation’ ahead of petty political agendas and electoral tactic in the coming weeks and months. After all, the very same players could give themselves a new Constitution some four years back the same way, and there is no reason why they could not do so again.
It is all written into the script of dynamic democracies, all through. Rather, for democracies to retain its characteristics, they have to have dynamic processes of consultations, accommodation and readjustments. By the same token it is not about what has not been achieved at any given point in time but what has been achieved still — despite the inherent contradictions, constituency interests and political compulsions of the stake-holders. It thus implies that the proposed reforms need not be sweeping and all-serving. It can make a start, but with a clear idea as to which road would have to be travelled further, not again and again. This requires a sense of accommodation.
It is in this context the recent MDP national council’s decision “not to observe the authority” of the courts sends out a jarring note. It flows from the criminal case against President Nasheed and others, on the charges of the Maldivian National Defence Force (MNDF) illegally detaining criminal court judge Mohammed Abdulla on January 16.Citing the party decision, President Nasheed stayed away from the suburban Hulhumale court trying the case on October 1, and proceeded on a campaign tour of the southern atolls.
The court has since directed the police to produce President Nasheed on Sunday. Nasheed’s lawyers also did not appear before the three-judge trial Bench. While directing the police to produce President Nasheed, the court has observed that he has not given any reason for not participating in the trial. It is anybody’s guess how the police did not restrain him from leaving Male for the southern atolls with more than adequate pre-publicity and in full glare of the media when he was under ‘island arrest’ ahead of the commencement of the trial.
Translated, the term ‘island arrest’ means that an accused in a criminal case has to stay put in the island where the trial is taking place and appear before the courts whenever required. It may sound an archaic part of legal procedures, suited to the times when inter-island and inter-atoll transport facilities were inadequate, and may be among the provisions requiring a review – either by the judiciary on its own or by the legislature, or both. Such a review could also be considered for such penalties as ‘banishment’, still contained in the Maldivian penal laws.
Yet, near-similar provisions exist elsewhere too, where an accused in criminal cases are directed by courts to leave, or not leave, the jurisdiction of such other courts of police stations and also report to them periodically, pending the conclusion of the trial. The possibility of the accused exerting influence over the witnesses is often cited as the reason for such directives by the court. The alternative to such ‘bail conditions’ is for the accused in criminal cases in these countries – neighbouring India and Sri Lanka included – to return to jail, pending the conclusion of the trial and the pronouncement of the verdict.
In deciding to boycott the courts, the MDP seems to have concluded that they could not expect justice from the existing system. Even as they agitated for ‘institutional reforms’, this was the judiciary they had inherited and they had left behind when President Nasheed was in office. Not that they were happy about, but in the eyes of law, the constitution of the Supreme Court Bench, however controversial and however perceived to be partisan it might have been, had the approval of the Government and the President of the day. Having agitated for further reforms, it may now be up to the MDP as the majority party in Parliament to initiate the process and specifics of such reforms under the Executive Presidency scheme with the Government parties still in a minority in Parliament.
By not submitting to the authority of the nation’s courts, the MDP nominee runs the risk of adding to the litany of criminal cases that the party expects would be heaped on him, if left unchallenged. The place to agitate the position again should be the courts, and Third World democracy, that too in the neighbourhood, is full of instances, where political party leaders in particular have played within the walls of the existing scheme for tactical approaches whose legality could be questioned only in a higher court.
At present, President Nasheed in this specific case has already run the risk of adding on to the offences listed against him. The party has called the original criminal charges against him in ordering the arrest of Judge Abdulla as ‘politically motivated’. However, absence from the court, attracting ‘contempt of court’ charges stand on a different footing. They are offences in themselves, punishable with a six-month prison term as penalty, complicating his chances of contesting the presidential polls even more. Already, the MDP apprehends – and has not minced words in giving expression to such expression – that the original criminal case, as also two defamation cases filed against him – were aimed at impeding his path to the presidential polls.
Before leaving Male for the southern atolls this time, President Nasheed is reported to have asked all concerned to review their position on the criminal cases against him. He may have a point. At the end of the day, there is a political process involved in the independent handling of the criminal cases being independently handled by the Prosecutor-General’s (PG) office. Those processes, and appeals based on facts, law and their constitutionality, do not apply to contempt of court proceedings. These are often ‘open-and-shut’ cases, as the phrase is understood.
Otherwise, the MDP may have to revisit its national council decision to see if one such as this one on boycotting courts would draw adverse decisions from the Election Commission, another ‘independent institution’ under the Constitution. In such a case, the party would only itself have to blame – for confusing tactic and strategy, ideology and adaptability in a dynamic democracy. While numbers are the MDP’s strength, and so is the conviction of those followers, it should be allowed to operate within the inherent limitations that the party has inherited under the multi-party scheme until it has been able to ‘convert’ the rest, or adapt the constitutional means to reach where it wants the nation to be – or, both.
Midnight killing of MP
These developments came ahead of the midnight killing of PPM Member of Parliament, Dr Afrasheen Ali, a religious scholar, on the staircase of his Male home. The incident occurred on the ‘UN International Day of Non-Violence’, commemorating the birth anniversary of Mahatma Gandhi, India’s non-violence icon, who fought the British colonial rulers without sword and guns – and won Independence for his deeply-divisive country by promoting unity of purpose and conviction about the cause and the process. Gandhiji punished himself for whatever he perceived as the sins of his followers, and would fast for days until they atoned, and subjected himself readily to the rules, laws and courts of the colonial ruler, without question. His was a battle born out of conviction, and remained one until the very end.
Whatever the motive and whoever the killers, the midnight massacre of a Member of Parliament has come at a difficult time for Maldives, when the nation for readjusting to the post-CoNI ground realities. These realities pertained to an end to the MDP street-protests over the circumstances leading to President Nasheed’s resignation and at the same time leading to a political decision by his party to boycott the nation’s courts, instead. Just a day old, the murder will take the police time to resolve, though it could also revive the national discourse on the need for more reforms in more areas – this one, involving the police and criminal investigations.
Sure enough, Maldives as a nation, and the capital city of Male, accounting for a third of the nation’s 400,000-minus population lives, has begun limping back to normalcy of some sort when the MP’s killing has shocked and rocked the nation as none before in recent times. This had been preceded by the crude killing of a senior advocate by a drug-addict and his girl-friend some months ago, but which was resolved promptly by the police force. What is also at stake thus is the continuance of a peaceful political atmosphere, law and order situation, at a time when the country can do with more tourists and more tourist resorts to egg on the nation away from the economic perils that it finds itself now – and again! Even more important is for the nation and its population to recreate that sense of security and safety, which Maldivians have prided themselves through years of unprecedented and un-calibrated growth, where social equity and societal tranquillity have often been victims elsewhere.
The road ahead
For the post-CoNI reconciliation efforts to be meaningful and purposeful, there is an urgent need to create the right political and social atmosphere. The responsibility for this rests with all stake-holders, but the initiative has to come from the government of the day. The criminal cases against President Nasheed, for instance, belonged to a particular point in the contemporary political history of the nation. It also owed to the kind of political climate that the present-day government parties contributed in equal measure, if not more, when they were in the Opposition. Today, the shoe is on the other foot, and no great national purpose would be served – instead, it could tantamount to dis-service after a point – if there is no attempt at national reconciliation as much in spirit as in word. To that extent, if either side feels strongly and sincerely about reconciliation, they need to smoothen out the road ahead, and at the same time, smoothen out the edges, too.
Before President Nasheed, his predecessor Maumoon Abdul Gayoom had worked on reconciliation in his own way. Maybe late in recognising the realities of the new era as they dawned on him, President Gayoom reconciled himself first, and reconciled with the rest, over what needs to be done, and how it needs to be done. Both he and President Nasheed after him reconciled themselves to the ground realities – based at times on numbers in vibrant democracies – by respectively providing for a smooth transfer of power on the one hand, and absence of legal recrimination for what had been done or not done while in power in the past. Much of it seems to have been undone over a short span, and there is an urgent need for the nation as a whole to walk that path – and together – all over again!
(The writer is a Senior Fellow at Observer Research Foundation)