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Maldives: CJ's initiative, a step in the right direction
N Sathiya Moorthy
06 November 2012

By writing to Parliament Speaker Abdulla Shahid for finding a way-out of the emerging stand-off with the judiciary in the ’Nasheed case’, Chief Justice Ahmed Faiz has taken the initiative to ward off what seems to be an intractable problem in the infancy of Maldives’ democratic history. Simultaneously, the equally maligned Judicial Services Commission (JSC) itself has moved the Supreme Court on certain aspects pertaining to the legality of the three-judge trial court, constituted to conduct the criminal trial against former President Mohammed Nasheed, for the arrest of Criminal Court Chief Judge Abdulla Mohammed when he was in power.

The Chief Justice’s initiative follows Parliament’s Government Oversight Committee summoning the three judges, for hearing them out on issues purportedly flowing from the report of the multilateral Commission of National Inquiry (CoNI). As may be recalled, the CoNI was appointed by incumbent President Mohammed Waheed on the legality and constitutionality of his succession and the circumstances leading to the February 7 resignation of predecessor Nasheed.

As the single largest elected grouping in Parliament, President Nasheed’s Maldivian Democratic Party (MDP) dominates the Government Oversight Committee. However, on isuses of supremacy of Parliament as the representative forum of the nation, the Committee’s decision has been endorsed by Speaker Abdulla Shahid, who incidentally was elected to Parliament on an anti-MDP ticket. According to media reports, the Counsel-General of Parliament, Fathimath Filza, the top-rung bureaucrat of the nation’s legislature, has a different view on the subject.

Justice Faiz wrote to Speaker Shahid after the three judges had ignored the Parliament Committee’s summons on three occasions. Earlier, after the committee’s decision was known, the Supreme Court ruled against it, and the JSC too took a similar position. The latter in particular cited constitutional provisions to hold that no judge could be questioned by anyone on his professional conduct. The JSC also observed that it was the highest authority to handle matters pertaining to judges. The three judges thus had the directions/protection of the higher authority when they stayed away from the Parliament panel.

For its part, the JSC has since moved the Supreme Court for directions of the decision of the three-Judge trial court to shift the ’Judge Abdulla case’ to the national capital of Male, from the suburban Hulhumale Island court, where it was originally constituted. With presiding judge of the Criminal Court in Male, Abdullah Mohammed, being the focus of the case against President Nasheed, the Prosecutor-General’s Office had thought it fit to move the neighbouring Hulhumale court in the matter.

Initially, the trial court had said it did not have the jurisdictional control in the case. Now, the JSC’s petition before the Supreme Court could be a reverse of the same - that under the law, the trial court could not function out of Male. It was one of the procedural issues flagged by President Nasheed’s defence. The High Court, which Nasheed had moved against certain rulings of the trial judges on procedural matters, has since stayed the trial proceedings. Whatever the ruling of the High Court in the matter, the issue is likely to be taken up to the Supreme Court.

Revisiting the ’Roadmap’

With the Supreme Court thus seized of the matter, both on the judicio-legal and judicial-administration front, the stage may thus have been set for the off-again-on-again national reconciliation process may be given - and may have received - a fresh lease. The issues are political than legal, but the legality of the issues cannot be overlooked, either. On the larger issues on hand, the parliament-judiciary spat is more political in nature, both in terms of the issues and the procedures being sought to be followed. On specifics, it is all legal and judicial in nature. The delienation is as difficult as their overlapping it. It would require a lot of give-and-take, and a larger perspective at national reconciliation.

For any long-term solution to emerge on the parliament-judiciary front, the third and crucial arm of the government, namely, the executive (as an institution) cannot be kept out. As for as the composition of the current executive, and extending it naturally to cover the legislature, the government parties, too cannot stay away for long. Their presence and participation is required even more for any workable solution on the ground, to this and other issues of ’national reconciliation’. On the specifics, President Nasheed’s MDP, and also his defence, have sought to paint the criminal case against him as ’politically-motivated’. Even while in power, the Nasheed leadership had painted the judiciary as being tainted by the continued influence of predecessor President Maumoon Adbul Gayoom, whose 30-year-long rule could not but have left behind an inevitable and indelible mark on all aspects of administration.

These issues that the ’Nasheed case’ has now flagged all-round are also a part of the larger concerns being considered at the ’Roadmap Talks’, initiated by President Waheed at the instance of visiting Indian Foreign Secretary Ranjan Mathai in March. After hiccups flowing from excessive politicisation, the Roadmap Talks were upgraded to the level of ’Leaders’ Dialogue’ for actionable decisions to flow from the national reconciliation process. Frustrated, the Dialogue chair, Ahamed Mujthaba, quit office and the vacancy remains.

The existing and emerging circumstances demand that the nation revisits the suspended Roadmap Talks / Dialogue process. The initiative rests naturally with the Executive, President Waheed in particular, who as the Head of State, responsible and accountable to and for the legislature and judiciary as well, could consider revisiting and reviving the forgotten all-party negotiations. For that to happen, there has to be a national, not just notional commitment, by all stake-holders to work genuinely towards a solution. It’s easier said than done as the experience of the past months have shown.

Clearing the pitch for presidential polls

The extended element flowing from the emerging crisis is the political posturing that each political party, starting with the MDP but not definitely excluding individual constituents of the ruling coalition, would adopt on issues and specifics that go beyond the ’Abdullah/Nasheed case’. In the past, for instance, President Gayoom queered the pitch for any serious discourse by refusing to sit at the same table with his successor Nasheed, for the latter reportedly making unfounded allegations against him on the February 7 resignation. None found the need to take the momentum forward after the MDP immediately came out with an apology-cum-clarification of sorts on President Nasheed’s behalf.

Today, there is a greater need and urgency than in the past for squaring up such issues, for the nation to move forward. At the centre of it all is the presidential polls, due by November 2013, which the MDP wanted conducted early on. Unlike government parties, which are unsure of their collective strategy and individual tactics in the matter, the MDP has re-nominated President Nasheed as its candidate through a party-ordained primary, as in 2008. Other parties are not sure of themselves on this score.

A lot will depend on how the Progressive Party of Maldives (PPM), of which President Gayoom is the founder and acting leader, moves forward. It is the single largest constituent of the Government coalition, if it could be called so, in Parliament. President Gayoom is also the most popular of all Government party leaders, as variously acknowledged. Hence, any decision of the Government coalition would have to be endorsed by the PPM in particular, be it on reviving the Roadmap Talks, recommencing the Leaders’ Dialogue, or for the ruling combine to field a common candidate for the presidential polls, if at all.

For the third time in a row, the infant PPM has deferred the mandatory party conference, for electing office-bearers. When last mentioned, the PPM was to hold its congress in November and the primary for identifying the party’s presidential nominee in January. It is unclear if the delay in electing the office-bearers means that the primary would also be delayed. The question remains if the party candidate chosen thus would have adequate campaign time, when MDP’s Nasheed has already commenced his campaign in far-away islands and atolls alike.

The PPM as the majority party in the ruling combine has a more important issue to address. Since the exit of President Nasheed, party leaders have repeatedly declared their resolve to ensure that President Nasheed did not return to power - but through the democratic process. Other leaders in the Government have occasionally referred to the pending court case leading to jail-term for President Nasheed and his consequent disqualification from contesting the presidency.

In such a scenario, the PPM as the leading party of the Government keen on having President Nasheed and the MDP defeated in the November polls next year, will have to decide on a strategy that could ensure the same. If the party were to choose its presidential nominee first, and go to existing allies, there would be little chance of a compromise candidate emerging, as some senior leaders in the PPM would want to have. As the leading party, the PPM could not then be able to make the adjustments. At the same time, to give in to allies without of any one to project as the party’s presidential nominee would also mean that not only the PPM but also the ruling combine would be on a relatively weaker wicket than is thought to be.

Resolving internal contradictions

The question remains, how far can the PPM delay its congress and primary, as the presidential polls of November next are a reality striking the Maldivian polity on the face. The PPM thus would have to resolve its internal contradictions, so should the combined coalition in the Government. This would be based mostly on electoral arithmetic on the coalition front, but purportedly on personal issues, considerations, ambitions and reach within the PPM. How the party is able to marry the two and address its perceived political goal in the immediate term, to address its medium-term concerns is the question.

The MDP too has to resist the tendency of reducing every issue and argument to the level of President Nasheed having to be allowed to contest the elections. How the party is able to do it, and ensure that President Nasheed remains its nominee in November next, without making him the sole talking-point and pre-poll issue remains to be seen. Going beyond the MDP, unless these issues are still addressed and answers found to the satisfaction of all, moving forward on national reconciliation, an unavoidable corollary for contemporary Maldives, could remain a dream, yet.

One way for this to happen is possibly for the ruling combine to decide on its presidential poll strategy early on, and possibly identify a common candidate, who then could sit with President Nasheed, and thrash out issues, which then can be taken to the Legislature, and possibly to the Judiciary, the latter either through President Waheed or Speaker Shahid, or both. The tendency could still be for the political contenders to make every meeting of theirs and every issue thrashed an accepted fodder for their respective electoral machines.

Again, there may not be a necessity for the Government parties to identify a common candidate. The senior most leaders of various parties can still announce their intention to contest, or support any other, and then join the Dialogue. Such a course, if at all, may (and it is a big ’may’) be able to clear some of the MDP’s suspicions about the rest of the nation’s polity ganging up against it, during the long run-up to the presidential polls. It is all about perceptions and politics. If nothing else, there should be a shared commitment that they all would put the past behind and move on with nation-building, which has been made much more complicated through their complex and the complexities that it has led the nation into.

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