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Maldives: Courts now take the lead
N Sathiya Moorthy
13 December 2012

Three court orders in two days, one of them overseas, and the Maldives Government and the leadership of President Mohammed Waheed Hassan Manik seem to be in full control of the evolving political situation. One pertains to international investments and relations while the other two impact on domestic politics that is unstable at best and slipping towards trouble for the second time this very year.

In the Singapore Court of Appeal on December 6, Chief Justice Sundaresh Menon ruled that the Maldivian Government has the power to take over the Ibrahim Nasir International Airport (INIA) in capital Male from the Indian infrastructure major, GMR Group, which was given a 25-year construction-cum-contract in 2010. "The Maldives Government has the power to do what it wants, including expropriating the airport," the Singapore court ruled, just a day before Male's seven-day deadline for GMR to exit the airport expired on December 7.

Nearer home a day earlier, the Maldivian Supreme Court held, 4-3, that the Hulhumale' court trying former President Mohammed Nasheed on charges of illegally detaining Criminal Court Chief Judge Abdullah Mohammed while in power, had been legally constituted. Chief Justice Ahmed Faiz was among the dissenting judges. The Apex Court order now means that the stalled criminal trial against President Nasheed could resume - and, imprisonment, if any, could lead to his disqualification from contesting the presidential polls due by November next year, but can be advanced by three months without having to amend the Constitution.

'Exceeding the boundaries' of freedom

Drowned in the 'GMR row' was another equally significant ruling of the Maldivian Supreme Court, which can impact on politics and elections in the country as much, if not more. The December 6 court ruling upholds the right of the police to investigate criminal offences committed in the guise of 'freedom of expression'. Near-equivalent to the 'reasonable restrictions' clause imposed by the Indian counterpart in the enjoyment of 'Fundamental Rights' decades ago - and in other democracies, too -- the Maldivian Supreme Court held that Fundamental Rights and Freedoms enshrined in the Constitution shall only be granted within the "clearly defined" limits of Articles 16 and 67.

A report in SunOnline quoted the Supreme Court as ruling that the right to freedom of expression granted in Article 27, the right to form political parties, associations and societies granted in Article 30, and the freedom of assembly granted in Article 32 can only be practiced to the extent that it does not exceed the boundaries of Articles 16 and 67. The court observed that any action falling outside these boundaries are against the law.

In this context, the court ruled that any action committed against the safeguards set to maintain the beliefs of societal norms are criminalised in all judicial systems and that such actions are criminalised in the Maldivian judicial system as well. The ruling said that investigating and maintaining law and order in accordance with the criminal procedures of the country and making all necessary effort in this regard are the 'fundamental responsibilities' of the respective Police and the Military Division over which the legal responsibility is bestowed. The seven-judge Bench ruled 6-1 in the matter.

Retrospective effect?

On paper, the three court rulings between them have strengthened the hands of the Waheed leadership nearer home on the legal and administrative front. The Maldivian Supreme Court rulings have ruffled the feathers of President Nasheed's Opposition Maldivian Democratic Party (MDP) all over again. It also has the potential to side-line the 'GMR row' that had taken the centre-stage of national discourse and debate over the past fortnight in particular, unless new light came to be shed on it during the long run-up to the presidential polls.

The Supreme Court ruling on the 'Hulhumale' court legality' was based on a petition from the Judicial Services Commission (JSC), whose locus standi in the matter too was under question. The ruling on 'freedoms' was sought by the Attorney-General's Office, for a clarification of the constitutional position. While the Hulhumale' court could now resume the 'Nasheed trial', and with relatively greater legitimacy, the 'freedom of expression' ruling could mean more trouble for several MDP leaders, who had targeted the Government and Government institutions, including the Judiciary, from pubic platforms, particularly after President Nasheed's February 7 resignation.

The new interpretation can set political parties and individuals thinking on the future consequences of violating the 'law of the land', in the name of rallies, protests and public speeches. In the absence of the court guidance in the matter, the Government had concluded and the police felt stymied about acting against violators of social norms in political participation but who were believed to have acquired constitutional protection under the democracy scheme. Now, however, the Government and/or Parliament may have to draw up regulations/legislation for a free and fair implementation of the spirit of the court directive, including rules for seeking and granting permission for the orderly conduct of political rallies and public protests, etc.

More importantly, the Apex Court ruling has empowered the law-enforcement agencies to interfere effectively whenever political protests of the post-resignation kind interfered with public order in the future. Conversely, any biased police handling of political protests that had caused President Nasheed's resignation in the first place too could come up for judicial scrutiny. On both matters, the current ruling has the potential to launch criminal proceedings, if moved, from where the Report of the international Commission of National Inquiry (CoNI) had left it.

However, it is unclear if the court ruling could have retrospective application, or if private citizens can move either the police or the courts for violations by others, if the police is seen as being inadequate to the task or is alleged to be one-sided and biased despite corroborative evidence of whatever nature. It is also unclear if the court ruling could be employed by either the State or the citizenry against those who attack friendly nations and international agencies in provocative phraseology, causing disturbances to law and order.

The ruling pertaining to President Nasheed's trial comes at a time Parliament and the Judiciary have locked horns on the powers of the People's Majlis to summon the three Hulhumale' trial judges before a House panel, and the matter is pending before the Supreme Court. President Nasheed himself lost no time in expressing concern over the ruling on the issue of 'Hulhumale' court legality'.

As he pointed out, one of the majority Judges, Justice Adam Mohammed, should have recused himself from the case, because as Chairman of the Judicial Services Commission (JSC), he was the appellant against an earlier High Court order in the matter. The Bench itself was split on the JSC's authority in constituting the Hulhumale' court, which the dissenting order said was the exclusive preserve of the Supreme Court.

Fulfilling legal processes

With the GMR Group promptly accepting the order of the Singapore Appeals Court order and vacating possession of the Male airport by the December 7 deadline set by the Maldivian Government, the emerging tension on that score has been defused. As may be recalled, the Singapore court also disallowed a prayer of India's Axis Bank, which has lent $ 350 m to GMR Group for the airport project, against 'sovereign guarantee' by the Maldivian State, and wanted GMR to stay lest repayment should be jeopardised.

In political terms, the Singapore court order may have also vindicated the legal positions taken by the Waheed Government in Maldives. Such perceptions could extend to court cases nearer home and also to the relative performance and independence of the Maldivian judiciary, too. However, President Nasheed as the author of the GMR contract and as the father of economic reforms and big-ticket FDI-facilitation has called the Government's wisdom in the GMR matter to question. With party nomination for contesting for the presidency in pocket, he has been touring far-off islands (a tough task for any political party or leader contesting direction elections), reviving his criticism of the court case against him, and declaring to 'topple' this Government through street-protests, if sent to jail.

After the Singapore court ruling and ahead of the GMR exit, the Government of India which has been concerned about threats to 'Indian interests' in Maldives and the safety and security of Indians working there (including GMR employees), said that while the judgment was clear about whether the Maldives Government has the right to take over the airport, other issues such as compensation have been left unaddressed. "Fulfilment of all legal processes and requirement is what we want to see in this case and we hope that all relevant contracts and agreements would be adhered to and all legal process carried through," a statement from the Indian Ministry of External Affairs (MEA) said at the time. Ahead of joining the Singapore court proceedings reluctantly and after expressed reservations, the Maldivian Government had indicated its intention to arrive at the repayment figure through negotiations/arbitration.

Independent of the 'GMR row', India's Ministry of Home Affairs included Maldives back in the list of nations from where tourists cannot return within two months. As may be recalled, long before the current bilateral differences erupted, culminating in the defaming of Indian High Commissioner DyanewshwarMulay by people holding positions of responsibility in the Maldivian Government, the Home Ministry list in the matter had included Maldivians, too. However, at the instance of the Indian High Commission and the Ministry of External Affairs, Maldivians were removed from the list, after Male brought to New Delhi's notice, how ordinary Maldivian parents and care-takers of school children and patients in Indian schools and hospitals would be affected alongside.

President Waheed, as if in turn, has since sought to reassure the Indian Government about the safety and security of Indian nationals working in the airport and in other jobs in the country. He assured airport employees that the termination of the GMR agreement will not affect their jobs. In a statement, he reiterated that the GMR contract was a business agreement with the Maldives Airports Company Ltd (MACL) and expressed the confidence that the annulment of the agreement will not hinder the closer relations between the two countries. The President appealed to all groups to"not politically influence the process, and refrain from any conflict that might lead to unrest" ahead of the airport hand-over.

Parliament vote, political dialogue

The interim judicial reliefs for the Maldivian Government do not deflect entirely from the political reality of Parliament having passed 41-34, an MDP resolution for secret-voting on a no-trust move against President Waheed. The resolution had the backing of influential parties in the ruling combine, unlike in the first round earlier in the current session of Parliament, and this prompted an MP to move the Supreme Court, which in turn has stayed the operation of the 'secret-vote'.

The vote however has boosted the morale of the MDP, which has been seeking to remove some Ministers through Parliament's lack of confidence in them, as was done through the open-vote system when the party was in power. However, the figures falls woefully short of the 52 votes required for an impeachment motion against President Waheed in the 77-member House, which is also on the top of the MDP's parliamentary agenda.

The no-trust votes apart, an MP moving the Supreme Court, challenging the resolution on 'secret-voting' and the latter granting a stay may have lent a new angle to the emerging differences between the two constitutional institutions, with the Executive caught in the cross-fire owing to political identities, and the entire processes in the matter would be keenly watched. Yet, it has also exposed the internal contradictions within the ruling combine, which had been brushed under at the height of the anti-Nasheed 'December 23 Movement'.

The MDP got another morale-booster in the narrow margin of defeat in a parliamentary by-election for a seat retained by former President Maummon Gayoom's Progressive Party of Maldives (PPM), particularly after the incumbent MP had been brutally slain at midnight and outside his Male home. Rumours based on detention of some MDP cadres for the murder did not impact the by-election, it would seem. Their subsequent release, and the arrest of an army officer and others 'contract-killing' instead has caused eyebrows raised, particularly over the long silence on the part of the police, which cited the by-election as the cause for their not talking about the murder investigations.

In the midst of all this, visiting UN Assistant Secretary-General for Political Affairs, Oscar Fernández-Taranco, said that reforming the nation's judicial system was a complicated and difficult process, but the CoNI Report too had underlined the need for the same. The UN official is accompanied by an UNDP team to assess the requirements for the conduct of presidential polls next year, and Fernandez-Taranco said that elections by themselves are not a solution.

"I emphasised to my interlocutors the need for the Maldives to resume political dialogue at all levels, promote messages of moderation and respect, and implement without delay institutional reforms," Fernandez-Taranco said in this regard. And on the International Human Rights Day, State Minister for Foreign Affairs, Dunya Maumoon, daughter of President Gayoom, said that the international community did not have concerns about the HR record of Maldives - another criticism flagged by the MDP from time to time, while both in power and outside.

With presidential polls due next year, President Nasheed (alone) among the probable candidates, apart from incumbent Waheed, is reaching out to the voters in far-flung islands as he has been doing almost since the February 7 change-of-power, which his party dubs a coup. With the Hulhumale' court trial ahead of him, President Nasheed held the MDP's National Council meeting in an island this week, declaring the party's intent to revive street-protests if he was convicted and thus disqualified from the election. He himself has revived his call for an 'Egypt-type revolution', and it remains to be seen how the Government, armed with the new Supreme Court order on law and order, will react if MDP cadres hit the streets, as they did a day after President Nasheed's resignation.

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