By N Sathiya Moorthy*
Reminiscent of the era before multi-party democracy unfolded in 2008, the Opposition MDP has called for a nation-wide ‘civil disobedience movement’ after a three-judge Criminal Court Bench awarded a 13-year jail-term for former President Mohammed ‘Anni’ Nasheed in the ‘Judge Abdulla abduction case’. While the international community (read: West) has backed MDP against the legal and judicial processes in the country, President Abdulla Yameen has asked them not to interfere in the internal affairs of Maldives and asked Nasheed’s defence to avail of the existing opportunities for appealing against the trial court verdict.
If the fast-tracked trial proceedings had come in for criticism from the defence and the international community alike, the surprise came in the form of the court pronouncing the verdict only hours after it had concluded the trial on the night of Friday, March 13, an official weekly holiday across the island-nation. It’s unclear why the court did not complete the trial against Nasheed’s co-accused, who under the Maldivian criminal procedure, can be tried separately. Nor is it known when their trial would conclude and when the verdict would be pronounced. For now, the court has postponed the trial against co-accused and incumbent Defence Minister Moosa Ali Jameel, scheduled for Monday, March 16.
Almost from the start, Nasheed’s defence had cried foul over the procedure, the denial of demanded time for preparing their case, refusal for two of the three judges to recuse themselves as they were present at the time of Judge Abdulla’s arrest, and for their appearing as defence witnesses along with the nation’s prosecutor-general. Protesting against the denial of time after they had been given only an additional day, the defence lawyers quit.
During the three-week long trial, the presiding Judges ruled that there was no need for them to recuse themselves, nor was there any need for them to appear as witnesses, possibly holding that the case would have stood even without either. The court also declined Nasheed’s personal request for appointing a new lawyer after his team had quit, but did not deny him the right to appoint one even as they continued with the trial, whatever that meant in real terms.
Appearing as a prosecution witness, Judge Abdulla recalled how he was hauled out of his home from the dinner table in the middle of night and taken away to what he learnt the next day was an island-prison. He also named names of those who had met him or otherwise asked him to quit service or settle overseas when he was still in detention/prison. Other prosecution witnesses mostly confirmed the Judge’s version.
The prosecution also provided video-footage of Nasheed, then the nation’s President, defending Judge Abdulla’s arrest, in rallies and public statements. Media reports do not indicate that the defence team, when present, had contested the same. It is unlikely under the circumstances if the defence would have been able to disprove then President Nasheed’s knowledge of the detention, even if they were, if at all, able to establish that he did not give the ‘abduction’ orders.
In the last sitting of the hearing, the Judges however denied Nasheed the 20 days’ time sought for preparing his defence. If the authorities apprehended that the ex-President with established contacts in the western world could/would use the time to campaign his cause, rather than prepare his defence, they did not make out the point, either inside or outside the courtroom. Ditto with the absence of explanation, if any, about the surprise arrest of Nasheed and the subsequent denial of his submission for house-arrest to help him meet his lawyers and prepare his defence better.
U-turn for the worse
Observers were surprised when overnight the prosecution withdrew the pending criminal case against Nasheed and the rest under the nation’s penal code, entailing a maximum prison term of three years if charges were proved, in mid-February. The surprise was compounded when a new case was filed, under the anti-terror law of 1989, which prescribes a 10-15 year prison-term for unlawful confinement, abduction, etc. When the U-turn thus came, it was for the worse.
Either way, Nasheed would have been barred from contesting the presidential polls of 2018. With the longish prison-term now, he might not be able to contest for an additional 15 years or so, unless the High Court and/or the Supreme Court overturned the trial court’s verdict. Penalty under the two courses anyway entails an opportunity for presidential pardon. It comes with a caveat that Nasheed would still be disqualified from contesting the polls.
President Yameen has since talked about Nasheed’s “constitutionally-guaranteed right of appeal”, which he should avail of. If that is a political message to Nasheed’s Maldivian Democratic Party (MDP) not to do anything drastic outside the court room, they have already decided on a ‘civil disobedience movement’. Past-masters at street-protests, the MDP is also now bound by Nasheed’s exit lines in the courtroom, extolling ‘em all to take to the streets in defence of ‘rule of law’ and due process.
On earlier occasions, Nasheed had told the court that the trial was a ‘travesty of democracy’ and ‘injustice’. He also protested the media from being barred from the trial, which was when he was photographed falling outside Male’s ‘Justice Building’ and being pulled/pushed by police men. After the trial court’s verdict, the High Court has dismissed his petition to nullify the trial over the denial of ‘public trial’, guaranteed under the 2008 Constitution. Though details are not known, the courts might have stuck to exemptions under the provision, it is said.
Politics all the way
Nasheed’s defence has since said that they would appeal the verdict in the nation’s High Court. If that were the case, the question arises why they had to walk out of the case at the trial stage. Whatever intervention that was allowed in the trial stage would still have helped them in the appeal hearings. By using the courtroom to make political statements, including those condemning the procedure and the judiciary as a whole, Nasheed might have made things even more difficult for himself.
Yet, there is no knowing why the court could not have granted the time sought by the defence, or by Nasheed, later, to prepare the case. As the defence team has since pointed out, the Supreme Court, through a sudden change of procedure in January, has reduced the appeal-filing time from three months to 10 days. That was before Nasheed’s arrest and trial had been in the news, but even then the MDP had expressed consternation. The defence now says that the Supreme Court did not have the powers to change the procedure, which was an exclusive preserve of the Legislature.
Nothing, however, can explain and/or defend how incumbent Defence Minister Moosa Ali Jaleel, a co-accused in the case already being tried separately from Nasheed, could lead a motor-bike rally, demanding ‘immediate sentence’ for the former President. A retired lieutenant-general of the Maldivian National Defence Force (MNDF), Jaleel was the nation’s army commander at the time of Judge Abdulla’s arrest and detention, and has pleaded ignorance about the instructions that went up and down, claiming that he was bypassed on those occasions.
With or without his possible future acquittal by the court (and upheld by the higher ones), Jaleel could not have participated in a political rally, telling the court what to do in a pending trial. Ironically, only days after Nasheed’s conviction, a parliamentary committee has since confirmed Jaleel’s appointment as Defence Minister, and it will now has to be cleared by the full House of the People’s Majlis, or Parliament.
In the ordinary circumstances, political and administrative propriety demands that anyone accused of a grave charge such as this does not occupy, or continued to occupy such a high office. The prosecution would have also expressed natural apprehensions about the greater possibilities of an accused such as Jaleel influencing the witnesses. In this case however, the Yameen presidency had first named Jaleel, Maldivian envoy to Pakistan, and followed it more recently with elevation as Defence Minister – even as the original case regarding Judge Abdulla’s abduction was still pending before the criminal court.
Minister Jaleel and the rest of President Yameen’s ruling Progressive Party of Maldives (PPM) have only been out-matched however by the MDP along with the new-found/re-found Jumhooree Party (JP) ally, who together had launched a daily rally through the previous weeks and whose demands came to include protesting the arrest and trial of Nasheed and that of predecessor Defence Minister Col Mohamed Nazim, who has since been charged with attempting a coup and plotting to target President Yameen and other Government leaders. If authorities had suspected that the MDP-JP combine’s protests in ‘defence of Constitution’ was aimed at destabilising the government and the Maldivian State, the question would arise if there were independent political and legal ways to countering the same.
It’s cases such as Col Nazim’s overnight arrest and fall from grace, coupled with the Government’s earlier decision to cut down the number of Supreme Court judges from seven to five and ‘impeach’ two incumbents, again, in a fast-track mode, that has made the Government’s motives more questionable than already. Government leaders however have stood the ground and have also been parroting that under the post-democracy constitutional norms, the powers of the Executive, Judiciary and Legislature have been separated and the Executive cannot be expected to influence the Judiciary to put a stop to the Nasheed trial or any other. Or, so goes the argument.
India ‘deeply concerned’, but…
After the court sentencing of Nasheed, India has expressed ‘deep concern over the developments’ and said that it was watching the situation. Yet, it may not be the best of time for Nasheed’s supporters in Maldives and sympathisers in India, particularly over implied and explicit charges of partisanship against the Maldivian judiciary. Nearer home, a Delhi court has since summoned former Congress Prime Minister Manmohan Singh on April 8, to be examined for possible inclusion as a co-accused in the multi-billion ‘coalgate scam’ when he was in office.
In doing so, the court has rejected two successive ‘closure’ applications filed by the lead investigating agency, namely, the Central Bureau of Investigations (CBI). The investigations and trial in the case are being supervised by the nation’s Supreme Court. The ruling BJP leaders have since defended the trial court’s right to summon the former PM, though they may or may not possibly share the court’s view. In this background, the government of Prime Minister Narendra Modi cannot be expected to comment on the performance of the Judiciary in a neighbouring country.
In the surprise arrest of Nasheed ahead of what his supporters say was a hasty trial at best, the Maldivian authorities might have been acknowledging his ingenuity and political acumen. The last time he was to have appeared before the trial court in the original criminal proceeding in the ‘Judge Abdulla case’, Nasheed surprised everyone, including the host (?), by staging a 10-day stay-in at the Indian High Commission (IHC) instead.
The Nasheed ‘stay-in’ had every potential component to become a ‘diplomatic incident’ of sorts but was handled deftly. For days before his arrest this time, which was not in the news anyway, Nasheed had begun openly calling upon India to ‘protect’ him if jailed. Both after his arrest and now conviction, the MDP appealed to the larger Indian neighbour and regional power in particular to intervene ‘strongly’ and in the name of ‘democracy’. This view may be shared by many in the Indian strategic community, but such steps come with caveats and consequences.
That the Yameen government did reopen the case even as it was talking to India about the imminent visit of Prime Minister Narendra Modi should mean that either they did not care for India’s genuine concerns that revolve around stability in and of Maldives, or could not risk delaying decisions on the Nasheed/MDP front only at their own peril, or both. PM Modi did drop Maldives from his four-nation Indian Ocean neighbourhood itinerary, but there was also no knowing if he would have faced political protestors if he had made it to Male for what was seen as the beginning of an epoch-making, cooperative IOR initiative.
On the night of his election as president, Yameen had sworn against ‘political vendetta’ against Nasheed, who had given him the best of electoral fights and lost only narrowly. Possibly, he was referring to the possible reopening of Judge Abdulla case. However, throughout the past year and half, the government did not close the case, however. Nor did Judge Abdulla withdraw his police complaint. There is also nothing to suggest that either Nasheed or the MDP or anyone else had done anything legally or politically to try and set right things, if they were aggrieved over the status of the ‘Judge Abdulla abduction case’.
Engage constructively: Yameen
Seeking to silence international criticism, Maldivian government leaders, including President Yameen and his half-niece and Foreign Minister, Dunya Maumoon, have clearly drawn the red-line that they should not cross when commenting or dealing with domestic issues in their country. Addressing the UNHRC at Geneva after Nasheed’s trial had gone under way, Minister Dunya asked why the international community was keeping quiet when President Nasheed had ordered Judge Abdulla’s illegal arrest, preceded two years by present-day President Yameen.
Minister Maumoon has also reiterated the Government’s resolve to consider quitting the Commonwealth, for instance, if they were seen as interfering in Maldivian affairs. Before this one, the erstwhile government of then President Mohammed Waheed had held out a similar threat, only to invite/accept a Commonwealth panel to probe the events of 7 February 2012, leading to President Nasheed exiting office. The CoNI Report, as the probe was named, sort of absolved Nasheed’s opponents of much wrong-doing in his exit.
Today, with President Nasheed behind bars, the Yameen leadership may not be disinterested in negotiating from a position of relative strength. As a statement from the President’s Office said after Nasheed’s conviction, “The government calls on its international partners to engage constructively, based on mutual respect and dialogue in consolidating and strengthening democratic values and institutions in the country”.
It is unlikely that the government would be willing to let other nations or international organisations to enter the scene in a big way. Nor may any of them want to negotiate on someone else’s behalf without being in a position to guarantee absolute compliance, if and where required. Experience from the 2012 past, when India and the Commonwealth intervened after Nasheed left office on 7 February showed that all stake-holders in the country have had the wonderful habit of ‘shifting the goal-post’ instantly and constantly and blaming the rest, including the facilitator, whenever and wherever possible.
*The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter
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