Maldives: A case for 'institutional reforms'

N Sathiya Moorthy www.orfonline.org 20 July 2012

The January 16 arrest of Criminal Court Chief Justice Abdulla Mohammed, and the subsequent prosecution of then President Mohammed Nasheed, his Defence Minister Tholhath Ibrahim Kaleyfaanu and three senior army officials now should indicate the kind of 'institutional reforms' that Maldives requires. Considering that the current political impasse has had its immediate origins purportedly in the arrest of Judge Abdullah and its continuance could be linked to any adverse verdict against President Nasheed for the same, there is an urgent need for addressing these issues. Yet, this should be attempted with the full realisation that Rome cannot be built in a day, as the erstwhile ruling Maldivian Democratic Party (MDP) might have hoped for. 

In all fairness, the political crisis leading to the controversial February 7 resignation of President Nasheed did not have its origins in the arrest of Judge Abdullah. Nor would it have been the end-game. Yet, it purportedly alienated one more section of the Maldivian society, this time the legal fraternity. Some saw it as a diversionary tactic at best when the Nasheed Government was besieged by the political Opposition. It gave an additional cause for the 'December 23 movement' of Islamic NGOs to press their demand for President Nasheed's exit. The movement from the very beginning had the blessings and participation of the otherwise diverse and at times desperate group of Opposition parties in the country. This fact should not be overlooked either. 

The arrest of Justice Abdulla by the Maldivian National Defence Force (MNDF), the nation's armed forces, raises questions. So has the criminal case against President Nasheed and others. The MNDF was created in 2004 by bifurcating the by then notorious National Security Service (NSS) under then President Maumoon Abdul Gayoom. This was done precisely with the intention of ending the misuse and abuse of the NSS, which at the time had policing powers, rights and responsibilities, as well. The bifurcation involved the creation of a Maldivian Police Force (MNF), which had the policing powers, and the MNDF was made the nation's armed forces, as in any other country. But old habits did not die either then, or since. 

Politicisation of security forces 

Justice Abdulla's arrest, those of two Opposition leaders, namely, Abdullah Yamin (People's Alliance) and Gasim Ibrahim (Jumhooree Party) in mid-2010, and also a day-long closure of the nation's Supreme Court all involved the MNDF, though they should have stopped with the police. Even after bifurcation of the NSS and the emergence of multi-party democracy, in that order, the Government is excessively dependent on the MNDF for law and order duties. At the institutional-level, the MNDF and the MPF have continued to take orders from the Government of the day. At the personal-level, this may have become possible only with top-level transfers in both with every change of Government and change of Ministers. Loyalty, not professionalism remains the key, leading to constant and confusing politicisation of the security forces in the country. 

It does not stop there. Apart from President Nasheed and his Defence Minister, the Attorney-General had also named then MNDF chief, Maj-Gen Moosa Ali Jaleel, Brig-Gen Ibrahim Mohamed Didi, heading the troops in the national capital, and Col Mohamed Ziyad for the arrest of Justice Abdulla. They were removed from their positions immediately after the Waheed Government took over. So was then Commissioner of Police of Male. This was a repeat of the situation when President Nasheed assumed office. In the present case however, Brig-Gen Didi had played a key role in defence of Male when Sri Lankan Tamil mercenaries attacked Male in 1988. He was posted back to Addu City in the South after President Nasheed's resignation, and lost no time in resigning from the armed forces after three-plus decades of service after the Government moved the Hulhulumale court. To the local media, he said that he did not want to compromise the dignity of his office and uniform by appearing as an accused in a civilian court.. 

Through the past months since President Nasheed resigned from office, the MDP has charged both the MNDF and MPF with being part of the conspiracy to overthrow his Government along with their political opponents. Obviously, they have the respective leaderships of these forces at the time in mind. As they are also not tired of pointing out, elements within the two uniformed services had indeed joined the street-protests demanding his resignation since the night before he quit office. This can demoralise the already demoralised forces. It could cause more problems than solving any even as the nation is inching towards fresh presidential polls, either when due in the second half of next year, or earlier, as demanded by the MDP. 

The circumstances under which President Nasheed resigned are the subject matter of an independent probe by a Commission of Inquiry (CoNI), to which the MDP, as also the Commonwealth have named two members, since. Pending the inquiry, the MDP has not stopped repeating those charges, or adding fresh ones, particularly with regard to the party's street-protests ? to permit or regulate which there are no specific laws in the country. That way, a whole spectrum of legislation needs to be drafted or amended by Parliament, combining the demands of a modern nation with the customs and traditions that have the sanction of law, as elsewhere. 

Conflict of interest 

Various charges of misconduct and maleficence had been laid against Justice Abdulla prior to his arrest. At present Presidential Advisor, Dr Hassn Saeed had laid out charges against Justice when he was the Attorney-General under President Gayoom. The Supreme Court, a creature of the 2008 Constitution, too had occasions to pull him up. So did the Judicial Services Commission (JSC), another controversial institution in which the ruling Maldivian Democratic Party of President Nasheed did not have faith in despite its constitutional character. 

Throughout the period of Justice Abdulla's detention during the Nasheed regime and after his release and resumption of office under the incumbent dispensation of President Mohammed Waheed Hassan Manik, the MDP has claimed that he was a 'threat to national security'. This was at variance with -or, was it in addition to ? -- the earlier allegations against Justice Abdulla. If the new charge was true, the MDP Government did not substantiate it. If it were true still, the question arises how a successor Government could take a narrow view of things and order the judge's release and immediate reinstatement. The recent report of the Maldivian National Human Rights Commission (NHRC) says that Justice Abdulla had to undergo mental torture and harassment in detention, and efforts also were made to persuade him to leave the country. It ruled out physical torture of any nature, however. 

As promised on assuming office, the new Government has since moved the courts, charging President Nasheed, Minister Tholhath and three senior military officials of the time, among others, with unlawful detention of Judge Abdullah. To pre-empt charges of 'conflict of interest' the Government moved the Magistrate Court in suburban Hulhulumale Island, off the national capital of Male, where Justice Abdulla is seated. However, the magistrate ruled that he could not assume jurisdiction to try the case without Chief Justice Abdulla assigning the same, and the Judicial Services Commission too endorsed it. The Magistrate has not dismissed the petition but has only returned the same to the Prosecutor-General's office, with the indication for the latter to rectify the process. 

It was commendable that the Government had thought about the possibilities of 'conflict of interest' issue being whipped up if Justice Abdulla had tried this case. Yet, judicial systems across the democratic world dictate that such charges are laid by the other party to a criminal case. Better still, in most such cases, the Judge concerned would recuse himself when the situation so demanded. The short-cut approach adopted by the Government should be seen as a part of the institutional weakness that haunts the process. As such, no motives need to be attributed to the same at this stage, to that limited extent again. 

Banishment as a punishment 

It is likely that the Government will revive the case against President Nasheed at the appropriate judicial forum. If courts found him guilty, President Nasheed would be barred from contesting elections. Already, the MDP has declared that the party would not participate in any presidential polls where President Nasheed is barred from contesting. Be it as it may, the law relating to the offence for which President Nasheed is being charged with is a fit case for review and reform, it would seem. The section provides for 'banishment' for a term, or imprisonment for three years, or a fine of Rf 2000. If sentenced to more than 12 months, President Nasheed cannot contest elections until after the completion of three years, or he has been granted a pardon (by the President?). 

It is very likely that no other democracy, and certainly not in the South Asian region, still has 'banishment' as a part of its penal provisions. In Maldives, not only banishment but 'house arrest' also continues on the statute book, as a punishment for crimes. Contemporary history is replete with instances where either or both punishments have been freely handed down to political adversaries of the Government, since the pre-democracy days, dating beyond President Gayoom's 30-year rule. Other areas of law like banking, labour all need to be , migration and property too need to be updated. The MDP that has been talking vociferously in favour of fast-tracking legal and judicial reforms has been concentrating mostly on individuals, not necessarily institutions and certainly not processes, which alone add to the value of democracies. Other parties are not doing that either. They seem to derive comfort from the status quo, not necessarily because they favour it but mostly because the complexities of the social and political issues that such reforms could throw up may be too much for the polity to address, hence stomach. Conversely, the reforms process thus far has introduced institutions that are superfluous for a nation of 350,000 people. The number of commissions serving and servicing the Government employees, including the police, is a case in point. Yet, neither has the credibility of the 'integrity commissions' been ensured, nor have they been allowed to settle down without continued criticism of their functioning. 

The MDP calls it 'institutional reforms', the new Government of President Waheed says there is need for 'institutional empowerment'. In relation to institutions like the higher judiciary, enough time has not been given for either. The Supreme Court itself is a creature of the new Constitution, and the law provides for a seven-year term for 'capacity-building' in judiciary across the country. No efforts seem to have been made in this regard, nor any attention known to have been given on the kind of reforms or empowerment that is needed, and methods of doing it within the seven-year period. After the change of leadership, both sides seem to have stopped talking about their respective positions on the issue. The All-Party Roadmap Talks was set up to address such issues, but it has grabbled only with trivia, in comparison. 

Discussing trivia, instead 

There needs to be a greater realisation in all sections of the nation's polity and society that democracy is not a half-way house, to be built, abandoned, and re-built at whim. It is an evolutionary process, with which individual societies experiment a perceived format and make adjustments and amendments as their nation's circumstances demanded. There are no successful models, or failed models in democracies, for an intended democracy to pick off the shelf and display the wares. It has to be meticulously worked upon, brick by brick. 

A generation can at best lay strong foundations, but it would be for the future ones to build upon it, brick by brick, floor after one more floor. There would be no finality still, as democracies evolve and need to evolve with the new generation, lest they should be rendered redundant and be described as 'autocracy' of some kind or the other. That has also been the Maldivian experience, through much of the 20th century. The advent of a new generation, a new century does not make for the experience. It can at best be a cause for experimentation. In all this, a nation's patience is the key. 

It is not that the current crop of leaders in Maldivian polity does not understand. The agenda for the Roadmap Talks that they agreed upon after the change of Government in February focusses on much of what needs to be done. The prioritisation of the agenda also underscored their understanding of the evolving situation, overall. Yet, on the ground, they are talking politics, not policies. This does not mean that the events leading up to the February 7 resignation of President Nasheed need not be gone into. 

It is not about individuals again, but about institutions, including the Presidency and the armed forces, in situations that the Constitution-makers had not provided for but wanted to avoid in the first place. The findings of the Commission of National Inquiry (CoNI) could thus form a part of the Roadmap agenda, as much needs to be done on institution-building, all-round, if the new-generation Maldivian dream of democracy has to be nourished and cherished. 

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