Maldives: 'Deal' or 'no deal', that's not a question 

N Sathiya Moorthy www.orfonline.org, February 25, 2013

With former Maldivian President Mohammed Nasheed walking out of the Indian High Commission (IHC) in Male as voluntarily as his entry, political tensions within the country and bilateral relations with New Delhi have eased. The hopes ? and expectations -- are that the domestic stakeholders would use the coming weeks to create a violence-free, conducive atmosphere that in turn will ensure 'free, fair and inclusive elections' to the presidency, tentatively scheduled for September 7, with a run-off second round, if necessary, later that month.

Nasheed's Maldivian Democratic Party (MDP) has argued that any election without him as its nominee could not be free and fair. They fear his possible disqualification, if the pending 'Judge Abdulla abduction' case leads to the confirmation of a prison term exceeding one year. As the single largest political party on record, going by the membership registered with the Election Commission and given the party's penchant for taking to the streets, for it to be heard ? even when Nasheed was the nation's President ? the MDP could not be over-looked, or left unheard.

At the same time, questions also remain if, by nominating a leader against whom criminal charges were pending or, could be anticipated under a given set of circumstances, political parties could circumvent the legal and judicial processes. The argument could apply to the presidential hopefuls of a few other existing and active political parties in the country. 'Criminality in politics' seemed to have preceded democracy in the country. 

An incumbent Government could thus be charged with 'selective' application of criminal law, which otherwise should have been used universally to all politicians who could have been arraigned before the nation's judiciary for specific offences ? whether leading to their disqualification from contesting one election or the other. The MDP calls it 'politically-motivated'. While in power, the Nasheed Government had resorted to similar tactic ad infinitum. No one had to talk about 'disqualification' at the stage in which those cases were dropped ? or, not proceeded against. They were among the charges that the party had laid against predecessor Government of President Maumoon Abdul Gayoom, as well, in its formative days as a 'pro-democracy movement' in Maldives.

On the political, though not legal plane, the reverse could be equally true. What is applicable to others should be applicable to Nasheed. Or, what is applicable to Nasheed (whatever the criminal charges) should be applicable to the rest of them as well. It would then be a question of non-sinners alone being allowed to stone a sinner! Yet, sooner or later, Maldives as a nation would have to decide its legal position and judicial process on 'accountability issues' of the kind. 

Personality-driven

A national commitment on 'accountability issues' in civilian matters, however, may have to wait until after the presidential polls this year and the subsequent parliamentary elections in May next year, when alone political clarity is expected to emerge along with parliamentary stability ? and hopefully, so! This time round, the 'Judge Abdulla abduction case' in which Nasheed is accused no. 1, has taken the centre-stage of political campaign in the run-up to the presidential polls. Like all issues Nasheed-centric, it remains personality-driven, not probity-driven. 

The 2008 Constitution, providing for multi-party elections, provided for immunity to former Presidents from political decisions and criminal acts that they could otherwise be charged with during their days in office. In a grand gesture at national reconciliation after a no-holds-barred poll campaign, President-elect Nasheed met with his outgoing predecessor, Gayoom, without any delay whatsoever, and promised similar immunity. President Gayoom, despite motivated speculation to the contrary, arranged for power-transition without any hiccups.

The perceived dithering by the Nasheed Government in ensuring immunity for Gayoom through appropriate laws and procedures meant that the latter would still need a political party to flag his personal concerns. The latter was being used by the Government and the MDP to argue that the immunity guarantees won't be matched by similar guarantees that Gayoom would stay away from active politics for good ? so that it could be an one-off affair as part of the 'transitional justice process', which could be deemed as inactive by some, but pragmatic by most. 

Today, Gayoom has the immunity, and a political outfit to call his own. The Progressive Party of Maldives (PPM), a distant second to the MDP in terms of parliamentary and membership shares, is expected to throw up the challenger to Nasheed in the presidential polls, if he is not disqualified in between. That Nasheed was still a pro-active politician when the 'Judge Abdulla case' got activated could be an explanation. 

In a crude and curious way, there is a 'level-playing field'. The equilibrium could get upset. The question is whether Maldives deserves and wants political equilibrium or stability of this kind. The sub-text would be to ensure and social peace and political stability between now and the twin polls, where policies, and not personalities are discussed. What then are these alternatives before any future government, in the overall context of policies and programmes for the future? While personality-driven in the electoral context, it has to have universal application. Where there are limitations, they too need to be universal.

Various political parties now in the long drawn-out electoral race for the next one year would be called upon to define, redefine and clarity their positions on issues of national concern ? issues that could upset the Maldivian socio-political peace in more way than one. Then, it could be 'accountability' of a different but universal kind. Making political parties to stick to their electoral commitments is an art Maldivians would have to master, an art that their fellow South Asian nations have miserably failed to master.

Reviving the Dialogue

The forced Indian interest in current Maldivian affairs have provided twin-opportunities for the islands-nation to move forward on the chosen path of multilateral, multi-layered, multi-party democracy. It helped diffuse the politico-legal situation created by Nasheed's unilateral sit-in in the Indian High Commission, extending up to 11 days. With Nasheed in the Indian High Commission, the judicial processes in Maldives were coming under strain. He and his MDP were losing out valuable time during the long run-up to the twin-elections, both of which they would have to win if post-2008 kind of history were not to repeat itself.

Independent of what might have been said ? or, not said ? the episode would have once again proved to the MDP and its leadership that it does not have friends in the Maldivian political establishment, which alone mattered to face off political and legal issues which carry a date-line and a deadline on the cover. The limitations of the sympathy, if not the support, of the international community, as evidenced through favourable reactions to his sit-in from the UN, the US and the UK, among others, could only do so much. In an election year, the party and the leader needed votes nearer home, not just words from afar. Despite being the largest political party, the MDP's political and electoral limitations stand exposed.

On another front, too, the MDP has lessons to learn. Throughout the past months, the Government Oversight Committee of Parliament, dominated by the MDP, has taken up issues of concerns that are closer to its heart and that of its leader, providing them with alibi that would not stick, otherwise. The Committee thus has come to challenge the findings of the Commission of National Inquiry (CoNI) -- an international jury expanded to meet the MDP's concerns ? on the February 7 power-transfer last year, when Nasheed got replaced by his Vice-President Mohammed Waheed Hassan Manik, now President.

It may have become increasingly clear that exercises of the kind ? nor, possibly Nasheed's sit-in or street-protests by the party through much of the past months, has not brought in a substantial number of new converts to the cause, other than those who may have signed in at the time of power-transfer. The party needs more votes, which some of the Government coalition parties at this point in time may have had already in their pool. By making things difficult for intended allies through acts like public protests and contestable sit-in, which have an element of 'nationalism' and 'patriotism' too underlying it, the MDP may not be able to achieve what it ultimately intends to achieve.

The reverse is true of the Government leadership, and all non-MDP parties that otherwise form part of the Waheed dispensation. They need to ask themselves if by barring Nasheed from candidacy, they could marginalize the 'MDP mind-set' overall, or would they be buying more trouble without them in the mainstream. They also need to acknowledge that without the IHC sit-in, Nasheed could still have flagged the same issue and concern in the international community through an indefinite fast, the Gandhian way ? and the Government would have been foxed for a solution, in the absence of direct involvement by India, which came to be blamed in certain circles in Male, and without whose engagement, the current crisis could not have been solved in the first place.

In the final analysis, the sit-in may have delayed the judicial process in Maldives, not denied it its course. The Waheed Government has said that it had struck no political deal to facilitate Nasheed's reviving his normal social and political life by letting himself out of the IHC. In context, India had only extended basic courtesies of the kind that former Heads of State have had the habit of receiving but under less imaginative and less strenuous circumstances. 

New Delhi still understood the limitations and accompanying strains. In dispatching a high-level team under Joint Secretary Harsh Varshan Shringla in the Ministry of External Affairs (MEA) to try and diffuse the situation, India seemed looking also at the possibilities of reviving the forgotten Leaders' Dialogue that President Waheed had purportedly initiated but did not take off. With able assistance from outgoing Indian High Commissioner Dyaneshwar Mulay and company, the Indian delegation has been able to diffuse the current situation. The rest is left to Maldives and Maldivians to take forward.

In this past year, full of events and episodes in Maldivian history, the forgotten Leaders' Dialogue itself was a take-off from the more successful ? however limited that success be ? of the 'Roadmap Talks', which coincidentally had Indian Foreign Secretary Ranjan Mathai facilitating it after the power-transfer controversy this time last year. While coincidental in every way, the Indian engagement this time round should help the domestic stake-holders to revive the political processes aimed at national reconciliation. 

India has clearly stated that it does not have a role in any dialogue of the kind ? nor is it interested in directing the dialogue in a particular direction. It has also denied that a deal has been struck over Nasheed ending his IHC sit-in and re-entering Maldivian mainstream, his social and political life. In his early media reactions after walking out of the IHC, Nasheed has at best been vague about any deal, linking his exit from the IHC to commitment about his being able to contest elections.

Any initiative for reviving the Maldivian political dialogue now should rest with President Waheed, whose office gives him the authority to attempt national reconciliation of the kind. The MDP can be expected to insist on linking Nasheed's disqualification to any participation in any process of the kind, but the judicial process could be expected to take their course ? adding social pressures to the party's own political compulsions.

Courts and the case

A lot however will depend on the course of the judicial process that the 'Judge Abdulla abduction case' has set in motion. A day after Nasheed exited the Indian High Commission, Brig-Gen Ibrahim Didi (retd), a co-accused in the case, told the suburban Hulhumale' court that President Nasheed had 'ordered' the arrest, and then Defence Minister Thol'hath Ibrahim Kaleygefaan had 'executed' it, and he as the then Male Area commander of the Maldivian National Defence Force (MNDF) had only followed those orders.

Did's defence team questioned the 'innocence' of Judge Abdulla, and contested the prosecution claim that there are precedents to Article-81 Penal Code prosecution against Government officials for illegal detention of the kind. The prosecution, going by media reports, argued that Judge Abdulla was 'innocent' until proved guilty, and promised to produce details of precedents from 1979 and 1980, at the next hearing of the case against Didi, now set for March 20, for deducing evidence.

At the height of the 'Nasheed sit-in', the three-Judge Hulhu'male court heard Thol'hath's defence argue against his ordering the illegal detention of Judge Abdulla, saying that as Minister, he was not in a position to either order or execute any order in the matter. The legal responsibility, accountability or liability for the same was elsewhere, the defence seemed to be arguing. The court will now hear the evidence against him on March 13. 

President Nasheed, then MNDF chief, Maj-Gen Moosal Ali Jaleel, and Col Mohammed Ziyad are other accused in the case. Of them, Col Ziyad's case is being taken up along with that against Thol'[hath and Didi. Like Nasheed did before emplaning for India for a week, Gen Jaleel had also obtained court's permission to travel abroad. It remains to be seen how fast the cases would proceed from now on ? and how fast the appeals court would be involved, for the pronouncements of the trial court to reach a finality ahead of the presidential polls. 

It is unclear if the Nasheed defence has exhausted all opportunities for interlocutory petitions, going up to the Supreme Court through the High Court ? or, if it has further ammunition of the kind in its legal armour. Inadvertently, though, his staying away from the court on three occasions over the past four months ? the last two in quick successions ? and his seeking court's permission to go overseas twice in as many months may have had the effect of buying him and his defence the much-needed time, in having to face the politico-legal consequences flowing from the trial court verdict in the 'Judge Abdulla case'.

For his part, independent Prosecutor-General Ahmed Muizzu clarified after meeting with the visiting Indian officials that there was no question of his office seeking to delay the pending prosecution against Nasheed. The PG's office was among the first to criticise the Nasheed Government on Judge Abdulla's arrest in January 2012. President Waheed's Office and also other relevant departments of the Government too have now indicated that it's between Nasheed and the judiciary and they had no role to play, nor do they have any way of stalling the proceedings if the courts decided otherwise. It is a fair assessment of the legal and judicial situation this, in any democracy.

For India, the sit-in may have provided an unintended and possibly unprepared-for occasion to re-establish contacts with the Maldivian Government and political leaderships after the 'GMR issue', however tense and unpredictable the circumstances now than on the earlier occasion. It possibly would have given both sides the occasion and opportunity to understand and appreciate that there is much more to bilateral relations than might have been understood or misunderstood, particularly by the media on either side. 

Otherwise, with the Indian media getting to notice Maldives over the past year than any time in the past, the pressures on the Government in New Delhi are real ? as real as they are on those in power in Maldives, now and ever. In the context of recent domestic developments like the '2-G scam expose', 'Lokpal Bill', 'Team Anna movement' and the 'Delhi rape-case', the Indian media has come to play an increasing role in influencing the Government, along with partisan sections of the nation's polity in the 'coalition era', after decades of lull in between. This is reality New Delhi is learning to work with. This is a reality, India's friends, starting with immediate neighbours, too have to learn to live with. 

The coming days are going to be crucial. The Hulhumale' court's decision on summoning Nasheed would be watched with interest by some and with concern by some others. Parliament is scheduled to commence its first session for the current year on March 4, when President Waheed will deliver the customary address to the nation. At the height of the controversy attending on power-transfer on February 7 last year, MDP members protested so heavily that President Waheed had to return despite Speaker Abdulla Shahid's repeated attempts to convene the House. The House heard President Waheed on March 19, instead of the originally fixed date of March 1. A combination of these two factors could set the tone for the political engagement within the country -- and thus the mood and methods of political stakeholders on the one hand and the election campaigns on the other. 

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