Democracy on trial
By Azra Naseem
17 April 2015
What the persecution of political rivals means for the Maldivian democracy
The Maldives is in deep social and political turmoil. On 13 March, the courts jailed opposition leader and first democratically elected president of the Maldives, Mohamed Nasheed, for 13 years on charges of ‘terrorism’ following a hasty trial that was widely seen to be unfair and lacking in due process. Nasheed was found guilty under the Anti-Terrorism Act of 1990 for the unlawful detention of a criminal court judge in 2012. Two weeks later, in what appears to be a series of politically motivated arrests, former Defence Minister Mohamed Nazim was sentenced to 11 years in prison on charges of smuggling weapons. Nazim’s trial, too, has been widely described as unfair. Last week, President Mohamed Yameen’s old friend and new foe, Member of Parliament Ahmed Nazim, was jailed for life on corruption charges. In the same week came the acquittal of former army chief and current Defence Minister Moosa Jaleel, Nasheed’s co-defendant in the ‘terrorism’ charge, who joined the ruling Progressive Party of Maldives (PPM) this year. Nasheed was found guilty, the court said, because he had been unable to prove his innocence; in Jaleel’s case, the same court reasoned, the prosecution had been unable to prove his guilt.
Mass protests have followed these arrests in the congested capital of Male, and on various islands across the country. On the night Nasheed was sentenced – the entire trial was conducted after sundown – reports from Maldives described an eerie silence across the country as his supporters, over a 100,000 people, tried to come to terms with the enormity of the incident. Two days later, his party, the Maldivian Democratic Party (MDP), rebounded with a resolution to launch a campaign of civil disobedience.
What has been confirmed time and again in the past few months is the serious compromise of judicial independence in the Maldives.
In response, the Maldives Police Service acted with excessive force against the demonstrators, and made a large number of arrests; many protesters have been jailed in the last month, including several members of Parliament. Journalists, too, have been arrested and detained without charge. Many have been released only on the condition that they do not protest again for a specified number of weeks or months – a procedure that contravenes the right to free assembly guaranteed by the 2008 Constitution. Early this month, the police put out a statement saying all protests need prior approval. Curtailing of civil and political liberties has become routine.
The Abdulla Yameen Abdul Gayoom-led government, however, is adamant that due procedure was followed in the prosecution of both Nasheed and Nazim. Following Nasheed’s sentence, President Yameen’s office issued a statement on 14 March calling on everyone to respect the court’s verdict. Foreign Minister, Dunya Maumoon – Yameen’s niece and daughter of former leader Maumoon Abdul Gayoom – has led the efforts to deflect international criticisms, which have been abundant. None of them have been convincing.
Amidst increasing national and international criticism of the verdict, Nasheed’s office announced that a team of high-profile international lawyers, including Jared Genser, Ben Emmerson QC and Amal Clooney, have joined his defence. They are treating Nasheed’s imprisonment as a case of arbitrary detention and will argue their case through legal mechanisms like UN Working Group on Arbitrary Detention. Recent developments, however, are not promising for Nasheed. A report on 16 April revealed that the police have denied him access to the international lawyers, stating that the lawyers must first register with the attorney general’s office.
Meanwhile, a legal team led by Maumoon Hameed – nephew of Yameen and Gayoom – has appealed the 11-year sentence of Mohammad Nazim for weapons smuggling. The team has highlighted several problems with the trial and sentence: there was no physical evidence to tie Nazim to the weapons found in his house, in fact the fingerprints of an unidentified person were found on them; the evidence of a prosecution expert witness was ignored; and in raiding Nazim’s house and in collecting the evidence, due procedure was not followed. The defence claimed that the Maldives Police Service (MPS) had previously been used to frame others. It also alleged that an internal investigation, ordered by President Yameen, had found evidence of senior SO police accepting bribes. The legal team has also accused the prosecution of witness tampering. Whether the court will issue the trial report in time for the team to lodge an appeal remains to be seen. On 9 April, Nazim was given leave to travel to Singapore for medical reasons. The question is, will he return to serve the rest of his sentence?
What has been confirmed time and again in the past few months is the serious compromise of judicial independence in the Maldives. The failure has been long in the making, beginning in August 2010 when the constitutional deadline to overhaul the judiciary according to democratic values and principles lapsed without necessary action taken. In direct disobedience of the Constitution, instead of getting rid of unqualified individuals on the bench as it stipulated, almost every judge on the bench was sworn back in regardless of their lack of legal education and training, and regardless of how long a record they had of unethical or criminal behaviour.
In the four and a half years since, the lack of judicial independence has paved the way for the premature end of the first democratically elected government led by Nasheed in February 2012. In this time, the country has witnessed the subsequent swearing-in of Nasheed’s Vice President Mohamed Waheed Hassan Manik as President, the continuation of Waheed’s presidency beyond the scope of the presidential term allowed by the Constitution, the meddling of the Supreme Court in the presidential elections of 2013, and the judicially engineered victory of President Yameen in the elections ultimately held in November 2013, long after their due date and after much unrest and civil resistance.
While the world continues to watch and condemn the state of affairs, President Yameen continues to insist that the Executive, the Judiciary and the Parliament (of which the ruling PPM has the majority), have never been functioning more independently in the nascent history of Maldives’ troubled democracy. In a letter to the Commonwealth by Dunya Maumoon, leaked on social media, she states that “there is a vast difference between perception and reality” of the current state of affairs in the Maldives. If reality itself is based merely on perception – as it often can be – it might be possible to argue that the Maldives’ judiciary is independent. But in a reality founded on evidence, there is absolutely no judicial independence in the Maldives.
~Azra Naseem holds a PhD in international relations from the School of Law & Government at Dublin City University, Ireland, and is a research fellow at the university.