The detention of the judge had provided the spark for a police and military mutiny – labelled by many a coup d’etat – which resulted in Nasheed’s departure from office on February 7, 2011. Alleging his resignation had come under duress, Nasheed and his supporters took to the streets the following day where they were met with brutal suppression by a police force which has yet to be brought to account for the numerous human rights abuses that ensued.
The Kafkaesque legal polemics when Nasheed was forcefully brought before the court for the first hearing in October hinted at deeper issues which underscore the country’s recent crises. Contending legal opinions suggested an illegal arrest warrant had been used, from an illegally assembled court, to bring an illegally removed president to trial, for the illegal detention of an illegal judge.
This labyrinthine situation indicates the urgent need for police and judicial reform in a struggling democracy which is looking increasingly rudderless. After eight months of political deadlock, street demonstrations, accusation and counter-accusation, Nasheed’s trial presents an opportunity to bring the political crisis back to where it began, with the judiciary and the criminal justice system.
Laying the Charges
In 2008, the people of the Maldives took part in the country’s first multi-party elections after thirty years of symbolic polling had repeatedly rubber-stamped the Presidency of Maumoon Abdul Gayoom. A clear vote for change was evidenced by smaller parties throwing their weight behind Nasheed in the second round of the first-past-the-post voting, giving him the edge over Gayoom (54% to 46%) after the incumbent had taken just over 40% percent of the popular vote in the first round.
2008’s changes also saw the ratification of a new constitution which attempted to separate the powers of the executive, the legislature and the judiciary. Prior to this the president’s office dominated all arms of the state, including the judiciary which had been governed by Gayoom’s Ministry of Justice. Subsequently, the new constitution’s framers added a specific article (article 285) paving the way for the evolution of the judiciary from a group of largely under-qualified Gayoom appointees, to a more professional and independent body. They created a judicial watchdog – the Judicial Services Commission (JSC) – to ensure all judges met new educational and ethical criteria within two years
This interim period has subsequently been described as a ‘constitutional time bomb’, which became live as the August 2010 deadline passed without the proposed changes being completed. The JSC would eventually dismiss article 285 as ‘symbolic’ before the interim Supreme Court took it upon itself to swear in its sitting judges for life. This drift away from the balanced institutions envisioned in the constitution, would see President Nasheed forced into more controversial stances to compensate for an old guard which appeared intent on maintaining its influence over the judiciary.
Working on a platform of liberal policies – including decentralization of political power, tax reform, and expanded social services – intense opposition from conservative forces was virtually guaranteed. Nasheed’s coalition fell apart just weeks after the elections, with many former Gayoom loyalists seeming to reconsider their previous desire for change. It was confrontation with the unreformed judiciary which would give Nasheed’s critics the opportunity they had been waiting for.
Lighting the Fuse
The case of criminal court Judge Abdulla Mohamed would ignite the smoldering resentment against Nasheed’s new government, turning political deadlock and anti-government demonstrations into full blown crisis in January 2012. Epitomizing the judiciary’s greatest ills, Abdulla Mohamed’s questionable ethical and professional conduct led the JSC to launch an investigation in 2009, although former Attorney General, Dr. Hassan Saeed, had alerted Gayoom to the judge’s misdemeanors as far back as 2005.
Also a member of the JSC, Mohamed blocked the watchdog’s investigation. Nasheed then issued a warrant for the judge’s arrest which Mohamed duly blocked, lending credence to the then-Home Minister’s remarks that Mohamed had “taken the entire criminal justice system in his fist”. By this stage, the Commonwealth, United Nations and the European Union had received requests for assistance with this constitutional catch-22. Nasheed subsequently sent in the military to detain the judge, citing his responsibility as the last guarantor of the constitution. Anti-government groups now redoubled existing demonstrations, which were countered in kind by Nasheed’s MDP, polarizing the streets of Malé. Tensions would continue to escalate to the point where sections of the police and military mutinied on February 6th. The spontaneity of these defections would become the focus of national debate for the next seven months.
As clashes broke out between differing factions of the security forces, Nasheed appeared to voluntarily tender his resignation in front of the global media. The following day, however, he declared his resignation had been under duress: “There were guns all around me and they told me they wouldn’t hesitate to use them if I didn’t resign.” His incensed supporters took to the streets where they met a crushing police response. Violence spread across the country – in the nation’s southernmost atoll, multiple police stations burned to the ground.
If the causes of the crisis laid bare the critical need for judicial reform, February 8th exposed the institutional weaknesses of the remainder of the state’s human rights and criminal justice institutions. Blatant human rights violations, documented by multiple international observers, showed clearly politicized factions within the police force. Despite this, independent institutions created by the 2008 constitution have failed to convict a single officer, while the state presses ahead with charges against a growing number of MDP politicians and activists.
Following deep divisions within the Police Integrity Commission (PIC), the Chair, Shahindha Ismail, resigned in October citing her concerns that police were being allowed to act with impunity: “What I’ve seen in the actions of institutions is that they have been giving a lot of space for the police to act with impunity.” Judge Abdullah Mohamed was released from detention shortly after Nasheed’s resignation, returning to the bench.
Following the swearing in of Nasheed’s Vice-President, Dr. Mohamed Waheed Hassan, just hours after his resignation, Nasheed’s supporters in the cabinet were replaced by faces from the Gayoom era. While it could be argued that the presence of familiar (and family) faces was inevitable in a small country emerging from thirty years of autocratic rule, what is less easy to understand is Waheed’s claim that this did not conclude the fait accompli of regime change. The MDP’s policies soon went the way of its politicians.
Attempts to reconcile the divided nation soon began with the India-brokered All-Party Roadmap Talks between Waheed’s national unity government and the MDP. The talks failed to gain traction, quickly becoming a side show to the main event – the Commission of National Inquiry (CoNI) – to which all eyes turned in hope of exoneration for February’s events. After cajoling from the international community, the CoNI was bolstered with a retired Singaporean judge as co-chair, a Nasheed nominee, and international observers.
The commission’s attempts to expedite the nation’s reconciliation appeared to be in tatters on the eve of the report’s August 30th release, however, as Nasheed’s representative resigned upon seeing the drafted report. Angry confrontations appeared inevitable when a furious Nasheed called on his supporters to “change this country’s government tonight”, prompting a march on the army’s barracks. However, after the waiting police lines countered the MDP’s anti-government chants with their own pro-Gayoom chants, the protesters dispersed quietly.
The following morning, President Waheed officially revealed CoNI’s findings which found that there had been no coup and that Nasheed had not resigned under duress. In fact – in what foreign legal experts would later argue was beyond the commission’s remit – the report lambasted Nasheed’s activities as president, resembling more of a political justification for his removal than a level-headed legal critique. Despite these deficiencies of the final report, the de facto government had become de jure. The dejection of the MDP was palpable at that morning’s National Executive Council, epitomized by the absence of its talismanic leader. –
Just as he had on February 8, however, Nasheed emerged from his family home 24 hours later with a fresh energy, telling the media with more than a hint of irony that he accepted the report’s attempt to move the country forward. “The commission was of the view that reinstating my 2008 government would be so messy that it would be best to move forward with another election. So the report has tried so hard to come out with this view through a proper narrative…at times it is comical, but still, it is a narrative,” he said. With this, the MDP moved away from calls for early elections, focussing instead on the CoNI’s calls for the immediate strengthening of state institutions, including the judiciary and the PIC. Seeing his own trial as a perfect showcase for this revised campaign, Nasheed urged that proceedings be expedited.
This change of tack recognized that the alleged coup was fast becoming an academic issue, bette
r consigned to the conjecture of historians than to the discussions of politicians and diplomats. Nasheed appears to have accepted that the party’s energy could be better spent on the future than the past. Regardless of its failings, the CoNI brought some closure to the events of February 7 – a positive result from an international perspective. Whether this was the grand design of sage diplomats or a combination of impotence and luck will remain a mystery. It does, however, return focus to the country’s political pathogens, rather than its immediate symptoms..
International Response and Influence
As might have been predicted for a country situated on the peripheries of the geopolitical scene, the international reaction to this year’s crisis has been largely pragmatic. Both India and the United States quickly recognized the legitimacy of the new government, with other nations largely falling in line behind these two. Only tiny Timor-Leste questioned the legitimacy of the transfer, criticizing other leading powers for their muted reactions. While the Commonwealth has been heavily involved in political reconciliation efforts, it is Maldives’ Asian neighbors who appear to be vying for the new regime’s favour.
China’s growing importance to the Maldives is most evident in the exponential growth of the number of tourists it sends – over 20% of all arrivals in 2011 – a year in which it also became the first non-SAARC nation to have an embassy in Malé. To contrast, Indian visitors’ contribution to the industry, worth over 70 percent of GDP, was just 3.3% in 2011. China has remained politically aloof whilst taking full of advantage of Maldives’ dire economic plight. During a visit to Beijing in September, however, President Waheed secured a US$500 million package of aid and loans, roughly equal to a quarter of Maldives’ GDP. With the promise of more to assistance come, Chinese investment appears more than capable of filling any gap left by disgruntled partners elsewhere.
India, traditionally the Maldives’ closest regional ally, has more reason than most for disgruntlement after the Indian infrastructure company GMR was unceremoniously thrown out of the country in late November. Parties now aligned with the government had railed against the $511million deal to re-develop the country’s international airport since its signing under the Nasheed government. In the weeks preceding the annulment of the deal, India’s High Commissioner was verbally attacked by a President’s Office spokesman whilst a letter to the Indian PM, penned by Waheed’s advisor Hassan Saeed, warned the deal could poison bilateral relations. Despite the case being under the consideration of a Singaporean arbitration court, the cabinet opted to act unilaterally on November 27th, giving the Indian company 7 days to vacate the site. The Indian media was quick to suggest that China would likely be the largest beneficiary of the deal’s annulment. New Delhi’s fears of Chinese domination of the region’s strategic sea lanes, often referred to as the ‘string of pearls theory’, will have been further exacerbated by a new Sino-Maldivian military cooperation arrangement in December.
The Commonwealth has been by far the most active international organization post- February 7, with the group’s Ministerial Action Group attempting to flex its new muscles. Government acquiescence to CMAG’s demands, most notably concerning the CoNI, has been interspersed with intransigence and xenophobic outbursts. Prominent government politicians have accused the group of acting outside of its mandate, threatening to end the country’s thirty year Commonwealth membership. CMAG’s most recent meeting – in the wings of the United Nations General Assembly – was described as a fiery affair, no doubt stoked by Waheed’s assertions before the UN that “small justice is being served for a small state”. Despite the government’s bluster following the CoNI, Waheed was informed that CMAG would not be satisfied until Nasheed was cleared to run in 2013’s elections and the report’s recommendations were acted upon. CMAG’s next meeting is scheduled for April.
The politicization of Islam has continued apace throughout the turmoil of the past twelve months – the repercussions of which are beginning to be felt. Whilst ensuring democratic freedoms, the 2008 constitution confirmed that freedom of religion was not to be part of the new Maldives. Practice of the Sunni branch of Islam was defined as a requirement of citizenship and any laws contradicting the tenets of Islam were prohibited, leaving the country’s religious authorities with an authority vastly out of proportion to their popular support.
Less than a decade ago, the practice of Islam was a more moderate and private affair with radical elements were dealt with ruthlessly by the state. A growing conservatism has often been attributed to the 2004 Tsunami, many perceiving it as divine retribution for impiousness. It was more likely, however, an inevitable result of the opening up of Maldivian society, well under way by 2004. The rise of political Islam is currently being seen in many Arab Spring nations – the movement for which Maldivian democracy has often been regarded as a harbinger.
A less conservative reading of the Koran, however, is required to accommodate the contradictions created by the billion dollar tourist industry. Whilst 330,000 Maldivians are required to adhere to Islamic Shariah, the country is visited each year by three times as many tourists seeking hedonism, rather than halal, in paradise. Legal loopholes, classifying resort islands as ‘uninhabited’, allow the country’s tourists to be uninhibited. The country’s largest importer of pork and alcohol, MP and resort owner Ibrahim Gasim, exposed this misguided opportunism perfectly when he told an anti-government rally last year that there was “no such thing as moderate Islam”. A bill to ban the sale of such products has recently been introduced to the Majlis.
Nasheed attempted to co-opt these groups into his coalition government, creating a Ministry of Islamic Affairs and inviting the religious Adhalaath Party into his cabinet. Adhalaath severed its ties with the MDP government in September 2011, joining with the ‘December 23’ movement – a group of political parties and religious NGOs – vowing to protect Islam from the perceived irreligious policies of the Nasheed government. The party had given the government a deadline of November 30th for the annulment of the GMR airport deal, after which time its President had threatened to invade the runway.
The concerns of the ‘December 23’ movement were articulated in a pamphlet released by the Dhivehi Qaumee Party (DQP), accusing the government, amongst other things, of attempting to introduce religious pluralism under the guidance of Jews and Christian priests. Judge Abdulla Mohamed’s own arrest was expedited by his repeated obstruction of the government’s attempts to investigate DQP party member Dr. Jameel on charges of hate speech.
Following the transfer of power, this alarming escalation of extremist rhetoric has been accompanied by murder attempts on the controversial blogger Ismail ‘Hilath’ Rasheed and MP Dr. Afrasheem Ali, the latter succeeding. Both attacks had religious overtones, with Hilath claiming his attack to have been the work of a radicalized gang. The escalation of the situation can be fully appreciated by taking into account that Afrasheem himself was a speaker at the December 23 protest to protect Islam and had been a strong advocate for moderate Islam in the months following the coup.
With little progress being made on either of these cases, questions are being raised as to whether this lack of progress is down to incompetence or collusion on behalf of state institutions. Meanwhile, under the guise of deterring crime, the government is attempting to facilitate the ending of a sixty year moratorium on the Shariah-mandated death penalty, despite the admission of Jameel – now the Home Minister – that the judiciary has “a deservedly bad reputation for its inconsistent judgments.” Such moves lend credence to suggestions that the government is unable to prevent the activities of the extremist fringes it helped to foment, settling for appeasement instead.
Whilst the result of Nasheed’s trial may seem pre-ordained, the country’s judiciary is consistent only in its inconsistency. Wildly fluctuating local politics, Nasheed’s unprecedented enlistment of a squad of foreign legal experts, and the withering scrutiny of the international community may yet cause the court to lose its nerve. Either way, the trial is about far more than the final outcome. Despite Nasheed’s prior calls for assistance with judicial reform, February appeared to catch diplomats and the global media off guard, with few appreciating the complexity of the crisis; a situation that Nasheed and his party will attempt to remedy during his trial.
While allegations of a coup appear consigned to history, the real proof will be seen in the coming twelve months. Allegations of a conspiracy to remove Nasheed from power will be verified anecdotally via the progress – or lack thereof – of institutional reforms, which all sides now appear to support. The difficult graduation from revolutionary leader to head of state can be seen throughout history. Nasheed’s biggest fault may have been attempting to move the country forward faster than its fragile institutions and stubborn patriarchs were able or willing to go. Waheed has been accused of being the puppet of autocratic and conservative forces who continue to direct proceedings from behind the scenes. While a generous reading of his actions may depict a pragmatic diplomat attempting to corral religious and political conservatives, last year’s events have showed that painful reforms cannot wait any longer if political power is truly to devolve to the people of the Maldives.
Unfortunately, the consolidation of democracy and the strengthening of key institutions are far from guaranteed. Pressure from Western powers to enact such reforms could easily be blown away by the perfect storm of Chinese tourists and Maldivian oligarchs. Whilst the current Maldivian government needs tourists, financial aid, and no-questions-asked; China needs luxury consumables for its burgeoning middle class, with a toe-hold in the Indian Ocean an added bonus. At best, China’s disrupting influence gives conservative elements in the government leverage should they balk at accelerating the glacial pace of reform. This situation could be ominous for this year’s elections, regardless of Nasheed’s involvement. It could also serve to radicalize opposition groups, who have thus far refused to interfere with tourists. Maldivian politicians, both the passionate and the pragmatic, must find ways to avoid this outcome. Judicial reform represents both a vital step forward and an area of common ground for anyone with genuine hopes for a democratic paradise. ■