Originally Published 2014-02-28 09:40:09 Published on Feb 28, 2014
In Maldives, all the four present and former presidents need to talk to each other, not talk at each other, as has been the case over the past five years if they are serious about constitutional and administrative reforms, in whatever way each one of them visualise.
Maldives: After convicting MDP MP, will court now turn to Nasheed?
With the criminal court convicting and sentencing Maldivian Democratic Party (MDP) parliamentarian Abdulla Jabir to one-year prison-term, questions are being raised on party leader and the nation's former President Mohammed Nasheed being called to court for facing a 'contempt charge' and more. The contempt charge against Nasheed flows from an original case for allegedly ordering the arrest of Criminal Court Chief Judge Abdulla Mohamed when he was the President in January 2012.

Nasheed's case stands on an entirely different footing compared to Jabir's. The latter was charged with not giving 'urine sample' to the police when arrested at an island-resort property of his in November 2012 on the charge of consuming alcohol. A few other MDP leaders and some family members were also arrested on the occasion, but the police moved the court on the question of non-cooperation in investigations only against him.

The Criminal Court has since sentenced Jabir to one-year in prison, and dismissed all his charges against the police, on alleged use of excessive force, not following due procedures, etc. Pending appeal, if any, the court sentence even otherwise would not affect his continuance in Parliament or contesting for re-election in the 22 March polls. Before Jabir, and at the height of the presidential polls last year, another MDP parliamentarian and party's international spokesperson, Hamid Abdul Ghafoor, got caught in a politico-legal controversy after he refused to come out of the Parliament building, to evade arrest in another case. The incoming Government of President-elect Abdulla Yameen took a 'lenient view' of the entire episode, as if it were a part of a goodwill gesture with regime-change. Ghafoor was let off on the basis of what was seen as an informal agreement after he came out of Parliament and appeared before the court.

Against both, Nasheed's case(s), if it came to that, stands on a different footing. He was originally charged with illegally ordering the detention of Judge Abdulla. Later, when he failed to appear before the court on the summoned day repeatedly, the police was ordered to produce him. It was then that Nasheed started a surprise and unprecedented stay-in on the premises of the Indian High Commission, making international headlines.

Post-victory, President-elect Yameen went on record to declare that his Government would not go after the Opposition, possibly implying and including the cases against Nasheed and other MDP leaders. More recently, Yameen said that he was saddened by Jabir's prison-sentence. Regardless of their political affiliations, it was "always sad to see bad things happen to friends", the local media quoted President Yameen as saying. He also pointed out that MPs should be exemplary figures for citizens to emulate, and should not misuse their parliamentary privileges.

'Inclusive poll' and more

If convicted and sentenced in the 'Judge Abdulla case', Nasheed stood the possibility of being disqualified from contesting the presidency. Whatever the legal consequences nearer home, Nasheed's sit-in at the Indian High Commission, and the international pressure that accompanied his very imaginative protest, ensured that the presidential polls were 'inclusive'. The poll results vindicated the Indian and international assessment, as Nasheed, even while losing the election, polled 47 percent votes in a closely-fought second round.

Whatever the initiative, it became increasingly clear that the court was not overzealous in bringing Nasheed to book or fast-track his trial as the MDP had apprehended. For his part, Nasheed offered to stand trial after the presidential polls were over. Given the fact that presidential poll campaign would have any way consumed much of his time, and particularly in a well spread-out country like Maldives, his submission made sense, as even an unanticipated change in the weather condition for a day could upset the schedule of either or both, with chances of fresh 'contempt' cases being brought against Nasheed.

It looks as if the 'inclusive poll' theory seems to have been extended to cover the 17 January local council polls and the upcoming parliamentary elections of 22 March. Again, with Nasheed as the chief campaigner for the MDP, which is still the single largest party both within and outside Parliament, to deny both the opportunity of his presence in poll rallies would have weakened the infant democracy process in the country.

Checks and balances

Though wholly unconnected, the lower court's sentencing of Jabir comes in the midst of the Supreme Court initiating suo motu contempt proceedings against all four serving members of the Election Commission (EC). Even as the case is pending, Nasheed has called the contempt proceedings as 'unjust'.

In doing so, Nasheed has continued with his past allegations against the higher judiciary, dubbing it 'corrupt' and 'inefficient'. Some of these allegations, he had made while in power. One particular instance involved Judge Abdulla's arrest, where his Government called him 'corrupt'. Now, Nasheed has vowed to change at least some of the Supreme Court judges, if the MDP was given the required numbers in Parliament.

In Jabir's case, party spokesman Hamid Ghafoor has since come out with a law firm's opinion that the conviction and imprisonment were 'unconstitutional'. In the normal course, such submissions would have been confined to courtroom arguments, that too time-barred once the presiding judge had decided on the matter. In this case, however, the defence may still use the argument on the 'constitutional validity' of the conviction and sentencing on appeal, but it need not have been thrown open to public debate.

In democracies across the world, the checks-and-balances system has meant that the Executive, and by extension the larger political class, does not cross swords with the Judiciary, not certainly in public. Even where the Legislature has issues with the Judiciary, they are handled with sophistication. Often, it would still have involved the apex court of the nation concerned ruling on the issues involved.

The practice and precedent in most cases has been for the Executive and/or the Legislature to abide by the considered views of the Supreme Court, at times after a 'review'. This has been so even where other 'independent institutions' under the Constitution, like the Election Commission, are engaged in what could be crudely termed as a 'turf war' with the higher judiciary.

Hard decisions, soft options

At an election rally for the ruling coalition, where he shared the dais with incumbent Yameen and immediate predecessor Mohammed Waheed, former President Maumoon Abdul Gayoom mused that they all should be able to sit together and sort out issues. The obvious reference was also to Nasheed.

Implied or otherwise, it would also mean that all of them, particularly those with a strong political base and cause, have to make hard decisions, in favour of 'soft options'. Nasheed, as the leader of the single-largest party in the country, thus merits greater attention, and greater commitment, too. It's all about the legacy that multi-party democracy would leave behind for Maldivians of a future generation, and the claim and credit that each one of them could claim for facilitating the same - or, remembered otherwise!

"As I was sitting there, I was thinking, I hope we get to see more days like this, when all former Presidents are present in one place, discuss issues, and serve the country," the local media quoted Gayoom on the occasion. A welcome thought this one, considering that each one of them, and the parties that they represent have strong views on the working of the 2008 Constitution, which could be termed interim at best, but was also the best under the circumstances.

In turn, the present call should inspire all four of the present and former presidents, starting with incumbent Yameen. Given the reality of the situation, President Yameen alone has to take the initiative in this regard as with any other - now or later, elections or no elections. If serious about constitutional and administrative reforms, in whatever way each one of them visualise, they need to talk to each other, not talk at each other, as has been the case over the past five years, with no effective outcome.

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

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