In a none-too-unanticipated move, jailed former President Mohammed 'Anni' Nasheed has applied for clemency to President Abdulla Yameen. Yameen is on a private visit to Germany now, only days after returning from an official visit to China. The ball is now in the President's court and he can come under tremendous pressure, as his decision - or, even an "undue delay" in decision-making, could cut both ways.
The Indian news agency, PTI, quoting Nasheed's lawyer Hassan Latheef, said that the former President had submitted the clemency petition on Monday. The lawyer had earlier spoken in favour of Nasheed making the move, as otherwise he could soon be forgotten. Nasheed seems to have accepted the idea, suggestion or advice, or whatever it was.
According to PTI, "In a letter sent to the President on Monday, lawyer Hassan Latheef noted that the clemency law gives the president the 'full power and discretion' to reduce the sentence based on their age, health, treatment they are currently undergoing, their status and circumstance, or from a humanitarian perspective. The report also quoted "President's office spokesperson Ibrahim Muaz Ali told Minivan News that the office attends to letters in accordance with procedures and declined to comment on whether Yameen would consider the appeal."
Public memory, short
Independent observers too share the feeling that long absence from public eyes had the dangerous potential to render Nasheed electorally irrelevant - whether 13 years hence, when alone he is to be freed from the prison term handed down by a trial court. Citing figures from the 2008 presidential elections that Nasheed won and the 2013 results when he lost, they argue that public memory is proverbially short and Nasheed's pro-democracy achievements could have faded into the distant past by the time he was free to contest the presidential polls again.
In seeking to appeal for clemency, Nasheed may also considered the reality of the low, 2000-strong turnout at the MDP-organised combined Opposition rally for his freedom, staged on May 12. Whether they were intimidated by the government apparatus or were increasingly unhappy with the conduct of the Opposition parties after Nasheed's imprisonment, the turnout was woefully short of expectations, and only a tenth of the claimed 20,000 turn-out on a similar rally only weeks earlier on the May Day.
One possibility for Nasheed still would have been to stay on in prison until 2018, and wait for an Opposition nominee to defeat the incumbent in the presidential polls, and the former then facilitating his freedom and possible return to power. There are a lots of if's and but's, including the reality there the MDP itself has one too many ambitious presidential aspirants, who want Nasheed's support and votes than the man himself. There is also the additional possibility of the Yameen leadership striking a political deal with the AP and JP constituents in the Opposition alliance, rendering Nasheed less of a hot political topic.
Contesting in 2018
The question in this context would pertain to the probability of President Yameen granting clemency as sought, and the consequent possibility of Nasheed contesting the 2018 presidential polls. Under Article 109 (f) of the 2008 Constitution, a presidential candidate should "not have been convicted of a criminal offence and sentenced to a term of more than twelve months, unless a period of three years has elapsed since his release, or pardon for the offence for which he was sentenced". For the 'lapse clause' to apply in Nasheed's favour in 2018 polls, Yameen should have been granted clemency by mid-July this year.
Of course, there may then be the constitutionally-mandated additional condition/pre-condition under Article 109 (g), which reads thus: "despite the provisions of article (f), not have been convicted of an offence for which a hadd is prescribed in Islam or of fraud, deception or criminal breach of trust". The pre-poll government of President Gayoom had claimed that Nasheed was convicted for the alleged theft of some 'documents', yet the incumbent facilitated his contesting the polls at the time. The question is if anyone could flag the past to argue against Nasheed's nomination in 2018. The more pragmatic approach should be that he having been allowed to contest two previous polls, in 2008 and 2013, no restrictions of the kind could now be imposed, dating it back.
Twin-pressure on Yameen
President Yameen is now under twin-pressure on the Nasheed front. One, he cannot escape the moral responsibility of taking a 'positive decision' that could restore political and social normalcy in the nation that is now rocked by the strains attaching to Nasheed's trial and imprisonment. In the Islamic holy month of Ramadan, he as the Head of State and as the Head of Religion, is expected to show the way for his people, to lead a life of piety, generosity and grace.
The pressure on Yameen also flows from the need for him to pronounce a decision, either way before the tentative July-deadline, if a grant of clemency would facilitate Nasheed to contest the presidential polls in 2018. Any delay on Yameen's side would not go down well, not only with the international community that has come down heavily on the Maldivian Government already. Even those Maldivians who did not approve of Nasheed's ways at the arrest of Judge Abdulla Mohamed in January 2012, or the MDP's more recent posturing and protests for his freedom would be able to stomach any negative order from the incumbent President on the clemency plea.
Through the past months since the Nasheed case was first revived from the 2012/13 position, to its 'elevation' as a 'terror case' and his subsequent conviction and sentencing, Yameen had reiterated that his hands were tied on the court case, which the Judiciary alone was qualified to handle under the nation's democratic Constitution. He would have a role to play only when the Judiciary had completed the processes, and if Nasheed applied for clemency under the law.
Yet, Yameen could choose to delay a final decision on the clemency issue, if the legal opinion available to him indicates that Nasheed should exhaust all legal means before appealing for clemency. Nasheed is undergoing imprisonment after the trial court verdict, but chose not to appeal in the High Court - and later in the Supreme Court, if it became needed. However, there is nothing in the law or the Constitution that suggests that a sentenced convict should not appeal for presidential clemency, after 'submitting' him to the trial court's verdict.
(The writer is a Senior Fellow at Observer Research Foundation, Chennai Chapter)
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