Originally Published 2013-02-14 00:00:00 Published on Feb 14, 2013
In Maldives, the development following former President Nasheed seeking refuge in Indian Embassy after an arrest warrant from a local court has raised a number of issues -- legal, political and diplomatic. Presidential polls are due in the country in September this year.
Maldives: What after Nasheed's 'refuge' in Indian mission?
The comparison sounds curious, though not odious. Possibly taking a leaf out of Wikileaks boss Julain Assange's tactic, former Maldives President Mohammed Nasheed has 'taken refuge' in the Indian High Commission in the national capital of Male, expressing concern over his personal 'security' and 'regional stability'. The comparison should however stop there, as Ecuador has since granted political asylum in its London Embassy, to help him avert arrest and deportation to face a criminal trial. No such request seems to have been made by Nasheed to India, nor has a situation seems to have emerged for New Delhi to consider any such request at the moment.

"Mindful of my own security and stability in the Indian Ocean, I have taken refuge at the Indian High Commission in Maldives," Nasheed tweeted a day after the suburban Hulhumale' criminal court issued an arrest warrant for him to be produced before it. The warrant followed Nasheed not appearing before the court on Sunday, February 10, for standing trial on the charge of ordering the illegal arrest of Criminal Court Chief Justice Abdulla Mohammed on January 16 last year, when he was the President.

Nasheed had been to India after obtaining court's permission and had overstayed the period during the previous visit, with his lawyers seeking further time from the three-Judge Bench. Incidentally, this is the second time in five months that Nasheed had not appeared before the trial court when summoned. On October 1, the day he was to appear before the court, he proceeded on a long campaign tour of the southern atolls. The court later ordered his appearance, and had the police arrest him from a southern island, and let him off after recording his forced appearance.

The current development has raised a number of issues, legal, political and diplomatic. With presidential polls due in September this year, Nasheed would be disqualified from contesting the same if the court ordered his imprisonment or banishment for three years. The alternative penalty is MRf 2,000. The fine does not attract disqualification but an imprisonment of over a year does.

Despite all-round apprehensions about an inevitable term of imprisonment for Nasheed and the other three accused, the trial had not reached the substantive stage, for the defence team to hazard a guess about the possible quantum of punishment. The best case scenario for Nasheed would be his exoneration of the charges against him. In context, the prosecution would have to prove to the complete satisfaction of the trial and appeals courts that the orders for Judge Abdulla's arrest were issued by President Nasheed personally, and they were patently illegal.

Questions also remained about the possibility of the case running its full course before the Election Commission puts the poll process in motion, in July this year. As in all democracies, there is a three-stage judicial process, involving the High Court and the Supreme Court at the appellate levels. In between, Nasheed's defence has also been taking up procedural issues at every turn. Interlocutory petitions on his behalf have not found much favour with the appeal courts, but the intervening time involved in the process has meant that the trial and the appeal stage may elude the deadline for the elections.

The legal issue at this stage also involves the wisdom of Nasheed's defence possibly concluding that the arrest and production of Nasheed before the trial court would entail his imminent imprisonment. If so, it is unclear if the courts would have ordered a jail term for Nasheed, whether to restrict his movement, pending the disposal of the case, or for contempt of court. There may have been a case for the court to declare him as a 'habitual condemnor', given that this is the second instance of the kind.

According to media reports, the Hulhumale' court, however, has since withdrawn the arrest warrant against Nasheed. It is also unclear if the court would want to hand down any prison term, endangering Nasheed's freedom of movement, pending the conclusion of the trial stage. This has meant that the Hulhumale' court, in a single stroke, may have removed Nasheed's apprehensions about personal security, at least until the disposal of the case, either at the trial stage or at the final appeals stage.

It is also unclear if either the prosecution would seek court directions to enforce Nasheed's continued presence and cooperation from now on, or if the judges would suo motu issue binding orders. With the two-day Maldivian official weekend falling on Friday and Saturday (February 15-16), the next move of the Government, the police and the prosecution would also be watched with interest. The possibilities are many, if one considered the judicial and legal options before the various players, including Nasheed.

Indian position

Through a series of statements on February 13, New Delhi confirmed Nasheed's presence in the Indian High Commission in Male, and his seeking 'Indian assistance'. The statement said India was in touch with Maldivian authorities in the matter, and wanted the Government in Male to ensure that the elections were free and fair, and that there was no bar on candidates were not barred from contesting the presidential polls.

In an obvious reaction to the Indian statement, the Maldivian Foreign Ministry promised to ensure the immunity of resident missions of foreign countries in Male, implying that the police would not violate what is legally 'Indian territory' to detain Nasheed and produce him before the Hulhumale' court. It made a pointed reference to the independence of Maldivian judiciary, about which there was no mention in the Indian statement. According to local media reports, Government officials, in tweeted messages, claimed that India had 'interfered' with the domestic affairs of the country and also the judicial processes.

The Indian concern in the matter seems to flow from the substantial, if not proven majority support-base that Nasheed and the MDP enjoys within Maldives, and the wisdom of not allowing him to contest the presidency, over a pending court case. Any domestic unrest of the kind that marked Nasheed's exit from the presidency in February last year could have consequences for political stability in Maldives - and by extension, the immediate Indian Ocean neighbourhood.

Indications are that political Maldives is as polarized for and against Nasheed this time round as it was around incumbent President Maumoon Abdul Gayoom ahead of the first-ever multi-party presidential polls in the country in 2008. How the nation and its 242,000 voters in the country would view the 'stability question' and equate it to the support-base of the MDP and vote for Nasheed's candidacy, remains to be seen. This can also have consequences to political stability nearer home, for the region and bilateral relations with India.

From within the Indian High Commission, Nasheed has reiterated his earlier demand, asking President Waheed to demit office and allow an interim administration to take over, to ensure free and fair elections for the highest constitutional office in the country. As critics point out, this also has consequences. With parliamentary polls due in May next year, will there be a similar demand by different sections of the nation's divided polity that the new President, elected this year, and his own Vice-President, too should quit office, to ensure free and fair elections, then as is being demanded now.

Incidentally, the Constitution provides for Parliament Speaker to be President for two months and conduct fresh polls to the high office, should the incumbent, along with his Vice-President, were to quit office, or the latter should fall vacant, otherwise. This is the possibility that Nasheed has stressed in terms of ensuring a free and fair poll for the presidency, at present. However, the Constitution does not provide for a similar situation ahead of the parliamentary polls. The argument is that what is good for the presidential polls should be good also for the parliamentary elections. Or, is it?

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

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N. Sathiya Moorthy

N. Sathiya Moorthy

N. Sathiya Moorthy is a policy analyst and commentator based in Chennai.

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