Category: Parliament

The Rule of Fear in the Republic

 

by Mushfique Mohamed

The newly ratified Maldivian anti-terror law is designed to systematically derogate and restrict most crucial civil and political rights in a highly repressed country. The Act renders the Maldives’ first democratic Constitution to what it has been deduced to – a fig leaf to historicise continued authoritarianism. Anyone in the country could have his or her enjoyment of human rights set back to dictatorship-era standards, to an extent that will make you question whether Maldives ever transitioned from it. The 1990 anti-terror law, repealed through this Act, was enacted to prosecute Abdullah Luthufi and armed mercenaries from the People’s Liberation Organisation of Tamil Eelam (PLOTE), alleged to have perpetrated a coup d’état against the dictatorship*.

The manufactured political drama revolving around the boat blast on 28 September may be shocking, with its plot twists and emotive monologues. But because of dramatic irony, the storyline is very clear to us: this is your average tyrant purging his enemies. The explosive speedboat saga is a page turning ‘story within a story’, however, the ‘play’ has a more universal tone that stems from the human need to be free from unequal and undignified treatment. In that regard, the Maldivian antagonists have changed very little from its feudal, coup-mongering, violent predecessors.

The new anti-terror law is anything but that, it is an instrument with which the public could be terrorised. It revives the ability for political actors to legitimise abuse of power, a cause for concern given the frequency of political unrest and repression in Maldives’ past and present. The law contains vague terms, such as “undue influence against the government” and “unlawful promotion of a particular political, religious or other ideology”, unfound in the law’s interpretation provisions, however defined as terrorism, in addition to “creation of fear among the public or within a specific group.” It is no coincidence that the definition of terrorism does not explicitly include violent extremism, or religious extremism – the most prevalent type of terrorism today. It makes it clear that the regime’s efforts to counter violent extremism are insincere.

When the bill was sent to parliament, opposition parliamentarians highlighted the lack of provisions regarding terrorism financing and Maldivian citizens joining foreign terrorist organisations. The former head of intelligence Mohamed Hameed criticised the Act in an op-ed on Maldives Independent before the Act was ratified, arguing that it fails to focus on terrorism-related concerns that are endemic to the Maldives such as terrorist recruitment and violent jihad. Hameed claimed that “comprehensive reforms and measures such as public awareness, early intervention and rehabilitation programmes to combat extremism must be put in place, along with or before the passage of this bill.” He went on to say that the government must look at the “comprehensive picture on the problem of religious extremism” and introduce a “cross-government strategy to tackle it,” while acknowledging increasing religious extremism “as a very first step.”

Former Deputy Prosecutor General and UNDP’s expert on the 2014 penal code, Hussein Shameem claimed in his commentary that all the offences mentioned in this Act – some 19 offences – have already been mentioned in the new Penal Code. Shameem pointed out that the Act does not criminalise certain “inchoate offences,” which are addressed under the Penal Code 2014. “As it is written in this Act, attempting or planning to initiate training to commit an act of terrorism, or planning to leave to fight in a foreign war are not considered criminal offences,” he said.

In order to limit executive influence on how terrorist groups are defined, modern anti-terrorism laws contain a parliamentary approved list of proscribed organisations. While the Act heavily mentions “terrorist groups”, it does not include an annex of groups that the government considers to be tied to terrorism. Instead the president has the power to proscribe organisations.[1] Apart from the president, the judiciary – an institution in which 51% of the public does not have confidence – is given discretionary powers to decide whether literature promotes terrorism.[2]

For instance, a statement given during investigation could be used as documentary evidence in court.[3] It is a practice thought to have ended with the new Constitution, which requires judges to rule based on witness testimonies rather than investigative statements. The Act inscribes anti-democratic actions that have been taking place in spite of democratisation efforts. In violation of international human rights law and constitutional protections against pre-trial detention, the Act enables offenders to be held in remand until completion of the trial.[4] The presumption of innocence before proven guilty is watered-down to the regime’s official line – guilty as charged, even prior to prosecution.[5] A person who was acquitted could be discriminated against, simply for being previously accused of any crime. The concern here is not absconding trial, but the existence of unproven guilt, which should not be up for consideration at a forum that claims to administer justice.

Constitutional protections such as the right to remain silent, the entitlement to be released from pre-trial detention and the right to legal assistance of one’s own choosing are derogated. The use of these narrowed down rights can be used against the accused, but its probative value during trial is unstipulated.[6] The evidentiary standards are lowered for the purposes of this law in the following manner.[7] A confession made during investigation can be considered as evidence in a court of law. The right to a lawyer can be withheld if one is not appointed within six hours of detention, and client-attorney privileged correspondence can also be adduced to prove guilt of terrorism offences. In most circumstances, dying declarations would be considered hearsay, however this law considers it as evidence if such a declaration indicates guilt of an individual.

The Maldivian judiciary, known to suspend lawyers and sentence people in absentia can now issue monitoring and controlling orders in the same manner if the Home Minister requests.[8] The procedure known as “monicon,” found in Chapter Four of the Act can be initiated pursuant to a High Court order authorising monitoring of terror suspects. Electronic devices such as mobile phones and laptops can be monitored, intercepted and recorded using the monicon order.[9] Additionally, police can enter an address unspecified in a court order if a suspect is known to be in it,[10] they can take photos inside private property,[11] restrict movement[12], and acquire information about your home and who you share it with.[13] All of this might not be alarming to many Maldivians because these opaque actions are realities that wax and wane depending on the regime’s whims. But now, if you are a suspect – using the controversial order – the Home Minister can electronically tag[14] and “rehabilitate” you,[15] even if you are below 18 years of age.[16]

The assumption of powers by the executive is inconsistent with terrorism-related concerns of the country, and the timing of the enactment is ominous. In March this year, the regime imprisoned former President Mohamed Nasheed and former Defence Ministers Tholhath Ibrahim Kaleyfaanu and Mohamed Nazim using the anti-terror law enacted during the 30-year dictatorship. Although this anti-terror has new legal language and powers, it is resonant of a newer version of the old anti-terrorism law. Similar to the old law, little importance is given to the definition of violent extremism, making the Act’s objectives uncertain. The draconian legislation allows executive to usurp the counter-terrorism mandate, introducing reinvented Orwellian methods to strengthen grip on power. If seen through the lens of the 47-year old republic’s history, the anti-terror law is an authoritarian intervention to the rule of law, rather than a genuine effort to counter terrorism.

[1] Article 18 (a) of the Anti-Terror Act 2015

[2] Article 9(b) of the Anti-Terrorism Act 2015

[3] Article 29(a), number 3 of the Anti-Terrorism Act 2015

[4] Article 26 of the Anti-Terrorism Act 2015

[5] Article 26 (b) of the Anti Terrorism Act 2015

[6] Articles 21 to 24 of the Anti-Terrorism Act 2015

[7] Article 27 of the Act lists types of evidence that can be adduced.

[8] Article 35(b)

[9] Article 50

[10] Article 54(c)

[11] Article 59(b)

[12] Article 47

[13] Article 46(a)2

[14] Article 53(a)

[15] Article 52

[16] Article 45

Author’s Clarification (Added on 16 November 2015)

*The anti-terror law enacted in December 1990 during the dictatorship of Maumoon Abdul Gayoom – brother of Abdullah Yameen Abdul Gayoom – was drafted in response to Sangu, a newspaper critical of the regime that was banned in June 1990. The regime retrospectively prosecuted Nasheed under the Anti Terrorism Act 1990 for an article he wrote about corruption, published earlier that year, by “Sangu” and “The Island;” a Sri Lankan newspaper. Nasheed was sentenced to three years’ imprisonment on 8 April 1992, but released in June 1993. The alleged coup-makers Abdullah Luthfee and the Tamil mercenaries were prosecuted under the old penal code prior to the 1990 anti-terror law.

About the author: Mushfique Mohamed is a practising lawyer at Hisaan, Riffath & Co., and also works as a consultant for Maldivian Democracy Network.

Keeping up with the authoritarians

YameenFathun2

by Azra Naseem

The Maldives is no longer a democracy. For some reason, this is a fact which most observers, especially from the outside, are unwilling to accept. All statements and reports from the international community note ‘with concern’ the many actions of Yameen’s regime that fall well within the boundaries of authoritarianism, yet continue to insist the Maldivian democracy still exists – it’s just ‘at risk’.

According to experts, modern democratic regimes meet four minimum criteria: 1) the executive and Majlis are chosen through elections that are open, free, and fair; 2) virtually all adults possess the right to vote; 3) political rights and civil liberties, including freedom of the press, freedom of association, and freedom to criticise the government without reprisal, are broadly protected; and 4) elected authorities possess real authority to govern, in that they are not subject to tutelary control of military or clerical leaders.⁠1

Which of these criteria are met by the current Maldivian regime?

In terms of No.1, the electoral process, the Supreme Court’s interventions in the presidential election of 2013 made a mockery of the electoral process. The many tricks and tactics used to draw out the election until it eventually ended in a win for Yameen are by now well documented⁠2 and cannot be described by anyone who understands the principles and norms of democracy as ‘democratic.’

The Majlis elections in 2014, which was preceded by Supreme Court-engineered firing of President of the Elections Commission Fuwad Thowfeek—noted for his integrity—was characterised by vote buying and selling. As the EU Observers noted, while⁠3 the election was ‘calm and orderly’, it was marred by ‘allegations of prevalent vote-buying, excessive campaign expenditure and abuse of state resources’⁠4.

Another death blow to the electoral process has been the systematic imprisonment of all opposition leaders. Almost all opposition leaders are in jail: former president Mohamed Nasheed for 13 years, charged and convicted of terrorism; leader of Adhaalath Party Sheikh Imran Abdullah, charged with terrorism and in detention without trial now for over a 100 days; former Defence Minister Mohamed Nazim, convicted of weapons smuggling and jailed for 11 years. Those who haven’t been put behind bars, like 2013 presidential candidate Qasim Ibrahim, have either been coerced out of the political arena through threats to personal freedom and business interests while others—like the Chairman of MDP Ali Waheed, Deputy Leader of Jumhooree Party (JP) Ameen Ibrahim and impeached Vice President Mohamed Jameel Ahmed—have chosen to live in exile rather than spend what could be decades in prison. This state of affairs ensures that, when (or if) the next election comes around it would be, for all intents and purposes, non-competitive.

Number 2 on the list, the right for virtually all adults to vote still exists. But based on the experiences discussed above—judicial interventions, the now deeply embedded custom of vote buying and selling, patronage, blackmail and corruption—it is clear to see that the mere existence of that right does not ensure its contribution to the strengthening of democracy.

No. 3—the protection of civil and political rights—has suffered equally greatly. It is not simply leaders of the opposition the regime has clamped down on. From 8 February 2012 onwards, it became the norm to quell opposition protests with brutal violence. Pepper spray, violent beatings, and imprisonment were prevalent throughout the regime of caretaker president Waheed and during the protests in the lead-up to and during the 2013 presidential elections; and it has been standard practise after Yameen’s election. The arrest of over 200 protesters on 1 May 2015 and their subsequent unlawful detentions, mistreatment and intimidation—combined with the continued imprisonment of Nasheed and coercion of MDP—have effectively put a stop to all opposition rallies.

MariyaDidi

It is not just activists and mass protesters who have been silenced. There are virtually no independent institutions or civil society organisations left with the capacity or courage to criticise the government. The independence of the Elections Commission and the Human Rights Commission was taken away through Supreme Court instigated suo motu cases, while all other institutions, such as the Police Integrity Commission (PIC) as just one example, have been rendered toothless by appointing regime loyalists as members. The recently published report by the International Commission of Jurists (ICJ) chronicles the many steps taken against cvil society organisations since 2013, which all contribute towards elimination of civil and political rights.

And, when it comes to No.4, the possession of ‘real authority’ by elected officials to govern—this now applies only to Yameen and members of his Progressive Party of Maldives (PPM). The entire local governance system has been dismantled, and elected council members rendered powerless. In the Majlis, PPM and its allies enjoy the majority power needed to pass whatever Bills they propose, and where an absolute majority is needed—as seen in the machinations that saw MDP voting with PPM for two controversial constitutional amendments—it resorts to blackmail, coercion, patronage and the usual web of corruption and deceit to engineer the result it desires. Elected MPs have also lost their power through amendments made to Majlis rules such as the recent abolishing of the requirement for debate and discussion before passing bills, and the new regulation which says only PPM members can propose any legislation or amendments related to state finances.

Clearly, the Maldives is failing to meet the minimum criteria required of a modern democracy in all sectors. Experts admit that violations of these criteria occur in even the most established democracies. However, in such cases, the violations are not systematic enough to ‘fundamentally alter the playing field between government and opposition.’ In the Maldives, the playing field is not just failing to be level, it has been almost totally annihilated. The Maldivian Democratic Party is at its weakest since inception, its power to mobilise supporters and lead opposition activities held hostage to a) government’s unlawful detention and mistreatment of its charismatic leader, Nasheed, and b) to the threat to freedom and security of all its supporters.

So what kind of a regime is it that currently exists in the Maldives?

As the ICJ report noted, the Maldives’ transition to democracy was flawed. While Nasheed managed to instigate several democratic reforms, many key elements of the state apparatus remained within the control of the former Gayoom regime. For most of the transition period under Nasheed, the Majlis remained under opposition control, not acting as a responsible branch of the opposition but existing as a bulwark against much needed democratic reforms. The judiciary, too, remained in the grips of the same forces, its key members acting against the new democratic constitution rather than with it. As diligently chronicled by former member of the Judicial Services Commission, Aishath Velezinee, MDP was at times unable—and at other times unwilling—to instigate the actions necessary for change in the right direction.

The Maldivian democracy in transition under Nasheed can therefore be described as being, a ‘weak’ or ‘flawed’ or even a ‘diminished’ democracy; nevertheless it was one that met the minimum requirements of one. A difficult transition experience is neither unexpected nor unusual, as seen by the many African and Eastern European countries that adopted democracy in the post-Cold War era. And, as was seen from these countries, authoritarian reversal is not an unusual ending to such a transition.

waheed-maldivesOnce the controversial end to Nasheed’s government was accepted by CONI as ‘legal and constitutional’ with ‘no coup, no duress, no mutiny’, possibilities opened up for the ‘flawed democracy’ to change into a hybrid regime veering away from democracy towards competitive authoritarianism. When caretaker president Mohamed Waheed Hassan Manik took the reigns of the country, this is the direction in which he—with the Gayoom loyalists he signed with—firmly steered the country.

In a competitive authoritarian regime, violations of the four criteria discussed above are frequent:

Although elections are regularly held and generally free of massive fraud, incumbents routinely abuse state resources, deny the opposition adequate media coverage, harass opposition candidates and their supporters, and in some cases manipulate electoral results. Journalists, opposition politicians, and other government critics maybe spied on, threatened, harassed, or arrested. Members of the opposition may be jailed, exiled, or—less frequently—even assaulted or murdered. Regimes characterised by such abuses cannot be called democratic. (Levitsky and Way 2002)

As discussed previously, the presidential election of 2013, was less than democratic. Waheed’s rule was marked by major clamp downs on opposition, the brutal murder of MP Afrasheem Ali, and several attacks on journalists and media organisations. All such activities multiplied after Yameen’s election. Three young men, including a journalist, have been missing for over a year. The government has failed to investigate and, in the case of the disappeared journalist, has actively obstructed efforts to find him. While media freedom remains, Maldives has slipped from 51st place in the World Press Freedom Index in 2012 to 112th place in 2015. Added to this are the threats and actions against the opposition previously discussed, and the government’s control of the judiciary and the legislature — all hallmarks of competitive authoritarianism.

Clearly, the Maldivian democracy has long since passed the ‘at risk’ stage. It no longer exists. The question that should be asked is, under what sort of authoritarianism is the country in? Is it competitive, or full-scale authoritarianism?

YameenQayoom

In a competitive authoritarian regime, although not a democracy, there are still arenas of contestation through which opposition forces ‘may periodically challenge, weaken, and occasionally even defeat autocratic rulers’. These are: a) the electoral arena; b) the legislature; c) the judiciary; and c) the media.

In competitive authoritarian regimes the electoral process can be marked by large-scale abuses of state power. The media is often biased, and there is widespread abuse and harassment of opposition activists and candidates. But, major opposition parties and candidates still compete, the elections are generally free of massive fraud, and international observers are allowed to monitor the process. This (apart from the extra-legal interventions of the Supreme Court) largely applies to what happened in the 2013 presidential election in the Maldives.

Things have, however, progressed far beyond that stage now. What is seen happening in the electoral process at present—such as the routine imprisonment of opposition figures—are hallmarks of full-scale authoritarianism where elections are either devoid of any serious competition, or are not held at all. At the level of local government, the electoral process has all but disappeared. When it came to the latest round of local council elections, the newly elected Elections Commission—populated by regime loyalists—decided the process wasn’t worth the required MVR100,000 or so. Furthermore, if an increasingly loud media murmur is to be believed, plans are now in the offing to extend the presidential term limits from five years to eight years through yet another constitutional amendment through the Majlis.

Looking at the legislative arena, things are not any rosier. In a competitive authoritarian regime, the legislature—although controlled by a ruling party majority—remains a place where the opposition can, even if occasionally, put up a good fight; and can still be a public platform from which to criticise the regime. This was largely the case with the Maldivian Majlis during caretaker Waheed’s regime. Recent developments in the Majlis in relation to the constitutional amendments, however, proved that it no longer serves as a people’s parliament, representing differing opinions and voices. It, too, has become a hallmark of full-scale authoritarianism where ‘conflict between the legislature and the executive branch is virtually unthinkable.’

ConstitutionThat the third arena—the judiciary—is under the complete control of the government is not an argument that anyone seriously contests, except the executive itself. Dozens of reports have been published by a whole range of international organisations from the UN to the ICJ censuring its lack of independence and corruption, and criticism has flowed from individual states, regional bodies and supranational entities. During Waheed’s competitive authoritarian regime, the widespread corruption, patronage and blackmail inherited from the Gayoom era remained in the judiciary. But there was room—although very little—for individual judges to express dissenting opinions. Several decisions by the executive since Yameen’s assumption of office, brought into effect via the compliant Majlis—such as the restructuring of the Supreme Court bench—have, however, destroyed any wriggle room for independent thought or action in the judiciary.

The media, is perhaps the only one of the four arenas which full-scale authoritarian regimes usually control that is not yet fully within the grasp of the Yameen regime. This is due not for the lack of trying, but to the impossibility of imposing such control over the kind of globally inter-connected media that exists today. Spying—both traditional and cyber—on dissenting voices by the police is common place, as is harassment and intimidation. And, as discussed before, the working environment for many journalists is far from safe. On top of this, the regime is now set to pass two new Bills—one on Freedom of Expression and one on Counterterrorism—which are set to curtail dissent and opposition to degrees not seen since the transition to democracy in 2008.

In addition to all this is the Yameen regime’s total dismissal of international democratic opinion, treaties and laws, and a deliberate foreign policy shift away from the democratic international community in favour of China, and authoritarian regimes in the Middle East. Except for the fact that the Maldives is not (yet) a threat to international security, the regime could easily be described as a ‘rogue state’.

And yet—despite all the evidence which shows the Maldives fitting neatly into the existing frameworks of what defines at best a competitive authoritarian regime and at worst a full-scale authoritarian regime—leaders of established democracies, and international stakeholders in the global democratisation efforts, continue describing the Maldives as ‘a democracy at risk’. This is clearly no longer the case.

Why the reluctance to let go of the ‘democracy’ label? Does it arise from a fear of acknowledging defeat and admitting that despite the international community’s interest and (sometimes admirable) efforts to help democratise the Maldives, it has failed to take root and succeed? Or is it simply because international actors are not keeping up with the authoritarians in the Maldives?

This must change. Any efforts to restore democracy to Maldives must start with the acknowledgement that however successful the transition appeared in the beginning, it has been deliberately failed. A fresh start that learns from the past, and knows what we are dealing with at present, is necessary.

1 Steven Levitsky and Lucan Way, ‘The rise of competitive authoritarianism’, Journal of Democracy 13 (2) (2002), 51-65:53

2 EU Election Observation Mission, ‘Republic of Maldives parliamentary elections 22 March 2014: final report’, available at http://www.eueom.eu/files/pressreleases/english/eu-eom-maldives2014-final-report_en.pdf (27 August 2015).

See also: International Commission of Jurists and South Asians for Human Rights, ‘Justice adrift: rule of law and political crisis in the Maldives’, August 2015, available at http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2015/08/Maldives-Justice-Adrift-Rule-of-Law-Publications-fact-finding-report-2015-ENG.pdf (28 August 2015).

3 Commission of National Inquiry (CONI), August 2012

4 . EU Election Observation Mission, ‘Republic of Maldives parliamentary elections 22 March 2014: final report’, available at http://www.eueom.eu/files/pressreleases/english/eu-eom-maldives2014-final-report_en.pdf (27 August 2015).

It’s the judiciary, stupid

by Azra Naseem

We had information that on 8 February Mohamed Nasheed would close other courts in the Maldives, send all judges home, and acting on his own, would establish a Judicial Reform Commission. From then onwards, it would be this Commission that would appoint all magistrates. ~2013 Presidential Candidate, Umar Naseer (PPM).

I learned about President Nasheed’s intention to establish a Judicial Reform Commission—or in whatever name it maybe—only after the government changed. ~ 2013 Presidential Candidate, Abdulla Yameen (PPM)

We don’t know for sure whether Mohamed Nasheed was planning to form a Judicial Reform Commission on 8 February 2012 or not. But, leaders of the National Alliance, especially PPM, have made it clear what motivated them most to be out on the streets protesting until Nasheed’s government ended was the prospect of Nasheed making changes to the judiciary .

Many ‘intelligence-based’ reasons were offered  for the National Alliance’s opposition to the expected changes: Nasheed’s Judicial Reform Commission was going to be totally under his control; it was a way for Nasheed to usurp judicial power; it was Nasheed’s means of destroying the judiciary.

Truth of the matter is all parties in the National Alliance would have been opposed to judicial reform in whatever form it came.

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