High hopes for UN opinion on Nasheed’s imprisonment

High hopes for UN opinion on Nasheed’s imprisonment
September 30 18:29 2015

A UN ruling on former President Mohamed Nasheed’s imprisonment is expected to be made public next week. After months of street protests, hundreds of arrests, the jailing of opposition leaders, failed all-party talks and two controversial constitutional amendments, the opposition and civil society groups hope the UN opinion will provide a way out of the deadlock.

Noting an unprecedented loss of public confidence in the judiciary, Shahindha Ismail, the executive director of advocacy group Maldivian Democracy Network, said the ruling, which is based on international human rights law, “will provide guidance to right a grave wrong.”

“Let this be a beginning to move forward and bring stability to a troubled nation.”

The UN Working Group on Arbitrary Detention (UNWGAD), a panel of five independent experts, considers the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), in issuing its opinions. The Maldives signed the ICCPR in 2006.

The opinion is not legally binding, but former Ambassador to the UN Abdul Ghafoor said the government is morally obliged to abide by the decision. “By submitting their response to the UN group, they have accepted the legitimacy of the UNWGAD to take up the case,” he said, an opinion echoed by opposition supporters and human rights defenders here.

The government had hired Omnia Strategy, a London-based legal firm, chaired by Cherie Blair, the wife of former UK Prime Minister Tony Blair, for an undisclosed fee to respond to the UNWGAD.

Nasheed’s heavyweight international lawyers – noting the denial of access to legal counsel, and deprivation of the right to defense and an impartial tribunal during the rushed trial – say they are confident of a win. None in the opposition believe that the the UN may find the detention lawful.

The opinion was sent to the government in early September. The Maldives Independent was unable to obtain a comment on whether the government intends to abide by the ruling from the President’s Office, the Attorney General’s Office or the Foreign Ministry.

Toby Cadman, a partner at Omnia Strategy, said the UN opinion “may be moot” now that the Prosecutor General (PG) has filed a High Court ruling, which upheld Nasheed’s imprisonment, at the Supreme Court.

“It will be a matter for the national authorities to determine to what extent it implements any recommendations made [by UNWGAD]. Ordinarily, the Working Group takes the position, if it determines that detention is arbitrary, that the proceedings are brought in line with international standards, namely the ICCPR and the UDHR. Obviously, the Government does not have the authority to interfere with the court’s determination of the matter, but it will need to be taken into account by the Supreme Court in its determination of the Prosecutor General’s appeal,” he said.

But the PG office says it is seeking a Supreme Court judgment ordering the High Court to hear the appeal, not a ruling on the charges against Nasheed.

The High Court, in the unexpected ruling, which was issued after a single preliminary hearing, had first said that it could not accept the appeal. But in the same judgment, it had also declared that the criminal court’s verdict was valid, despite never having heard the arguments.

The Supreme Court could take 60 business days, or until mid-December, to reach a decision on accepting the case, and many more months more to issue a verdict. If the ruling does order the High Court to take up the case, Nasheed will be in for a court battle that could last for years.

The UNWGAD process, however, is designed to circumvent courts that are merely stalling in order to continue detaining an individual, Nasheed’s lawyers have said. It does not require petitioners to exhaust domestic remedies to file a case.

They say they have little faith in a domestic judicial remedy. Former defense minister Mohamed Nazim, who was sentenced to 11 years in prison on weapons smuggling charges, had filed appeal in April, but the trial has remained stalled since June, lawyers have noted. Sheikh Imran Abdulla, the leader of the religious conservative Adhaalath Party, has also been in custody for more than five months without charge.

President Abdulla Yameen, however, continues to insist that Nasheed must exhaust all domestic appeal processes before clemency could be considered.

“What authoritarian regimes fail to realize is once they have lost at the UNWGAD, the release of the detainee becomes inevitable,” said Jared Genser, Nasheed’s lawyer who has also represented other high-profile political prisoners including Myanmar’s Aung San Su Kyi, China’s Liu Xiabao and Czech Republic’s Vaclav Havel.

“This is because when the UN says definitively a person is being held in violation of international law, that enables us to mobilize huge political and public relations pressure,” he said.

Genser has filed more than 40 cases with the UNWAGD and says he has never lost.

“I’ve had clients immediately released, others within a short time, and other cases where government’s stands firm for some time. In this case we have dramatically more public support prior to the UN judgment than I’ve ever been able to generate in a case at this early stage because President Nasheed is so well-known and beloved internationally,” he added.

Nasheed’s team, which also include lawyers Amal Clooney and Ben Emmerson, have threatened to lobby for targeted sanctions against government officials if they refuse to abide by the ruling. Cherie Blair has called the call for sanctions “unjustified and inappropriate,” but Nasheed’s team says Western governments have imposed travel bans and frozen assets in other cases of arbitrary detention.

The US had imposed travel bans and froze the assets of 18 Russain officials involved in the prosecution of a lawyer, Sergei Magnistky , while the EU ordered the freezing of funds belonging to several names Iranian and Belarusian officials for their role in human rights violations.

Individual judges, prosecutors and government officials involved in such proceedings were sanctioned, they said.

“Such sanctions can be imposed by a single state or by an international organization and – far from affecting the entire population or the economy of the Maldives as a whole – they can be targeted to specific individuals directly responsible for the relevant human rights violations,” read a statement issued last week.

The government appears to be rattled by the call for sanctions. It has now hired Washington’s most prominent lobbying firm, Podesta Group, for a fee of US$50,000 “to strengthen ties” between the Maldivian and US governments.

MDP MP Imthiyaz Fahmy has condemned the use of state funds on what he calls an attempt to “whitewash government crimes.” The government should instead “do the right thing and free political prisoners,” he said.

“We expect the government to abide by the UN opinion. We do not want any excuses,” he said, adding that a ruling in Nasheed’s favor would ultimately lead to the release of other prisoners, including Nazim and Imran.

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