The following op-ed is by Toby Cadman, a partner at London-based Omnia Strategy, employed by the Maldivian government to respond to the UN working group on arbitrary detention over former President Mohamed Nasheed’s imprisonment.
On 13 March 2015 former President Mohamed Nasheed was convicted of having ordered the army to arrest a sitting judge. The judge was detained in a military establishment for a prolonged period without access to a lawyer or his family. Such an act should, and did, cause outrage amongst the international legal community. That part of the story is without controversy. However, what followed, namely the trial, and more recently, the appeal, has generated significant criticism resulting in calls, quite inappropriately, from the former President’s international legal team, for sanctions.
It is not the intention of this comment to criticise the international community for engaging in the process and requiring that a State comply with its international obligations. What is at issue, however, is the suggestion that democracy in Maldives rests on this single matter.
The rule of law, a central pillar of any democratic state, is based on a number of fundamental principles. It is based on the notion that all are equal before the law. It is based on the principle of the separation of powers. It is based on ensuring justice and accountability and ending impunity.
A. V. Dicey defined the rule of law as a concept encompassing three principles. One, a man may only be punished for a breach of the law if it is proven in court. Two, no man is above the law and all are equal before it. Three, the Constitution is the consequence of inherent rights. These three principles serve as a protection against arbitrariness and abuse of the State’s power.
Former President Nasheed was convicted following trial of a serious criminal offence that would be prosecuted in any system based on the rule of law. Whilst the conduct for which the former President was convicted may not constitute an offence of terrorism in many other jurisdictions – in the Maldives it does, and he was prosecuted in the Maldives, not in the United Kingdom or the Unites States.
Certain members of the international legal and diplomatic community have called for the former President to be immediately released. He has been termed a political prisoner. Such calls are highly inappropriate. Requiring the courts to uphold the rule of law and ensure that all persons that come before them receive a fair trial, an absolute right, are quite appropriate. Regrettably, that is not the call of the former President’s supporters or for that matter the international community. The calls that are being made are making a mockery of justice and denigrating the institutions that are making such calls.
It is important to note there will always be significant debate in such a high profile legal process. This is the trial of a former president. The fact that such opinions are voiced and have an outlet to be heard is indicative of a democratic process rather than the autocratic and oppressive regime that is being suggested in some quarters.
The case of the former President however is in danger of being manipulated for purely political ends. It is therefore important that we remind ourselves of the facts so that judgment does not become clouded.
What is not in doubt is that a sitting judge was unlawfully and forcibly detained against his will and in the absence of any lawful order. The seizure of an individual in such circumstances constitutes abduction, a serious criminal offence, and it is nonsensical to suggest otherwise.
The issue in this case is not whether the event occurred, but whether the former President gave the order and therefore bears criminal responsibility. Although the former President and his legal team have sought to suggest, at various stages, that he had not given the order, and that the military were acting of their own volition or on the orders of others, this position directly conflicts with admissions that he has previously made. Whilst being interviewed on the BBC ‘HardTalk’ programme, the former President stated, without pressure, that he had given the order, and that he would do so again if faced with the same set of circumstances. This was repeated in an op-ed that he penned for the New York Times on 8 February 2012. It is difficult to see how such comments can be seen as anything other than an admission.
It is of course a matter for any person accused of a criminal offence to challenge the allegation and to put the prosecution to proof. The presumption of innocence is the central pillar of any functioning legal system that respects the rule of law and that it is for the prosecution to prove its case beyond reasonable doubt. An accused person does not have to utter a single word. He has the right to remain silent. However, the former President has not remained silent. He has spoken at length as to the justification for his actions. To suggest that there is no evidence of the former President’s involvement in the offence, and to suggest that he is a political prisoner, therefore is quite simply wrong. In his own words following a request to the UN to assist in reforming the judiciary the form President acknowledged“my government…ordered the arrest of [judge] Abdulla Mohamed” (New York Times) and in the BBC Hardtalk interview on 14 February 2012 the former President expressed his frustration that the domestic authorities had failed to take action “…so finally I had to do it…it had to be done and I don’t want to arrest anyone. He was nicely removed and he was taken into a military installation.” This leaves no doubt that the former President acknowledges his involvement and therefore should stand trial.
What has been seized upon is the trial, and what is being suggested as a trial motivated by politics and a power struggle, and it being a mechanism used so as to reduce the political influence of the former President.
As noted previously, it is entirely appropriate for there to be a discussion on whether the trial met national and international standards and if it did not to ensure that the former President has the right recourse. Ordinarily that would be through an appeal process. However, the former President, for whatever reason, has decided not to appeal and to pursue a remedy through the UN Working Group on Arbitrary Detention. The remedy that he is seeking is threatening the Government, and indeed the entire country, with sanctions unless he is released and the conviction quashed. That is of course an entirely inappropriate course of action and completely at odds for a man who claims to be champion of human rights and accountability.
The notion of international campaigns for the release of one’s clients is nothing new. I have campaigned on behalf of my clients and called for international intervention in Bangladesh, Bahrain and Egypt to name just three countries. The clear distinction here is that the rallying call has been for reform, international investigations and the creation of international judicial mechanisms to deal with mass human rights violations. That is an entirely appropriate call.
The former President has repeatedly claimed that he is barred from appealing his conviction due to the expiration of a limitation period. Leaving this point in abeyance for the moment, the former President went on to specifically request that the Prosecutor General bring an appeal. Having considered the points raised by the former president, and given the level of criticism levied at the original trial, the Prosecutor General, exercising his discretion under the Constitution, deemed it appropriate to file such an appeal so as to enable the High Court to rule upon the issue.
The appeal hearing gave rise to a very interesting position being adopted by the legal team for the former President. The court asked on more than one occasion for the former President to confirm whether he actually wanted to appeal, but a straight answer was not forthcoming, instead they sought to argue that the Prosecutor General did not have the power to bring such an appeal.
This is a somewhat curious position to adopt given that it was the former President who had requested that the Prosecutor General, in writing, on three separate occasions,to act in the first instance. Further, it is unconventional, to say the least, that having succeeded in having the matter put before the High Court argument was made that it should not have been there, and thus undermine their own case. Allegations of manipulating the process have been bandied about, however, this would appear to be a very clear example.
The High Court has now ruled and dismissed the appeal, both on the issue of admissibility and the merits of the individual grounds. It is appropriate to say at this stage that the Prosecutor General should not accept the decision and a further appeal should be considered. However, two essential points must be taken from the decision.
The first is that it is clear that the judiciary were acting wholly independently when refusing to admit the appeal and thus the accusations of political manipulation of the court process has no proper basis. The court effectively passed the very decision that the former President had advocated.
The second is contained within the appeal judgment itself. It is clearly noted that the former President can lodge his own appeal, and as much as the limitation period may have expired, this does not prevent an appeal from being filed ‘out of time’. The former President can now no longer seek to maintain the position that he has been prevented from lodging an appeal as such an appeal is demonstrably false. Of course he will need to justify the delay in appealing, and almost certainly why his counsel took such a decision before the High Court, but that would be the case before a court in any jurisdiction.
Consequently, the suggestion that there will be a call for sanctions if the former President is not released is even more absurd.
Sanctions are a useful tactic to employ, however, to suggest that they should be used to undermine and circumvent the rule of law devalues their usage. To impose sanctions against a country, and its people, on the basis that the verdict returned was one that the party requesting did not like is clear manipulation. It suggests that the government should intervene in an independent process and thus to request sanctions in such circumstances is an act which is precisely akin to that which is being complained of, politicisation and manipulation.
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