CNI report “selective”, “flawed”, “exceeded mandate”: Sri Lankan legal experts
08 Sep 2012, 6:53 PM
Daniel Bosley
A legal analysis of the Commission of National Inquiry’s (CNI) final report by a team of high-profile Sri Lankan legal professionals – including the country’s former Attorney General – has been prepared upon the request of the Maldivian Democratic Party (MDP).
The scathing report accuses the commission of exceeding its mandate, selectively gathering and acting upon evidence, and failing to adequately address the fundamental issue with which it was charged: determining whether former President Mohamed Nasheed resigned under duress.
“[The CNI] appears to have abdicated its duty to objectively and reasonably bring its collective mind to bear on whether or not there was duress involved in the purported resignation of President Nasheed,” concludes the the detailed report.
The CNI report had stated that Nasheed’s resignation was “voluntary and of his own free will,” adding: “It was not caused by any illegal coercion or intimidation”.
The legal analysis’ authors include two Sri Lankan Supreme Court attorneys – Anita Perera and Senany Dayaratne – and the former Sri Lankan Attorney General Shibly Aziz.
“The Report offends the fundamental tenets of natural justice, transparency and good governance, including the right to see adverse material, which undermines the salutary tenets of the Rule of Law.”
The Sri Lankan legal team also believe “There is evidence to demonstrate that there was in fact adequate evidence to suggest that duress (or even ‘coercion’ and/ or illegal coercion as used by CNI) is attributable to the resignation of President Nasheed.”
Last week’s official release of the CNI report was preceded by the resignation of one of the commission’s five members.
Ahmed ‘Gahaa’ Saeed – Nasheed’s nomination to the commission – resigned after viewing the first draft compiled by the Singaporean co-chair, retired Supreme Court Judge G.P. Selvam.
“I feel compelled to formally register with you a number of issues that I believe, if left unaddressed, will seriously undermine the credibility of the report,” Saeed wrote to his colleagues on August 26.
“I also believe these matters defeat the purpose for which the CNI was established,” he added.
Saeed’s concerns – which included withheld evidence, non-examination and obstruction of witnesses, and overlooked evidence – appear to have been substantiated by the Sri Lankan analysis.
The MDP had previously commissioned a legal report by a team of Danish experts which concluded that Nasheed had resigned under duress.
“To the extent that a ‘coup d’etat’ can be defined as the ‘illegitimate overthrow of a government’, we must therefore also consider the events as a coup d’etat,” read the analysis, titled ‘Arrested Democracy’.
Exceeded mandate, flawed report
The Sri Lankan analysis focuses on five main areas: the CNI’s compliance with its mandate, the procedure pursued in exercising this mandate, the evidence gathering process, the adherence to the “imperative dictates” of natural justice, and the legal issues which ensue from this.
In addressing the issue of the mandate, the analysis states the following: “It must be emphasised that the mandate granted to the Commission, is not to investigate whether the ouster of President Nasheed is politically justified, nor is it an evaluation of the manner in which the President discharged his powers and duties during his period of office.”
The report opines that the CNI simultaneously expanded its mandate to include additional concepts such as ‘common-good and public interest’, whilst restricting itself to completion in a timely manner in order to move the country forward.
The analysis argues that “without any explanation or rationale” the CNI focussed only on the physical threats to Nasheed without considering the context of pressures which were “exerted on the ability of the President to lawfully administer the country” in the period under review – January 14 to February 7.
Procedure and evidence
“It is respectfully submitted that the Report, which was compiled and released in less than two months, cannot be relied on as a credible analysis of the legality of the change of power as it has, inter alia, not provided objective reasons for the way in which it has selected or afforded weight to the evidence considered for its conclusions; has deviated from the critical issues it was required to consider in terms of its mandate and appeared to have conferred on itself an objective of ascertaining a political justification for the change of government rather than analysing, as it was required to do, the legality of the said change.”
In analysing the evidence gathering aspect, the analysis provides a table of “numerous glaring omissions” which include:
No testimony from deputy leader of the Progressive Party of Maldives (PPM) Umar Naseer, or consideration of public statements calling for, and taking credit for, the overthrow of the government.
No examination of the role of then Vice-President Dr Mohamed Waheed Hassan on February 7 and his meeting with opposition leaders on January 30.
No mention of the leaders of some opposition parties openly joining protesters on the morning of February 7, and the fact that some were inside the police headquarters “conspiring alongside certain senior police officers.”
No inclusion of the account of Nasheed’s wife, Madam Laila Ali, despite the basis of coercion adopted by the CNI including threats to Nasheed’s family.
No analysis as to why Mohamed Nazim, currently the Defence Minister but a civilian on the morning of February 7, announced the appointment of acting heads of the police and military before Nasheed had resigned.
No testimony from key witnesses, such as Chief of Defence Brg. Gen. Moosa Ali Jaleel and Deputy Police Commissioner Ahmed Muneer, despite CNI’s procedural rules prescribing “rigorous deliberation” on obtained evidence.
Statements from key personnel like Male’ Area Commander Ibrahim Didi and Commissioner of Police Ahmed Faseeh were not taken August 27.
The report also repeats the concerns of ‘Gahaa’ Saeed that vital CCTV footage was not obtained by the commission.
“In view of the totality of the foregoing, it is submitted that CNI failed, and/or neglected, to take such steps as are necessary to ensure a full evaluation of all relevant evidence and/or expressly account for any limitations therein,” it states.
Natural Justice
Citing the dictates of natural justice, the analysis argues that the CNI impinged on the right to a fair hearing and the rules against bias.
The Sri Lankan experts argued that, as the report at various time treats Nasheed as a witness, a complainant, and as the accused, he ought to have been afforded greater opportunity to give evidence and to defend himself.
“The Report appears to depict the President as the accused in an investigation that, however, was never designed or intended to place any culpability on anyone, unless the Commissioners so misconceived their writ,” the authors stated.
The analysts also point out that the events of February 8 were treated as stand-alone incidents and not used to contextualise the climate in which the previous day’s events tool place.
They also argue that the CNI’s conclusion that the events of February 6 and 7 were responses to Nasheed’s actions implies that he got what he deserved, and was therefore “tainted with manifest bias.”
“The report further purports to create a strange burden of proof that no evidence is required to prove or disprove allegations, if the commission is of the opinion that the allegation is lacking in substance or reality,” read the analysis.
“It appears therefore, regrettably, that the commission appears to have adopted the whims of its preconceived notions, rather than the requirements of its mandate, in determining the evidence it will consider in compiling the Report,” it continued.
Legal issues
The legal issues concomitant with the CNI’s conclusions include the use of a draft penal code from 2004 to support the claim that Maldivian law does not define a coup d’etat.
It is also suggested that the CNI failed to consider the principle of duress as referred to in its original mandate, instead interchanging the term with ‘coercion’ which has a far narrower scope involving only threat to life limb or liberty.
It is argued that restricting illegal pressure to physical threats is not appropriate in a political context.
The legal analysis concludes that the evidence seen “gives strong credence to the claim that President Nasheed was under duress when he tendered his resignation”, even when considered in terms of the ‘coercion’ used by the CNI.
Regarding the claims that the events could not have amounted to a coup d’etat, the Sri Lankan team argued that there is no provision in Maldivian law which corroborates the CNI’s rationale that a Vice President can succeed a President based solely on the fact he was elected on the same ballot.
“The limitations of such an argument lie in the fact that it purports to construe the change of power or justify the change of power in terms of what had transpired 3 years ago rather than what had transpired in the present,” said the Sri Lankan report.
“The simple question that [the CNI] needed to answer to ascertain whether there was a coup was who controlled the communications and defense functions of the country – who was the police and military personnel listening to, who was occupying the national television promises immediately before President Nasheed’s resignation,” it continues
The analysis further suggests the CNI became overly focused on dispelling accusations of a coup, rather than simply determining whether the transfer of power was legal, the two not being mutually exclusive.
The analysis also adds that, just because a coup is not defined in Maldivian law, it does not mean it is not prohibited, suggesting that the penal code provides multiple provisions prohibiting unauthorised challenges to governmental authority.
The CNI’s claims that an army mutiny is an internal military matter is dismissed in the analysis by pointing out the president’s position as Commander-in-Chief.
It also suggests that the inability of the president to control his army is a “universally accepted hallmark” of a coup.
The constitutionality of the transfer is also challenged on the grounds that the permanent, as opposed to temporary, resignation and swearing in of presidents must take place before the People’s Majlis, as prescribed in Article 114 of the constitution.
“These authors observe therefore, that CONI could not have conclusively arrived at a finding that all constitutional provisions were duly complied with and further observe that such inconsistency cannot in any way be dismissed as a failure to comply with a mere protocol.”
“More importantly this also confirms the state of affairs that may have prevailed at the time of resignation where the persons who were desirous of bringing a change in the presidency were willing to sidestep constitutional requirements to replace President Nasheed,” concludes the analysis.