30 September 2015, Male'
On the 30 April 2015 the former President of the Maldives, Mohamed Nasheed filed a communication with the UN Working Group on Arbitrary Detention (WGAD) complaining that he was being arbitrarily detained. This communication was forwarded to the Government Of Maldives on 12 May 2015.
Thereafter, the Government of Maldives filed its detailed response, answering and rejecting all allegations made.
On 17 September 2015 the WGAD delivered its opinion to the Government. An opinion that, in accordance with WGAD procedures, would be transmitted to the petitioner, the former President, thereafter.
In the interests of transparency, the Government has resolved to publish the WGAD findings now.
The opinion of the WGAD is that the complaint submitted by the former President Nasheed ought to be upheld.
This opinion is not accepted by the Government as it is clear that the WGAD has failed to address a number of salient points submitted by the Government in its response to the petition of complaint. Further, the opinion of the WGAD makes little if any reference to the submissions made and therefore the question must be asked as to whether the WGAD has given the Governments submission due attention during its deliberation.
The Government of Maldives maintains its position of engagement, however, it does not accept the decision of the WGAD and will not be made to act on the basis of a non-binding opinion.
The Government of Maldives does however continue to maintain the position that the issues raised within the petition of complaint ought to be given appropriate consideration by Maldivian domestic appellate courts.
In accordance with that position, and despite the former President refusing to engage in the process and making clear attempts at sabotage, the Prosecutor General sought to have the matter considered and ruled upon by the High Court.
In addressing this point with the WGAD, it is of course accepted that there is no requirement for the petitioner to exhaust all domestic remedies prior to submitting a petition, however it must be noted that the domestic process is still on-going and that those issues raised by the former President are capable of being rectified on appeal despite his position of non-engagement.
The High Court has ruled that the appeal as submitted was inadmissible, and thereafter, that there was no merit in the grounds submitted. Having considered this judgment, the Prosecutor General has now filed a further appeal with the Supreme Court.
The actions of the Prosecutor General in filing such an appeal, a step that is taken independently of the former President, and not dependent on his engagement, clearly underline the commitment of the Maldives and its offices to the rule of law and points of procedural fairness.
It is appropriate however to reiterate that the High Court did again confirm that the former President was still able to file an appeal against the judgment of the court of first instance; an opportunity that the former President has still inexplicably not taken.
Further, the clear commitment to the rule of law and concepts of procedural fairness shown by the Government of Maldives and its offices, underline how the opinion of the WGAD is premature.
The opinion of the WGAD cannot be adhered to whilst the domestic process is still on-going. To do so, would constitute political interference in a judicial process that is still yet to conclude, and thus would constitute an act of manipulation akin to exactly that of which the former President complains.
The Government of Maldives cannot intervene in an on-going process on the basis of who the individual is. To do so would be an example of bias and undermine the judicial process.
It must be noted that the Supreme Court is able to, and has been asked to, consider the issues raised by the former President in his petition to the WGAD and thus it is a matter for the court to determine whether such complaints have merit or otherwise.
The former President is asked to end his position of non-engagement with the appeal process and to cease his deliberate attempts at frustrating the process.
As already highlighted, an appeal has now been filed with Supreme Court, and subject to its ruling, the former President is asked to take an active role in any subsequent court hearings so as to enable the Court to rule on the facts as agued before it.