CONSTITUTIONAL AND LEGAL QUESTIONS, AND FINANCING RISKS INVOLVED
November 29th, 2010
This brief document summarizes the award of the Male' International Airport (MIA) to GMR of India, the prior and subsequent events leading to the award, constitutional and legal issues involved, ethical and moral questions, questions involving lack of transparency in the awarding process, and financing risks involved.
1. Introduction
On 28th June 2010 the Government of the Maldives entered into a contract with GMR to lease the airport for a period of 25 years. It offered the Government:
a. A sum of U$78 million as advance payment which is to be deducted from the profit due to Government.
b. 1% of the Gross Revenue in the first four years (2010-2014) and 10% of the Gross Revenue from the general business in the remaining years.
c. 15% of the Gross Fuel Sales in the first four years and 27% of the Gross Fuel Sales in the remaining years.
d. GMR is also to invest a USD 375million over a period of 25 years.
In return GMR is given right to levy over US$2billion dollars from international bound passengers. These include:
a. A levy of USD25 for every international departure passenger (this is in addition to the current levy of USD18 for foreigners and USD14 for locals).
b. A levy of USD2 for every international departure passenger.
c. In addition to that several other concessions are given to GMR.
Despite the huge concessions given to the GMR as well as billions of dollars the company stands to gain, the proposal does not involve extension and expansion of MIA runway which means for the next 25 years airplanes like A380 would not be able to land at the MIA.
2. Circumstances Surrounding the Award
a. On18th October 2009 President Nasheed's 20 month old Government sold, without any competitive bid process, majority shares of the State's most profitable company Dhiraagu to Cable and Wireless (Britain) 122 days later, in the height of world financial crisis, the Government bought and few days later sold 20% shares of the country's second most profitable government shareholding company - MWSC to Hitachi of Japan for MRF209.4 million. Government lost a total of MRF3.88 million from this later sale alone. Initially Parliament recommended not to sell state assets without its approval. However the Government, continued. Eventually the Parliament passed an amendment to Public Finance Act which effectively barred sale of state assets without parliamentary approval. Two hours later, in clear violation of the amended Public Finance Act, the Government leased MIA to GMR for 25 years!
b. MIA is a property of the Maldives Airports Company Limited (MACL) - a statutory body created under the Company Act [1996]. MACL board, headed by President Nasheed's relative, was summoned to the President's Office, and was asked to rubber stamp theGMR deal. It refused to do so on the ground that the Government did not share basic information and relevant documents with it. The Government, in violation of the Company Act, immediately dismissed the MIA board and replaced with its own cronies which there and then rubber stamped the deal.
c. Earlier on 26th June 2010, four opposition parties, representing majority members of Parliament, formed an Opposition Alliance to oppose the Airport Lease. In a nationally televised event the Opposition Alliance warned all the concerned people not to proceed with the deal and signed a written pledge to:
-Undo any deal,
-Propose a specific law dealing with the MIA,
-Mount legal challenges in the Courts,
-Ask the country's independent anti-corruption watch dog to investigate allegation of corruption involving the deal,
-Take action (including taking no-confidence vote) against ministers responsible for the deal (Minister for Finance and Treasury and Minister responsible for privatization)
d. The Government rushed the award of MIA to GMR after a comprehensive bill on Privatization has been adopted by open Parliament and committees thereof.
Despite all the above factors and events GMR proceeded with the contract!
3. Subsequent events
a. One day after the award of the MIA to GMR, the entire cabinet resigned citing no-cooperation from the Parliament. However the real reason appears to be to avoid parliamentary scrutiny of the GMR deal, including possible impeachment of senior ministers.
b. Only four hours after the cabinet resignation, the government in clear violation of Constitution mobilized military to arrest leaders who formed a united front to oppose the award. When the Criminal Court ordered to produce the two for a habeas corpus hearing the Government declined. The government also prevented, again in clear violation of the Constitution and Parliamentary Rules, the detained leaders from attending the Parliament.
c. Fourteen days later the Supreme Court declared their arrest unconstitutional and ordered them to be released. The Government then sent military with tanks and heavy armory to re-arrest one of the Opposition Alliance Leaders and held him for 9 days. When the Criminal Court ordered to produce the detained leader for a habeas corpus hearing senior military officials told the Chief Judge that they WILL NOT obey any court order!
d. After a series of street marches and protests led by the resigned ministers, and a series of threats and intimidation to judges and members of Parliament, the President, again in outrageous disregard to the Constitution, on 7th July 2010 "re-appointed" his cabinet! Under the Constitution ministerial nominees must obtain parliamentary consent before assuming office or taking oath of office. However, since 7th July these self-proclaimed "ministers" have acted as ministers without parliamentary consent!
e. To make things worse, on 28th September 2010 these self-proclaimed ministers and the Cabinet decided that they will subject themselves to Parliamentary scrutiny!
f. Upon submission of the "re-instated" ministers for Parliamentary consent, the Parliament refused consent to seven out of twelve ministers, including Minister for Finance and Treasury, Minister for Home Affairs, Minister for Defence and Minister for Foreign Affairs. The President says that regardless of the rejection by the Parliament they will continue as ministers! The issue is being challenged in the Supreme Court.
g. In the meantime the President on 3rd June 2010 returned the amended Public Finance Act to Parliament (which he is entitled to do so under the Constitution). The Parliament however, passed the amendment with sufficient numbers to overrule presidential veto. The president then refused to gazette the law! The issue too is being challenged in the Supreme Court.
4. Current status
a. Currently the opposition has filed a case with the independent Anti-corruption Commission to investigate suspected corrupt dealings involving MIA lease to GMR.
b. Four Opposition Parties which commands majority in the Parliament have challenged the MIA lease to GMR in the Civil Court. Initially the Civil Court Registrar on 30th September 2010 rejected it on procedural grounds. The Opposition has challenged the Registrar's decision in the High Court.
c. Deputy Leader of the Dhivehi Qaumee Party (Maldivian National Party) Mr. Imad Solih has also filed a case in the Civil Court challenging MIA lease to GMR.
d. More cases are likely to be filed in the coming days and months challenging the MIA lease to GMR.
e. Opposition Alliance is in the process of drafting a law to overrule the MIA lease to GMR and to nationalize the MIA. The Bill is expected to be tabled before the Parliament in the current session.
5. Grounds for challenge
Unconstitutional
a. MIA lease to GMR involves a levy of USD25 and a USD2 as insurance for every international departure passenger (this is in addition to the current levy of USD18 for foreigners and USD14 for locals).
b. Article 97 of the Constitution prohibits any form of taxation without legislation. Levy on departure passengers have always been done through legislation, including amendments thereof. In fact the current levy of USD18 for foreigners and USD14 for locals was introduced by the present government through amendments to the relevant law.
c. However, the right to levy a USD25 and a USD2 (a total of USD27) was given to GMR by the Government without the passage of any law.
d. According to news reports GMR has sought and the Government has agreed to give sovereign guarantee MIA related loans GMR takes. However, Public Finance (Amendment) Act clearly bars issuance of any such guarantee without Parliamentary endorsement. The Government has so far not sought such approval and the opposition dominated Parliament is unlikely to give such approval.
Illegal
a. Parliamentary recommendation not to sell state assets without its approval is binding on the Government. Therefore, any contract in breach of the recommendation is null and void.
b. Award of MIA to GMR is in clear breach of Public Finance (Amendment) Act which was passed to prevent the Award of MIA to GMR in particular and prevent of state assets in general. Therefore, the award is null and void.
c. MIA is a property of MACL - a statutory body created under the Company Act. Company Act requires the Board act in the best interests of the Company. Therefore, the Board's dismissal and subsequent appointment of a crony Board which rubber stamped the MIA to GMR is in breach of Company Act.
d. Against the privatization Regulation (first opportunity to the MIA itself).
Suspected Corruption
a. Secrecy - The deal was kept highly secret. Government has refused to provide copies of the Concession Agreement despite demands under Article 29 of the Constitution which provides right to information as a fundamental right. Opposition is in the process of challenging Government's refusal to provide copies of the document in the Courts.
b. Furthermore, under Article 61(c) the Government is duty bound to make public all government decisions and actions, except information that is declared as State secret by law.
c. Minister of Finance and Treasury Mr. Ali Hashim and Minister responsible for privatization Mr. Mahmood Razi are biggest Duty Free operators at MIA, while major financial contributors of the ruling Maldivian Democratic Party (MDP) also holds major takes and interests in the airport.
6. Due diligence
GMR is the first major foreign investor since the president Nasheed assumed office in 2008. Therefore, GMR ought to have conducted a comprehensive due diligence. Even a superficial test would have failed for the following reasons:
Political instability
a. President Nasheed came to power with a united opposition support and with a promise of mid-term election. He has since reneged that promise, and partners who propelled him to power have since left. As a result his support has plummeted (70% eligible voters did not take part in a referendum he called in October this year while of those who did take part majority rejected his proposition!)
b. Government lacks majority in the Parliament - hence state contracts involving taxations (as is the case with MIA award to GMR) are likely to fail unless Opposition supports.
c. Important ministerial nominees like Finance Minister, Home Minister, Defence Minister and Foreign Minister all have failed to secure Parliamentary consent.
d. Ministers remaining are under constant fear of no-confidence motion being taken against them.
e. Arrest and detention of Opposition leaders contrary to the Constitution and laws and refusal to release them even when the court orders to do so.
f. Currently four Opposition MPs are facing serious charges - two of them are facing Sedition charges filed a day after they formed an opposition alliance to oppose the MIA award to GMR!
g. Election Commission has already declared that the forthcoming Local Council Election will not be free and fair because of Government's meddling.
Undermining rule of law
During the last few months alone President Nasheed's Government has:
a. Padlocked the Supreme Court and prevented Justices from entering the Court premises.
b. Shut down the Independent Judicial Service Commission - responsible for hiring and firing judges.
c. Shut down the independent Department of Justice - responsible for providing administrative support for the judges and the judiciary.
d. His ministers and senior government officials have refused to subject themselves to Parliamentary scrutiny as required by the Constitution!
e. His Government has refused to provide information required by the Constitution to the Parliament, Political parties, as well as citizens.
Inexperience Government
a. The Government is barely two years old.
b. Most of the senior Government officials are street activists who never had any private or public sector experience and some top official in the current government have past criminal records
Corruption and nepotism
a. Several contracts have been awarded to the ruling MDP activists - many of them against clear and specific instruction of Anti-Corruption Commission.
b. The Opposition has challenged in the courts several such awards.
c. In less than two years in power President Nasheed's government has seen a 28 points fall in Transparency International's Corruption Index.
d. Government has called the judiciary corrupt and ruling MDP has even setup its own public courts to disperse justice!
e. Cabinet Ministers have called Parliamentarians as wild animals! and they have marched on the streets of the capital Male' against the Parliament and the Parliamentarians.
f. President and ministers continue, despite constitutional requirements, to disclose their financial reports.
g. The Government since March 29, 2010 continues to function without an Auditor General - a constitutional requirement.
h. Until 13 October 2010 President Nasheed prevented the Anti-corruption Commission from functioning effectively by refusing to appoint his own nominee to the Commission despite Parliamentary endorsement. Eventually he did so 13 days after the Civil Court ordered the President to do so.
Absence of good economic policies
a. Government lacks economic policies.
b. Government has flooded market with new islands (including parts of inhabited islands) to be developed as resorts.
c. On one hand it keeps selling most profitable state assets while at the same time keeps forming non-profitable companies.
d. Discontinuation of IMF assistance to the Government of the Maldives for failing to comply with the agreements of the agency.
e. Locally based foreign banks as well as overseas banks have all but frozen new loans, save very exceptional cases. As a result newly leased islands as well as a number of ongoing resorts with near-completion are unable to secure finance/bridge finance. Even highly cash rich and reputable companies are struggling to secure new loans or re-finance existing ones.
Multiple taxation
In less than two years in office the Government has:
a. Introduced without adequate time a resort land tax replacing resort lease rent.
b. Introduced without adequate time a GST replacing current bed tax.
c. Is about to introduce a Business Profit Tax.
d. Has proposed a Green Tax.
Growing religious extremism
United Kingdom has imposed more stringent screening of air cargo from Maldives (along with countries like Sudan and Somalia). President Nasheed too concedes this is a result of growing religious extremism.
Growing crimes
Serious crimes, including murder, robbery, rape etc have increased dramatically over the years forcing the Government to introduce legislations on gang and organized crimes as well as dangerous weapons.
7. Financing risks
Huge risks involve in financing the GMR-MIA project. Among them include:
a. Possibility of the whole transaction being revoked by the country's Anti-corruption Commission which has the mandate to do so under the Constitution and under the Anti-corruption Commission Act.
b. Very really likelihood that the courts would declare the transaction as unconstitutional because it involves taxation without legislation as required by the Constitution.
c. Possibility of the courts declaring the deal illegal on the ground that it was done in violation of Public Finance (Amendment) Act which bars sale of State assets.
d. Possibility of the courts declaring the deal illegal on the ground that acquisition of the MAC assets was in violation of the Company Act.
e. Possibility of the courts declaring the deal illegal on the ground that the dismissal of the Board of MAC and the subsequent rubber stamping of the whole deal by Government appointed Board violates the Company Act.
f. Possibility of the courts declaring the deal illegal on the ground that it was done contrary to the Privatization Regulation.
g. Opposition that holds majority in the Parliament, is in the process of reversing the award through specific law.
h. If the President carries out his promised midterm election (which will be due in the middle of next year) the Opposition is very likely to win the election. They have already pledged to reverse the deal.
i. In any event presidential election is due in three years time. The current Government which is highly unpopular is expected to lose and the Opposition is likely to carry out its promised nationalization of the MIA.
FOR MORE INFORMATION:
Tel:+960- 3304548
Fax:+960- 3343844
Email: sitee@qaumee.org.mv.
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