Day: February 26, 2011

The Maldives is at “a dangerous junction” following the publication of an in-depth report into the state of the country’s judiciary by the International Commission of Jurists (ICJ), says President’s Member of the Judicial Services Commission (JSC) Aishath Velezinee.

The report was released this week following a visit by an ICJ delegation that included former UN Special Rapporteur on the Independence of Judges and Lawyers, Dr Leandro Despouy. It urged the provision of institutional and individual support for judges and magistrates in the Maldives, foreign oversight and assistance, and highlighted judicial accountability as “the key to cultivating public confidence [in the judiciary]”.

The report was especially critical of the JSC, “constitutionally established as an independent and impartial body tasked with vetting non-Supreme Court judges and magistrates.”

The JSC, the report said, “was unable to carry out its functions in a sufficiently transparent, timely, and impartial manner. To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment. Also troubling is that members of the judiciary have been subject to threats and intimidation as well as improper inducements by both governing and opposition party members.”

The JSC has refused to even table the report, Velezinee said on Thursday.

“We have not been given the opportunity to discuss the report in the JSC,” she said.

“The first thing is for those members exposed as not up to the conduct required by JSC to seriously think about resigning. Number two – we need to table the ICJ report and discuss it. But they have shown no interest in doing so.”

The ramifications of not doing this meant that the Maldives  had “a runaway judiciary”, Velezinee said.

“There has been very public resistance from JSC to any sort of democratisation of the JSC. I’m afraid the people are fooled – the constitution promises an independent judiciary and JSC, which would ensure judges are impartial and independent. But the JSC never institutionalised itself as an independent institution.”

The ICJ had managed, Velezinee said, “to put together a clear picture drawing from the little documentation that was available to them.”

“A lot of very political opinions were shared with them by stakeholders, and they would have had to be really vigilant to not be taken in by the politics of it,” Velezinee said.

“I think the challenge for them was that almost all the documentation is in Dhivehi and not available publicly. Considering the difficulties they had getting information and the very political situation we are currently in, I think they have done an excellent job.”

Situation at hand

Under the constitution the next step forward would be for the Majlis (parliament) to act as the independent oversight body and “put the JSC on trial”, Velezinee said.

“But every time controversy in the JSC becomes public the Majlis intervenes – not in a way that holds JSC accountable, but with the sole objective of covering JSC’s misdeeds. Right now the parliament has a three-member subcommittee conducting a secret investigation of JSC – these are meetings that are closed door [and not public knowledge].”

Parliament, Velezinee contended, had failed to hold the JSC to account and had resisted reforming the watchdog body.

“The parliament is together with the judiciary on this – certain influential members of parliament would like to maintain the status quo so they can control the judiciary,” Velezinee said.

“This is not such a far-fetched radical thought coming from me any more because of the things we have seen over the last year to do with politicians and judicial action. The courts are a playground for politicians and are not trusted by the general public.

“Parliament has failed, and there is no other institutional mechanism in this constitution for the JSC to be held to account.”

It was, Velezinee said, in the interests of everyone, including the international community and the state, “to ensure that the constitutional provisions to establish independent judiciary are followed to the letter and in spirit. We have failed to do that.”

The reason for that failure, she suggested, was a fear among leaders of the former administration “who are continuing with criminal activities they have allegedly been carrying out for a long, long time. These are allegations only because they have never come up before a court of law in all this time.

“There is widespread public perception that certain members of parliament are behind all the serious organised crime going on in this country. This includes serious drug issues, gang violence, stabbings. It is a much discussed issue, but it has never come up in the courts. I can see now that perhaps it may be true – otherwise why prevent the formation of an independent judiciary? I don’t think they would have confidence that they would get away free.”

Velezinee observed that former political figures such as attorney generals were now representing these MPs in court as their lawyers, and by and large, “they win every case.”

“I would find it an insult if had to go and argue my case before someone who does not understand the law. Why are these people doing it? On some islands the parents are locking up the primary schools if the teacher is not qualified. Why are we content with people who have not completed primary school sitting on the bench and judging us?”

Deep-rooted cultural issue

Many of the problems now embedded in the Maldives and its institutions can be traced to the fact that the country never had the opportunity to acclimatise to the concept of democracy before it was introduced, Velezinee suggested.

“For the last two years I have done nothing but think about this and try to change the JSC. I have spent hours and hours by myself thinking this through.

“What I think is this: when a student from a developing country goes to a university in a developed country, you go through an orientation process. If you live in the developing world and you go to work in the third world as a volunteer you also go through orientation – it’s to prevent culture shock.

“We just woke up one day to a new culture. We have always had this culture of subservience, of submissiveness where you are taught to respect your elders – certain people who have been shown to you as the leaders. Then suddenly we adopted this constitution that says everyone is equal.

“I think what people have found as my brazenness is that I have dared to publicly criticise the Speaker of Parliament and senior judges. They do not understand that I am equal to them as a member of JSC – the concept is completely lost on them.”

For the past 30 years judges effectively worked as the employees of those “hand-picked” by the former government, Velezinee explained – to the extent that failures to extend a particular ruling as required by the then Ministry of Justice resulted in a black mark on the judge’s file.

“The only qualification it appears was a willingness to submit to the will of the government at the time – to follow orders,” Velezinee said.

“Not everyone has the mindset to follow orders and serve in that kind of capacity. I believe it has excluded people with independent thinking, or the necessary legal knowledge – such people would take it as an insult for someone to order them how to decide a case.

“Now the JSC has decided – I believe with the support of parliament – that the same bench will remain for the next 40 years, retitled as an ‘independent judiciary’.”

Download the ICJ’s report, ‘Maldives: Securing an Independent Judiciary in a Time of Transition’ (English)