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)
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http://www.haveeru.com.mv/english/details/35025
http://minivannewsarchive.com/files/2011/02/Maldives-Final-ICJ-Mission-Report-21-02-11.pdf
24. The ICJ was gravely concerned to learn that three days later, on 15 July
2010, Mr. Yameen was detained by the Maldives National Defence Force
(MNDF) and placed under „protective custody‟ by order of the President.
25. In response to the MDNF detention, the Prosecutor General objected in
writing to the Minister of Defence. Lawyers for the detained requested and
obtained a writ of habeas corpus but the hearing did not take place. The ICJ is
concerned with credible reports that the MDNF refused to obey a court-issued
summons.
28. ICJ was gravely concerned to receive credible reports that during this
tumultuous period, direct and indirect threats were made against judges and
lawyers, including attacks on the homes of judges and against their family
34. ICJ was gravely concerned to learn that on 7 August 2010, exactly two
years after the promulgation of the Constitution, the President unilaterally
declared the Supreme Court bench defunct. He issued a decree appointing a
four-member appellate bench to oversee administrative aspects of the
Supreme Court and the Maldivian National Defence Forces (MNDF) took
control of the Supreme Court premises.
61. The ICJ delegation learned that the JSC has adopted a Code of Conduct
for the Judiciary largely based on the Bangalore Principles of Judicial Conduct.
26
However, although formally adopted, the ICJ was told that the Code of Ethics
still requires a strategy and program for effective implementation that adapts
the principles to the specific context of judges and magistrates in the
Maldives.
79. The ICJ is gravely concerned, however, about credible reports of
attempts to influence the judiciary that go well beyond the public interest in
open discussion. This can never be justification for threats, intimidation or
offers of favour perpetrated directly or indirectly through proxies by
members of the People‟s Majlis or the Executive. Such actions are
reprehensible and egregious violations of judicial independence.
86. The ICJ was pleased to learn that the Supreme Court was taking a
leading role in this regard and following the recommendation in the
Commentary on the Bangalore Principles of Judicial Conduct which states that “the
same authority should not be directly responsible for both training and other
duties including appointments, promotions and discipline” (para. 205)
104. While gravely concerned about these matters, the ICJ also found
indications of the strength and resilience of justice sector institutions. In
particular, the Prosecutor General and Civil Court played a key role in
upholding the constitutional order and the rule of law during the period of
escalating tensions and politicization of the judiciary from May to August
2010. In spite of political pressure and threats, the Supreme Court and the
Criminal Court were also able to make important rulings that guaranteed and
protected due process rights.
I wonder if these numbers were written in invisible ink since none of the Maldivian Media be it haveeru, minivannes or sun.mv were able to see these numbers of the ICJ report.
The political tug of war between the executive through their political members Aishath Velezinee and AG Sawad and the political members from the parliament through Afrasheem and Shahid, to control and chain the judiciary is having a serious impact on the justice system of the Maldives.
I hope someone would read the full report and follow through the recommendations giving the judges the required training, and improving the state of the JSC and change the composition of the JSC as the per ICJ recommendation, effectively removing all the political members I just mentioned.
Maldivians need to terminate and eliminate all or most of those judges from the court.They only works for their party developments.What all of them need is power.If so we 'citizen" can remove them, one by one.hell bent idiots.
Nothing works properly in this country.But they all talk about human rights.No one follow it.All blind folded hell fires.We all knew that even before this report.Non of them will be worried about this report.for sure non of those judges.If they care about a report they will not act like the way they are acting now.They are fully aware, that people are watching and monitoring what they do and how they act.but who cares. definitely none of those.
The only possible way is to remove them is by force"Citizens".The public need to come out and need to clean the mess.No point of wasting time and our money for no reasons.We can do it.We can raise our voice and we can act to solve and settle it.
I urge the government,all political parties,Majlis,courts,and all other institutes to follow the laws,rules and regulations and act accordingly.We all should go forward as a team to achieve our common goals and basic human rights.its easy to write on a paper.But its always challenging to act according to whats written on paper.
Message is :this is a very small society and we know each other very well.We can easily monitor and spy on what we all do.Try not to act like previous regime.If so you all will be failed before the appointed terms.Time is ticking.Take every step efficiently,accordingly,actively and effectively.
Politicizing of the Judiciary / Judicial oversight body is the worst thing that can happen in a democracy that demands clear separation of powers.
Neither the JSC, nor the judges inspire that confidence in me, and they aren't - not by a long shot - impartial defenders of the constitution that they're sworn to be.
Politics. Good and bad.
Judges are supposed to be respected. But they don't need to respect anybody else.
I say, fxxk you jug heads.
Its a bit hard for me to believe that the judiciary is always wrong and Velzinee is always right. Is something wrong with my thinking?
To answer your question Rooster.... YES!
Maldivian government = a damaged chimera.
Warning lights often flare up, but no one has the guts or the willpower to fix the real issue.
That's why, when someone dares to speak out about the failure of the nation at such high levels, the dumbed-down people, for whom critical thinking was a crime for 15 long years, often hide in denial.
Why its always one member of JSC so vocal and trying to deceive the public and empower the public opinion always, that she is always right. Why don't we hear the other side at all.
vell can be trusted as she has nothing to hide and all others carry extra heavy packages between their legs. We need disband both parliament and Judiciary and start from scratch if we need to move faster in democratization.
@ Zeen. And please add the gang master anni on the list. Then we will be able to start from scratch.
@zeen
you forgot to include 'the government' in your 'disbanding list'. I believe we need to disband Anni government as well if we need to move faster in democratisation