judges – Minivan News

PPM constituencies will be prioritised for development, says president

Constituencies represented by ruling coalition MPs will be prioritised for development projects in the state budget for 2016, President Abdulla Yameen has said.

During a visit to Meemu Atoll Dhiggaru to campaign for the Progressive Party of Maldives (PPM) candidate, Yameen yesterday urged Dhiggaru constituents to vote for Ahmed Faris Maumoon to ensure development.

“If you do this, no doubt when the budget comes, under the principle where constituencies with our members are prioritised now, this constituency will be noted very early on,” he said.

The by-election is scheduled for Saturday, June 6.

The PPM and coalition partner Maldives Development Alliance (MDA) controls a comfortable majority of the 85-house.

The rhetoric of the main opposition Maldivian Democratic Party (MDP) is unimportant for Dhiggaru constituents, Yameen said.

The MDP, the Adhaalath Party and members of the Jumhooree Party have been protesting for three months over the imprisonment of ex-president Mohamed Nasheed.

Yameen said Dhiggaru constituents wanted a seawall, new classrooms, and a school hall.

“[A] 140 kilowatt generator to ease the electricity problem in this island before Ramadan will be important for the people of this island,” he said.

The generator will arrive before Ramadan, and projects to establish water and sewerage systems in Dhiggaru will begin early next year.

An outer wall for the Dhiggaru football field will also be built in two months and a futsal pitch will be built during the year, he pledged.

President Yameen’s pledges follow PPM MPs assuring development of the five islands in the Dhiggaru constituency if Faris wins the by-election, prompting allegations of undue influence and bribery.

The PPM was previously accused of bribery over the delivery of an x-ray machine to Muli last month.

The government has also signed an agreement with the state-owned Maldives Transport and Construction Company to build a harbour in Dhiggaru.

The ruling party was also accused of vote buying after handing over air-conditioners to a school in Raa Atoll Alifushi, shortly before an island council by-election.

The government’s efforts to develop the Dhiggaru constituency will speed up and be made easier if Faris is elected, Yameen continued, as he would have the president’s ear and be able to share the concerns of his constituents.

In contrast, Yameen said, MDP MPs voted against the 2015 budget and had “hijacked” parliament since March to “obstruct” proceedings.

He also accused opposition-dominated island councils of refusing to allocate land to develop futsal pitches, stressing the importance of electing PPM councillors and lawmakers for cooperation with the government.

Faris is the president’s nephew and eldest son of PPM leader, former President Maumoon Abdul Gayoom. He will be facing MDP candidate Ahmed Razee and independent candidate Moosa Naseer Ahmed in the June 6 poll.

Dhiggaru is a PPM stronghold and a support base of the former president.

The by-election was triggered by the jailing of former MP Ahmed Nazim, also a PPM member. He was convicted of defrauding the former atolls ministry and imprisoned for life.

Yameen said Nazim had “sincerely served” the party and the PPM wished to keep hold of the seat.

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New regulations require Supreme Court permission for attending overseas events

The Supreme Court has formulated new regulations making it mandatory for judges and judicial employees to seek permission to attend overseas workshops, seminars, conferences, or training programmes.

Made public yesterday (May 20), the regulations (Dhivehi) require judges and staff to submit an “overseas travel permission” form to the Supreme Court for approval if expenses are provided from the judiciary’s budget or by a foreign party.

The regulations appear to lend credence to what critics regard as the increasing centralisation of judicial administration, with the potential effect of compromising independence and increasing tension within the system.

Should permission for overseas travel be granted, the regulations state that a second form providing details of expenses must be submitted to the Department of Judicial Administration, after which approval must also be sought from the Ministry of Finance and Treasury.

Moreover, a report must be submitted to the Supreme Court at the end of the trip.

The regulation also states that equal opportunity must be provided for judges and judicial employees to participate in overseas programmes while all expenses must be made in accordance with public finance rules.

The regulations, however, exempt overseas travel by judges and judicial employees for participation in workshops or seminars in their personal capacity, so long as expenses are not covered by the state.

“Centralising administrative decisions”

The Supreme Court stated that the rules were formulated under authority granted by articles 7, 141, and 156 of the constitution.

While Article 141(b) states that the Supreme Court “shall be the highest authority for the administration of justice in the Maldives,” Article 156 states, “The courts have the inherent power to protect and regulate their own process, in accordance with law and the interests of justice.”

Referring to the articles, the Supreme Court earlier this month introduced new regulations requiring the Department of Judicial Administration (DJA) to function under its direct supervision.

The DJA – tasked with management of the courts – was formed by the Judicial Service Commission (JSC) in October 2008 to replace the Ministry of Justice following the adoption of the new constitution.

While the DJA was to function under the JSC, in December 2008 the Supreme Court brought the department under its control before the Judicature Act in 2010 transferred the DJA to the new Judicial Council.

The Judicial Council was subsequently abolished by the Supreme Court in late 2010, however, in a ruling that struck down the relevant articles of the Judicature Act.

The apex court’s move to cement control over judicial administration is in contravention to the constitutional concept of the independence of courts, former JSC member Aishath Velezinee told Minivan News earlier this month.

The new regulations were the culmination of a “systematic takeover” of the DJA, she contended, as the department “should stand as an independent institution solely facilitating administration of the courts.”

In a comprehensive report on the Maldivian judiciary released last year, United Nations Special Rapporteur Gabriela Knaul wrote that “the dissolution of the Judicial Council and the direct control of the Supreme Court over the Department of Judicial Administration have had the effect of centralising administrative decisions in the hands of the Supreme Court.”

“This has undoubtedly contributed to the strong impression that lower courts are excluded from the administration of justice and decision-making processes,” the report stated.

Knaul also expressed concern with reports of the Supreme Court “not following due process in many of its decisions.”

“It is also troublesome that some of the Supreme Court’s interventions are perceived as arbitrary and as serving the judges’ own personal interests. Such misinterpretation of the independence of the judiciary needs to be urgently resolved both with regard to the public perception of the judiciary and the internal functioning of the justice system,” she advised.

“The Special Rapporteur heard several complaints about internal tensions in the judiciary, where lower courts are left with the feeling that the Supreme Court only works for its own interests, without taking into account the situation of other judges and magistrates.”

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Supreme Court orders JSC to halt transfer of judges

Supreme Court has released a mandamus order on Monday halting the judicial oversight body’s decision to shuffle ten superior court judges.

The order states the Judicial Services Commission (JSC) does not have absolute powers to transfer and promote judges.

Unless a court is liquidated no judge can be transferred to another court unless by the explicit decision of the Judicial Council, the Supreme Court said.

The Supreme Court has previously annulled the Judicial Council and taken over the council’s powers. The JSC has been notified of the move and hence is mandated to discuss any shuffle of judges with the Supreme Court, the order said.

“The Judicial Service Commission’s decision dated December 9, 2013 – where without any contribution of the Supreme Court – the JSC decided to transfer judges of the Civil Court, Criminal Court, Family Court, Drug Court and Juvenile Court from one court to another from January 1, 2014 is hereby overturned, and we notify Judicial Services Commission, concerned courts and other concerned authorities that it cannot be acted upon,” the order signed by Chief Justice Ahmed Faiz Hussain reads.

JSC disregarded Chief Justice’s objections

Earlier in December, the Chief Justice sent a letter to the JSC objecting to the transfer, presenting the same arguments as in Monday’s mandamus order.

The JSC had at the time decided to disregard the objections, saying it lacked legal grounds.

“Even under the constitution and the JSC Act, the commission is vested with the power to transfer the judges,” JSC representative from the parliament Ahmed Hamza said at the time.

“Order is baseless but will abide by it”

Hamza stated that the JSC still maintains that its decision is a legally justified one.

“When the next term of parliament begins, we will work on this matter from within the parliament. Meanwhile, the JSC’s position is clear: we maintain our stand that our decision to transfer judges is legal and within our powers,” Hamza told Minivan News today.

“By releasing this order, the Supreme Court has undermined the powers vested in the JSC by the constitution. I do not accept that the Supreme Court has the power to do so,” he continued.

“The Supreme Court usually overrules things when someone files a case there, not of their own initiative as in this instance. It is very surprising how this has come about.”

However, Hamza stated that as the objection has come in the form of a Supreme Court order, the JSC will have to follow it.

JSC Member appointed from the public Sheikh Shuaib Abdul Rahman stated that while the order held the same reasoning as the letter previously sent by Faiz, the JSC will abide by it as it has now come in the form of an apex court order.

However, commenting further in private capacity, Shuaib described the Supreme Court’s reasoning as “irrational”.

“The reasoning presented in the order itself is irrational, and off the topic. The only legal connection that they can show is Article 47 of the Judges Act. The thing is they are talking about the Judicial Council, which has been made void. How can they refer to something that has already been made void? The articles that the Supreme Court have pointed out in the order have nothing to do with the JSC,” Shuaib said.

Shuaib said that he does not accept the Supreme Court can adopt the duties of the Judicial Council after the council itself has been ruled void.

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Judges not informed of impending shuffle

The Judicial Services Commission’s (JSC) Secretary General Abu Bakuru Mohamed has said the commission has not informed ten superior court judges about their impending transfer on January 1, according to local media.

The JSC decided to shuffle the judges in December “in a bid to strengthen the judiciary.” However, Chief Justice Ahmed Faiz objected to the decision claiming the commission does not have the authority to shuffle judges.

Although only two days remain for the shuffle to take effect, JSC SG Mohamed has failed to inform judges or explain reasons for the delay, local media have said.

Meanwhile, JSC Members Shuaib Abdul Rahman and MP Ahmed Hamza have confirmed to Minivan News the JSC will stands by its decision to shuffle judges and has called on the SG to facilitate its implementation.

“Informing the judges is an administrative work and the responsibility of the Secretary General. I believe he will abide by the commission’s decision and notify judges prior to their date of transfer. The transferred judges must report to work at the courts where they have been transferred to starting from January 1,” Hamza stated.

The JSC has so far transferred ten Superior Court judges to other courts of the same legal calibre, including the transfer of controversial Criminal Court Chief Judge Abdulla Mohamed to the same position at the Drug Court.

JSC Senior Legal and Complaints Officer Hassan Faheem Ibrahim also said that notifying judges is the responsibility of the SG, and so he is unable to comment on the matter.

Controversy around transfer of judges

Chief Justice Ahmed Faiz Hussain termed the JSC’s decision “unlawful.” He sent a letter to the president of the judicial watchdog Supreme Court Judge Adam Mohamed stating that the commission did not have the legal authority to carry out such transfers without deliberation with the Judicial Council – a council compiled of the seven judges of the Supreme Court.

Judge Adam Mohamed himself is reported to have expressed disapproval with the decision of the remaining commission members to transfer judges and to have walked out of the commission meeting.

The commission, however, decided with majority votes to go ahead with the transfers, stating that the Chief Justice’s objection lacked any legal grounds.

“Even under the constitution and the JSC Act, the commission is vested with the power to transfer the judges as we have,” member Hamza said at the time.

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Finance Committee begins reviewing salaries of independent institutions, judges, MPs

Parliament’s Finance Committee Chair Abdulla Jabir has said that the parliamentary select committee has begun reviewing the wages and salaries of members of independent institutions, judges and members of the parliament.

During a committee meeting held last Wednesday evening, Committee Chair Jabir stated that it was responsibility of the Finance Committee to review wages and salaries annually. He added that the new initiative by the committee was part of the cooperation extended to the new government of President Abdulla Yameen Abdul Gayoom who has promised to a cost reduction policy.

Article 102 of the constitution states, “The President, Vice President, members of the Cabinet, members of the People’s Majlis, including the Speaker and Deputy Speaker, members of the judiciary, and members of the Independent Commissions and Independent Offices shall be paid such salary and allowances as determined by the [Parliament]”

The task of determining salaries and allowances is entrusted to the Finance Committee under section 100(a) of the parliamentary rules of procedures.

President Yameen previously announced publicly that he would voluntarily be taking a fifty-percent pay cut, a promise which he made during the campaign for presidency. The president also at the time promised to slash the wages of political appointees by 30-50 percent, should he be elected in September.

Furthermore he at the time also pledged to cut the salaries of independent institutions claiming that it was a pivotal step for the country to avoid a sovereign default.

Two propositions were made to the Finance Committee which includes a proposition by interim Dhivehi Rayyithunge Party (DRP) Leader Mohamed ‘Colonel’ Nasheed’s proposition to reduce the wages of a parliament member to MVR 20,000 (US$1300).

The second proposition was put forth by the opposition Maldivian Democratic Party (MDP) MP Ilyas Labeeb who suggested that the committee to collectively bring down the wages of all state institutions including the parliament, the judiciary, the executive and Independent Institutions.

Neither of the propositions was put for a vote during Thursday evening’s Finance Committee meeting.

MP’s Remarks

Speaking during Thursday evening’s committee meeting, Judicial Service Commission (JSC) member and MDP MP Ahmed Hamza suggested the wages of judges and magistrates be brought down before doing the same for members of independent institutions and the parliament.

“President Yameen himself has taken a pay-cut. Right now we must all follow that example shown by him. Else, we would not be able bring down the recurrent costs [in the national budget],” the Biledhdhoo MP told the committee.

The ruling Progressive Party of Maldives (PPM) MP Ahmed ‘Redwave’ Saleem also spoke in support of the committee’s initiative but disagreed with the idea of cutting down salaries of specific institutions such as judges and the judiciary with the intent to undermine such an institution.

MP Saleem argued that should the committee wish to bring down the wages of state institutions, then it must be done with thorough research and without discriminating against specific institutions.

“Such efforts must be sincere. This should not be done with the motive to reduce the pay for the judiciary or any specific institution,” MP Saleem told the committee.

However, opposition MP Abdul Ghafoor ‘Gabey’ Moosa openly disagreed to the idea of pay cuts citing that it could lead to more educated Maldivians taking up employment abroad. He added that based on the current inflation rates, it cannot simply be said that the current wages of state institutions are too high.

Deputy Speaker of Parliament – who is also a member of the committee – also spoke in a similar fashion where he criticised the proposition to bring down the wages of just parliament members, members of the independent institutions and the judges.

He also argued that due to how certain laws have been framed, it was not possible for parliament to bring down wages of some positions. Although the committee must move forward with the pay-cut initiative, the Deputy Speaker stressed that the committee needed to identify the positions which it intends to bring down the wages of.

“We ought to thoroughly research and foresee the outcomes of our decision to bring down the wages of state institutions. We need to assess what changes need to be brought in order to do such a thing,” the Deputy Speaker noted.

Wednesday evening’s committee meeting was forced to conclude after Dhivehi Qaumee Party (DQP) MP Riyaz Rasheed arrived in the meeting room and begun disrupting it, taking points of order in which he complained to the Committee Chair for not informing him of the meeting.

Things became heated when Committee Chair MP Abdulla Jabir decided to call off the session without giving attention to the complaints by MP Riyaz Rasheed. Verbal abuses and physical confrontations ensued between Riyaz Rasheed and Jabir.

The committee meeting concluded with the Committee Chair MP Jabir announcing that it will reconvene in three days time after collecting necessary documents and information regarding the work. The committee also agreed to commit two hours of its time to the matter.

Previous efforts

Last December, Parliament passed revisions to the pay scheme approved by the Finance Committee for senior officials in the executive, judiciary and independent institutions.

The revisions included a MVR 5,000 (US$324) pay raise for board members of the Maldives Inland Revenue Authority (MIRA). MIRA board members now receive monthly pay of MVR 15,500 (US$1,005).

Among other changes brought at the time by the committee to the pay structure originally passed on December 28, 2010 was a monthly phone allowance of MVR 1,000 (US$65) for MPs, ministers, judges of the High Court and Supreme Court, members of independent commissions, the Prosecutor General, the Attorney General and the Governor of the Maldives Monetary Authority.

According the revisions, should the phone bills exceed MVR 1000, the officials were allowed to claim compensation for the cost of phone calls made for official purposes.

The Finance Committee at the time also decided to discontinue monthly salaries for drivers of cabinet minister’s cars (MVR 7,500) as well as an allowance for petrol cost (MVR 1,000). Ministers were instructed to settle the expenses out of their salaries from April 2013 onwards. However, the committee did not terminate similar expenses for other officials provided state cars.

The revisions also saw increment of the health insurance premium given for judges and their parents from MVR 4,500 (US$292) to MVR 7,000 (US$454).

Despite the calls, the committee at the time also decided against making any changes to the remuneration of parliament members.

The revised pay scheme was passed with 38 votes in favor, two against and five abstentions.

Numbers

The Maldives has one of the highest percentages of government employees to population of any country in the world, at around 11 percent.

Salaries and allowances have also rocketed up, unmatched by government revenue. Much of this growth occurred in the two years leading up to the 2008 election and the introduction of multi-party democracy.

An internal World Bank report leaked in 2010 showed that increases to the salaries and allowances of government employees between 2006 and 2008 reached 66 percent, “by far the highest increase in compensation over a three year period to government employees of any country in the world.”

With the introduction of the new constitution and its requirement for an assortment of independent institutions to oversee various aspects of government, the share of the wage bill to revenue soared to “an astronomical 89 percent.”

The President of the Maldives receives a base salary of MVR100,000 (US$6500) per month. During his government’s attempts to reduce civil servant spending on the urging of the International Monetary Fund (IMF), former President Mohamed Nasheed took a voluntary pay cut of 20 percent.

Despite this, the government’s attempt to impose austerity measures was blocked by the Civil Services Commission, leading to a series of scuffles between the Finance Ministry and the CSC.

The opposition at the time, now in power following Nasheed’s controversial resignation in 2012, contested Nasheed’s expenditure on 244 political appointees – a figure partly the result of the government’s early efforts to consolidate state employees under government-owned companies outside the purview of the CSC.

Figures released by the Ministry of Finance and Treasury showed that these 244 appointees were being paid MVR 99 million (US$6.4 million) a year, however Nasheed’s administration contested that this constituted just two percent of the state’s 2011 wage bill, comparing it to the 39 percent that went to the civil service, 24 percent to uniformed bodies, 17 percent to local councils, 10 percent to independent institutions, 5 percent to the judiciary, and 2 percent to parliament.

In comparison, Nasheed’s successor former President Mohamed Waheed Hassan’s government during 2012 spent MVR 60 million (US$3.9 million) on 136 appointees, according to figures procured by Sun Online.

At the time, the monthly spend included 19 Minister-level posts at MVR 57,500 (US$3730), 42 State Ministers (MVR 40,000-45,000, US$2600-2900), 58 Deputy Ministers (MVR 35,000, US$2250), five Deputy Under-Secretaries (MVR 30,000, US$1950) and 10 advisors to ministers (MVR 25,000, US$1620).

Overall public expenditure in 2012 increased 12 percent on the previous year. This was in large part due to measures such as the intensified recruitment and promotion of a third of the police force, and repayment of civil servant salaries cut during the Nasheed era.

The Maldives Monetary Authority (MMA) noted that while total expenditure for the year was three percent lower than 2011, this was only due to the government’s failure to pay a large number of bills. Total public debt at the end of 2012 was 72 percent on GDP, the MMA stated.

Meanwhile, the government’s wage bill was in May projected to increase by 37 percent in 2013 as a result of hiring more employees, notably 864 new staff for the police and military – an increase of almost 20 percent.

In its professional opinion on the budget submitted to parliament, the Auditor General’s Office also observed that compared to 2012, the number of state employees was set to rise from 32,868 to 40,333 – resulting in MVR 1.3 billion (US$84.3 million) of additional expenditure in 2013.

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No conflict of interest as JSC member, presidential candidate: Gasim

Jumhoree Party (JP) Presidential Candidate Gasim Ibrahim has told reporters he will not step down from his position on the Judicial Services Commission (JSC), stating that he saw no conflict of interest between his bid for power and role on the judicial watchdog.

The JP held a press conference yesterday with its two recently-unveiled coalition partners, the religious conservative Adhaalath Party and the Dhivehi Qaumee Party (DQP), following their defection from President Mohamed Waheed’s ‘Forward with the nation’ coalition last week.

According to local news outlet Haveeru, journalists repeatedly asked Gasim how he could possibly remain an impartial member of the JSC while running for president.

In response, Gasim said he saw no conflict of interest, and insisted that he would “not neglect his legal obligations” as a JSC member.

Following the investigation of Supreme Court Judge Ali Hameed sex tape scandal by a JSC subcommittee, Gasim voted against suspending the judge, in contradiction of the subcommittee’s recommendation.

Attorney General Aishath Azima Shukoor, President Waheed’s representative Latheefa Gasim, and Chair of the Civil Service Commission, Mohamed Fahmy Hassan, also voted against the judge’s suspension, citing “lack of evidence”.

Gasim meanwhile publicly declared that Hameed’s sex tape was “a fake” orchestrated by “external forces” seeking to take over state assets, introduce other religions to the country, and create infighting in Maldivian society.

His comments were followed this week with the leak of two more sex videos of the judge, including one depicting the judge fraternising with a topless woman with an eastern European accent. At one point, the judge leans right into the camera, and his face is visible.

JSC controversy

The public’s representative on the JSC, Sheikh Shuaib Abdul Rahman, has been sharply critical of the commission’s conduct and motivations, particularly its “open discussion” of its intent to eliminate Gasim’s rival presidential candidate, former President Mohamed Nasheed, from contesting the upcoming elections.

“It is common now to hear a lot of MDP and Nasheed bashing in commission meetings. This was not how things usually were before. I believe politically biased comments like this have increased since Gasim joined the JSC as a representative of the parliament,” Sheikh Rahman stated in March.

“Gasim even went to the point of asking the UN Special Rapporteur Gabriela Knaul when she held a meeting with us to state in her report that it was Maldivian Democratic Party (MDP) who torched the courts. I heard him say exactly that,” Sheikh Rahman said.

Knaul’s final report to the UN Human Rights Council following her mission to the Maldives in February, was a damning indictment of the country’s judicial crisis.

The special rapporteur stated that there was near unanimous consensus during her visit that the composition of the JSC was “inadequate and politicised”. This complaint echoed that of the International Committee of Jurists (ICJ) in 2010.

“Because of this politicisation, the commission has allegedly been subjected to all sorts of external influence and has consequently been unable to function properly,” said Knaul.

The JSC was responsible for both creating the court in which Nasheed was to be tried for his detention of Chief Criminal Court Judge Abdulla Mohamed in early 2011, and appointing the panel of judges overhearing the trial.

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“International actors should not undermine governments”: Maldives responds to UN Special Rapporteur

The Maldives government has issued a statement inferring that UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, undermined the country’s sovereignty and legal jurisdiction in her recent report on the state of the country’s judiciary.

Knaul’s final report to the UN Human Rights Council extensively outlined the political, budgetary and societal challenges facing the judiciary and wider legal community, as well as the politicisation of the Judicial Services Commission (JSC) and its failure to appoint qualified judges under Article 285 of the constitution.

The Special Rapporteur also expressed “deep concern” over the failure of the judicial system to address “serious violations of human rights” during the Maldives’ 30 year dictatorship, warning of “more instability and unrest” should this continue to be neglected.

“It is indeed difficult to understand why one former President is being tried for an act he took outside of his prerogative, while another has not had to answer for any of the alleged human rights violations documented over the years,” Knaul wrote.

The government, which made no response to Knaul’s initial statement in February, on May 28 issued a statement via its Permanent Representative at the UN Human Rights Council in Geneva, Iruthisham Adam.

“Engagement between national governments and international actors should not undermine national jurisdiction and the court system of any country, especially relating to ongoing cases,” reads the statement.

In light of this the Maldivian delegation, said Adam, “wishes to discuss specific matters contained in the report with the rapporteur.”

At the same time the statement “welcomed” the UN Rapporteur’s report and “fully acknowledge[s] that the various challenges she has identified and raised in her report are in fact the residue challenges present in a system in the midst of democratic consolidation.The Maldives judicial system continues to be hampered by structural deficiencies and resource constraints in addressing the difficult challenges facing the country in general.”

Read the UN Special Rapporteur’s full report

Read the government’s response

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A justice system in crisis: UN Special Rapporteur’s report

UN Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, has expressed “deep concern” over the failure of the judicial system to address “serious violations of human rights” during the Maldives’ 30 year dictatorship, warning of “more instability and unrest” should this continue to be neglected.

The report is a comprehensive overview of the state of the Maldivian judiciary and its watchdog body, the Judicial Services Commission (JSC). Knaul examines the judiciary’s handling of the trial of former President Nasheed, the controversial reappointment of unqualified judges in 2010, and the politicisation of the JSC.

Knaul also examines parliament’s failure to pass critical pieces of legislation needed for the proper functioning of the judiciary and “legal certainty”, as well as raises serious concerns about an impending budget catastrophe facing the judicial system.

“The immediate implications of the budget cuts on the judiciary are appalling. For instance, the Department of Judicial Administration only has funds to pay staff salaries until November 2013 and it had to cancel training this year,” Knaul notes.

“The Civil Court reported that it would not have sufficient funds to pay its staff salaries after October 2013; furthermore, existing budgetary resources would not be sufficient to pay for utilities and facilities after June 2013,” she adds.

The Nasheed trial

Former President Mohamed Nasheed is currently facing criminal charges in the Hulhumale’ Magistrate Court for his detention of the Criminal Court’s Chief Judge, Abdulla Mohamed, days prior to the controversial transfer of power in February 2012.

“Judge Abdulla had allegedly shielded a number of powerful politicians in corruption cases by refusing to issue orders to investigate, and many complaints had been made regarding his conduct and supposed lack of ethics,” Knaul outlined.

“The Judicial Service Commission had completed an investigation on him in November 2011, holding him guilty of misconduct. This decision was appealed to the Civil Court, which ordered that the Judicial Service Commission’s complaint procedure be suspended.

“Although the Commission appealed the Civil Court’s ruling, Judge Abdulla was allowed to continue in his functions,” she added.

The opposition Maldivian Democratic Party (MDP) maintain the case against Nasheed is a politically-motivated attempt to convict and bar him from the September 7 presidential elections, while the new government has emphasised the judiciary’s independence and insisted on its policy of non-interference.

Following Knaul’s visit and her departure statement, several members of the JSC have also challenged the commission’s creation of the Hulhumale’ Court, and its appointment of the bench. The commission includes several of Nasheed’s direct political rivals, including a rival presidential candidate, resort tycoon, Jumhoree Party (JP) Leader and MP Gasim Ibrahim.

“The trial of the former President raises serious concerns regarding the fairness of proceedings,” Knaul notes, questioning the constitutionality of the Hulhumale’ Court and the appointment of the three-member panel of judges, “which seems to have been set up in an arbitrary manner, without following procedures set by law.”

“According to the law, the Prosecutor General’s office should have filed the case of Mr Nasheed with the Criminal Court. While the concerns of the Prosecutor General’s office regarding the evident conflict of interests in this case are understandable, since Judge Abdulla sits in this court, it is not for the Prosecutor to decide if a judge is impartial or not,” stated Knaul.

“The Prosecutor should act according to the law when filing a case, as it is the duty of judges to recuse themselves if they cannot be impartial in a particular case,” she explained.

“All allegations of unfair trial and lack of due process in Mr Nasheed’s case need to be promptly investigated, including the claims that the trial is being sped up to prevent Mr Nasheed’s participation in the 2013 elections,” she added.

Knaul noted a decision by the Supreme Court to declare the Hulhumale’ Magistrate Court as legitimate after the Commission filed a case with it in 2012.

“The Special Rapporteur was informed that the judge of the Supreme Court who cast the deciding vote in this case also sits as a member of the Judicial Services Commission, whose decision to establish the Hulhumalé court as a magistrates court was under review,” the report noted.

Politicisation of the JSC

Knaul observed that the JSC had a “complicated” relationship with the judiciary, given that the commission “considers that it has exclusive jurisdiction over all complaints against judges, including over criminal allegations, while the Prosecutor General understands that the criminal investigation agencies have the competence to investigate criminal conducts by anyone.”

Knaul underlined that “judges and magistrates, as well as other actors of the justice system, are criminally accountable for their actions. Criminal actions entail consequences and penalties that are different from those resulting from disciplinary or administrative investigations.”

The special rapporteur stated that there was near unanimous consensus during her visit that the composition of the JSC – which draws members from sources outside the judiciary, such as parliament, the civil service commission and others – was “inadequate and politicised”. This complaint was first highlighted in a report by the International Committee of Jurists (ICJ) in 2010.

“Because of this politicisation, the commission has allegedly been subjected to all sorts of external influence and has consequently been unable to function properly,” said Knaul.

State of the courts

Conflicts of interest and the resulting impact on judges’ impartiality was also a concern, noted Knaul.

“It seems that judges, and other actors of the State, do not want to fully acknowledge and understand this concept, leading to the dangerous perception from the public that the justice system is politicised and even corrupted,” she said.

Knaul also expressed “shock to hear that many members of the judiciary, including in the Supreme Court, hold memberships in political parties.”

The Supreme Court, she noted, has meanwhile been “deciding on the constitutionality of laws ex-officio, without following appropriate examination procedures, under the understanding that they are the supreme authority for the interpretation of the Constitution.”

The relationship between prosecutors and the judiciary was also difficult, Knaul noted, expressing “serious concern” that some courts “use the threat of contempt of court and disbarment to impose their decisions and superiority over prosecutors.”

“The lack of a centralised case-management system does not facilitate their tasks either. In some places, such as Addu City, one prosecutor covers four courts and is often called to different hearings at the same time,” she observed.

“Symbolic” reappointment of judges

Two months prior to the end of the constitution’s transitional period and the deadline for the appointment of new judges according to moral and professional criteria – article 285 – the interim Supreme Court informed President Nasheed “that all its members would permanently remain on the bench.”

This action, Knaul noted, had “no legal or constitutional basis.”

“The five judges who had been sitting on the transitional bench were appointed to the seven-member permanent bench, leaving many with the perception that the Supreme Court was appointed in a politicised manner,” she noted.

The rest of the courts followed suit several months later at the conclusion of the interim period, with the Commission “opting for interpreting article 285 of the Constitution in a rather symbolic way and [not scrutinising] judges’ qualifications thoroughly.”

“For instance,” Knaul noted, “not all criminal allegations pending against judges were investigated. This resulted in a seemingly rushed reappointment of all sitting judges but six, which in the opinion of many interlocutors corrupted the spirit of the constitutional transitional provision.”

While the 2008 Constitution had “completely overturned the structure of the judiciary”, at the conclusion of the JSC’s work on article 285, “the same people who were in place and in charge, conditioned under a system of patronage, remained in their positions.”

As a result, “many believe that some judges who are currently sitting lack the proper education and training […] A simple judicial certificate, obtained through part-time studies, is the only educational requirement to become a judge.”

Way forward

Knaul’s report contains four pages of recommendations for judicial reform, starting with a “constitutional review” of the composition of the Judicial Services Commission – the same conclusion reached by the ICJ in 2010.

“The Maldives finds itself at a difficult crossroad, where the democratic transition is being tested, while remnants of its authoritarian past are still hovering,” Knaul observed, stating that the power struggle she witnessed during her visit had “serious implications on the effective realisation of the rule of law in the Maldives.”

Among many other recommendations, Knaul called on the government to show “strong and nonpartisan leadership”, by pushing for “constructive dialogue aimed at establishing clear priorities for the country, the adoption of necessary core legislation, and policy measures to consolidate the democracy. Such leadership should be guided by the Maldives’ obligations under international human rights law, which provide for a sound and sustainable foundation for democracy.”

She also noted that “the delicate issue of accountability for past human rights violations also needs to be addressed.”

Read the full report

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ACC investigating former Adhaalath Party head’s bribery allegations against two judges

The Anti Corruption Commission (ACC) is examining photographs of all pilgrims who went on hajj last year, following allegations of bribery levied against two sitting judges.

The allegations were made by former President of the Adhaalath Party, Sheikh Hussain Rasheed.

Sheikh Rasheed said during a Maldivian Democratic Party (MDP) rally in January that he had met a Maldivian businessman while in Saudi Arabia, who told him he had paid two Maldivian judges a sum of MVR 12.3 million (US$ 797,148.41).

According to the report, the ACC began analysing the photographs to identity the businessman to which the former Adhaalath Party leader had referred.

Speaking to Minivan News, President of the ACC Hassan Luthfee confirmed the ACC was investigating the matter. He said Rasheed was summoned for questioning following the allegations.

“The investigations are currently going on. While investigating we will be looking into all the relevant documents and other details,” he said.

Luthfee declined to comment on whether the commission was analysing the photographs of the pilgrims, but said the commission would “utilise all the information it can get on the case.”

He declined to give any further details.

Rasheed alleged the businessman had paid one judge a sum of US$70,000 (MVR 1.079 million) while the other was paid US$50,000 (MVR 771,000) on two different occasions, a sum of US$170,000.

Speaking to Minivan News on Thursday, Rasheed confirmed that he was summoned to the commission and added that he had “given all the details and names of the people involved in the deal”.

“These are stories that are being constantly discussed in society. The businessman told me about the case, and it is a duty to let the public know of such critical matters, especially when it concerns people who we go to seek justice,” he said.

Rasheed further claimed that certain controversial decisions reached in the courts the acquittal of criminals suggested “something is really going wrong”.

“The courts have ruled that printing counterfeit dollars is not a crime. How is that not a crime? It is a crime even under international law,” he said.

Rasheed noted that the courts failed to find any wrongdoing on behalf of a man who put Japanese aid money in his personal bank account, referring to an embezzlement case involving former President Maumoon Abdul Gayoom’s half brother, Abdulla Algeen Abdul Gayoom.

Algeen – also the younger brother MP Abdulla Yameen, ex-President Gayoom’s Progressive Party of Maldives (PPM) presidential hopeful – was accused of embezzling US$177,460 of Japanese funding from the Department of Meteorology (DOM), when he was the director.

Algeen allegedly sent three separate invoices to the Japan Agency for Marine-Earth Science and Technology (JAMSTEC) between May 2006 and April 2007 on behalf of DOM. All three invoices demanded payment to Algeen’s personal Bank of Maldives account.

However, in acquitting the case, Criminal Court Judge Abdulla Didi ruled that the state could not prove that the money in question was owed by JAMSTEC to the government.

Following the former Adhaalath Party leader’s allegations, the Judicial Service Commission (JSC) also discussed probing into the allegations.

A JSC spokesperson told Minivan News at the time that after the allegations were made public, members of the commission had discussed an investigation.

“The matter was discussed during a JSC meeting,” the spokesperson said previously. Asked whether a decision was reached, he replied “there were many items on the agenda.”

Minivan News on Thursday confirmed that the JSC was not investigation any of the allegations.

Former JSC member and whistleblower, Aishath Velezinee, in her book The Failed Silent Coup: in Defeat They Reached for the Gun extensively highlighted the watchdog body’s undermining of judicial independence, and complicity in sabotaging the separation of powers.

In her book, she recounted her experience as she attempted to stop the commission from re-appointing unqualified and ethically-suspect judges loyal to former President Maumoon Abdul Gayoom, after it dismissed the professional and ethical standards demanded by Article 285 of the constitution as “symbolic”.

That moment at the conclusion of the constitutional interim period marked the collapse of the new constitution and resulted in the appointment of a illegitimate judiciary, Velezinee contended, and set in motion a chain of events that ultimately led to President Mohamed Nasheed’s arrest of Chief Criminal Court Judge Abdulla Mohamed two years later.

In 2004, a report by judicial expert Professor Paul Robinson assessed the country’s criminal justice system, and found in his report that “serious efforts” were required to increase the quality of judges.

“Serious efforts must be made to provide substantial training to current judges in order to ensure that all have the background they need in both law and Shari’a. Perhaps more importantly, no judge should be hired who does not already have the needed training,” he wrote.

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