The current stand off between the government and the opposition on how to secure the independence of the judiciary is hampering the much needed reform of the country’s criminal justice system.
Neither the government, nor the parliament or the judiciary can take pride in maintaining an outdated justice system that lacks a codified body of laws capable of providing justice equally to all.
Current laws are mainly remnants of acts of parliament passed at the time of former President Maumoon Abdul Gayoom when the country’s legal system was even less developed and more prone to political influence. Laws also include religious injunctions, regulations passed by ministries, some acts of parliament passed in recent years, and the 2008 Constitution. Even so, these laws cover penal areas only partially. Some are too vaguely formulated to prevent miscarriages of justice.
Most judges have no formal training in law but exercise considerable discretion – often based on their own interpretation of religious law – in deciding what constitutes an offence and the punishment for it.
In such a milieu, judicial decisions could be at risk of the judges’ personal or political preferences especially when these relate to complaints by the government or the opposition. One potential remedy for this problem would be to hold judicial personnel strictly accountable for any misconduct, but the Judicial Services Commission (JSC) appears unable to ensure this type of accountability.
So far, the government and the opposition-dominated parliament have failed to address these shortcomings. They have not even, as a first step, enacted a penal code that can reflect Maldives obligations under the international human rights treaties the country has ratified. A draft penal code intended to do this has remained dormant in parliament for at least four years.
While the government and the opposition blame each other for these failures, people whose rights are being violated are at risk of receiving unfair trials.
Respect for human rights has been further undermined by recent arbitrary arrest of Abdulla Mohamed, the Chief Judge of the Criminal Court.
He was arrested on 16 January. His arrest followed a civil court injunction on 27 November that blocked the JSC’s probe into Judge Abdullah’s alleged judicial misconduct. The Judicial Service Commission began this investigation in 2009 after receiving a complaint from the government. JSC found that judge Abdullah was guilty of violating the Judges’ Code of Conduct for making politically contentious statements on a local TV Channel. At this point, judge Abdullah successfully applied to the Civil Court for an injunction against further investigation or any actions against him. By granting that injunction, the Civil Court exposed the judiciary to further allegations from the government that Judge Abdullah can effectively remain in office with no accountability. The government then instructed the police to investigate the allegations against Judge Abdullah. Police went to arrest him but judge Abdullah refused to go with them, saying they had no warrant of arrest. The government then sent the army, still without a warrant of arrest, and he was taken into army custody on 16 January.
Regardless of the allegations against Judge Abdullah, his continued detention since 16 January remains arbitrary. The Maldives Human Rights Commission has confirmed that he is treated well and is allowed access to his family. Amnesty International is calling on the government to either bring formal criminal charges against him or release him.
Amnesty International has no position on the validity or otherwise of the allegations against judge Abdullah. It is for the judiciary to ensure that a mechanism exists to uphold accountability in any case of alleged judicial misconduct.
Sadly, all sides in the debate about the independence and impartiality of the judiciary tailor their arguments only to their own, narrow political ends. What they are missing is the opportunity to turn the Maldives into a hub of respect for human rights where the government, the parliament and the judiciary work alongside each other to strengthen the rule of law.
Abbas Faiz is South Asia Researcher with Amnesty International.
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Better, balanced and reasoned. Thank you Faiz.
The government and opposition are slowly losing moral authority in their efforts, hence the need for foreign mediation.
Abdulla Mohamed's arrest is illegal while the Supreme Court itself has been found to be actively engaging in politics to enslave the judiciary to their whims.
The President himself has violated the Constitution and so has the Supreme Court. If we are to continue asserting this document as law over ourselves those who violated it must be brought to justice. Or else it will remain scarred by its violation forever.
Amending the Constitution is all fine and good but allowing those who openly flout its authority to remain free and in power will be counterproductive.
perhaps we need to find out why the penal code reform bill has been in parliament for four years without being passed. Who is holding that up?
"At this point, judge Abdullah successfully applied to the Civil Court for an injunction against further investigation or any actions against him."
This is not correct. Abdulla applied to the Civil Court to overturn and nullify the findings of the JSC regarding him! He further asked for an injuction to stop any more investigations regarding him. The Civil Court promptly ordered the injunction, "pending" further action by the Court.
We all would like to know, the Constitution that the Civil Court was following when they took those decisions. We can talk about flouting the Constitution by X, Y and Z. At this stage of the game, almost everyone in the country is flouting this piece of paper.
There's no legal avenue to stop Abdulla Mohammed from sitting in the Criminal Court and carrying on with more injustice. The judicial system has quite clearly shown that it's not capable of dealing with members of their own clan who flout their very own code of conduct.
If Abdulla Mohammed is sent home from his "detention", then he will be sitting in the Criminal Court, the minute he steps foot in Male. Is that what we want? What kind of example does that provide? Where does that leave the Constitution?
Since most of the people who are howling in here seems to agree that this, Whats his name Gazee is arrested illegally.
Can someone please tell me, is there anyway this Judge could be arrested legally? when all kinds of court orders thrown around, when he was ask to present him to attend the police just for a few questions lets alone to arrest him.
I really would like to see that woman impeaching the president for arresting the Gazee illegally, If the President don't arrest the Gazee for the mayhem he has cause in his damn court and Country, I will urge the MDP members to impeach the president for allowing this Gazee gentleman to continue in his post creating plus not doing justice at all.
and for all those who are joining Gaumee Party just because Gasim is a member of the JSC, I wonder if you can have a hiding place in there.
Well Mr. President, we want justice, we want our six billion of our Rufiya's back and those who don't pay tax or rent we want those back as well or else we will come out on into the streets.
Oh Azima Screw, You are such a good lawyer when Abdullaa Gazee is the residing judge, then you always come out the winner, can you please show your ability now.
In an ideal world, the President would be impeached, Justice Abdulla Mohamed would be removed from the judiciary and the Supreme Court bench would be shuffled before we proceed with sincere efforts to salvage what little we have left of our system of governance.
Yet would money-politics allow this? We have to be realistic here. I sincerely hope the political players will make good use of the UN's presence and engage in productive dialogue.
Abdulla Gaazee is in the right place at the right time.Believe it or not there is end for all of us.None of us will last forever!Abdulla Gazee was not aware of to due to it his intellectuls.He does not have qualifications of what he has been appointed for!But he was acting like a puppet of some gangs behind the curtain.
So Mr Mohamed Nasheed has taken right action at right time.Abdulla Gaazee and all failed judges within the juditiory should be removed.The Juditiorty system needs be cleaned and re arranged from A-Z
Mr Mohamed Nasheed is the elected president and he has the power to take action to bring justice for his people.
People who are protesting on the street saying that to protect juditiory.Those are failiures and they will screem their throughts out.They will commit more crimes at this stage and finally they all will enter the prison of their destiny.Allah may bring Peace upon us
If the people on the street 'at the moment' are so wrong, why are there so many people? Count the numbers gathering for MDP gatherings and the 23rd gathering! See the difference. I voted for Nasheed too. But he has shown his 'nulafaakan' in the most disrespectful way.
Whoever judge guy here is, or how evil he is, he cant be held captive like that. Moreover, how his arrest took place is clearly against the law, unless our president is openly trying to commit acts of dictatorship. The judge needs to be released, and charges need to be pressed against him in a more lawful and humane way.
Also, why is it that MDP activists can gather around places unallowed, and the 'army' does NOTHING about it? They block the roads and the bus system is brought to a halt. Their actions and words doesnt meet now. Calling for people's death at their 'haruge'. How low can they go? Just coz someone else does it, doesnt mean they have to. Being the pro government party, they are SUPPOSED to set an example!
I wish MDP and its minions a better sense of thinking.
Abbas Faiz is so ignorant. Maldives Parliament is dominated by President Nasheed's party,MDP. The majority leader in the Majlis(Parliament) is Ibu Solih, Mp from MDP.
Yes, when Majlis was first elected the opposition had more members. But by careful "engineering" ,many opposition and independent MPs were "persuaded" to join the President's party., OK?
Judge or not, when he/she is a pedophile minded judge who sets free an accused murderer which led to another murder by the same criminal; and jails the prosecuting lawyers and hinders the investigations by ordering the police to release white collar criminals of a 30 year old ex-regime who've embzzeled in trillions and tortured/killed respected emerging politicians/writers/journalists/protestors THEN NO NEED of a WARRANT. Go shove the warrant in someone's 'cupboard' and ARREST or put him/her OUT OF THE SYSTEM and BRING JUSTICE. To hell with Rule of Law.
@Triontroin on Sat, 4th Feb 2012 11:35 PM
"The judge needs to be released, and charges need to be pressed against him in a more lawful and humane way."
I'll ask you a very simple question. Can you please explain how this can be done? What's your plan in pressing charges against Abdulla Mohammed "in a more lawful and humane way"?
For the love of God, I can't find any!
@ Abbas Faiz (writer)
"Regardless of the allegations against Judge Abdullah, his continued detention since 16 January remains arbitrary. The Maldives Human Rights Commission has confirmed that he is treated well and is allowed access to his family. Amnesty International is calling on the government to either bring formal criminal charges against him or release him."
While applauding your attempt to be impartial and balanced in your article, I see a contradiction in your above statement.
You have stated that regardless of the allegations against Judge Abdulla, his continued detention is "ARBITRARY". Yet when you only say "Amnesty International is calling on the government to either bring formal criminal charges against him 'OR' release him."
It should not be either or. Government should release him AND bring charges against him.
"Current laws are mainly remnants of acts of parliament passed at the time of former President Maumoon Abdul Gayoom when the country’s legal system was even less developed and more prone to political influence. Laws also include religious injunctions, regulations passed by ministries, some acts of parliament passed in recent years, and the 2008 Constitution. Even so, these laws cover penal areas only partially. Some are too vaguely formulated to prevent miscarriages of justice".
Very true Mr. Faiz!
The many on the opposition of the current stand off, referring to the many articles of the Constitution in force, are the very people former president used to make it what it is!
They are the very people who debated against anyone and everyone who wanted it to be a worthy Constitution that can be used in a system that believed in democracy, good governance and rule of law!
It is questionable that Constitutional rights for any being, can come out of a twisted, deformed, vague and crippled Constitution?
More writing is required on political impasses in South Asian democracies.
Thanks.
MRC