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Q&A: Kirsty Brimelow, QC

Kirsty Brimelow QC is one of three UK legal experts on former President Mohamed Nasheed’s legal team. The new government has pursued criminal charges against Nasheed for his decision to detain Chief Judge of the Criminal Court, Abdulla Mohamed, charges Nasheed contends are a politically-motivated attempt to prevent him from contesting the 2013 Presidential elections.

Brimelow is an experienced criminal law specialist with expertise in international human rights, and has worked in a number of small island states including Jamaica, Trinidad and Tobago.

JJ Robinson: How much background knowledge did you have on the political situation in the Maldives prior to deciding to join Nasheed’s defence team?

Kirsty Brimelow: Very little other than the usual views of the Maldives as beautiful islands for romantic holidays – I had never been here before. I had heard about the climate change aspect of Maldives at the time of the Copenhagen summit – it was something I remember reading about. I thought that it would be terrible if Male’ was under water in 20 years.

JJ: How much had you followed the February 2012 transfer of power?

KB: No I hadn’t followed it. When I was contacted [to join Nasheed’s legal team] I looked it all up. I don’t know if it was reported in English newspapers. I don’t remember reading anything about it. At the time the news was dominated by news of Syria and starvation in the world’s youngest democracy, Sudan. I think they dominated the headlines, and the London Olympics more than anything else that was going on.

JJ: What was behind your decision to join Nasheed’s legal team?

KB: As an international lawyer there is a real interest in how rule of law operates in different jurisdictions. In recent years I’ve done a lot of work in small island states – I am Legal Advisor to the Constitution Commission of Fiji, I worked in Trinidad and Tobago as part of the team defending the chief justice, and was appointed Counsel to a Commmision of Inquiry into a massive international fraud inquiry in Antigua. I have also worked in Jamaica.

I suppose I am interested in the Maldives as a new democracy, and how that struggle is being played out. I am also really interested in the Maldives both as international and human rights lawyer. I have real interest in fairness of procedures and that there are independent and impartial judges. No court system can operate if you have biased judges, or judges who are of a standard such that justice cannot be carried out.

JJ: How much do you know about the Maldivian judiciary and its condition?

KB: I’ve read a couple of reports which have the same conclusion – that the judiciary is not functioning at a level that can deliver justice. But I read these reports as background – I have really been concentrating on this specific case.

JJ: The Maldivian Democratic Party (MDP) have made a case on the basis of challenging the legitimacy of the Hulhumale Magistrate Court where Nasheed is being tried, rather than defending the specific charges against him. Do you think this is a good approach, and can you argue that in court: “I don’t respect your legitimacy, your honour”?

KB: There are different arguments going on at the moment. The high court application [regarding the legitimacy of the Hulhumale Court] is a legitimate argument accepted as such by the Attorney General. It is a jurisdictional public law matter now removed from criminal law.

The validity of the jurisdiction of courts is fundamental – people can’t just set up their own courts because they feel like it, and they can’t just put in who they like as judges of that court. It has to be done in a transparent and independent way in order for the courts to have any respect.

JJ: Why should courts care about the respect of the public?

KB: The general public in any democratic society cares about its justice system because that underpins its democratic society. If you think your justice system is corrupt – that whatever evidence you have when you’re in court will be ignored because you have a corrupt system – then that is bad for democracy.

Democracy can’t survive with a corrupt justice system. I think people do care about that. But obviously the select people who want to keep it corrupt, don’t.

JJ: This is the first time there has been foreign legal representation applying to appear in the Criminal Court, as far as I’m aware. Are you allowed in?

KB: At the moment there is apparently a policy that says you have to be Maldivian and/or married to a Maldivian to appear in court. It is very restrictive. It is going to be a matter we are going to challenge.

It obviously depends on the particular country, but most small island states have developed a system where foreign lawyers are able to practice within that system on a case by case basis. For example I have appeared [in court] in the Caribbean. The reason is that the smaller the place the smaller the pool of lawyers, and the bigger the case, the more political difficulties and influences that could be brought to bear on people from that society. So if you bring someone in from outside it can bring the balance back.

It is also a good way to increase knowledge and expertise. For example my knowledge is based on international human rights law, whereas if you are practicing in a small state you don’t have that comfort of being able to specialise. International law is not foreign law – it is part of the law of the Maldives, and to develop it you need that knowledge running through [the system]. The way you do that is allow international lawyers.

The Maldivian lawyers I’m working with are keen to make the application so that I could represent President Nasheed in court together with them. It would be their application on my behalf.

JJ: Dhivehi can make the country quite inaccessible to outsiders – to what extent is that a challenge in this case?

KB: Of course it’s a challenge and as to how it would operate [in court], nobody’s ever tried it before. As far as I understand English is widely spoken fluently, and i’m told many Maldivians prefer to speak English. Obviously it would have to be translated in court – but that happens in many jurisdictions with no difficulty. I don’t see it as meaning that the position would be impossible – there would have to be systems in place.

JJ: The judges on the panel hearing Nasheed’s trial were appointed by the Judicial Services Commission (JSC), and include two of Nasheed’s direct political opponents – Jumhoree Party Leader Gasim Ibrahim and Speaker of Parliament, Dhivehi Rayithunge Party (DRP) MP Abdulla Shahid. In this environment, and given the politicisation of the case, is it reasonable to expect that Nasheed can have a fair trial at all in the Maldives?

KB: I think at present if the trial were to go ahead in the Hulhumale Court, as presently constituted, there are real issues as to whether there is any chance at all as to whether Nasheed will have a fair trial. There are real issues and real concerns.

JJ: What is the approach then? The MDP has challenged the court’s legitimacy, but what about defending Nasheed’s decision to detain the Chief Judge of the Crimnial Court? Would you advise defending these charges or lean towards challenging the court’s legitimacy?

KB: Nasheed at his recent rally said that based on the evidence served against him, he should be acquitted.

The trial has two aspects: there are real issues as to fairness and those aspects fall into two categories, which relate to the court itself, which will be argued further, and the second aspect relates to the ability of President Nasheed to properly defend himself. I can’t go into details because those submissions have not been made to the trial court.

JJ: How similar are the challenges in the Maldives compared to other small island states?

KB: Each place is very different – but a common thread is the real difficulty getting a neutral tribunal to consider the evidence. Most countries have a problem where so much is in the newspapers already that people have formed opinions by the time the matter comes to court. In fact the trial is run in the newspaper, usually against the defendant, who isn’t in a position to present his defence in the newspaper as well, so it becomes one-sided and by the time the case comes to court people have the view that the person is guilty.

That would not happen in a larger jurisdiction where there are all sorts of laws to prevent people coming to court with a closed mind. That’s a problem here.

The Maldives has specific problems, such as those documented issues in relation to the judiciary, and those issues are quite extreme and are not found in many other small island states I’ve worked in. Many of those states such as Jamaica have a strong judiciary.

JJ: What would be some of those concerning issues?

KB: I don’t want to be upsetting the trial. I can quote from the reports though. Things like the statistics of those serving in the judiciary with criminal convictions and so on. It must be a concern to a fair minded observer as to what sort of justice is being dispensed if you are appearing before someone with criminal convictions, for example. That kind of thing is what I mean.

JJ: To what extent do you think the trial of Nasheed could be a catalyst for judicial reform in the Maldives?

KB: I think it is an important trial for the Maldives, and it could be a catalyst for reform in that the issues which are being raised are fundamental to a functioning justice system, and they are serious, so it should at the very least trigger debate in parliament in a democratic country.

There has to be a robust system which will regulate judges objectively, so someone coming to court can have faith in the system. If there is no check on judges in terms of their independence and honesty, as well as ability, then the courts just simply become a means of reaching a preordained result that everyone has already predicted.

Then quite simply it is not a justice system – it is a figleaf. Everything else flows from that – stability, fairness in terms of elections, parliament; if you’ve got a vacuum in your justice system you quite simply don’t have democracy.

You have to have a robust system to deal with complaints [against the judiciary]. In international law and particularly the Convention of Civil and Political Rights it sets out that privileges and immunities for judges can only go so far, and that they are not meant to stretch to afford protection ‘no matter what’.

My interest is in fair trial procedures, and that fair trial rights are upheld. There are real issues in this case, which is why I’m part of the legal team.

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MPs express concern over Addu airport bidding process, while AIA MD Shahid denies corruption allegations

Jumhoree Party (JP) Leader, MP, and chairman of the Villa Group of businesses, Gasim Ibrahim, denied in parliament today that he had spoken against the sale of shares of Addu International Airport (AIA) with the intention of buying shares himself. He claimed he had done so “in the best interests of Addu and the country.”

“If Gasim wanted shares, Gasim would have bid for them,” Gasim said in response to some MPs, who had alleged he was himself interested in buying the shares.

Referring to his offer in his letter to President Mohamed Waheed Hassan to reclaim land for the project free of charge “using my own dredger, employees and machinery with the government only providing oil,” Gasim said that the costs of the work would come up to US$7 million.

“I am very concerned that they have gone ahead and sold the shares without even considering the offer of free aid of this size,” Gasim said.

Gasim further stated that although he did want to see the Addu airport developed, the shares had not been sold in the right manner, adding “things won’t go very well” due to how the shares had been given away.

JP MP Alhan Fahmy echoed Gasim’s statement that he, too, wished to see the Addu airport developed, but that he was concerned with how the sale of shares had been carried out. Fahmy said that 30 percent of shares being sold off for MVR 60 million (US$3.89 million) was “nothing but daylight robbery”.

“The shares have been sold far too cheaply. Our problem is that they’ve done this while there are many other ways obtain the funds needed for development,” Fahmy explained.

A number of MPs from the Maldivian Democratic Party (MDP) stated that the party supported the concept of privatisation, adding that the development of the Addu airport was originally an MDP initiated plan. They, too, however, expressed concerns over how the bidding process had been carried out.

MDP Parliamentary Group’s Deputy Leader Ali Waheed criticised Gasim Ibrahim for his “lack of conviction” when speaking about the issue in parliament.

Waheed said that Gasim had not dared to criticise the government even after it had sold the shares, despite Gasim’s allegations that major corruption had been involved in the deal.

Referring to Gasim’s common name “Buruma” (‘drill’), Waheed said, “There is no use for a drill without electricity”, alleging that the JP leader had been “too cowardly” to even speak of the issue openly during today’s parliamentary session.

“Cowards need not contest in the coming presidential elections,” Waheed further declared.

Gan Airport development to start in January: Shahid

MD of AIA and STO Shahid Ali said in a press briefing on Monday that the Addu Airport development work is set to begin in January.

Ali said that the pre-bid meetings had been held with the three shortlisted contractors and that the bids were scheduled to be submitted by November 28.

The development plans include an extension of the runway, repairing of the apron, placing an extra layer of tar on the runway and setting up a sea plane base.

He also stated that contrary to general speculation, the airport had not been “sold”, but rather shares from the company AIA that had been sold to KASA Holdings.

He also refuted allegations of corruption, saying that KASA Holdings had been given higher priority since it was a local company and that all proceedings had gone through the bidding process in a matter which was completely free of any corruption.

“It is often said now that 30 percent of the airport has been sold to a private party. The truth is that 100 percent of the land of Gan, the infrastructure of the airport and its facilities are with the government, because Gan Airport Ltd is a company which is 100 percent owned by the government. So all the assets are owned by them. Then this company has leased the airport to AIA for 50 years,” Ali explained.

Ali said that therefore it was clear that selling 30 percent of the shares of AIA, a joint company formed by the Gan Airport Ltd, STO and the Maldives Airports Company Ltd, was not a sale of the airport itself.

Leave politics aside

Addu City council has released a statement welcoming the signing of the contract which they said would lead to the development of the Addu airport.

The statement further notes “the importance of leaving politics aside and for the good of citizens in letting the venture bring positive changes to Addu’s economy.”

Meanwhile, MDP released a statement on Monday urging “not to let political feuds, political needs and power play interfere in important work directly related to the development of Addu City citizens, and generally all Maldivian citizens.”

The statement also condemned Gasim’s threats against Shahid Ali, stating “This party calls on political leaders to refrain from making unlawful threats through the greed for power and political wants.”

In a uncommon move, 18 citizens from Addu held a press conference on Monday, speaking in support of the Addu airport development.

The citizens welcomed the selling of shares to KASA Holdings, stating that it was not a sale of the airport itself. They further said that the citizens of Addu were happy that although the airport has so far remained the same, development work is scheduled to begin early next year.

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Independent Commission’s Committee sends CSC Chair’s harassment case to parliament to approve his dismissal

Parliament’s Independent Commission’s Committee has decided that the committee has enough evidence to find Civil Service Commission (CSC) Chair Mohamed Fahmy Hassan guilty of harassing a female staff member working under the CSC, and has decided to send the issue to parliament sitting to approve Fahmy’s dismissal.

According to local media, the committee has now sent the report from the committee regarding the issue to the Speaker of Parliament.

The incident is said to have occurred on May 29. In June this year, Police Spokesperson Sub-Inspector Hassan Haneef told Minivan News that the case was lodged at police as well, who were investigating the matter.

Both Fahmy and the victim were summoned to the parliament’s Independent Commission’s committee after the complaint was lodged.

Fahmy was alleged to have called the female staff member over to him, taken her hand and asked her to stand in front of him so that others in the office could not see, and caressed her stomach saying ”It won’t do for a beautiful single woman like you to get fat.”

According to local media, the woman told her family about the incident, who then called Fahmy. Fahmy then sent her a text message apologising for the incident, reportedly stating, ”I work very closely with everyone. But I have learned my lesson this time.”

In response to the allegations Fahmy told Minivan News that the female staff member made up the allegation after she learned she had not won a scholarship to Singapore offered by the CSC.

He alleged the claim was politically motivated, as she would have otherwise filed the case with police and not parliament.

Earlier in July this year, the Independent Commission’s Committee gave Fahmy 14 days to resign after investigating the matter, however he then informed the committee that he would not resign.

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Police raid Palm Deck Garden restaurant, find machetes, alcohol

Police have raided the Palm Deck Garden restaurant in Male ‘, closing the business following the discovery of alcohol and sharp weapons inside the premises.

The police raided the restaurant last night at about 11:15pm, according to local media. Seven Maldivians and four expat waiters in the restaurant were arrested in the raid.

Police have told media that the restaurant was closed in a special operation that had commenced with the aim of lowering the crime rate in Male’ and make it more peaceful.

Sun Online reported that journalists in the area witnessed police bringing two machetes out from the restaurant.

Police also said a bottle and glasses containing alcohol were discovered inside the premises, and that police were now trying to obtain a warrant from the court to keep the restaurant closed.

In late October, police closed down the Jalapeno Restaurant in Male’ and arrested a number of people caught using alcohol in the premises.

Police reportedly discovered a number of alcohol bottles under the tables on the second floor of the restaurant in addition to packets containing hashish oil and heroin.

Police Sub-Inspector Hassan Haneef did not respond to calls at time of press.

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Parliament orders Elections Commission to drop fingerprint verification for party membership forms

Parliament’s Independent Institutions Committee has requested the Elections Commission (EC) cease requiring fingerprints on applications for political party membership.

According to local media, the parliamentary committee today decided that no law or regulation existed that required the EC to request fingerprints to verify the authenticity of new party members.

The committee members questioned the efficiency of fingerprinting technology, arguing that no mechanism or database presently existed in the Maldives that could store the required amounts of information.

However, local NGO the Maldivian Democracy Network (MDN) told Minivan News that while it was unsure of the efficiency of the previous fingerprint system, fraudulent membership registration for Maldivian political parties remained a significant problem that needed to be addressed.

“The problem that exists right now is that there is a lot of fraudulent membership within political parties. Often, people are not aware they have been signed up,” MDN stated. “It is imperative that it is down to an individual to decide which party they want to belong to and no one else.”

MDN Executive Director Humaida Abdul Gafoor said it was vital that some form of verification mechanism was in place to ensure party memberships were genuine, adding that a bigger issue facing the committee should be finding an alternatives to the fingerprint technology, rather than simply halting it.

“We don’t know if the EC’s adoption of fingerprinting was a move in the right direction in first place,” she added.

Verification systems

Explaining the decision to discontinue the EC’s request for fingerprints, Deputy Chairman of the Independent Institutions Committee, Maldivian Democratic Party (MDP) MP Ahmed Sameer, said that the Maldives did not presently have a mechanism or system to collect and store such information.

“In regards to issues with the fingerprinting system, the EC, Department of National Registration and the Maldives Police Service all agreed they didn’t have enough records or verification systems available,” he told Minivan News.

The Department of National Registration, which had also been summoned before the committee, was reported to have confirmed that no fingerprint database presently existed in the Maldives.

Elections Commission President Fuad Thaufeeq was not responding to calls at time of press.

System critics

One critic of the EC’s fingerprint system is MP Ahmed Mahloof of the government-aligned Progressive Party of Maldives (PPM).

Back in September, Mahloof alleged via local media that close to 8000 membership forms from his party have been rejected by the Elections Commission (EC) – mainly due to the quality of fingerprints appearing on the forms.

The MP claimed that the fingerprint issue had arisen because the EC did not have sufficiently modern machinery to look at the fingerprints, relying instead on the perception of its staff – drastically limiting memberships numbers for the party.

A spokesperson for the EC told Minivan News at the time that similar complaints had been received from other political parties including the Jumhoree Party (JP), Dhivehi Rayithunge Party (DRP), and the Maldivian Democratic Party (MDP).

“Party membership forms go through a 50 step verification process. We are doing this to minimise chances of fraud. After we introduced this procedure, we are no longer receiving any complaints from individuals who have been placed in parties without their knowledge,” the spokesperson said.

The EC accepted that did not have machinery to verify fingerprints, but claimed that it had been able to forward complaints to the Maldives Police Service, which was able to use its resources to look into the matter.

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Global trade union claims President’s Office still failing to address port workers’ rights abuses

The International Transport Workers’ Federation (ITF) has accused President Mohamed Waheed Hassan of failing to respond to ongoing concerns it has over certain rights violations of workers employed at the state-owned Maldives Ports Limited.

A spokesperson for the ITF, a global trade union representing 4.5 million transport workers across 154 countries, said it expected to send a third official letter this week to President Waheed after it had not received a response from his office on two previous occasions.

In the last letter sent to the President’s Office on October 29, ITF General Secretary David Cockroft raised concerns over what he claimed was a “dire” situation facing members of the Maldives Port Workers Union (MPWU)  employed by the Maldives Ports Limited (MPL).

Some former port workers employed by the MPL have claimed they have been victimised at the work place for taking part in anti-government protests.

The MPL has previously stated that it has only ever exercised its right to discipline staff when “in breach of their employment contract”, adding that it had never deviated “from any Maldivian government regulation” in the way it operates.

However, Cockroft claimed that MPWU members appeared to be having their rights to freedom of association and to organise within a trade union movement attacked by the MPL on the basis of their political beliefs.

“Further to my letter of September 29, I am disappointed to have to write to you again as you have decided not to respond to my first letter,” he wrote to President Waheed at the time.

Cockroft added that allegations of port workers being denied union rights was taken very seriously by the ITF.  He therefore requested that the president intervene to try and resolve the matter where possible.

“[I] call again upon you to use your office as President of the Republic of Maldives to instruct the chairman and management of the Maldives Port Limited to respect the country’s Constitution and Employment Laws and immediately halt their anti-union campaign against members of the MPWU and to enter into a real dialogue and conciliation process with MPWU which will result in a negotiated settlement which addresses the legitimate grievances of members of the Maldives Port Workers Union,” Cockroft wrote.

Speaking today, President’s Office Spokesperson Abbas Adil Riza said he would need to confirm if any letters from the ITF had been received. Minivan News was still awaiting confirmation from the President’s Office at the time of press.

Meanwhile, Deputy CEO of the MPL Ahmed Faiz requested that Minivan News meet him at his office tomorrow instead to address the concerns raised by groups such as the ITF.

Political considerations

In April 2012, seven staff members at MPL were said to have been suspended from their jobs at the state-owned company for participating in protests held by ousted Maldivian Democratic Party (MDP)’s anti government protests.

MPL Media Coordinator Ibrahim Rilwan at the time confirmed the suspensions, but said he did not know the specifics regarding the case. The code of conduct does not prohibit participation in political activities, but staff can be disciplined if they transgress good behavioural norms, he added.

However, some staff at the MPL alleged that the senior officials of the state corporation had warned employees to not to participate in protests, and that action would be taken by those who do.

Disputes between the MPWU and the MPL later escalated to a point where the trade union back in September accused the state corporation of forming a “paper union” to shove aside the alleged violations of employee rights.

Sacked MPL employee and President of MPWU, Ibrahim Khaleel, alleged at the time that MP was trying to “fabricate the truth” about the violations of rights.

The ‘Maldives National Port Workers Union’ was formed just five days after MPL received a letter from the Asia Pacific Regional Office of International Transport workers Federation (ITF), which had raised concerns over the alleged employment rights violations.

In a document received by Minivan News, MPL Chairman Abdul Matheen Ahmed allegedly responded to queries raised by ITF’s Asia Pacific Regional Office, stating that MPL was “extremely surprised” by the statements in a letter it had been sent by the group.

The letter addressed to ITF official Mahendra Sharma further stated that the MPL as “a corporate entity” exercises its “right to take disciplinary action against staff when they are in breach of their employment contract”, and said it had been the practice since the formation of the company.

MPL, in the letter, further claimed that it did not “deviate from any Maldivian government regulation” during the course of its action and “will not do so in the future”.
“Hence we are quite surprised on this issue you are talking about. Please make this clearer to us. As to the events you have stated in the letter, we are sure it has not taken place in our company and nor is our human resource department aware of any such issues,” read the letter.

The letter also goes on to describe the MPWU as an “unfounded, illegal association”, attempting to defame the MPL.

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Parliament rejects motion to delay recess until bills passed on criminal justice proceedure

MPs have voted to reject a resolution submitted by Progressive Party of Maldives (PPM) MP Ahmed Mahlouf to delay parliament’s recess until necessary bills on criminal justice procedure have been passed.

During Tuesday’s parliament sitting 29 of the 57 MPs present voted against accepting the resolution submitted by Mahlouf, while 23 MPs supported accepting the resolution and delaying the recess.

Parliament will go to recess at the end of December.

Dhivehi Rayithunge Party (DRP) MP Rozaina Adam was reported as saying that it would have been easier to accept the resolution if it was submitted with sincerity, and alleged that Mahlouf was one of the MPs who took the most leave and holidays.

She said that while Mahlouf was only involved in one committee, he had no idea what was going on in it.

Maldivian Democratic Party (MDP) MP for Dhaandhoo constituency, Mohamed Riyaz, said that crimes were uncontrollable because of problems with the judiciary and not because the country was lacking laws.

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Allegedly fraudulent head of Maleesha Hajj Group in Malaysia, reveal police

Superintendent of Police Mohamed Riyaz has told parliament’s Government Oversight Committee that police have received reports that the Head of Maleesha Hajj Group, Ismail Abdul Latheef is in Malaysia.

Police began searching for 42 year-old in late September after it was alleged that he had defrauded 175 people of MVR 12 million (US$778,000) after they made payments to the Maleesha Hajj Group to travel to Mecca to perform Hajj.

Riyaz said police were trying to verify the information concerning Latheef’s whereabouts.

Officials from the Ministry of Islamic Affairs and police were summoned by parliament’s Government Oversight Committee to determine the progress they had made in locating Latheef, and the missing money.

Latheef was reported to police after people who had made the Hajj payment realised that the group’s office had been closed for days without any response.

On October 2, Interpol issued a red notice to locate and apprehend Latheef.

Attending the Hajj is one of the five pillars of Islam. Clients of the company were not able to go to Mecca this year to perform the religious obligation.

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Resolution calling for Dr Shaheed’s dismissal from UN post removed from Majlis agenda

Deputy Speaker Ahmed Nazim – presiding in the absence of Speaker Abdulla Shahid – removed from the agenda a resolution submitted by Dhivehi Qaumee Party (DQP) MP Riyaz Rasheed calling for the dismissal of former Foreign Minister Dr Ahmed Shaheed from his post as UN Special Rapporteur on Iran.

Nazim said at the beginning of today’s sitting that the item could not be tabled in the agenda and apologised for having previously tabled it for debate and announced a first reading.

He noted that the UN and not the Maldivian government had appointed Dr Shaheed to the post.

The People’s Alliance Leader made the apology after Maldivian Democratic Party (MDP) MP Ahmed Sameer raised a point of order to object to the resolution being accepted in August, contending that in doing so parliament had defamed Dr Shaheed.

“If someone told him that a resolution in the parliament is not going to strip him of his FIFA referee accreditation, he might understand,” Dr Shaheed told Minivan News when the resolution was first submitted by the DQP Deputy Leader.

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