Author: Leah Malone

Aishath Velezinee was formerly the President’s Member on the Judicial Services Commission (JSC), the watchdog body assigned to appoint and investigate complaints against judges.

Three years ago she turned whistleblower and alleged the JSC was complicit in protecting judges appointed under the Gayoom’s government, and was colluding with parliament to ensure legal impunity for senior opposition supporters. In January 2011 she was stabbed twice in the back in broad daylight.

Contentious actions by the Maldives’ judiciary have sparked international concern, particularly the Supreme Court ruling to indefinitely delay the presidential election runoff scheduled for this Saturday September 28.

Minivan News discusses some of the challenges regarding the judiciary, democracy, and transitional justice in the Maldives with Aishath Velezinee.

Leah R Malone: In regard to the Supreme Court’s contentious actions involving the ongoing Elections Commission case., a friend remarked that it was the result of “too much democracy” creating a dysfunctional balance of power between the three branches of government, which has allowed the Supreme Court to establish a judicial tyranny.

Additionally the UN Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, also noted the concept of judicial independence has been “misconstrued and misinterpreted” by all actors, including the judiciary itself.

Is the current instability in the Maldives and the dysfunctional tripartite system the result of “too much democracy”? Why is the balance of power between the executive, judicial and legislative branches of government skewed?

Aishath Velezinee: I think people don’t seem to understand what democracy is. Democracy is not all about freedom and separation of powers – it doesn’t mean every branch of government gets to go their own way. It’s about balance. They forget that regarding the separation of powers, the purpose is mainly to create balance – so one branch [of government] does not run away with their powers and encroach on the other(s). The purpose is so that one branch will check the other.

What’s now happening is that – in the name of independence – every institution is encroaching on the powers of the other. There is no balance. There is no check. [Instead] now there is a contest to see who is the most powerful. What we really need to remember is that we haven’t had separation of powers. We were supposed to build a democratic state and the constitution very clearly outlined how we were supposed to do that. There was going to be a presidential election, there was going to be a parliamentary election, and then there was going to be the most important step, the appointment of an independent judiciary.

That third [judicial] power was hijacked by people who had been called judges before. I’m saying people who were called ‘judges’ before because, prior to the 2008 constitution, judge was a job title given to certain civil servants who sat in the court and passed sentences. They did not have law backgrounds. They did not have judicial experience. The Justice Ministry had legal sections that were providing them with guidance on cases, on how cases must be concluded, and half the time the magistrate [judge] just had to look up the sentence in the penal code and deliver it.

They were like newsreaders in a television newsroom. [While] there would be the people behind the scenes writing the news and looking into stories, the newsreader is someone who dresses up and sits in front of camera and reads, delivering the news to the audience. So these judges were trained like that. They sat on the bench, the chair of the seat of the judge, and they delivered the verdict. They were people who looked like judges were supposed to be. The real work was done in the Ministry of Justice by teams – they had sections for northern, central, southern areas [of the Maldives], etc. – that’s how the system worked.

Suddenly the 2008 constitution said “Okay, now we have an independent judiciary.” Every judge is independent, they must oversee their own trials, the cases before them, and deliver the verdicts. [But] what experience do these people have? So they were doing similar things to what they’d done before – they would copy [previous verdicts]. It’s like monkey see monkey do, but monkey doesn’t know how they do.

LRM: Do you think the Supreme Court’s actions are tyrannical?

AV: Indeed it is tyrannical. In 2010 I submitted a case to the JSC – an urgent motion to look into the matter of judicial tyranny. It already was happening in 2010, [but] of course the JSC did not table the case. What’s going on in the JSC today was going on in the JSC in 2010 too. It all started late 2009 [and has continued] to now – it’s just gotten worse now.

It is indeed judicial tyranny and now has become a life and death issue for the courts, because the judges’ jobs are threatened. It’s become obvious to the world so it’s much easier for the state to really execute Article 285.

Until now one of the problem was that the international community – and everyone who commented and advised [the Maldives] – really didn’t have proper knowledge of the [Maldives’] constitution and what it provided for. They understood that every democracy has a judiciary that is independent. Nobody considered we never had a judiciary before, therefore we cannot have an independent judiciary without meaningfully executing Article 285.

LRM: How has this impacted rule of law and why is rule of law essential for the safety and stability of the nation? Is the country currently in a rule of law vacuum?

AV: Rule of law is the basis of democratic government. Rule of law cannot exist without an independent judiciary and a responsible parliament that holds the independent commissions accountable. Rule of law did not exist in 2010. Due process was not followed in confirming all these judges for life – taking it [Article 285] as a symbolic thing, taking a symbolic oath, that wasn’t rule of law. We lost rule of law way before the [February 2012] coup. I don’t think from 2008 – [even] with the constitution – I don’t think we have ever been able to establish rule of law as understood in a democratic state.

If you listen to the [pro-government] people talking like the former Minister Jameel – now Yameen’s running mate – when they talk of rule of law it is all about punishing somebody, it’s all about crime and punishment. They don’t seem to understand law as anything more than punishment, [but there is also] the process, setting standards, due process, [legal] practice – the way things are done, these things are lost.

LRM: In previous interviews with Minivan News You have often spoken about a ‘silent coup’ – a collusion between the judiciary, the JSC and opposition-aligned members of parliament to preserve the pliability of the judiciary as it was under former Justice Ministry and President Maumoon Abdul Gayoom.

Do you believe the Supreme Court action to thwart the democratic presidential election is an extension of this?

AV: Yes, exactly – it is the one coup that has been going on. Initially I don’t think they imagined they would need to go take up arms, force President Nasheed to resign under duress, and violently crackdown on his supporters. They would have thought [because] they hijacked the courts in 2010, they could have used the courts to bring down President Nasheed. That is what they were targeting and doing.

The whole criminal justice system in this country was controlled by those who are alleged to be behind the serious, organized crime in this country, so they wanted to bring President Nasheed down through the courts. They failed doing that, and then the 7th of February coup came – and we all know it is very much connected to the removal of Abdulla Mohamed who sits on the Criminal Court.

I can’t call him Judge Abdulla, I have never called him judge, he’s Abdulla Mohamed, a man who sits in the Criminal Court because he’s kept there by political forces. He wasn’t appointed duly – and neither of the other judges – by the JSC.

What is now happening is they got away with the coup on 7th February. They have very cleverly covered it up – made it appear to the outside world that it was legitimate. What has happened is our failure to acknowledge the mistakes with the judiciary, with [properly enacting] Article 285. Still today our failure to acknowledge those mistakes is giving the impression to the world that we do have an independent judiciary, even if the judiciary is bad. If we have a legitimate judiciary then the world cannot speak about it.

My point is that we do not have a legitimate judiciary because we failed to execute the constitution as we were supposed to do. But the politicians are finding it very hard to admit to their mistakes and that is giving the wrong impression to the world. If we accept we have a judiciary then we have to honor it. Now I think it has become – even to the general public, people who really don’t understand the concepts – very obvious that these courts are not functional, that these courts are biased, they are politicized. Judges do not have the integrity and trust required [of their station], nobody trusts these judges.

For example, the behavior of Supreme Court Judge Ali Hameed and his sex videos… Maldives is 100 percent Islamic, puritan community, I think that [his actions are] unbelievable and that he is sitting there on the bench delivering verdicts is something even the grandmothers are finding hard to accept.

LRM: The UN special rapporteur noted the Supreme Court’s politicisation – how has this affected the ability of the court to impartially adjudicate the Jumhooree Party’s case against the Elections Commission? Specifically, the constitutionality of the court’s ruling to indefinitely delay the presidential election runoff has been called into question, the commission’s defense lawyers have been ejected from court, and anonymous witness testimonies without accompanying evidence have been allowed – are these actions reflections of the courts politicisation?

AV: As far as I’m concerned, the courts have no business interfering in this election process at all. More than that I am saying the Supreme Court is a political agreement, a political deal. It’s not a legitimate court, so therefore I don’t believe the courts have any right to deliver verdicts on anything.

I have not petitioned the courts for anything because to me there are no courts. It’s not easy living without courts. I also have issues I would like to take up, but I just don’t have access to courts. The state has failed to provide courts.

LRM: What actions must be taken to establish a legitimate, functioning judiciary?

AV: I think everyone has to come out and speak the full truth now. Some of the politicians who were the people behind the hijack of the judiciary – I have named people before, [Parliamentary] Speaker Abdulla Shahid, Dhivehi Rayithunge Party (DRP) Leader [and President Waheed’s running mate] Ahmed Thasmeen – all of them have now acknowledged that they made mistakes in 2010. We have heard DRP MP Rozeina speak of Gayoom, who was the DRP leader at that time, forcing them to do these things. They have acknowledged what was going on 2010.

It is now time for everyone to sit down, come out and say “really we made a mistake”, unfortunately, possibly because democracy was in the infant stage and most of the people were quite ignorant of what was supposed to happen with the constitution. We all made mistakes and we have lost a judiciary [as the result]. That has to be acknowledged and we cannot reform a judiciary without a legitimate government first.

First thing is elections – we should try and have them on schedule. That must be followed by executing Article 285 fully, under close scrutiny of the international community, in a way the general public from all [political] parties can grasp.

LRM: Parliament recently said the JSC is “out of control”, while the UN special rappatour noted that the commission is inadequate, politicised, and unable to perform their constitutional duty. Additionally, the JSC recently decided not to suspend Supreme Court Judge Ali Hameed against the advice of a subcommittee it had set up to investigate the matter. JSC Chair and Supreme Court Justice Adam Mohamed refused to face a no-confidence vote, while fellow commission member Shuaib Abdul Rahman had claimed the JSC Chair had been abusing his powers by exerting undue influence on the commission’s decisions and that the entire JSC was in a state of limbo.

In addition to Article 285 not being implemented properly, what other shortcomings need to be addressed to ensure the JSC’s ability to function? What other transitional justice measures still need to be taken?

AV: People talk about the JSC being a problem, but it was the people who were the problem – just like in other places, it was the people who were committing treason. The JSC first and foremost needs to be open and transparent and that would limit room for mischief in there. That is the major step needed.

Opening [the country] to the democratic process is already reform. I’m very concerned about this talk of re-writing the constitution and changing laws to do this and that. That, I think, will create more mess at this time. The JSC will need to be reformed, the composition will need to be reformed at some point. It is known that, in most countries in developed democracies, the judges look after themselves – make sure all judges are disciplined and there is no misconduct in the courts. But here, given the status of the judiciary, it would be a danger to hand over the JSC to the judges.

As it is now, it should be made to function in a proper democratic manner, where their meetings are transparent, where the agenda for meetings are open, media has access to the meetings, and – like in the Majlis – anything passed by the JSC must be published in proper format, and they should not be given room for corruption inside the commission.

LRM: Do you think Gasim Ibrahim’s former position as a JSC member has compromised the commission or the Supreme Court’s adjudication of the Election’s Commission case?

AV: Because the JSC is not functioning in a proper manner, because decisions are not taken democratically, because it’s all closed session – then anyone in there could influence things. When I was sitting in the commission, we were supposed to screen the judges – it just didn’t happen – there was no way it was going to happen, they didn’t want to do it.

That’s not how it should function, if the media were there it would have been reported – the public would have understood what was going on. So underhand things were going on and Gasim Ibrahim manipulated the whole thing as there was room to do so.

LRM: What implications has the judiciary’s failure had on other state institutions? Particularly the Maldives Police Service (MPS), Maldives National Defence Force (MNDF), ministries, the various independent commissions?

AV: When the judiciary fails, there is no law for anybody to go and seek justice. So even when the police do the most perfect job – with the judiciary not being there – there’s no point. I’m not saying the police are doing their work to the best of their abilities now, or that they are doing it right, but even if they were doing it, the courts are the ones who decide. I think the bottom line is courts, and it is the courts who would hold the police accountable.

LRM: Do you think they have been holding the police accountable?

AV: I think there’s been long-time relationships between the judges and the long-time people in the police, and the long-time people in the institutions. We are very much a person based society. There are social relationships – that’s the way to get things done. You have a friend in the bank, you have a friend in the police, you have a friend in the court – we are still continuing with the same system. I think that’s one of the reasons the law community could not speak on Article 285 and the judicial corruption and issues we are facing today.

Even if they talk, who would they go to when they depend on the courts to earn their living. They can’t be talking about it when they know there is no institution to look into the matter. Most people do not report judges misconduct to the JSC, but they used to confide in me. I can’t take up personal experiences of people to the JSC, I took up what was in the media – what became public.

Those things they had to report, but I found people were hesitant to report misconduct of judges because they cannot appear in court the next day. The judge accused of being involved would be informed by whoever in the JSC and they would then withhold the lawyer for contempt of court of something. It’s not functioning.

LRM: Has the Supreme Court regulation enacted in June 2012 prevented the Elections Commission from receiving a fair defence?

AV: It’s a control measure meant to gag the lawyers, meant to cover up their own incompetency and their own inaction. Like I said before, lawyers will not dare stand up against it, but when the UN special rapporteur was here, the judges and the lawyers have spoken to her of these issues because they could trust her.

LRM: How has Supreme Court Judge Ali Hameed’s implication in a series of sex videos compromised the Supreme Court bench? What behavioural standards should judges adhere to?

AV: I think what the Supreme Court has told by their silence is that it’s fine to have sex, it’s fine to have sex with multiple women, it’s fine to have sex tapes all over the internet. I don’t see why the courts are sentencing people for fornication or any sexual activity or behaviour. There is no devious sexual behaviour in this country anymore.

LRM: The UN special rapporteur noted the politicised nature of the Supreme Court, the JSC, and the lack of public trust in the judiciary. However, today President Waheed commented that the judiciary makes “sound and impartial decisions” and the public recognises the legitimacy of the courts. Is Waheed’s assessment accurate?

AV: I think the president making such a comment is already showing that he is influencing the courts, he has no business in commenting on what is going on in the Supreme Court.

I think he should be calling on the Supreme Court to expedite proceedings if he is accepting these proceedings are legitimate. He should be concerned that the Supreme Court is dragging it on and has put out this order to indefinitely postpone elections. That should be the worry of the president right now. He should be asking to expedite elections.

LRM: Are the claims that MDP supporters are being targeted by the courts accurate or inflated?

AV: It’s history repeating – we’ve seen this happening before. We’re back to the February 2012 coup stage where the MDP is being chased and being persecuted. I think the whole purpose of delaying the elections is to eliminate [Mohamed] Nasheed in any way they can and to harass MDP so that they would create opportunity for MDP to force someone – other than the MDP or Yameen – to win the elections, for them to hold onto the power they have through the coup now.

LRM: How does the compromised state of judiciary endanger the Maldivian public?

AV: Everyone is personally impacted, but people don’t understand it. What is reported is the political cases m – what about the woman who goes on a custody case? Is she getting justice? What about the prostitutes issues? What about the land and civil court cases? We’re talking about people who do not have the knowledge required of a judge, who do not have the experience required of a judge, people who do not have the integrity, people who do not understand what independence means, people who do not fully understate Article 2 of the constitution at all. So what rights are protected by having a person called a judge sitting up on a bench and giving sentences. I think justice is completely lost in this country.

The focus is very much on the politics of the courts, so it gives the wrong impression to the international community that this is all about politics and its about control of the courts politically. That is part of it but there is also the other part – that the judiciary is not up to standard, and by standard I’m not talking about the top quality in the world, I’m talking about basic understanding of democratic concepts and the constitution.

They may understand the laws – they may know them by heart, most of the laws we have are pre-2008 – but they really don’t understand the foundations, the constitution. Absolutely not.

LRM: The UN special rapporteur also noted that “the delicate issue of accountability for past human rights violations also needs to be addressed.” What has been the judiciary’s role be in creating a culture of impunity and thwarting redress?

AV: I think we are jumping the gun here, we have to first have a judiciary before we can address any of the past cases. We can’t have hand-picked men sitting on the bench and delivering on this. They will be asking them to pardon everybody – we need a judiciary first.

LRM: What implications does the Supreme Court ruling to indefinitely delay the democratic presidential election’s runoff have on the Maldives’ democratic transition from Gayoom’s 30-year authoritarian rule?

AV: It’s not a democracy just because we have a democratically elected president – we’ve had that from 2008 and we’ve seen we could not run a democratic government – could not establish a democratic state with just a president alone. So, unless we create all the institutions of a democratic state, we might still fall into the same trouble we have in 2012.

So we should be focusing on state building, we should be looking very carefully at the constitution – following the constitution to the letter and in spirit, and building up a democratic state. We should start from ground zero again. We should start from the bottom. We should take the constitution as a new thing once again. We would have the experiences of where we failed before.

The whole country should join hands – it’s the PPM logo, ‘everyone united’ – we should be a democratic state and the first step, if they are really for it, would be to accept they are failing and go for second round election. If they win – they have won. But if they lose – if they want to build a democracy -they would accept they have lost in a democratic election, and then would play their role as responsible opposition and ensure that the government that is elected does not commit corruption and crimes and make sure the government builds a democratic state.

LRM: What actions/inactions have been made by the international community that have legitimised the judiciary? What actions should the international community take?

AV: Mistakes in not understanding the issues that are in the judiciary, not understanding that we were in a process of transition, not understanding the importance of Article 285. I think all of these are on Gabriella Knaul’s record – her report provides a comprehensive view of the whole coup and the international community should be reading that, looking at it, trying to understand what happened here and trying to ensure that the same mistakes are not repeated in the future.

Right now we need to focus on elections, we need to have elections on schedule and everyone needs to try and hold the state accountable to its own constitution, which demands that an election be held 21 days from the first round.

I will be voting in the presidential election on Saturday September 28 and will place my ballot into a ballot box or into white ‘jangiyaa’ (‘underpants’).

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