Author: Ahmed Naish

Criminal Court obstructing corruption investigation, police allege

The Criminal Court’s suspension of two police lawyers on “ethical grounds” amounts to obstruction of the ongoing investigation into alleged corruption and bribery in parliament, claims Deputy Commissioner of Police Ismail Atheef.

Speaking on Television Maldives last night, Atheef explained that the two lead detectives on the case, Inspector Mohamed Riyaz and Superintendent Mohamed Jinah, appeared in court on July 9, but the letter from Chief Judge Abdullah Mohamed informing police of the suspension was received two days later.

“If someone is in contempt of the court, action has to be taken immediately according to provision five of the court regulations,” he said, adding that the detectives were not given any warning nor had their conduct in court been noted by the journalists who were present.

“So when this letter came to us, the way police interpret it is that this is an obstruction specifically of  our investigation,” he claimed.

It was the first time that police officers were suspended from the Criminal Court, said Atheef.

The Deputy Commissioner insisted that the suspension was a deliberate obstruction because Riyaz and Jinah, as the two lead detectives and top police lawyers, would have had to appear at court to seek an extension for Nazim’s arrest.

A court official told Minivan News at the time that details of the suspension could not be provided to the media.

”They were suspended due to a case relating to this code of ethics. It is for more than one reason,” he said.

Obstacles

Atheef stressed that police had a good working relationship with the Criminal Court, but began facing difficulties obtaining court warrants in June 2009 when it began an investigation into alleged corruption in the former Atolls Ministry.

Appearing alongside Deputy Commissioner Atheef, the two police lead detectives on the corruption investigation highlighted procedural difficulties faced in their investigations.

The senior officers expressed concern that investigations into “high-profile corruption cases” were compromised at “a very preliminary stage”.

In some cases, Atheef said, police have heard from the public that warrants have been rejected before receiving an official response from the court.

“The suspect knows we’ve asked for a warrant and have been rejected, so he’s free to do whatever he wants,” said Atheef. “We have to appeal and try to get it again but there’s no point.”

Moreover, in the absence of a Criminal Procedures Act, the officers said, there were no “clear guidelines” on how arrests should be made.

While only the Chief Judge Abdullah Mohamed personally issued warrants at present, Jinah argued that it was neither “practical nor reasonable” for one man to bear the responsibility.

Jinah revealed that the Criminal Court gave evidence police presented to seek an arrest warrant to the defence counsel of detained MPs Abdulla Yameen and Gasim Ibrahim.

“In the criminal justice procedure, disclosure of evidence is a completely different stage,” he said. “This happened way before the threshold test to determine whether or not to prosecute.”

He added that the incident had jeopardised the police investigation.

In some cases, said Inspector Riyaz, the media and supporters of the suspect were present when police arrived on the scene after obtaining a search warrant.

Referring to the case of alleged corruption in the former Atolls Ministry, involving MPs Ahmed Nazim and Ahmed “Redwave” Saleem, Riyaz pointed out that Criminal Court was inconsistent in issuing warrants.

“In a case involving two suspects, we requested a travel ban and to check their bank statements,” he said. “But [the court] enforced a travel ban on one and allowed us to check his bank statement. And for the other, [the court] allowed us to get his bank statement but refused to enforce a travel ban.”

On the importance of detaining suspects, Jinah said stopping communication was crucial to preserve evidence.

Moreover, he added, police did not have to go the Supreme Court to confiscate a suspect’s mobile phone.

Drug bust foiled

Jinah, head of the Drug Enforcement Department (DED), said a Criminal Court official informed police last week that a warrant could not be issued for a case involving a kilogram of illegal drugs.

Distinguishing between routine and targeted enforcement, Jinah explained that expediting search warrants was crucial in the latter case.

“This is completely unacceptable,” he said. “I believe the application for the court order should at least be considered. It’s fine if they considered what was in it and said this can’t be done.”

He added that police summoned the court official who relayed the Chief Judges’ answer but he chose to remain silent.

“Now more than a kilo of drugs has gone into Male’,” he said, adding that the court later issued the warrant but “it was no use to us then.”

As investigating judges was outside the police mandate, said Jinah, police have decided to lodge a complaint with the Judicial Service Commission (JSC) regarding the incident.

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Police-MNDF special operation underway in Male’

Five people have been taken into custody by the Maldives Police Service and Maldives National Defence Forces (MNDF) under a joint special operation launched last night to quell violence and unrest in the capital.

A police media official confirmed that five people were arrested in separate incidents in Male’.

Shortly before midnight, police dispersed a crowd of ruling Maldivian Democratic Party (MDP) supporters demanding the arrest of Deputy Speaker of Parliament Ahmed Nazim outside his residence, Galolhu Aabin.

Balcony windows of the People’s Alliance MP’s first floor apartment were smashed before riot police moved in.

The MP for Dhiggaru is currently under house arrest accused of bribery and attempting to influence independent institutions as well as cause physical harm to political opponents.

Announcing the joint special operation at a press conference last night, Major Abdul Raheem said MNDF assistance was requested by the Home Minister and appealed for cooperation from the public.

Denying any connection to the ongoing corruption investigation involving opposition MPs, Chief Inspector Hamdhoon Rasheed stressed that the measures were in response to growing public disorder triggered by political unrest and a resurgence of gang violence after the end of the World Cup.

“[…] We began [the operation] because some political parties are trying to create further chaos in the island using these roving gangs,” he said. “What we want is to ensure that this is a safe environment for those who don’t want any involvement in this or just wants to live peacefully.”

He added that gang attacks on rival camps set up to screen World Cup matches had taken place sporadically and was currently on the rise.

Opposition parties have blamed the unrest on angry mobs of MDP supporters gathering outside opposition MPs’ and judges’ residences.

While 18 people were taken into custody on Wednesday night following the disturbance at the MDP rally, Hamdhoon said all have since been released.

Asked whether police had arrested masked assailants that allegedly tried to attack President Mohamed Nasheed, the Chief Inspector answered no.

Hamdhoon further defended police handling of violent clashes outside opposition MP Abdulla Yameen’s residence after police reportedly took 40 minutes to intervene with tear gas.

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Transport ministry denies ACC findings over Dhoogas Guest House

The Transport Ministry has denied findings by the Anti-Corruption Commission (ACC) that the Dhoogas Guest House in Addu Atoll was awarded to MVK for 50 years in violation of the government’s financial regulations and tourism laws.

A statement issued by the Ministry today denies any wrongdoing or corruption in the awarding of Dhoogas as part of the agreement to establish a transport network in the South Province.

It adds that nationwide connectivity was an important policy of the ruling Maldivian Democratic Party (MDP) and President Nasheed was closely monitoring the process of establishing integrated regional transport networks.

“Therefore, we do not believe that there has been any violation of the financial regulations in this project,” it reads.

Moreover, as the contracts were awarded following transparent bidding processes, the tourism law did not preclude granting plots of land in return for providing ferry services.

ACC findings

However, a press release by the ACC on Sunday states that islands or plots of land could only be awarded for island hotels by the Tourism Ministry for a maximum of 25 years.

The awarding of Dhoogas therefore violated articles two, four, five and nine of the Tourism Law as well as article 250 of the constitution and clause seven of the financial regulations.

The ACC statement reads that the law was clear that provisions on tourist resorts would also apply to city hotels.

Moreover, land could only be leased for 50 years to public companies that fulfilled specified conditions.
It adds the Transport Ministry was informed on June 3 that the guesthouse could not be awarded to MVK.

The ACC investigation into the awarding of the contract to MVK, prompted by a complaint lodged at the commission, is still underway.

The ACC notes that five months elapsed after the signing of the contract with MVK before the President’s Office transferred the land to the Tourism Ministry.

“Campaign contributor”

Less than a week after the contract was signed in October last year, the Dhivehi Qaumee Party (DQP) alleged corruption in the bidding process, claiming that the company was a financial contributor to the MDP presidential campaign.

DQP called on the government to annul the contract and initiate a second bidding process as more companies would have competed if it was known that the incentive was the 86-bed Dhoogas Guesthouse, which was “ready for immediate financial benefit,” instead of plots of land as previously announced.

The party argued that there was reason to suspect corruption as MVK won “a lucrative contract” in competition with companies with more experience despite having no history of providing ferry services.

However, at the time, State Minister for Transport ‘Maizan’ Adam Manik denied the allegations to Minivan News.

Manik said companies had the choice of either selecting the government’s standard bid document or providing an alternative bid proposal.

MVK chose the latter, he explained, suggesting Dhoogas as part of their bid.

Moreover, all bids were forwarded to a bid evaluation committee at the ministry of finance and then to the privatisation committee before the final decision was made.

Mohamed Zuhair, president’s office press secretary, added proposals were finally sent to the attorney general to confirm the bidding process was above board.

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Tensions escalate between executive and judiciary

The Judges Association of Maldives (JAM) has condemned President Mohamed Nasheed’s criticism of the Judicial Service Commission’s (JSC) decision on determining guidelines for the reappointment of sitting judges as “disrespectful towards the honour and dignity of judges” and indicative of the “negative view he holds of the judiciary”.

A press release issued by the association last week accuses the president of attempting to cast undue influence over the Judicial Service Commission by calling for amendments to the eligibility criteria approved last month, an act which could “render separation of powers obsolete”.

Article 285(b) of the constitution stipulates that the JSC shall determine whether or not sitting judges possess the qualification of judges specified in article 149 before August 7 2010.

The article states that judges must possess “educational qualifications, experience and recognised competence to discharge the duties and responsibilities of a judge, and must be of high moral character.”

On May 9, the JSC voted to approve as minimum standards to determine “high moral character” that judges must not have been convicted in a court of law of an offence with a punishment prescribed in the Quran, criminal breach of trust or bribery.

Following the 5-2 vote, Aishath Velezinie, President Nasheed’s member on the JSC, characterised the contentious decision as “nothing less than treason to rob the people of an honest judiciary.”

Velezinie warned that the decision could effectively give tenure to 19 judges found guilty of various offences by state institutions such as the former Anti-Corruption Board.

Two days later, the commission approved guidelines for determining educational qualifications, experience and competence.

In his radio address on May 28, President Nasheed said he believed the JSC decision could hinder the commission’s mandate of ensuring public confidence in the judiciary.

The decision was “worrying” as records showed that judges found guilty by the relevant authorities under the old constitution, or who had faced criminal prosecution and allegations of gross misconduct, were currently on the bench.

“Grade seven standard”

President Nasheed criticised the criteria for educational qualifications as setting the bar too low.

“For the standard to determine educational qualification, they are saying [judges must possess] a certificate in either law or Shariah, and even if the certificate is not accredited by the Maldives Accreditation Board, it must be a certificate of at least level three or higher accepted by the government”, he said.

Hence, he added, the minimum educational qualification for judges approved by the JSC was essentially “grade seven”.

According to the guidelines approved by the commission, said Nasheed, sitting judges would be eligible for reappointment if they have not been convicted in court of 29 criminal offences decided upon by the JSC.

The JSC also decided that sitting judges would be deemed to possess the requisite experience.

Nasheed said the criteria to determine experience and educational qualification was “inappropriate” for contemporary Maldivian society.

Moreover, taking the lack of convictions as enough to determine high moral character was “not ideal.”

An official request has been made with the JSC to review and amend the guidelines, he said.

The JSC consists of the speaker of parliament, an MP and a member of the general public appointed by parliament; a judge each from the Supreme Court, High Court and the trial courts; a practicing lawyer elected by licensed lawyers; the Chair of the Civil Service Commission; a member appointed by the president and the Attorney General.

Justice Fahmy

A statement issued by the JSC before the president’s address defended the decision as both “within the bounds of article 149” and “very fair”.

The statement signed by Justice Mujthaz Fahmy, president of the JSC, notes that differences of opinion among members only emerged over the criteria for determining high moral character.

It adds that the reappointment of judges as stipulated by article 285 was very different from the normal process of appointing or dismissing judges and magistrates.

Moreover, the commission believes the decision will “draw criticism no matter how fair it was.”

The statement goes on to condemn “efforts by certain groups to dishonour the judiciary and strip judges of their honour and dignity.”

“The commission is extremely concerned as such actions could undermine the independence of the judiciary and adversely affect society,” it reads.

While the creation of the JSC was delayed until July 26, 2009 due to “various legal problems” and its members do not work full-time, the statement assures that the commission was working “sincerely, truthfully and in line with the constitution” to fulfil its responsibilities.

“Abuse of power”

However, writing in her personal blog, Velezinie claims the statement was issued “in violation of clause 4(d) of the commission’s rules of procedure and article 163 of the constitution” as it solely represented Fahmy’s personal views.

Justice Mujthaz Fahmy had refused to either allow further discussions on the guidelines or vote on amendments, she writes.

As Fahmy was among the 19 judges with prior convictions, Velezinie claims, he faces a conflict of interest on the issue of judges’ tenure and reappointment.

Moreover, while the Supreme Court Justice was also the chair of both standing committees of the commission, the complaints committee has not been convened as of May 1.

Fahmy replaced High Court Judge Abdul Gani Mohamed as President of the JSC on February 21 when the latter was removed by a ruling from three Judges of the High Court.

Velezinie reveals that although a committee consisting of the three judges on the commission was tasked in August 2009 with formulating a draft of the guidelines for reappointment, the full committee only met once as Fahmy did not attend the second meeting.

Meanwhile, the “285 Standards Committee” formed after Gani’s expulsion and chaired by Civil Service Commission President Dr Mohamed Latheef met on three days and drafted the final guidelines during meetings that each lasted half an hour.

The sub-committee, consisting of Judges Adam Mohamed Abdullah and Abdullah Didi from the JSC as well as Chief Judge of the Juvenile Court Shuaib Hussein Zakariya and Civil Court Judge Abdullah Ali, did not consider either the previous proposals or “the purpose and spirit of the constitution and the objective of article 285.”

She adds that Fahmy’s actions were “extremely worrying” as it could cast doubt over the independence of both the JSC and the judiciary.

Moreover, Velezinie continues, failure to provide agendas and minutes of meetings to members as required by law “facilitates corruption in the commission.”

“The Judicial Service Commission, and along with it the courthouse and judges, will only gain public trust when it proves to the people with words and deeds that it is an institution that is independent from the three powers,” she entreats. “Instead of hiding behind law certificates and making decisions based on self-interest and one’s own views, [the commission has to] put national interest and public welfare first.”

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President ratifies Decentralisation Act

President Mohamed Nasheed has today ratified the landmark bill on decentralised administration but vetoed the complementary bill on local council elections.

Addressing press today, Nasheed said Attorney General (AG) Husnu Suood advised the president’s office that although the decentralisation bill would not hamper the implementation of government policies, some provisions were “legally questionable.”

“If the bill becomes law, both the attorney general and this office has noted that there could be legal problems in enforcing it without amendments,” he said.

As the constitutional deadline for local council elections elapsed in July last year, he added, a further delay was not advisable.

Although the opposition Dhivehi Rayyithunge Party (DRP) removed the concept of provinces from the government’s bill, Nasheed said the Act does not prohibit the creation of province as it stipulates that new legislation would be needed to form “province councils.”

Opposition MPs argued that grouping atolls into seven provinces was unconstitutional as 21 administrative areas or atolls were clearly specified in the constitution.

Nasheed stressed that it was important to distinguish between political decentralisation, or the formation of local councils, and administrative decentralisation.

The constitution empowers the president to create posts and offices in the atolls to provide services of various government ministries located in Male’, he explained.

“For example, the ministry of economic development registers companies,” he said. “In the past, to register a company you had to come to Male’, fill out the form and get the seal.”

Apart from providing services directly to the region, he continued, the province offices would work together with island and atoll councils on speeding up development projects.

13 points

A statement highlighting 13 legal points raised by Attorney General Husnu Suood regarding the decentralisation bill was issued by the president’s office today.

Suood noted that the bill does not preclude either the creation of provinces or collaboration among constituencies or administrative areas.

Moreover, the law does not prohibit either a government ministry or an independent institution from targeting services to two atolls or undertaking development projects for one or more atolls.

Thirdly, as the bill distinguishes between the central island and the capital island of an atoll, the powers and administrative framework of former atoll offices would be transferred to the atoll council.

It will therefore be left to residents of an atoll to to designate an island for the administrative office of the atoll council.

The AG notes that the composition of city councils specified in the bill was unfair as the city council of Male’, with a population of 125,000, will have 11 members, while the atoll council of Addu, with a population of 29,000, will have 12 members.

Further, the bill does not prohibit island councils from entering into agreements with the government’s utility companies, created for the seven provinces, to provide electricity, water and sanitation.

As the guidelines specified in the bill for island councils and atoll councils to offer municipal services differed significantly, “it is important to streamline the guidelines for providing these services.”

In the case of Fuahmulah, the only island in the Maldives that is also an atoll, the AG points out that its eight island councils with three members each, in addition to a six-member atoll council, was proportionately a high number of representatives compared to other atolls.

While the 9,000 people of Fuahmulah would have 30 elected representatives, the 125,000 people of Male’ would have 11 representatives on its city council.

Moreover, a government minister has to be on the board of the local government authority and is required to answer to parliament, but might not be elected as the chair of the board.

If the minister is not elected to the chair, Suood notes, it is doubtful whether he or she could report to parliament as mandated by article 140 of the constitution.

The AG recommends amending the law to require the chair of the board to report to a minister designated by the president.

Meanwhile, a provision that would allow councils to plan and organize services provided by government ministries was “unconstitutional” as it would strip the ministry of its authority and ministers could not answer to either parliament or the president.

Granting powers to local councils to invalidate contracts and agreements made in the constituency after the ratification of the new constitution “did not make legal sense” and was “unfair” as it could leave third parties without any avenues for redress.

On the twelfth point, the AG recommends designating council members apart from the president and vice-president “non-executive” members with lower pay.

As there was going to be around 1,200 council members in the country, between Rf400 million to Rf500 million would be needed annually for salaries and allowances.

Since the Decentralisation Act stipulates that elections must take place within 150 days of ratification, Suood notes that the local council elections bill must be ratified before June 15.

Local council elections bill

Although the president vetoed the bill on local council elections today, he conceded that he would sign it into law If parliament passes it again without an amendment to allow remote voting.

Fuad Thaufeeq, president of the Elections Commission (EC), told Minivan News earlier this month that the two bills had to be ratified within 28 days of each other to comply with the periods specified in both pieces of legislation.

At the press conference, President Nasheed denied claims by opposition parties that the government was stalling the elections to prolong the tenure of appointed island and atoll councilors.

Nasheed said the ruling Maldivian Democratic Party (MDP) proposed at the Special Majlis that the parliamentary and local council elections should have preceded the presidential elections.

The number of island chiefs and deputies appointed in the past was above 800, he said, while the number of councilors would not exceed one to each island.

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Religious unity regulations contain “ambiguities, policy issues”, says press secretary

The new regulations under the Religious Unity Act of 1994 drafted by the Islamic Ministry contain “ambiguities” and provisions that could be in conflict with the government’s stated policies, said the President’s Press Secretary, Mohamed Zuhair.

The President of the Human Rights Commission of Maldives, religious scholars, people from the entertainment industry and NGOs have expressed concern with the regulations, he said.

“The attorney general only looked at legal aspects before he approved it,” he said. “He did not have to consider the implications for policy or conflicts with stated government policy, mainly on freedom of expression.”

He added that Attorney General Husnu Suood had “reservations” about some provisions and favoured a cabinet meeting before publication of the regulations in the government’s gazette.

Zuhair said the “points of contention” included provisions that deal with Islamic codes of conduct and ambiguities in the terminology of some provisions.

“Codes of behaviour are not codified in Islam,” he said. “[People] have suggested that the phrase should be changed to tenets of Islam.”

There were also fears that the advisory board to be constituted under the regulations could become “the moral police” and exercise excessive powers.

Some religious scholars have also “personally called and asked for a wider discussion.”

“The president has three main concerns,” he said. “First, social implications of the regulations, second policy implications and whether there could be legal obstacles [to enforcement].”

Moreover, some of the provisions could be “extraneous” as laws already existed to tackle the problems the regulations target.

Meanwhile, State Minister for Islamic Affairs Sheikh Mohamed Shaheem Ali Saeed urged the president’s office to resolve possible policy conflicts and publish the regulations.

As well as “all respected religious scholars in the country”, other government authorities were consulted in the formulation of the regulations Shaheem said.

Shaheem stressed that the attorney general’s office, the legal department at the president’s office and the Maldives Police Service have all cleared the regulations.

The state minister downplayed fears that the regulations would give coercive powers to the ministry.

“It is not our intention to put people in jail,” he said. “[For example], if someone writes an article mocking Islam, we will only advise that person and offer counselling.”

He added that the ministry did not want to discourage criticism and the regulations were necessary “for democracy and to build a stable society”.

The regulations were important to deal with social problems caused by disputes over religious issues, he explained.

Shaheem noted that he has received complaints this week from two islands with independent or breakaway prayer congregations.

“The islanders told me they [the breakaway group] threatened to attack foreigners if the islanders tried to stop them,” he said.

Meanwhile, the HRCM has denied Zuhair’s claim to local daily Haveeru yesterday that the commission raised concern with the regulations.

The commission’s statement denies that “any complaints” were made by any HRCM official.

It adds that the report in the media was “regrettable” and that the commission was not officially consulted in the process of drafting the regulations.

The Haveeru story quoted Zuhair as saying that the Tourism Ministry and Maldives National Broadcasting Corporation have also expressed concern.

However, the press secretary said today that Ahmed Saleem, president of the HRCM, had called “a senior official” of the government and voiced his concerns.

Saleem told the official he has not had time to review the regulations as he had to fly abroad soon, he said.

The HRCM statement could therefore mean “one of two things,” Zuhair said.

“They have either reviewed it and decided to endorse it or this is miscommunication inside the commission,” he said.

Ahmed Saleem could not be reached for comment at time of press.

Tourism Minister Dr Ahmed Sawad said he has not read the regulations yet.

“We’d like to go through it and see if there are any issues,” he said. “We will attend to it in the next two days.”

Ibrahim Khaleel, managing director of MNBC, said he has not officially complained or expressed concern.

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JSC decision could “rob nation of an honest judiciary”, warns member

The Judicial Service Commission’s (JSC) decision yesterday to reappoint all sitting judges unless they have been convicted of either a crime with a punishment prescribed in the Qur’an, criminal breach of trust or bribery was “nothing less than treason to rob the people of an honest judiciary”,  claims Aishath Velezinee, the president’s member on the commission.

The decision was approved with five votes in favour, two against and one abstention.

Writing in her personal blog, Velezinee warns that the new standard for judges’ conduct could give tenure to 19 judges with either prior convictions or allegations of gross misconduct.

If the decision is validated, she writes, the country “stands to inherit” seven judges found guilty of criminal breach of trust by the relevant authorities but not convicted in court; five judges with allegations of criminal breach of trust; two judges who face prosecution for criminal breach of trust; one judge on trial for sexual misconduct; two judges found guilty of sexual misconduct but not tried at court; one judge guilty of a crime with a punishment prescribed in the Quran; and one judge guilty of sexual misconduct and accused of criminal breach of trust.

“It is indeed a sad state of affairs, and an insult to all those honest judges whose integrity and good name is compromised by today’s decision,” writes Velezinee.

Confidence in the judiciary

Velezine told Minivan News today that the JSC decision could lead to eroding public confidence in the judiciary.

Article 285 of the constitution stipulates that the JSC shall determine before 7 August 2010 whether or not the judges on the bench posses the qualifications specified by article 149.

The criteria in the constitution requires that he or she “must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, and must be of high moral character”.

The JSC’s decision went “against the purpose” of the constitutional provision, said Velezinie: “I believe this was a decision taken by four men raising their hands. It is a matter of national interest as public perception will be affected if people can’t trust the honesty of judges.”

Moreover, it was of the utmost importance to inspire public trust in the judiciary “to avoid democracy failing because of a weak judiciary”.

Velezinie said official records show that some judges “have convictions from other institutions” such as the former Anti-Corruption Board.

“As you know, in the past we did not have a culture where everything was decided by the courts,” she said, adding that the judgments were passed in accordance with the old constitution.

After delaying and “failing in its primary task” of reappointing judges until August last year, a subcommittee chaired by Civil Service Commission President Dr Mohamed Latheef was formed to draft guidelines for the standards.

But, she added, the final report of the committee comprised of “four judges and Dr Latheef” was only presented last Sunday.

Abuse of power

Both Velezinee and Attorney General Husnu Suood have accused Supreme Court Justice Mujthaz Fahmy, president of the JSC, of “abusing the authority of his position” to delay and obstruct the reappointment process.

While Velezinee said Mujthaz Fahmy was among the 19 judges with prior records, Suood accused Fahmy of holding up the promotion of rival judges for “personal reasons”.

Suood said the judges on the commission were “not cooperating” with the task of reappointing judges.

Supreme Court Justice Mujthaz Fahmy
Supreme Court Justice Mujthaz Fahmy

However, Judge Fahmy has denied the allegations: “Velezinee is lying if she really said that. That’s incorrect information.”

Fahmy stressed that the process of screening judges for reappointment had not yet begun and yesterday’s meeting was to “discuss the guidelines drafted by the subcommittee”.

The commission will go through old records and judges with prior convictions in court would be “disqualified”, he said.

Fahmy said he had “complete confidence” that the process could be completed by the August 7 deadline.

Apart from reappointment, he added, the commission has been active with hearing complaints, evaluating judges for promotion and formulating regulations and a code of ethics.

On the allegations of abuse of power, Fahmy said he doubted Suood would have accused him of it as the commission’s proceedings take place in accordance with the regulations and all members have an equal say.

“I wouldn’t say that judges have an undue influence in the commission as we don’t have a majority,” he said. “There are three judges on the ten-member commission”.

“Runaway judiciary”

Meanwhile, Ibrahim Ismail “Ibra”, former MP for Male’ and chairman of the drafting committee of the Special Majlis, the assembly that revised the constitution, said the substance of the criteria in article 149 was not limited to convictions.

“The assumption is that judges will have a higher than average standard of conduct,” he said. “Judges should be exemplary figures. So even if they have not been convicted of a crime, it does not mean they automatically have the code of conduct expected from a judge. They are expected to exhibit moral standing.”

He added that the JSC’s decision was tantamount to “the lowering of the standard expected from judges”.

Moreover, he said, the JSC was not empowered to “set standards by themselves” as the constitution grants that power to the People’s Majlis.

The parliamentary committee on independent institutions could order the commission to overturn its decision, Ibra continued, or establish standards and criteria for judges’ qualifications in the Judicature Act.

Ibra predicted that the decision will lead to escalating tension between the executive and the judiciary, which would have “very negative consequences”.

“Sadly, because of the actions of some judges who want to subvert the constitution for their own purpose, the credibility of the entire judiciary will be diminished,” he said.

While the Supreme Court was making “some headway” in reforming the judiciary, the courts did not inspire “a great deal of confidence from the public”.

Ibra speculated that judges understood “a divided Majlis cannot not hold the judiciary accountable” as the “comics in there can’t agree on anything”.

In the absence of effective oversight, he ventured, the judiciary was “having its heyday”.

Parliament exercising its authority to set minimum standards for judges would not be a solution either, Ibra argued: “Because the JSC is dominated by judges and the old guard, they will disregard it and even strike down laws.”

Judicial independence

In June last year, the Judges Association called for a constitutional review to change the composition of the JSC to allow only members of the judiciary on the commission.

The procedure for the removal of judges laid out in article 154 requires the JSC to find that the judge is grossly incompetent and submit a resolution to parliament for the removal of the judge.

A judge could only be dismissed if a two-thirds majority of MPs present and voting support the resolution.

Ibra said some judges were misinterpreting the “independence of the judiciary” to mean that “judges were above the law”.

“What I see happening is that some people are arguing that no organ of the state can influence or dictate anything to the judiciary,” he said. “That is not independence. That is putting them above the law.”

After two years of the JSC, he added, most people would agree on “the wisdom of the Special Majlis” in constituting the commission.

According to Article 158 of the constitution, the JSC shall consist of the speaker of parliament, an MP and a member of the general public appointed by parliament; three judges each elected from the Supreme Court, High Court and the trial courts and a private lawyer elected among licensed lawyers; the Chair of the Civil Service Commission, a person appointed by the president and the attorney general.

“In retrospect if I could change anything in the constitution, I would argue that the time has not yet come to keep any judges on the commission,” Ibra said.

Moreover, he said, the current judiciary faced an acute lack of qualified professionals with an “adequate” grasp of the constitution and the laws of the country.

“What I see is a runaway judiciary that will become increasingly tyrannical, that will pass judgment on people and no one can hold them accountable.”

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Veto could impede local council elections, says EC

The Elections Commission (EC) would be in “a difficult situation” if the president ratifies the decentralisation bill but vetoes the complementary local council elections bill, EC President Fuad Thaufeeq has said.

If the president leaves more than a 28-day period between the ratification of the two bills, said Fuad, the EC would not have enough time to prepare for the elections.

President Mohamed Nasheed has said he will veto the local council elections bill as article four of the legislation woul disenfranchise “half the electorate” as it requires citizens to be present in their registered constituency to be able to vote.

“If he ratifies the decentralisation bill first, it states that elections should take within 150 days,” Fuad said. “But the other bill, the local council elections bill, gives a period of 122 days. So even if the Majlis passes amendments as soon as possible, say in June, we won’t have enough time to prepare.”

He added that the EC believes the two bills should be ratified together in order to avoid the clashes.

Moreover, if an amendment is passed to allow remote voting, the EC would need “double the funds to allow people to vote anywhere”.

The EC would need “a lot of manpower” as there would be 279 constituencies and some islands would require 100 different kinds of ballot paper.

The EC did not raise concerns with article four as it would be fairer for those living in their registered constituency or island of birth to elect local government representatives.

“It would be better for those who actually live in the island to be able to vote than those who are registered,” he said.

In his weekly radio address on Friday, President Nasheed said article four would disenfranchise “at least 60,000 people” from the atolls currently residing in Male’.

Nasheed said he would ratify the bill only as “a last resort”.

“In my view, it is not the right thing to do. It is not a good bill,” he said.

Mohamed Zuhair, president’s office press secretary, said parliament had to bear responsibility for the problems as “they passed the bill knowing all these periods were in there”.

In addition to problems regarding process, he added, the president had to consider economic, social and legal ramifications.

“We can’t sacrifice content or substance because it could compromise the process,” he said. “But the president hasn’t made a final decision and he will serious consideration to these issues.”

Although article four did not allow for remote voting in the original draft legislation submitted by the government, MPs of the ruling Maldivian Democratic Party (MDP) proposed an amendment to allow people to vote anywhere in the country.

However, the amendment did not garner bipartisan support as MPs of the opposition Dhivehi Rayyithunge Party (DRP) voted against it.

Vili-Maafanu MP Ahmed Nihan said the DRP said he participated in a “heated debate” at a meeting with the EC over article four.

Nihan said the DRP agreed to keep the article unchanged based on the EC’s recommendations and the government’s assurances.

“We passed the bill the way it was sent to us by the Attorney General,” he said. “Now [MDP] are trying to blame us. We have said we will submit an amendment to allow everyone to vote even if takes three times more money.”

Nihan said the DRP parliamentary group was ready for an emergency sitting of parliament to vote on amendments, but added that the president should ratify the bill first as further delays would put the government and the Majlis “on the back foot”.

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President hopes Decentralisation Act will be amended

President Mohamed Nasheed has said he will sign the decentralisation bill into law despite misgivings as any further delays would do “more harm than good”.

In his weekly radio address on Friday, President Nasheed said the constitutionality of some provisions could be challenged at court.

“I hope that after I ratify this bill, amendments will be made as soon as possible, within the present framework, to change the provisions where these conflicts could arise,” he said.

The president said grouping atolls into provinces and devolving decision-making powers concentrated in Male’ to seven regions was a campaign pledge of the ruling Maldivian Democratic Party (MDP).

“It’s not at all the case that the government decided to create provinces because there was a political opportunity or purpose in it,” he said, adding that it would be more politically advantageous to continue with the existing system of “considering the capital of the atoll to be the atoll council.”

Continuing with the traditional system would be the “narrowest” way of devolving powers, Nasheed said, adding he did not want to prolong the existing model of island and atoll development committees with “small, minimal powers”.

Meanwhile, the purpose of provinces was “to find a better path” for economic growth and development.

The province offices created in the first months of the new government was intended to “introduce and implement” the model, Nasheed said.

Moreover, he added, as the constitution empowers the president to create posts and offices for administrative purposes, desks were set up at the province offices for the main government ministries.

But, DRP MP Ahmed Nihan told Minivan News today the bill would not hamper development as it would vest “executive power” in the hands of the people and stipulate equal distribution of government funds.

He further accused the president of exercising executive power with “total disregard” to the constitution.

While the president was empowered to appoint councillors and state ministers by article 115 of the constitution, he said, the DRP did not accept that it could be done for the purposes of decentralisation in the absence of enabling legislation.

“We believe [the appointments] was made by misusing the powers granted by article 115 as it was done for political purposes,” he said.

Nihan added it would have been better for the president to voice concern about “building human resources” for decentralisation as the process was new to the country and was likely to result in teething problems.

On the issues of maintaining the existing administrative division into 21 atolls, Nihan said “the core reality is that Maldivians don’t want to lose their island identity.”

Moreover, he said the government’s fear that the bill would create “21 opposition governments within the country” was unfounded.

Empowerment

The decentralisation and regionalisation policy began with the appointment of state ministers under Home Minister Gasim Ibrahim, who quit his post 21 days into the new administration.

Gasim joined the DRP-PA MPs, several independents and the two MPs of the Dhivehi Qaumee Party to vote through the final bill by 42 votes.

The model of provinces was removed from the government’s bill by the opposition DRP-dominated committee after it was submitted for a second time in March this year.

Opposition MPs have argued that the atoll councils referred to in article 230(b) of the constitution must be established at the atoll level for the 21 administrative atolls of the country.

The battle over the legislation throughout the first two sessions of parliament involved forced cancellations, clashes in the chamber and protests.

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