Mariyath Mohamed – Page 25 – Minivan News

“The JSC cannot form a court”: JSC Vice Chair Abdulla Didi grilled by Parliamentary Oversight Committee

The Vice Chair of the Judicial Services Commission (JSC), Criminal Court Judge Abdulla Didi, attended parliament’s Independent Committees Oversight Committee to answer its queries about the Hulhumale’ Magistrate Court and the appointment of the panel of judges hearing the Nasheed trial.

Former President Mohamed Nasheed is being tried for his detention of Criminal Court Chief Judge Abdulla Mohamed.

Abdulla Didi attended the committee despite the chair of the judicial watchdog, Adam Mohamed, disputing that the JSC was answerable to parliament on the grounds that the summons referred to an “ongoing case”.

Asked if he believed Adam Mohamed had acted legally in unilaterally deciding that the JSC would not abide by the oversight committee’s summons, Abdulla Didi responded that he “will not say that the Chair acted against the law,” and that he “cannot make any comments on the matter.”

“I personally believe that we must be answerable to the oversight committee. That is why I am here today,” he said.

Conflict of Interest

Before discussions on the scheduled topic began, Abdulla Didi requested that Maldivian Democratic Party (MDP) MP Ali Waheed leave the committee.

Didi said Ali Waheed currently had a case against him in the Criminal Court of which he the judge, and hence he believed there is a conflict of interest to have the MP question him during Thursday’s meeting.

“I wouldn’t have felt any hesitation if all the JSC members were here. But since I am being questioned separately, I don’t think it is a good idea to have someone who has a criminal case against him question me here,” Abdulla Didi said.

Ali Waheed said he believed he was not required to leave the committee as per the constitution, but was willing to do so as it was “ethically the right thing to do.”

Chair of the committee MDP MP Ahmed Sameer informed Abdulla Didi that Ali Waheed had previously informed the committee that he would not be asking any questions from the JSC member, and that he was only participating in the meeting due to the quorum requirements needed to have the meeting.

“Abdulla Didi is here as a JSC member, and not as a Criminal Court Judge. Likewise, it is the citizen Ali Waheed who has a pending case in the court, not the MP for Thohdoo constituency. As there is no conflict when viewed in the light of the capacities in which you both are participating in this meeting, I am of the opinion that MP Ali Waheed is legally allowed to stay and question you. I would like to state here that if Ali Waheed is leaving, it is only out of his personal accord,” Sameer stated.

Later in the meeting, Sameer referred to Ali Waheed’s voluntary exit from the meeting as an example of abstaining from action in cases of conflict of interest, and asked Abdulla Didi why he had not similarly abstained from voting on deciding the panel overseeing Nasheed’s case.

“You are a member of the JSC which voted on choosing judges for the Hulhumale’ Court panel of magistrates. You also serve as a judge in the Criminal Court. The case which this panel is to preside over concerns the Chief Judge of the court you serve under, Judge Abdulla Mohamed. Under these circumstances, why didn’t you abstain from the vote which decided upon magistrates for the Abdulla Mohamed case?” Sameer asked.

“I had no such intentions like what you are implying. The short answer to that question is that we did not decide on the panel to preside on an ‘Abdulla Mohamed case’. It disturbs me when you refer to the case as such,” Didi responded.

“It is a case regarding the arrest of Abdulla Mohamed, in which some other people are accused of having committed criminal acts. The case is about them, not Abdulla Mohamed,” he said, shaking his head.

Sameer also asked about alleged conflict of interest in the vote taken by the JSC to continue running the Hulhumale’ Magistrate Court itself.

“JSC Member Ahmed Rasheed, who is the husband of a Hulhumale’ Court Magistrate, was among the members who voted to establish or continue the said court, isn’t he? And you voted, too. This is extremely concerning, and so I repeat: the case concerns the detention of the Chief Judge of the Criminal Court by the then government. You are a judge serving in that court. Rasheed’s wife is a magistrate in the court trying this case. Do you think this decision is impartial under these circumstances?” Sameer asked.

Didi attempted to dodge the question, stating he was unaware how Rasheed had cast his vote. MP Sameer, however stated he had seen the related documents, and informed him that four members had voted, including Rasheed and Abdulla Didi.

Didi still insisted that he “found it difficult” to answer the question, or decide on the validity of the decision.

The Vice Chair of the judicial watchdog stated that as a norm, if a member felt that he had a conflict of interest in any matter that the commission was taking a vote on, he would state the reasons and excuse himself. He further stated that if a member failed to excuse himself, and yet JSC Chair Adam Mohamed believed such a conflict existed, the chair would then point it out and discuss with the relevant member an agreeable way to proceed.

MDP MP Hamid Abdul Ghafoor asked if any such issues had arisen during the vote taken to appoint magistrates to the Hulhumale’ Court panel.

“I cannot recall if any members declared any conflict of interest. Nor can I at all remember whether the Chair noticed such a conflict,” Abdulla Didi said.

The panel

Didi said that discussion about the panel of judges of the Hulhumale’ Magistrate Court initially began in the JSC after the then head of the court requested the commission assign judges from other courts to preside in a pending case at the Hulhumale’ Magistrate Court.

“Once this request came in, we discussed the matter and proposed names for the bench. We then sent these names to the Supreme Court bench, otherwise known as the Judicial Council, for comment. They decided on those names and sent it back to the JSC. This is how the process went,” Didi told the committee.

“This is also completely in line with what the laws state, I refer to Articles 47 to 49 of the Judges’ Act. I might be referring to the previous Judges’ Act. There were some amendments made to it later, which may have changed the order of these articles I quote. I am not sure, I haven’t reviewed it that much,” Abdulla Didi said.

Article 47 of the Judges’ Act states “If a judge is temporarily transferred to preside over a case in a different court, he must be transferred to a court of the same level as the one he is serving in.”

Article 48 states “A judge can be temporarily appointed to another court in the instance that the court is unable to sufficiently complete assigned work, or if the court had difficulties providing services, or if the judges serving in the court has been suspended from their duties, or if other circumstances which may cause a delay in the completion of work assigned to the court occur.”

Article 49 states “It is the Judicial Services Commission, with the counsel of the Judicial Council, which will come to a decision on the transfer of judges to oversee cases in other courts.”

After listening to Abdulla Didi’s version of events, Sameer presented the information previously gathered by the commission.

“The laws state that the JSC has no right to decided on the judges on a panel. Only the head magistrate of the relevant court has the powers to do so,” Sameer said.

“Now, the Chief Magistrate at this court at the time, Huraa Magistrate Moosa Naseem, sent in three names for the panel to JSC asking only for your commission’s comments. The list included his name as well. Can you then tell me what legal right the JSC has to disregard these three names and appoint three completely different magistrates?”

Abdulla Didi said in response: “We at the JSC considered the important cases pending at the Hulhumale’ Court. So we proposed other names with the intention of assigning qualified, experienced judges. I don’t believe this conflicts with any existing laws. What I am saying is, I did not come to any decision. It was after discussion with the other JSC members that we passed it through a vote.”

MDP MP Ahmed Abdulla asked the JSC member why, if the selection was based on merit and experience, the three magistrates proposed by the Hulhumale’ Court had been disregarded while all three were currently serving as chief magistrates of their respective courts.

“Let me explain. According to the Judge’s Act, no judge had the power to bring in judges from other courts to preside on cases. JSC considers the good magistrates in the atoll… That is not to imply that any magistrate is bad at their work, just that because of the nature of this case, we took special care to appoint the most able and appropriate judges who will treat the case with extra care and contemplate the matter deeply,” Abdulla said.

Didi insisted that the JSC that held legal powers to appoint magistrates to the panel, at which point the Chair of the parliamentary committee intervened and advised the judge to refrain from making misleading and non-factual statements.

“I am deeply disturbed that you are making these comments and passing it off ‘as what the law says’. The law says perfectly clearly outlines the role of the chief magistrate, and that if other magistrates are temporarily being brought into a court, they must be from the same judicial jurisdiction,” Sameer intervened.

Didi also claimed the JSC had appointed the panel after the Hulhumale’ Court requested additional magistrates to assist with their work.

However, member appointed from among the public to JSC Sheikh Shuaib Abdul Rahman, who had been interviewed by the committee prior to Abdulla Didi on Thursday, had stated that the request for additional magistrates and other support for the court had come after the appointment of the panel of magistrates.

MP Ghafoor questioned if the bench had been appointed after Nasheed’s case had been referred to the Hulhumale’ Court, to which Didi replied in the affirmative.

Asked if Didi was aware that one of the magistrates appointed to the bench had allegations of disciplinary issues, sexual offences and corruption against him, he responded that he was not aware of such a case.

When MDP MP Rugiyya Mohamed said JSC Member Sheikh Rahman had confirmed that indeed such an allegation was being looked into by the commission, Abdulla Didi then responded that he had heard such rumours via media and had asked administrative staff to look into the matter.

He later said he “did not believe any of the magistrates on the bench would have done anything of the sort.”

“I cannot confirm whether such a matter exists. The thing is, if we are to consider an allegation or a complaint, there has to be some solid reasons that should support the allegation, whether it be proved or not. If it is a solid and believable allegation, then I might not agree to have him on the bench,” he continued.

“I don’t think just being alleged of anything is reason enough to remove any magistrate from the bench. The allegation itself must carry some weight. However, such allegations can only be cleared once the relevant authority investigates it. So, I do believe any such investigations must be expedited. I don’t see any reason why such a magistrate cannot sit on the panel in the meantime.”

Is the Hulhumale court legitimate?

Asked directly whether Abdulla Didi believed the court to be a legitimate entity, he answered, “I am not saying it is a legitimate court. Then again, nor I am I saying it is illegitimate. All I can say is I don’t believe it will be liquidated.”

“I think the JSC cannot establish a court through a vote. I can’t really recall the law too well at this moment, but the JSC certainly cannot form a court,” Abdulla Didi confirmed in response to a question posed by Sameer.

Sameer then asked if the Vice Chair of JSC had cast his vote on the matter of forming the Hulhumale’ Court.

“That’s a huge misunderstanding. We never voted to form a court. We voted to establish that, in accordance with the laws, the Hulhumale’ Court will not be automatically cancelled. The court was in existence even before [the vote],” Abdulla Didi answered.

However, Sameer challenged Abdulla Didi’s statement. He stated that in 2007, the President’s Office had created an administrative office called the Hulhumale’ Courts Section, and not a court, saying that the existence of a magistrate court in Hulhumale’ is not noted on any paperwork.

“We have documents proving that after the ratification of the Judicature Act, that under a decision of the JSC itself, the budget, stamp and even staff of this Hulhumale’ Court Section office were transferred to the Family Court in Male’. And then, out of the blue, your commission decided there is a Magistrate Court in Hulhumale’,” Sameer stated.

“You are aware that a case against the Hulhumale’ Court was filed in a lower court. The JSC then referred it to the Supreme Court. Then JSC Chair Adam Mohamed, who is a Supreme Court Judge, cast the deciding vote on the case. Do you believe this was conducted in due process?” Sameer asked.

Abdulla Didi refused to answer the question on the grounds that he could comment on a decision of the Supreme Court. He said “there is no way I can call that a bad ruling.”

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JSC member Sheikh Rahman criticises JSC decisions on Hulhumale’ Magistrate Court in parliament committee

Parliament’s Independent Commission’s Oversight Committee on Thursday separately questioned two members of the Judicial Services Commission (JSC) about the legality of the Hulhumale’ Magistrate Court and the appointment of the panel of magistrates to the case against Nasheed, for his detention of Criminal Court Chief Judge Abdulla Mohamed.

Of the nine members currently serving in the judicial watchdog, Sheikh Shuaib Abdul Rahman – the member appointed from among the public – attended the first committee session on Thursday.

Arbitrary appointment of magistrates

In response to questions posed by committee members, Sheikh Rahman stated that the JSC had arbitrarily appointed three magistrates from courts across the Maldives to Nasheed’s case, after dismissing the three names first submitted to the commission by the Hulhumale’ Magistrate Court.

“Moosa Naseem (from the Hulhumale’ Court) initially submitted names of three magistrates, including himself. This means that he had taken responsibility for overseeing this case. Now once a judge assumes responsibility for a case, the JSC does not have the power to remove him from the case,” Sheikh Rahman explained. “However, the JSC did remove him from the case, and appointed three other magistrates of their choice.”

Sheikh Rahman stated that the commission had referred to Articles 48 to 51 of the Judge’s Act as justification.

“But then I note here that the JSC breached Article 48 itself. They did not gather any information as per this article. They stated that it is due to the large number of paperwork that needs to be researched that they are appointing a panel. However, this is not reason enough to appoint a bench,” he said.

“Later, when Mazeed assumed responsibility for the Hulhumale’ Court, I remember seeing a letter he sent saying that the Hulhumale’ Court had a huge number of cases and that they needed additional magistrates to oversee the cases. However, this was after the panel was already appointed,” Sheikh Rahman stated.

“The surprising thing here is that this court has been functioning with two magistrates serving there. There have never been workload complaints. It was only after the appointment of the panel, and Mazeed going there, that this problem has arisen. This itself is a questionable matter,” Sheikh Rahman alleged.

Responding to a question posed by Maldivian Democratic Party (MDP) MP Ali Waheed, Sheikh Rahman spoke of the “questionable moves” within JSC which led to the removal of Moosa Naseem from the case.

“Two members of the JSC, if I remember correctly it was Abdulla Didi and Saleem, asked for Naseem to be removed from the panel, stating as a justification that he was ‘disturbing’ the panel. Somebody even submitted a letter to the commission saying so. The majority of the committee however dismissed this as it was believed to be not enough of a reason,” Sheikh Rahman said.

“If a Head Magistrate goes on leave, or is unable to attend work, then the JSC can appoint someone in his stead. This used to be my responsibility. Then suddenly, this responsibility was taken away from me and handed over to Saleem and Abdulla Didi. The next thing I heard was that they had replaced Naseem with Mazeed,” Sheikh Rahman alleged.

“This is in direct breach of the law. They cannot appoint someone else to the post unless it becomes vacant.”

Hearing this response, Ali Waheed then alleged conflict of interest inside the commission.

“I think it is all becoming very clear now. The MDP’s competitor, Progressive Party of Maldives (PPM) prospective presidential candidate Abdulla Yameen’s close friend, and Deputy Speaker of Parliament Abdulla Nazim’s former lawyer Ahmed Saleem is on the JSC as [President] Waheed’s appointee. They are working from inside the JSC to eliminate the candidacy of Mohamed Nasheed,” MP Waheed alleged.

Vice Chair of the parliamentary committee MDP MP Ahmed Sameer stated that according to the Judicature Act, only the Supreme Court and the High Court preside over cases with panels of judges as a norm.

He explained that it is only under rare and special circumstances that magistrate courts are allowed to form panels, and that even in such cases it is the Head Magistrate of the particular court that is mandated to make a decision on the matter.

Sameer then proceeded to ask Sheikh Rahman if, in light of these laws, he believed it was legitimate for the JSC to exclude Kaafu Atoll Huraa Head Magistrate Moosa Naseem, who was in charge of the Hulhumale’ Court, from the bench for Nasheed’s trial. He further inquired if the member believed it was a politically motivated move on the side of the JSC.

“In case a court requests more magistrates, the JSC can appoint additional judges to a court. However, I am not aware that the commission is under any circumstances allowed to assign judges to particular cases,” Sheikh Rahman responded.

“As for politicisation, I wasn’t at the meeting where this particular decision was made, so it is difficult to comment on the motivation behind it. However, I did notice from the recording that once one member proposed this idea, there was immediate approval and no amount of discussion was further carried out.”

JSC role in running “illegitimate court”

Referring to the provisions in the Judicature Act, Sameer further asked Sheikh Rahman if he believed that the JSC had acted in breach of the constitution and laws to maintain the Hulhumale’ Magistrate Court, which must be automatically liquidated following the ratification of the said act.

“At the time, I too was lacking the necessary information and voted in favour of running the Hulhumale’ Court. The documents provided by the JSC did say that there was a magistrate court in Hulhumale’ even in 2007. On later review, this too turned out to be untrue,” Sheikh Rahman stated. “I cannot say what their objective was, but there certainly was a lot of misinformation.”

“It is the JSC who decided to run the Hulhumale’ Court despite the Judicature Act. The decision was made with four votes, including that of Ahmed Rasheed. This member’s wife serves as a magistrate in the Hulhumale’ Court. This matter was then submitted to a lower court for review. However, Adam Mohamed redirected the case to the Supreme Court. He then cast the deciding vote in the Supreme Court. Do you believe this proceeded in a fair and just manner?” Sameer asked of Sheikh Rahman.

“Adam Mohamed should not have been there. I have raised the matter even in the JSC. I have also spoken with the Chief Justice about this,” the member responded.

“He said there is nothing he can do about this, and said that it had been a decision of the Supreme Court bench. I insisted that regardless of who had made the decision, there is no way a wrong can be considered otherwise,” he continued.

“The Chief Justice then said that Adam Mohamed may perhaps recuse himself from the case. However, Adam did not do so either.”

JSC Chair Adam Mohamed has responded to the committee’s summons through an official letter, refusing to be answerable to the committee as the matter in hand referred to an “ongoing case”.

However, JSC Vice Chair Abdulla Didi and Speaker Shahid spoke against the Chair’s decision, stating the commission must be answerable to its oversight body at all times, adding that Adam Mohamed had made a unilateral decision without consulting the majority members of JSC.

Shahid left on a trip abroad despite having agreed to attend Thursday’s parliamentary committee meeting.

At the committee meeting, Sheikh Rahman also stated that he did not find Adam Mohamed’s justification acceptable.

“It is the JSC which has the powers to look into complaints about this bench in question. It is also the JSC that holds the powers to dismantle the bench should need be. Hence it makes no sense to say we cannot discuss the matter at any point in time,” he stated.

Sheikh Rahman also criticised Adam Mohamed’s decisionto not attend the committee summons without consulting other members of the commission.

He further said that he did not believe the serving members of the JSC were able fulfil their duties as per the pledges they had taken, alleging that the commission had become subject to political influences.

Sheikh Rahman made similar remarks in a live television appearance last week. He is the second JSC member to blow the whistle. The first, Aishath Velezinee, challenged the JSC’s “unconstitutional” reappointment of poorly educated and ethically dubious judges in August 2010. She was subsequently stabbed three times in the back in broad daylight on Chandeenee Magu, Male’s main tourist strip.

The JSC is currently comprised of Chair Supreme Court Judge Adam Mohamed, Vice Chair Criminal Court Judge Abdulla Mohamed, Speaker of Parliament Abdulla Shahid, High Court Judge Abdulla Hameed, MP and government aligned Jumhooree Party (JP) Leader, MP and Presidential Candidate Gasim Ibrahim, lawyer Ahmed Rasheed, Attorney General Azima Shakoor, Presidential Appointee Mohamed Saleem and Member appointed from the public Sheikh Shuaib Abdul Rahman.

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JSC Chair refuses to be answerable to parliamentary oversight committee

The Judicial Services Commission (JSC) has informed Speaker of Parliament Abdulla Shahid on Wednesday that it will not be held answerable to the Majlis’ Independent Commissions Oversight Committee.

As the country’s judicial watchdog, the JSC has been summoned by the commission concerning the appointment of judges in the trial against former President Mohamed Nasheed.

Nasheed is being tried over his controversial detention of Criminal Court Chief Judge Abdulla Mohamed during the final days of his presidency.

In response to a summons from the parliament committee, JSC Chair and Supreme Court Judge Adam Mohamed responded in a letter stating that the JSC refused to discuss any matters concerning the Hulhumale’ Magistrate Court, as it related to an ongoing case.

According to local media, the letter stated that the commission would not abide by the parliament summons, citing a Supreme Court ruling that nobody could influence an ongoing case. The letter justified refusing the commission’s request by noting that the Supreme Court ruling also stated any decisions made against the ruling must be considered void.

JSC is legally required to attend committee: Parliament Speaker

Meanwhile, Speaker of Parliament Abdulla Shahid, who is also a member of the JSC, has responded to the letter stating that the JSC is legally required to attend and be answerable to its oversight committee.

In the letter, Shahid quoted Article 99 of the Constitution of the Maldives and Article 69 of the Parliament Regulations, adding that as per the constitution, it is parliament which has legal powers to decide on matters concerning independent institutions of the state.

“The Judicial Services Commission, established under Act 10/2008, is required under that law and the Constitution of the Maldives to be answerable to the parliament. Hence, it is mandated to attend the parliament and the relevant permanent parliamentary committee, and to be answerable and accountable for any work that they are doing, or have done,” local media quoted the letter as reading.

Shahid added that as he is incidentally also a member of the JSC, he held no reluctance to attend the parliament committee, even if in a personal capacity, to be held answerable for decisions made by the JSC.

Commission must be answerable to parliament: JSC Vice Chair

JSC Vice Chair, Criminal Court Judge Abdulla Didi, has meanwhile spoken out against the commission’s official response to parliament, stating that its refusal to attend the Independent Commissions Oversight Committee was not a decision of the majority members of the commission.

“From what I know, only three commission members attended the meeting where this decision was made. That doesn’t even meet the minimum required quorum to make a decision,” Didi stated.

“I, myself, could not attend the meeting because of the extremely short notice we were given,” he continued.

“All and any member of the commission must be accountable and answerable to the oversight committee at any time. No one can refuse to do so. As a member of the JSC, I am perfectly willing to attend the parliament meeting and answer to any questions they put to us,” Didi stated.

JSC members summoned

Following the JSC’s official refusal to attend, and the responses in conflict to that decision from the commission’s Vice Chair Abdullla Didi and Speaker of Parliament Abdulla Shahid, the parliament’s Independent Institutions Oversight Committee has once again summoned individual JSC members to a meeting scheduled for Thursday night.

JSC members summoned to the meeting are Vice Chair Abdulla Didi, Speaker Abdulla Shahid and member appointed from the public Sheikh Shuaib Abdul Rahman.

Sheikh Rahman on Wednesday publicly aired concerns about the politicisation of the commission, alleging that the commission had ‘handpicked’ magistrates for Nasheed’s trial and openly planned to eliminate him from the September 7 elections.

JSC has used the same justification to refuse to answer the parliamentary oversight committee in November 2012.

The oversight committee has previously determined that the JSC’s creation of the Hulhumale Court – in which Nasheed is being tried – is illegitimate. However this was overruled four to three by the Supreme Court bench, on request of the JSC. Supreme Court Judge Adam Mohamed – the JSC chair – threw the casting vote.

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“JSC politicised, trying to eliminate Nasheed and MDP from elections”: JSC Member Shuaib

Judicial Services Commission (JSC) member Sheikh Shuaib Abdul Rahman has spoken out against the judicial watchdog body, declaring it as politicised and attempting to eliminate former President Mohamed Nasheed from the September 7 elections.

The JSC has not only created the Hulhumale’ Magistrate Court in which the former President is being tried, but has appointed the three-member panel of judges overhearing the case. The JSC’s membership includes several of Nasheed’s direct political rivals, including Jumhoree Party leader and resort tycoon Gasim Ibrahim, one of Nasheed’s rival presidential candidates.

Sheikh Rahman, the member of the commission appointed by the public, said political influence of the commission had heightened after Gasim had been appointed.

He is the second JSC member to blow the whistle on the Commission, echoing the concerns of JSC member Aisthath Velezinee who was stabbed in the street in early 2011.

Sheikh Rahman made the remarks during a live appearance on local TV channel Raajje TV, just over a week after UN Special Rapporteur on the Independence of Judges and Lawyers Gabriela Knaul also aired concerns over the JSC in a statement following a fact finding mission to the Maldives.

Speaking on the show, Sheikh Rahman said the JSC had openly discussed their intent to ensure the elimination of the Maldivian Democratic Party and presidential candidate former President Mohamed Nasheed from the upcoming elections.

Sheikh Rahman alleged that Chair of the Commission, Supreme Court Judge Adam Mohamed, had abused his post and powers as the chair to try and eliminate Nasheed from contesting the elections, and alleged that Adam Mohamed had “used the commission as a political tool”.

“The politics of the majority control the commission, hence the rule of law, due process and due diligence do not exist in the JSC,” Sheikh Rahman stated. “The commission has no amount of respect for constitutional principles.”

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

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

JSC Chair abuses power to continue running unlawful Hulhumale’ Court

Sheikh Rahman further revealed that the JSC had “handpicked” magistrates to preside over the case against Nasheed, for his detention of Criminal Court Chief Judge Abdulla Mohamed.

He said that the JSC’s intention in assigning the case at the Hulhumale’ Magistrate Court to the three specific magistrates was for the explicitly stated purpose of “sentencing Nasheed”.

According to Sheikh Rahman, the Hulhumale’ Magistrate Court was initially established through misinformation and manipulation of the commission on the part of JSC Chair Adam Mohamed.

“The Hulhumale’ Magistrate Court is actually abolished automatically with the concept of judicial districts coming into effect upon the ratification of Judicature Act on 10 August 2010. And yet, they continue to run the court,” Sheikh Rahman stated.

He went on to say that as the constitution defines Hulhumale’ and Villingili as parts of the capital Male’ city, there was no authorisation to set up separate magistrate courts on these islands.

Sheikh Rahman alleged that despite these facts, JSC Chair Adam Mohamed had invoked the theory that Hulhumale’ and Villingili were separate islands and were therefore qualified to have their own magistrate courts.

Appendix 2 of the Constitution of Maldives which defines administrative divisions, states that Male’ is inclusive of Villin’gili and Hulhumale’.

Sheikh Rahman revealed that he had, as a member of the JSC, submitted a complaint to the commission to review the decision regarding the court on the grounds that it was unlawfully established. He stated that his attempts were in vain as Chair Adam Mohamed had once again abused his powers and refused to schedule the matter during the commission sessions.

Sheikh Rahman stated that he had made multiple requests for a decision on the Hulhumale’ Court, all of which was rejected by the chair. He confirmed that he had not received any written or official responses to the motions he submitted on the matter.

“Another false justification that Adam Mohamed used is that the matter cannot be discussed in the commission as it referred to an ‘ongoing case’,” he said.

UN Special Rapporteur Gabriella Knaul also criticised the ‘arbitrary appointment’ of judges to Nasheed’s case. She also stated that the Hulhumale’ Court did not have the constitutional mandate to oversee the specific case.

Former JSC member Velezinee also repeated her concerns about the politicisation of the JSC at a recent press conference held to share her remarks on the preliminary findings of UN Special Rapporteur Gabriela Knaul.

Incumbent JSC Member Gasim Ibrahim, meanwhile called Knaul’s findings ‘lies and jokes’ at a JP party rally.

The Hulhumale’ Court meanwhile on Wednesday refused to delay Nasheed’s trial until after the elections, despite the prosecution stating they had no objection to such a decision.

Gasim Ibrahim was not responding to calls at time of press.

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“Illegitimate address by coup president warrants no official response”: MDP PG Leader Ibu Solih

Maldivian Democratic Party (MDP) Parliament Group Leader Ibrahim Mohamed Solih (Ibu Solih) has stated that the party will not be responding to the presidential address delivered by President Mohamed Waheed Hassan during Monday’s parliament opening ceremony.

Solih said the statement held no legitimacy as Waheed himself was an illegally installed president, and hence warranted no official response.

“Waheed is in his position through a coup d’etat. A year having passed since does not change that fact. That is what we demonstrated in parliament today,” Solih told local media.

“We are only obliged to respond to a presidential address given by a legitimate leader.”

If Waheed were to be a legal president, then he would be representing MDP. Were it so, then MDP would not need to respond to the address, and the task would be for some other party. So, in either of those instances, MDP has no obligation to respond to Waheed’s statement,” he continued.

MDP also refused to respond to Waheed’s address in 2012.

Parliament regulations state that the majority and minority parties in the parliament besides the one that the President represents must issue a response to the presidential address within a period of 14 days after it being issued.

Solih furthermore expressed concern over some actions during Monday’s parliamentary session.

“While the session was in a recess, an MNDF officer attacked one of our MPs. I saw this happen with my own eyes. I have already lodged a complaint about this with the parliament speaker. The security officer was removed from the parliament halls at the time. Incidentally, we have also identified him,” Solih alleged.

Solih also alleged that the party’s objective during this parliamentary year was to pass many of the important bills that have been pending for long periods of time.

“I believe this year we will see a lot of productive work being completed here. One of these pending bills is the Penal Code. Hopefully, this bill will be passed as law within the month,” Solih stated.

Presidential Address in six hours, six attempts

President Mohamed Waheed Hassan delivered the presidential address in parliament on Monday through six separate attempts made through nearly six hours.

The Maldivian Democratic Party (MDP) MPs staged protests inside the parliament chambers while simultaneous protests by party supporters carried on outside parliament, with thousands of supporters chanting “coup president resign now” and “we want an interim government now”.

While normal procedure during previous instances where a president speaks in a parliament is to fly the presidential flag alongside the national flag and the parliament flag, no such flag was hoisted during Monday’s session.

Waheed was prevented from entering the main parliament hall twice, and he proceeded to deliver the presidential address in four separate installments. Local media reported that Waheed had omitted much of the 17 page speech that had been distributed to media ahead of the parliament meeting.

Three of these times, he was led out of the hall by Parliament Speaker Abdulla Shahid due to disruptions caused by MDP MPs who were echoing the chants of “baaghee” [traitor] inside.

After Waheed concluded his presidential address, MDP MPs joined the street protests which were being carried out on Sosun Magu.

Former President and MDP Presidential Mohamed Nasheed joined to greet the MPs as they entered the gathering to the sound of loud cheering from party supporters.

Before the protest was concluded, MP Ali Waheed addressed the crowd, stating that the party would continue protesting against what he alleged is a “coup government.”

“What we have witnessed is the beginning of the end of Waheed’s coup administration,” MP Waheed told the gathered crowds.

“Just like the old dictator Maumoon had to retreat into his cave, Waheed will have the same fate,” he said.

“The events we saw in Majlis has proven a lot of things. The fact that members from all the other parties stayed quiet and did not attempt to intervene in our protests say a lot. They have said ‘no to Waheed’ in the loudest form that they can while they are still part of this current government,” Ali Waheed said.

“Around 30 of our MPs managed to hold Waheed back from speaking in parliament for over five hours despite him coming surrounded by police and army. There is hope that we will be victorious,” Ali Waheed said in conclusion of his address before the party marched off, bringing an end to Monday’s protests.

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Former JSC Member calls on Parliament to review JSC’s 2010 appointment of judges

Former President’s Appointee to the Judicial Services Commission (JSC) Aishath Velezinee has called on parliament to review the appointment of judges and to begin to make the JSC accountable.

Speaking at a press briefing on Sunday, Velezinee pointed out that while a week has passed since UN Special Rapporteur on the independence of judges and lawyers Gabriela Knaul had released her preliminary findings, the JSC, Supreme Court, Attorney General, the Law Community and the Judges’ Community had failed to make any official comments on the findings.

She added that while it was important for all relevant actors to reflect and act on the recommendations, she especially hoped that the parliament would review the concerns raised by Knaul upon the beginning of its new session.

“Most serious case of corruption yet”

“Article 13 of the Act Against Corruption states that it a very serious form of corruption to obstruct citizens from receiving any benefits or good,” Velezinee said. “what is a more serious case of corruption than cheating citizens out an independent judiciary?”

Velezinee stated that since the complaints on the matter she had filed with the parliament in 2010 had never been examined, dueto political reasons, she had then submitted the case to the Anti Corruption Commission (ACC).

“In light of the background information I had, I saw a coup d’etat being rolled out when the then opposition set to the streets to ‘find Ablo Ghazi’ [Criminal Court Chief Judge Abdulla Mohamed] in January 2012,” Velezinee said.

“Therefore, I wrote to the ACC about these observations and enquired how far the case I had submitted had proceeded.”

“I got a response on February 6, 2012. The ACC said they had sent the details to the Independent Institutions Oversight Committee of the parliament on September 9, 2010,” she continued.

“Why then was the chair of this committee, independent member of parliament Mohamed Nasheed seen among the opposition group on the streets looking for Judge Abdulla Mohamed in January last year? Until the case at the committee is properly investigated there is no Judge Abdulla. What I see is Abdulla Mohamed of Bahaaruge from the island of Hulhudhufaaru just passing himself off as chief judge of the Criminal Court.”

“If we are to refer to the ‘rule of law’ and ‘due process’ that Home Minister Mohamed Jameel Ahmed keeps referring to, then no judges were appointed during my time serving in the JSC,” Velezinee stated.

Parliamentary initiative

“I have been continuously saying that numerous criminal offences have been committed within the JSC. The allegations I make against them are not matters that can be taken lightly. Hence, it cannot be at all acceptable to let the JSC continue with their duties without the parliament’s Independent Oversight Committee investigating these claims,” stated the former JSC member.

“One action that can be taken by the parliament even immediately is to enforce transparency in JSC proceedings and make their sessions accessible to the public,” she said.

“If the JSC meetings are seen by the public, no one else will need to run around like I did with concerns about the commission. Citizens will witness proceedings themselves. This in turn would ensure they do not get any opportunities to do wrong in there,” Velezinee recommended.

JSC politicised and ineffective

“Many of the recommendations shared by Knaul are matters which the JSC, initially constituted after the ratification of the new constitution in 2008, was mandated to do. Incidentally, I was then a member of this commission,” Velezinee said.

Velezinee stated that she had put in a lot of effort during her time at the JSC to align the commission’s work to the mandate it was constitutionally given, but said she had failed to achieve her goal.

“The JSC failed to establish a free and independent judiciary as detailed in our constitution. You must have seen the oath taking ceremony held on 4th August 2010 of the existing judges who had not been screened as per the due process. As a result of this failure, we have been hearing since that day, in local media and in various international forums, comments about how there is no justice in the Maldives, how judges lack freedom, and how the judiciary is politicised,” Velezinee stated.

While Knaul recommended that the JSC be reconstituted to free it from the current political influences which inhibited it from fulfilling its constitutional duties, Velezinee said she felt the failure of the commission was more a result of the members’ refusal to abide by the disciplinary guidelines than the nature of their political backgrounds.

“They [JSC members] always say that the constitution provided us with two years to build up the judiciary. But that is an outright distortion of what really is in our laws,” Velezinee stated.

“The constitution gave us two years to lay the foundation. It, however, allows us a period of 15 years in which we are to build an independent judiciary to an internationally acceptable standard. Nevertheless, even this article has been discarded without fulfillment by the JSC.”

Stating that the International Committee of Jurists (ICJ) had made similar comments in 2010, Velezinee said that Knaul’s findings indicated that the problems which had existed then had continued to elevate.

Velezinee alleged that the public were left unaware of the seriousness of the problems in the judiciary due to the highly politicised dialogue around the issues in the judiciary that were being put forth by various politicians.

“Article 285 is the foundation on which the constitution of the Maldives is based on. I sincerely hope that the parliament members will take a step back and review the events that took place when this article was breached in 2010 – matters that no state body previously paid any attention to – and that the parliament will this time around ensure that the people of the Maldives is guaranteed an independent judiciary free from any form of influence, and a proper democratic system,” Velezinee continued.

Velezinee furthermore criticised local media’s coverage of Knaul’s remarks, stating that some articles had sought to make implied political statements by picking out a single concept that Knaul had referred to, instead of focusing on the main issues.

Asked for a response to Jumhooree Party MP, leader, presidential candidate and member of JSC Gasim Ibrahim’s remarks about Knaul’s findings being “lies, jokes”, the former member dismissed these remarks as irresponsible.

“A man of Gasim’s status should not be making comments like this. Being an MP, a JSC member and a presidential candidate, it could prove dangerous to him to make irresponsible comments of this nature,” she said.

Unlawfully appointed judges

“Since there are so many contentious issues around the appointment of judges, we must keep a keen eye on events that unfold in the next couple of months,” Velezinee stated.

“We are now in the midst of some very strong political battles. I, for one, suspect that the current judiciary may abuse its powers to orchestrate political plots planned to interfere in the independence and fairness of the approaching presidential elections, and use the Supreme Court to issue rulings in favour of a particular side,” Velezinee predicted.

Adding that many citizens held similar doubts about the judiciary, Velezinee called on political leaders to set aside differences, engage in dialogue with international experts to find a lawful means to carry on all proceedings related to the elections through a system other than the existing Supreme Court.

“We must find a way to have inclusive presidential elections here, one that will be widely accepted by all. Perhaps one way might be to consult with international experts and then set up a judicial bench. This bench can be tasked with presiding over all cases relevant to the elections,” Velezinee said.

“Yes, this is an extraordinary idea. Then again, no other country has seen anything like Article 285. No other country has had the need to completely overhaul a judiciary,” she stated.

Velezinee served as President’s Appointee to the JSC from April 2009 to May 2011. She has been vocal about the problems in the commission and the judiciary, and in early 2011, was stabbed three times in broad daylight.

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15 year-old rape victim deserves flogging for separate crime of fornication: Adhaalath Party

Additional reporting by JJ Robinson

The religious Adhaalath Party (AP) has declared that the 15 year-old rape victim who was recently sentenced to 100 lashes and eight months of house arrest “deserves the punishment”, as this is the penalty for fornication under Islamic Sharia.

The party, members of which largely dominate the Maldives’ Ministry of Islamic Affairs, stated that the sentence of flogging had not been passed against the for being sexually abused by her stepfather, but rather for the consensual sex to which she had confessed to having on another occasion.

“The purpose of penalties like these in Islamic Sharia is to maintain order in society and to save it from sinful acts. It is not at all an act of violence. We must turn a deaf ear to the international organisations which are calling to abolish these penalties, labeling them degrading and inhumane acts or torture,” the statement read.

“No one has the right to criticise any penalties specified in Islam,” the party added.

Quoting verses from the Quran, the statement said that no citizen should be allowed to express ideas and opinions about a verdict made in accordance with the religion in a court of law in a 100 percent Muslim country.

The Adhaalath Party further cautioned that criticising issues like this would “encourage enemies of Islam, create confusion among the general public and open up opportunities for people who aim to stop the practice of similar penalties commanded in Islam.”

“Furthermore, Allah has decreed that expressing disapproval of issues such as this contradicts with faith in Islam,” the statement continued, quoting more verses from the Quran.

“Allah has also commanded that we show no kindness when implementing these penalties.”

The party also stated that it was saddened by the physical and psychological abuse the girl had suffered at the hands of her parents, calling the state authorities to ensure they were given the punishments they were due as detailed in Islamic Sharia.

“If such sinful activities are to become this common, the society will break down and we may become deserving of divine wrath,” the Adhaalath Party stated.

Flogging amounts to degrading punishment or torture: UN

United Nations has expressed concern over the case of the 15 year-old being sentenced to flogging.

“The child is allegedly a victim of long-standing sexual abuse. Under international legal human rights obligations of Maldives, corporal punishment, including flogging, amounts to cruel, inhuman or degrading punishment or even to torture,” read a statement issued by the UN in the Maldives.

“ The approach to sexual abuse which has been adopted in numerous international human rights frameworks is that governments should implement prevention, prosecution of perpetrators, and protection measures to ensure that sexual abuse does not occur. Where it has occurred, governments should put in place measures for rescue, rehabilitation, and reintegration of victims.”

US “deeply disturbed”

The US Embassy in Colombo said it was “deeply disturbed” by the recent ruling, noting that the minor was “also a victim of rape”.

“We call upon the Maldivian government to recognise that she must be protected rather than punished by authorities. We welcome President Waheed’s statement that his government “will push for a review” of the decision. We urge the Maldivian judiciary to immediately drop all charges against the girl and for the Majlis to enact legislation that protects women and minors who have suffered sexual abuse.

“Promoting gender equality and advancing the status of all women and girls around the world remains one of the greatest unmet challenges of our time, and one that is vital in all countries to ensure full democratic rights, regardless of culture,” the Embassy stated.

President “saddened”

President Mohamed Waheed, who has previously insisted on the executive’s inability to interfere in judicial matters, stated on his official Twitter account yesterday: “I am saddened by the sentence of flogging handed to a minor. Govt will push for review of this position.”

The government is currently pushing for re-election to the UN Human Rights Council and launched its campaign in Geneva today (February 28), spearheaded by State Minister of Foreign Affairs Dunya Maumoon, daughter of former 30 year autocratic ruler Maumoon Abdul Gayoom.

In a statement today, the Foreign Ministry said the Maldives had prioritised its term in the Council “by focusing on women and children’s rights and the rights of persons with disability, had been a vocal campaigner for the prevention of torture, and brought the issue of the right of all to live in a safe and clean environment to the forefront of the Council’s debate.”

In a second statement later today, the Foreign Ministry expressed “deep concern by the prosecution and the Juvenile Court’s sentence to flog a 15 year-old girl on the charges of pre-marital sex.”

“Though the flogging will be deferred until the girl turns 18, the government believes she is the victim of sexual abuse and should be treated as such by the state and the society and therefore, her rights should be fully protected. The Government is of the view that the case merits appeal. The girl is under state care and the government will facilitate and supervise her appeal of the case, via the girl’s lawyer, to ensure that justice is done and her rights are protected,” the Ministry stated.

“The Juvenile Court’s verdict has brought home the critical and severe need to review existing mechanisms, especially legal framework, available for protecting the rights of the children in the Maldives. The government calls on all stakeholders to view cases of child abuse and child-sexual abuse through a human rights lens and to base each case on the best interest of the child.

“In view of the urgent attention required for protecting the rights of the children, the government has established a Committee to review the existing child protection mechanisms, particularly the legal mechanism, in view of the universally accepted norms and principles, and recommend to the state areas that require urgent changes,” the Ministry said.

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UN Special Rapporteur criticises “arbitrary” appointment of judges in Nasheed trial

The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, has criticised the appointment of judges presiding over the case against former President Mohamed Nasheed, for his controversial arrest of Criminal Court Chief Judge Abdulla Mohamed in 2011.

“Being totally technical, it seems to me that the set-up, the appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws,” Knaul said, while responding to questions from media after delivering her statement on Sunday.

Nasheed is currently facing trial at the Hulhumale’ Magistrate Court, the legality of which has been much contested in recent weeks.

The Special Rapporteur commented on the matter of Nasheed’s trial being conducted by the Hulhumale’ Magistrate Court.

“According to the law, the constitutional court which has jurisdiction to hear this case is the Criminal Court. While I understand the concerns of the Prosecutor General’s (PG) Office regarding the possible eventual conflict of interest since Judge Abdulla sits in the court, it is not for the prosecutor to decide if the judge will be impartial,” Knaul stated.

“It is the duty of the judge or judges to recuse themselves when they feel they would not be impartial in presiding over any case,” Knaul said.

Speaking about the case of the detention itself, Knaul stated that judging by the briefings received in her meetings in the country, the detention seems to have taken place outside the parameters laid down by the constitution.

“Regardless of the merits of the allegations of corruption or misconduct on the judge, I do believe that proceedings against judges should also be fair and impartial,” Knaul said.

“I think in disciplinary proceedings, especially disciplinary hearings, a judge should have the right to a fair trial. And all decisions taken should be subject to an independent review.”

In presenting her preliminary findings after the eight day fact-finding mission, Knaul stated that she found the concept of independence of the judiciary has been “misconstrued and misinterpreted” by all actors, including the judiciary itself.

Knaul also spoke about the Judicial Services Commission (JSC) – the body mandated with appointment, transfer and removal of judges – stating that the commission is politicised, subject to external influence, and hence unable to fulfill its mandate effectively.

Knaul also highlighted the lack of transparency in the assignment of cases and the constitution of benches in all courts, including the Supreme Court.

“When cases are assigned in a subjective manner, the system becomes much more vulnerable to manipulation, corruption, and external pressure. Information on the assignment of cases should be clearly available to the public in order to counter suspicions of malpractice and corruption,” she observed.

Knaul asserted again that the composition of the JSC must be revised. She has written in her statement that “an appointment body acting independently from both the executive and the legislative branches of government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice.”

Responding to a question posed by a journalist asking if the rapporteur believed it wise for such a ‘high-profile’ case to be delayed, Knaul said that the judiciary should be effective for everyone who seeks justice.

“According to the constitution, the judiciary should not choose cases based on X,Y, or Z person. It should be equal in applying or delivering justice. It is necessary to have an objective criteria for selecting cases and to assign cases in court. If you apply these processes, you make the system work in the least subjective manner possible,” Knaul stated.

Government responds

Attorney General Azima Shakoor received the preliminary findings from Rapporteur Gabriela Knaul on behalf of the government of the Maldives.

“In the discussion the Government also noted the responsibility of international partners in establishing a conducive environment where institutions of the the State, particularly the judiciary, are respected by the public,” an official statement on the Ministry of Foreign Affairs website read.

The statement did not include any details of whether or not the government planned to take any action in response to the rapporteur’s findings and comments on the judicial system.

When the question was asked of President’s Office Spokesperson Masood Imad, he referred Minivan News to the Attorney General, saying “she is probably a more relevant person to talk about this matter.”

Attorney General Azima Shakoor said she was unable to speak on the subject once Minivan News posed the question to her.

The government also did not offer any response to the additional comments Knauls made regarding Nasheed’s trial after delivering her written statement.

MDP claims commitment to judicial reform

Responding to the Special Rapporteur’s findings, the Maldivian Democratic Party (MDP) has said it is ready to work with other political parties to immediately begin work on urgent reforms to the judiciary and the judicial accountability mechanisms.

“Establishing a truly independent, professional and widely respected judiciary is central to ending the political turmoil in the Maldives and to consolidating democracy in our country. We have always accepted this. Yet Gayoom, Waheed and others who have benefited and continue to benefit from our current corrupt and biased judiciary never have,” MDP’s international spokesperson, Hamid Abdul Ghafoor, said in a statement.

“Today, as we digest yet another report by an eminent international body that clearly says our judiciary is not fit for purpose, it is time for all political parties to put aside their differences and work together to urgently reform our justice sector. This means immediately halting the political trials launched against President Nasheed and the hundreds of pro-democracy activists currently facing ‘terrorism’ and other trumped-up charges. It also means establishing a caretaker government to oversee judicial reform and to prepare the ground for genuinely free and fair elections,” Ghafoor said.

The party’s statement also noted Knaul’s concern over the system of appointment of judges, stating “the Special Rapporteur expressed support for the concerns repeatedly raised by Aishath Velezinee, a former member of the JSC and whistleblower (who, in 2011, was stabbed and almost killed because of her outspoken comments), who said that the very starting point of judicial independence – the post 2008 Constitution system of screening and reappointing judges – was marred by malpractice and corruption.”

Referring to the rapporteur’s comments on selectivity in case assignment, prioritisation and bench constitution, the MDP alleged it had led to “hundreds of important cases against allies of former President Gayoom and members of the current government being kicked into the legal ‘long grass’, while the Prosecutor-General, the judicial administration authorities and the courts enthusiastically pursue political trials against President Nasheed and other MDP members.”

MDP echoed Special Rapporteur Knaul in stating that these deep-rooted problems had led to the public having an alarming lack of trust in the judiciary.

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Judicial Services Commission subject to “external influence”: UN Special Rapporteur

The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, has raised concerns over the politicisation of the Judicial Services Commission (JSC).

As part of a wider review of the Maldives justice system, Knaul claimed that the JSC – mandated with the appointment, transfer and removal of judges – was unable to perform its constitutional duty adequately in its current form.

Her comment was among a number of preliminary observations on the Maldives’ judiciary and wider legal ecosystem, following an eight day fact-finding mission concluded today.

Knaul is an independent expert appointed to deliver recommendations on potential areas of reform to the Maldives’ legal system, at the 23rd session of the UN Human Rights Council in May, 2013.

As well as recommendations to address what she said were minimal levels of public “trust” in the nation’s judicial system, Knaul also addressed matters such as the trial of former President Mohamed Nasheed.

Nasheed is currently facing trial for his detention of Chief Judge of Criminal Court last year, charges he claims are politically motivated to prevent him from contesting presidential elections later this year.

Knaul maintained that the former president, like every other Maldivian citizen, should be guaranteed a free and independent trial.

The three branches of the state should be equal in their importance, with no branch exercising power over any other, Knaul said.

A “power struggle” ensuing from a “lack of understanding in the delimitation of the respective competences” of the executive, legislative and judicial branches of the state had “serious implications on the effective realisation of the rule of law in the Maldives.”

Politics in the JSC

Knaul’s key concerns included the politicisation of the JSC.

The JSC created the Hulhumale Magistrate Court in which former President Mohamed Nasheed is currently being tried, and appointed the three-member panel of judges overseeing the case. JSC head Adam Mohamed – also a Supreme Court judge – cast the deciding vote in a Supreme Court ruling on the court’s legitimacy.

“I have heard from numerous sources that the current composition of the JSC is inadequate and politicised. Because of this politicisation, the Commission has been subjected to all sorts of external influence and consequently has been unable to function properly,” Knaul stated.

Knaul said she believed it best for such a body to be composed of retired or sitting judges. She added that it may be advisable for some representation of the legal profession or academics to be included.

However, she maintained that no political representation at all should be allowed in a commission such as the JSC.

“I believe that an appointment body acting independently from both the executive and legislative branches of government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice,” Knaul added.

The JSC is currently comprised of Supreme Court Judge Adam Mohamed, Speaker of Parliament Abdulla Shahid, High Court Judge Abdulla Hameed, Lower Court Judge Abdulla Didi and MP and government-aligned Jumhooree Party (JP) Leader and presidential candidate Gasim Ibrahim.

Also on the commission is the member appointed from the public, Sheikh Shuaib Abdul Rahman, President’s Appointee Mohamed Saleem, lawyer Ahmed Rasheed and Attorney General Aishath Azima Shukoor.

Judicial independence

Knaul stated that upon conclusion of her mission meetings, she had found that the concept of independence of the judiciary has been “misconstrued and misinterpreted” by all actors, including the judiciary itself, in the Maldives.

“The requirement of independence and impartiality does not aim at benefiting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial,” Knaul stated, while emphasising the important role of integrity and accountability in judicial independence, and hence its role in the implementation of the rule of law.

Stating that it is vital to establish mechanisms of accountability for judges, prosecutors and court staff, Knaul said: “Such mechanisms must guarantee that the investigation of any actor in the judicial system safeguards the person’s right to a fair hearing. Investigations should be based on objective criteria, the process should respect the basic principles of a fair trial and an independent review of all decisions should be available.”

Transparency and accountability

“When selection criteria [of judges] used by such a body [as the JSC] are objective, clear, based on merit, transparent and well publicised, public understanding of the process and the basis for the appointment of judges increases, and the perception of unfair selection of appointments can be avoided,” Knaul said.

Knaul also spoke of the lack of transparency in the assignment of cases, the constitution of benches in all courts, including the Supreme Court.

Knaul stated that while transparency is public administration is an obligatory requirement in a democracy, transparency remains a challenge for the Maldivian judiciary.

Furthermore, Knaul highlighted the absence of some fundamental legislation – including the Penal Code, Criminal Procedure Code and the Evidence Act – in the Maldives, adding that this posed huge challenges to upholding the rule of law.

Empowerment of the law community

Knaul spoke of the importance of establishing an independent self-regulating bar association, and of ensuring lawyers remain free from external pressures and influence.

The special rapporteur commented on the practice in the Maldives of the attorney general having the powers of issuing legal practice licenses and of taking disciplinary action against practicing lawyers, terming it “contrary to the basic principles of the independence of lawyers,” and adding that such powers should not rest with the executive branch of the state.

“I further deem that the enforcement of compulsory registration of lawyers to appear before the courts by the courts themselves is unacceptable,” Knaul continued.

“The regulation of disciplinary action against lawyers fall outside the prerogative of the judiciary and contradicts the principle of independence of the legal profession.”

The rapporteur also commented on recent cases of lawyers being charged with ‘contempt of court’ for voicing criticisms, terming this “threats to muzzle the freedom of expression of lawyers.”

“Lawyers, like other citizens, are entitled to freedom of expression, and in particular they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the protection and promotion of human rights, without suffering professional restrictions.”

Other issues that Knaul highlighted included the relatively low number of sitting female judges, the lack of education and training possibilities for persons in the judicial sector, and the lack of trust the general public has in the country’s judiciary.

“I was struck to hear how little trust the public has in the justice system in the Maldives. Justice must not merely be done but must also be seen to be done, and judges must not only be actually impartial they have to appear impartial to the public. The mind-sets of the public and the authorities, including judicial authorities, have not evolved as quickly as the changes were made to the Constitution and the laws of the Maldives. This created a disconnection between the promises of the 2008 Constitution and people’s expectations, and the reality of how justice is delivered and the separation of powers implemented,” she stated.

Knaul is an independent expert who is appointed by the UN Human Rights Council (UNHRC) whose position is pro bono. She reports to, and advises, the UNHRC and the UN General Assembly.

Knaul’s statement in full:

“Members of the press, ladies and gentlemen,
I am very happy to be here with you today and share my preliminary observations at the end of my 8-day official mission to the Republic of Maldives.
I should underline from the outset that today I will confine myself to a few remarks. These issues, along with others, will be explored in a more detailed manner in the written report that I will prepare and in which I will also formulate recommendations. I will present this report at the 23^rd session of the United Nations Human Rights Council at the end of May in Geneva.
I wish to stress that I am an independent expert who reports to, and advises, the UN Human Rights Council and the UN General Assembly. Although appointed by the Human Rights Council, I am not employed by the United Nations and the position I hold is pro bono. As an independent expert, I exercise my professional assessment and expertise and report directly to the Member States of the United Nations.
Let me begin by warmly thanking the Government of the Maldives for inviting me to conduct this official mission and for facilitating a rich and interesting programme of meetings and visits in Malé and Addu city while respecting the independence of my mandate. I also wish to note that the previous administration and President had also extended an invitation for me to conduct an official visit in 2012, which could not be realized for a combination of factors, including my own availability.
The purpose of this mission was to understand, in the spirit of co-operation and constructive dialogue, the situation regarding different aspects related to my mandate, and in particular how the Maldives endeavours to ensure the independence of the judiciary, prosecutors and lawyers, their protection, as well as their accountability, and the obstacles encountered which may impede actors of the judicial system to discharge their functions effectively, adequately and appropriately and deliver justice.
During my visit, I had the privilege to meet the President, His Excellency Dr Mohamed Waheed, the Minister of Foreign Affairs, His Excellency Dr Abdul Samad Abdullah, as well as other Government officials, including the attorney general. I also held meetings with the chief justice, the Supreme Court, a number of judges from superior and magistrates’ courts, the prosecutor general, members of the legal profession, members of the People’s Majlis, as well as representatives from various political parties, non-governmental organizations and United Nations agencies. I would like to take this opportunity to thank all those who have dedicated some of their time to present their informed opinions and perspectives to me.
I would like to commend the Maldives’ efforts in establishing a democracy based on the rule of law and the principle of separation of powers. The principle of separation of powers, which is enshrined in the Constitution of 2008, is the bedrock upon which the requirements of judicial independence and impartiality are founded and represents an essential requirement of the proper administration of justice. Understanding of, and respect for, this principle is a sine qua non for a democratic State.
I have heard of positive changes carried out in the last years, which have improved the independence of the judiciary. Transitions, however, always come with challenges, and very often more challenges are encountered along the way. There is always room for improvement. In the Maldives, many challenges to the independence of judges, prosecutors, court officials and lawyers remain, and these directly affect the delivery of justice. Those challenges should be assessed and addressed as a matter of urgency within the parameters laid down by the Constitution and international human rights standards. In the longer-term, the Maldivian people should consider reforms to the Constitution, with the view to improving the tools and measures at the disposal of the State to ensure the independence of the judiciary and the delivery of fair and impartial justice.
Measures to address challenges will only be effective and bring consolidated changes if de-politicized dialogue is prioritized in the Maldives. Measures will have to be inclusive of different views and opinions and be generated through broad consensus. Otherwise, implementation will not be possible. Both short-term and long-term measures have to be combined in order to consolidate the democratic transition and strengthen all the institutions of the State. The Maldives have to continue in its efforts to move forward.
All branches of the State are equally important and none should be above the other. All institutions have a role to play and responsibilities regarding the consolidation of democracy. I am under the impression that the Parliament, the Government and the judiciary, created in the Constitution of 2008, have been testing the limits of their competences, sometimes encroaching on principles established in the Constitution. The lack of understanding in the delimitation of the respective competences and the ensuing power struggle that I have witnessed during my mission have serious implications on the effective realization of the rule of law in the Maldives.
Positive as well as negative recent developments should be recognized and everyone should take its responsibilities and avoid blaming the other branch, the other institution or the other political party for the difficulties faced by the Maldives. Dialogue, respect for the Constitution, transparency and access to information, and accountability are key to a better and more coherent functioning of the institutions of the State, which will serve the people of the Maldives.
I further believe that the concept of independence of the judiciary has been misconstrued and misinterpreted in the Maldives, including among judicial actors. The requirement of independence and impartiality does not aim at benefitting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial. Integrity and accountability are therefore essential elements of judicial independence and are intrinsically linked to the implementation of the rule of law.
In this context the establishment of mechanisms of accountability for judges, prosecutors and court staff is imperative. Such mechanisms must guarantee that the investigation of any actor in the judicial system safeguards the person’s right to a fair hearing. Investigations should be based on objective criteria, the process should respect the basic principles of a fair trial and an independent review of all decisions should be available.
Serious concerns were expressed to me regarding the system of appointment of judges. I believe that an appointment body acting independently from both the executive and legislative branches of Government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice. When selection criteria used by such a body are objective, clear, based on merit, transparent and well-publicized, public understanding of the process and the basis for the appointment of judges increases, and the perception of unfair selection or appointments can be avoided.
I have heard from numerous sources that the current composition of the Judicial Services Commission, the body in charge of the appointment, transfer, and removal of judges, is inadequate and politicized. Because of this politicization the Commission has been subjected to all sorts of external influence and consequently has been unable to function properly. While I believe that usually such a body should preferably be composed entirely of judges, retired or sitting, some representation of the legal profession or academics could be advisable. No political representation should be permitted.
I have heard concerns about the apparent lack of transparency in the assignment of cases, as well as in the constitution of benches, within all courts, including the Supreme Court. When cases are assigned in a subjective manner, the system becomes much more vulnerable to manipulation, corruption and external pressure. Information on the assignment of cases should be clearly available to the public in order to counter suspicions of malpractice and corruption.
I further believe that transparency in public administration is not an option, but a statutory and obligatory requirement that is fundamental to a democracy. Yet, transparency remains a challenge for the judiciary in the Maldives, like in many other parts of the world.
One major challenge for the fair, impartial and consistent delivery of justice is the lack of some basic pieces of legislation, such as the Penal Code, the Criminal Procedure Code, the Civil Procedure Code, or the Evidence Act. As a result, judges have had to rely on laws and acts that were passed before the Constitution of 2008 and may contradict it, as well as on principles of Islamic Shari’ah, which is not codified and may be subject to different interpretations. This lack of legislation creates ambiguity and represents a real challenge for enforcing the rule of law and respecting the principle of legality.
I believe that a uniform legal system respecting the principles enshrined in the Constitution is necessary to create consistency in the administration of justice, avoiding difficulties for litigators to seek justice and judges to render decisions that are impartial and fair. When essential legislation is lacking it is also almost impossible to monitor the quality and consistency of justice delivery. Passing laws is imperative to implement the Constitution and the People’s Majlis should bear in mind how their actions or inaction affects the establishment of the rule of law. The Government too should show strong leadership to move the development and adoption of essential legislation forward and ensure that their contents are in line with the promotion and protection of human rights.
Coming to the legal profession, I would like to note that while lawyers are not expected to be impartial in the same way as judges, they must be as free from external pressures and interferences as judges are. When guarantees are not in place to enable lawyers to discharge their duties in an independent manner, the door is open to all sorts of pressure and interference, whether from public or private actors, including judges, who seek to have an impact on or control judicial proceedings.
I have serious concerns about the absence of an independent self-regulating Bar association or council that oversees the process of admitting candidates to the legal profession, provides for a uniform code of ethics and conduct, and enforces disciplinary measures, including disbarment. Such an organization would not only provide an umbrella of protection for its members against undue interference in their legal work, but also monitor and report on their members’ conduct and apply disciplinary measures in a fair and consistent manner.
It is contrary to the basic principles of the independence of lawyers that licences to practice law, as well as disciplinary measures, lay in the hands of the executive, in the case of the Maldives, the Attorney General. I further deem that the enforcement of compulsory registration of lawyers to appear before the courts by the courts themselves is unacceptable. Further, the regulation of disciplinary measures against lawyers falls outside of the prerogative of the judiciary and contradicts the principle of independence of the legal profession. I am also concerned about reports regarding threats of contempt of court used to muzzle the freedom of expression of lawyers. Lawyers like other citizens are entitled to freedom of expression, and in particular they shall have the right to take part in public discussion of matter concerning the law, the administration of justice and the protection and promotion of human rights, without suffering professional restrictions.
I always pay particular attention to the integration of a gender perspective and women’s rights in the justice system, and I have done so during my mission in the Maldives. I am concerned that there are currently no women sitting on the Supreme Court and only eight women sitting in the High Court, the Superior Courts and the Magistrate Courts. It seems to me that these women reached their positions through sheer determination and dedication since there is no policy or strategy to increase women’s representation on the bench.
In addition, all members of the justice system should be sensitized to gender equality and women’s rights to make access to justice a reality for women in the Maldives. Similarly, access to justice for other members of society who are particularly vulnerable to discrimination, such as children, migrant workers, or persons with disabilities, should be enhanced, and the judiciary should take into account the specific challenges and obstacles they face.
I was struck to hear how little trust the public has in the justice system in the Maldives. Justice must not merely be done but must also be seen to be done and judges must not only be actually impartial they have to appear impartial to the public. The mind-sets of the public and the authorities, including judicial authorities, have not evolved as quickly as the changes were made to the Constitution and the laws of the Maldives. This created a disconnection between the promises of the 2008 Constitution and people’s expectations, and the reality of how justice is delivered and the separation of powers implemented.
Finally, I am seriously concerned about the lack or inadequacy of education and training possibilities for all actors of the justice system in the Maldives, especially lack of training on international principles, the nature of judicial independence, responsibility and integrity, international human rights law, the Constitution and new legislation passed. Professional trainings also seem to be lacking. Judges, prosecutors and lawyers should have access to a wide-range of legal literature in the official language, Dhivehi, and quality continuing education, including specialized training on gender equality and women’s rights, international human rights law, and the human rights mechanism. Such trainings must be accessible to all judicial actors, regardless of the level at which they operate.
In addition, all actors in the justice system, in particular judges, prosecutors and lawyers must be properly educated and trained with regard to their respective codes of ethics and standards of conduct. Available, accessible, appropriate and quality education and training can over the longer-term significantly change attitudes that would otherwise be susceptible to corrupt conduct, unfair trial and the improper application of the law, and pave the way for strengthening both the integrity of the justice system and its independence.
Let me conclude by calling upon the international community, including foreign partners, United Nations agencies and other international and non-governmental organizations, to strengthen their engagement in the Maldives and continue contributing to the consolidation of the justice sector and the independence of the judiciary and the legal profession with concrete and sustainable programmes, whose implementation can be monitored and assessed.
Thank you for your attention.”

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