Letter: JSC claims to have been endorsed by US Ambassador

Dear Madam Ambassador Michele J Sison,

I write to you as a member of the Maldives Judicial Service Commission 2009 to 2011, and as an advocate for rule of law and constitutional democratic government in the Maldives, to express my concern following the recent remarks attributed by the Maldives’ Judicial Service Commission to yourself, Madam Ambassador, in a statement published on the said Commission’s website on May 8, 2013.

The original statement in Dhivehi is to be found on http://jsc.gov.mv/2013/05/1561.

The Dhivehi statement claims that “Ambassador Michele J Sison approves of the functioning of the Maldives’ Judicial Service Commission”, and agrees the actions of the Commission are up to the “best possible standards”.

The statement further suggests that, thus, the Commission is cleared of all the long standing, very serious allegations against it.

The statement appears to be another attempt by the Maldives Judicial Service Commission to cover up its breaches, political activism, abuse of powers, and continued actions against Constitution and State through political activism, misconstruing dialogue, and misleading the public.

Hence, I would like to recall to your kind attention the very serious allegations against the Maldives’ Judicial Service Commission that remain pending without proper Inquiry by the State. These include:

Further, I would also like to bring to your attention the reports of some major independent fact finding missions and international bodies which consistently conclude that the Judicial Service Commission acted outside its mandate, failed to respect Constitution or the democratic principles therein, misconstrued law and legal concepts, is highly politicised and partial, and is not fulfilling its constitutional mandate of building trust in the judiciary by holding judges to account.

Report of the International Commission of Jurists (February, 2011)
Dialogue and Concluding Observations of the UN Human Rights Committee, Geneva (June, 2012)
Report of Professor Tom Ginsburg supported and funded by the United States Embassy and UNDP, and prepared for Raajje Foundation (December, 2012)
Observations by the UN Special Rapporteur on the Independence of Judges and Lawyers at the conclusion of visit to the Maldives (February, 2013)
Press Release and Report of the South Asians for Human Rights (SAHR) mission led by Justice Leila Seth (India) to the Maldives in August 2012 (April, 2013)

Having been a part of the Judicial Service Commission, and being very familiar with the modus operandi of the Commission and its current Chair, Supreme Court Justice Adam Mohamed Abdulla, it is plausible to me that the statement of the Judicial Service Commission is its own politics and does not necessarily reflect the United States’ endorsement of the Maldives’ Judicial Service Commissions’ constitutional breaches or the sitting bench permitted to continue without check or due process as required by section 285 of the Maldives’ Constitution (2008).

Further, the Judicial Service Commission’s role leading up to the February 7, 2012 transfer of power, and in its close personal engagement with prosecuting President Mohamed Nasheed has only confirmed to the Maldives’ public that the Commission is not deserving of public trust, and that the Judiciary is hijacked as I have consistently maintained.

It is also very telling that I have continued to strongly and continuously criticize the Judicial Service Commission and Courts without any legal action whatsoever against myself for “contempt of court” or “tainting the image of the Courts and judges” in a situation where others have been investigated and prosecuted for the said “crimes” for saying far less than I have and continue to do.

It stands to reason the Maldives cannot consolidate democracy with a flawed judiciary; or the questions that hang upon it, and haunt us in the Maldives today.

Yours sincerely,

Aishath Velezinee

Velezinee is a former member of the Judicial Services Commission (JSC) and an outspoken whistleblower on judicial corruption. She was stabbed three times in the street in broad daylight in early 2011.

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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Comment: Appointment of Supreme Court bench a grave blunder

This article recounts the appointment of the Supreme Court bench on August 10, 2013, and was first published on Dhivehi Sitee. Republished with permission.

On 7 August 2010, the two-year Constitutional period for transition and the setting up of first-ever democratic State ended without a Supreme Court, Chief Justice or Civil Service Commission in place. The Human Rights Commission, too, was up for reappointment.

The Judicial Service Commission continued, technically, with some members still being valid, but remained in suspension without leadership or full membership. The JSC Secretariat, which often carried out functions of the Commission as directed by the Chair, without knowledge or advice of the Commission, carried on as usual. It was fashioned upon the dissolved Ministry of Justice by the first Chair of JSC and former Minister of Justice, Seena Ahmed Zahir, and continued to handle- the Courts and administration of justice much like it did prior to the 2008 Constitution.

The Secretary General at JSC, Muna Mohamed, had resigned on 2 August 2010. Muna left after it became known that she had, at the urging of JSC Chair Mujthaz Fahmy and members Criminal Court Judge Abdulla Didi and MP (DRP) Dr. Afraashim Ali, altered records on Article 285 proceedings at JSC forwarded to the Parliamentary oversight Committee.

Interim Supreme Court, which was to be dissolved with the appointment of the first Supreme Court remained in office, with no Supreme Court yet appointed. The nomination of Ahmed Faiz Hussain for Chief Justice remained pending in parliament, the Speaker refusing to table the matter as a stand alone appointment, and parliament majority insisting on full bench being approved en masse.

The President was insisting on parliament deciding numbers on bench for nominations to be made. The Judicial Service Commission embroiled in the battle against Article 285, had not had time to discuss names for the Supreme Court despite the topic being frequently raised by the judges on the Commission. The judges had names they wanted to forward to the President.

Did locking the Supreme Court prevent a coup?

On 7 August 2010, President Mohamed Nasheed ordered the Maldives National Defence Force (MNDF) to lock up the Supreme Court. At 6pm, they did. There was no Supreme Court appointed.

I do not know on what information or what basis President Nasheed acted, and I have my own opinion on what ensued, but still I would defend the the lock up of the Supreme Court on 7 August 2010 was a pre-emptive act; and, I have good reason to believe, it successfully prevented the final act of the silent coup, at least for then.

If “intelligence” I had from the inside is correct, the Interim Supreme Court had drafted a ruling, and the plan was for the bench to convene that evening to declare themselves permanent by the power of their self-declared permanency earlier and by virtue of sitting on the bench at the end of the Constitutional two-year period. Concurrently, I was informed, the newly self-appointed Supreme Court would also declare President Nasheed unconstitutional for his failure to appoint the Supreme Court in the period provided. I cannot explain the reasoning, nor confirm the information as 100 percent accurate. I can only relate here the information I had from sources I found reliable. What I know for a fact is the Interim Supreme Court had been busy, lights often burning well into early hours of the morning.

As with the “lock up” of Abdulla Mohamed in January 2012, no one probed why the Supreme Court was locked up.

The Prosecutor General (PG), having listened to interim Chief Justice Abdulla Saeed appealed to the Civil Court to order MNDF/President Nasheed to unlock the Supreme Court. My request to meet the PG was swept aside with an “I will call you.” It did not happen. We were too familiar with each other as former colleagues and friends. Despite my constant reminders that I spoke to him as a sitting JSC member, he could not see me as any other but his “friend Vel”.

The sleeping Law Society, too, roused itself. The Secretary, Dheena Hussain, issued a public statement condemning the “president’s interference in the Judiciary”. Dheena Hussain had worked on the Constitution drafting Committee and is noted as the translator of the Constitution (2008) from Dhivehi to English. What schocked me is the fact that neither Dheena nor Law Society President Shaheen Hameed, who had been a member of the Constitutional Assembly, spoke up on JSC’s politics and high treason or the loss of an Independent Judiciary. I had personally shared all related documentation forwarded to President Nasheed with the Law Society, which has since been dissolved. It was the only professional organization of lawyers in existence.

The country was tense.

The international community, as wary as it is of domestic politics, urged a peaceful resolution through political talks. The fact that the Maldives was in a Constitutional crisis without a domestic remedy given that it was the judiciary in question; it was the the Judicial Service Commission committing acts against the Constitution and State; and it was the parliament that stood accused of a cover-up, all went unobserved, or was deliberately ignored.

The pressure was on for a quick resolution, and President Nasheed was in a corner.

Appointing the Supreme Court

On the morning of 10 August 2010, I received an SMS from the President’s Office. President Nasheed wanted to meet the Judicial Service Commission (JSC) at a meeting to be held in his office at 1:00pm. On the agenda was the Supreme Court.

Parliament, meanwhile, was at work, adopting the Judges Bill and Judicature Bill which had been left out of agenda for months of political bickering. That morning, it had adopted a proposal by DRP member Abdul Raheem to grant a 7-year period for judges not meeting required educational qualifications to get their degrees.

I was the first to arrive for the meeting with President Nasheed. As I sat down in the waiting lounge, Speaker Abdulla Shahid, who also doubles as ex-officio member of the JSC under Constitution Article 158(a) walked in. Shahid tensed upon seeing me and protested against my “naming him” in an interview to Minivan News. I responded I couldn’t help who is named. Shahid then announced to me that the amendment proposed to the Judges’ Act by MP Abdul Raheem that morning was a proposal he made.

I did not comment. Both he and I knew it contradicted a Constitutional provision and was in fact a political move to alter the Constitution and manipulate the courts without changing a single letter of the constitution. The same modus operandi, majority by any means (with the majority decision standing above Constitution) had effectively nullified Article 285. Article 8 on the supremacy of the constitution leaves no room for majority decisions. When objections were raised, the majority drowned it in the collective claim that democracy works on majority. Respect of constitution, due procedure and rule of law were all to be by majority agreement.

The Judicial Service Commission: Who were they?

By 1:00pm, all sitting JSC members except for member elected by the lower Courts, Judge Abdulla Didi of Criminal Court, had arrived. Member appointed from the general public, Sheikh Shuaib Abdul Rahman was on leave, gone on Umrah.

Seat of JSC Member 158(i), the Attorney General, was vacant. Husnu Al-Suood resigned on 8 August 2010 immediately after the “end of transition”. Media reported Suood saying he’d resigned to take responsibility for State’s failure to take responsibility.

I resigned… There are a lot pending matters. I believe that all state bodies have failed (to take their responsibilities). So I believe that at least someone should take the responsibility,’ Suood said in an interview with Haveeru. “Suood said he resigned to take responsibility of the constitutional void triggered after the transition period deadline.”

Seats of Member 158(b) from Supreme Court and 158(g) President of the Civil Service Commission were vacant following the dissolution of both those bodies with the end of the interim period on 7 August 2010.

It can be argued that the JSC as a legal body, did not exist on 10 August 2010 for the President to consult. Neither had the JSC discussed the Supreme Court prior to it going defunct on 7 August 2010.

The JSC was bereft of a Chair or Vice Chair when interim Supreme Court judge Mujthaaz Fahmy lost his seat on 7 August 2010. Mujthaz, the Vice Chair, took over as Chair after High Court Chief Judge Abdul Ghani was stripped of his JSC membership in the High Court mutiny of 21 January 2010. Mujthaz had refused to agenda elections until 11 March 2010 when he elected himself Chair and refused to elect anyone to the Vice Chair post he had just vacated. From 11 March 2010 till Mujthaz Fahmy was forced to depart on 7 August 2010, he remained Chair, and never allowed the appointment of a Vice Chair thaty would have allowed for the Commission to continue.

Meeting President Nasheed were six individual members of the Commission, giving the 50 plus 1 majority quorum required for a JSC sitting:

Member 158(a), Speaker Abdulla Shahid (DRP)
Member 158(c), Judge Adam Mohamed Abdulla of the High Court of Maldives
Member 158(d), Judge Abdulla Didi of the Criminal Court
Member 158(e), MP Dr. Afraasheem Ali (DRP)
Myself, Member 158(h) Aishath Velezinee, and
Member 158(j), Lawyer Ahmed Rasheed.

President Nasheed chaired. No one except for the six members of the Judicial Service Commission, the President and his Secretary, Rugiyya Ahmed Didi (who was taking notes) was present in the closed meeting. Before us was a dossier prepared by the JSC earlier for the selection of the Chief Justice, listing 17 names and giving their curriculum vitae and other records.

A name for the Chief Justice had been been decided by President Nasheed following a similar exercise carried out earlier in July. President Nasheed had invited the JSC, and in a meeting chaired by himself consulted the JSC, asking members to inform if there was any reason any one whose name was on the list must not sit on the Supreme Court bench. Much was told by JSC members, each member drawing upon their long-time and in-depth knowledge of the individuals to relate stories and anecdotes. Then Attorney General Husnu Al-Suood who knew the interim Chief Judge Abdulla Saeed, as well as having had the long experience of working with the Courts as a lawyer, was adamant Abdulla Saeed was not to continue.

A significant difference between these two meetings, the first to nominate a Chief Justice and this one to nominate full Supreme Court bench was, that unlike on 10 August 2010, the JSC was then a functional body with an elected Chair. Further, JSC had had a preparatory meeting before meeting with the President when selecting a Chief Justice.

The nomination of Ahmed Faiz Hussain for the post of Chief Justice was submitted for Parliamentary approval before the 7 August 2010 deadline but remained unattended, neglected in a parliamentary tug of war. The Speaker refused to agenda approval of the Chief Justice in isolation, and Parliament majority demanded names for the full bench before tabling the matter.

Naming mames

President Nasheed began the meeting of 10 August 2010, explaining the purpose of the meeting was to consult the JSC on the appointment of the Supreme Court and requested names. He then invited JSC members to speak.

Article 148(a) of the Constitution states:

The President as the Head of State shall appoint the Judges of the Supreme Court, after consulting the Judicial Service Commission and confirmation of the appointees by a majority of the members of the People’s Majlis present and voting.

This was the first step.

If I recall correctly, Member 158(c) Adam Mohamed Abdulla of the High Court was the first to speak. He declared his concerns about being in the sitting when his name is discussed. I cannot sit when you’re discussing my name, he raised his concern noting the meeting would lose quorum were he to leave the room. No one had yet mentioned any names.

MP Dr. Afraashim Ali protested at President Nasheed chairing the meeting, but only for the record, as the same protests had been made and dismissed earlier, on the day a nominee for Chief Justice was discussed.

Member 158(a), Speaker Abdulla Shahid intervened, and inquired of Chair President Nasheed if names proposed were to be limited to the list. President Nasheed responded in the negative, and repeated it was up to the Commission.

Abdulla Shahid, having given the opening to name names, nominated Muththasim Adnan for the Supreme Court. It was a name included in the dossier before us.

Member 158(e) MP Dr. Afraashim Ali immediately followed with a list of names he recommended, some outside the dossier. They included Parliament Secretary General Ahmed Mohamed; Parliament Legal Counsel Dr. Ahmed Abdulla Didi; Interim Supreme Court Justice and former JSC Chair Mujuthaz Fahmy; self-declared Chief Justice, head of interim Supreme Court, Abdulla Saeed; High Court Justices Ali Hameed and Adam Mohamed Abdulla and other “old friends”. I do not recall today the full list of names he proposed.

Dr. Afraashim immediately added an apology for having proposed two names from Parliament, and gave his reasons for their nomination.

They are good people. I know them both very well. Because I am in Parliament, and work very closely, I am very familiar with both Usthaaz Ahmed Mohamed and Usthaaz Dr. Ahmed Abdulla Didi; very suitable people for Supreme Court.

Afraashim also gave eloquent speeches praising former JSC Chair and interim Supreme Court Justice Mujthaz Fahmy, and urged his nomination to the Supreme Court.

In my turn, I noted the task before us was to appoint the Supreme Court of the country, and that it was important to include a woman on the bench as the Supreme Court bench would sit for life, and appointment of another Supreme Court judge may not happen for the next 30 years.

Further, I objected to JSC members nominating friends, colleagues and acquaintances to the bench just because the member is familiar with them and knows them to be ‘perfect for the Supreme Court’. None of us knew all eligible candidates for the Supreme Court. In my opinion, it was abuse of office to give an unfair advantage to our friends by naming them for Supreme Court. Many, more worthy candidates, may miss out just because none of us sitting JSC members know them personally. Then, I raised my objections to some names floated.

Mujuthaz Fahmy did not have the educational qualifications nor the good character required. Further, the Anti Corruption Board had found him guilty of embezzling State funds in 1998. And there were other allegations against him pending investigation. Mujthaz Fahmy was not fit to sit Judge.

Abdulla Saeed, though having the required educational qualifications, had lost all moral authority to sit. He made a public spectacle of himself and in an interview on DhiTV following the lock-up of interim Supreme Court on 7 August 2010. He publicly demonstrated then that he does not possess the good character required of a Judge. We all watched him scream, plea, threaten and cajole, calling for the return of “Supreme Court powers”.

Earlier in the year, Abdulla Saeed had taken advantage of political fighting between the parliament and executive to declare himself Chief Justice, and the interim Supreme Court the permanent bench. He abused trust and attempted to usurp for himself the constitutional powers vested in the president and parliament to appoint the Supreme Court. While this was a silent coup in itself, a betrayal of trust, and an attempt by trusted caretakers at the interim Supreme Court to take over the Supreme Court, neither the parliament nor president held the interim Supreme Court to account.

The JSC, headed then by interim Supreme Court Justice Mujthaz Fahmy, ignored and denied repeated requests to agenda the matter of interim Supreme Court’s self declared permanency in the Commission as a matter of serious breach and misconduct. Media reported on Interim Chief Justice Abdulla Saeed’s letter but failed to do follow-ups, allowing the matter to remain buried. Neither State nor the law community noted anything amiss.

I also stated that Ali Hameed and Adam Mohamed Abdulla of the High Court were signatories to the High Court declaration of 21 Jan 2010 and that their misconduct was pending investigation in the JSC. So was the complaint of misconduct against Abdul Ghani Mohamed, Chief Judge of the High Court, based on allegations publicly raised by three of the five High Court justices on 21 January 2010.

While at the meeting I received information, via SMS, that Dr. Ahmed Abdulla Didi did not meet the qualifications required of a Supreme Court judge. I raised the concern, and noted no one had checked Dr. Ahmed Abdulla Didi’s qualifications. I, a member JSC, had never seen even a CV of his.

President Nasheed himself spoke of Abdulla Saeed as unfit, giving good reason why he was not fit to sit judge. Former Attorney General, Husnu Al-Suood had earlier, on the day of deciding a nominee for Chief Justice, shared till then unknown information and anecdotes on Abdulla Saeed’s character. This included information about how he divorced his wife in a rage one Ramazan for not having his shirt ironed and ready when he wanted. All of this was known fully to the President and the Commission.

The meeting ended on the dot, at 1:00pm, without further happening. It was a one-hour meeting and President Nasheed is excellent at time management. JSC never finishes a sitting in the allotted one hour, thirty minutes. Often, sitting time has to be extended before the Commission even reaches items on the agenda.

As we stood up and were taking leave, I heard Shahid request a word with President Nasheed. As I walked out of the room, I saw President Nasheed in the corner of the room, Shahid before him.

Parliament approves full bench without question

Rumour round town was that Parliament would reconvene at 2:00pm the same day to approve the Supreme Court. People waited in anticipation but nothing happened at 2pm. Parliament was delayed as committees worked and parties talked behind closed doors. After another delay at 4:00pm the Majlis finally sat that evening.

The list of nominees for the Supreme Court, when it was announced in Parliament, came personally as a shock to me. I had heard President Nasheed’s objections to Abdulla Saeed’s name, with good reason. It was very clear that Saeed was not fit to sit on the bench. Yet, his name was on the list. Also included were Ali Hameed and Adam Mohamed Abdulla, both with serious misconduct allegations uninvestigated at JSC.

In another unusual development, perhaps unprecedented in parliamentary history anywhere in the world, Parliament amended the Judges’ Act just before the names were approved. The amendment specified that the 7-years experience required to qualify for a judge may include legal experience outside the Maldives, a redundant change as nothing elsewhere prevented the interpretation of the clause to include outside experience. Clearly, it was meant to mislead the public and cover the fact that Dr. Ahmed Abdulla Didi did not meet required experience.

The Supreme Court bench was approved without question or query. No one noticed anything amiss.

I observed it all closely, from my seat on the Judicial service Commission, said what I must, and kept silent. This wasn’t just the Judicial Service Commission in breach. The President, Parliament and the proposed bench for the Supreme Court were all violating the Constitution, all in the name of peace and national security. The international community, ignorant of the realities or not interested in domestic politics, were urging political negotiations, ignoring the fact that negotiations between unequal parties invariably turns out skewed. Not only was MDP (Maldivian Democratic Party) the minority in Parliament, MDP itself did not have agreement within the Party leadership on executing the Constitution and building a democratic State. Individual MPs had their own notions and interests which preceded the Constitution, an independent Judiciary, or democratic government. Of utmost importance to certain influential MPs was control. Control information. Control dissent. Control judges. Control verdicts.

Of course, for some, it is nothing but madness to suggest the whole State is entangled in a web of deception. But that is the fact of the matter. Maldives lost an independent judiciary, and with it the constitution and democratic government, by the failure of us all to watch the politics and respect the Constitution.

Not even President Nasheed’s own announcement that the Supreme Court is in fact a political deal is taken note of. Still, even today, the goal is a political deal to reorganise the bench when it is very clear that there is no legitimate Supreme Court. The politicians, Party leaders and MPs are, understandably reluctant to own up to a deal gone bad. At stake, is the Constitution, democracy and justice the people of Maldives stood up for.

Maldives must respect the Constitution and re-appoint the judiciary across all three tiers if it is to free the judges of suspicion and begin anew on the path of constitutional democracy.

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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Comment: What case, if there is no Judge Abdulla?

This article was first published in Ceylon Today on 27 February 2013, and is reproduced with the permission of the author.

President Mohamed Nasheed is being prosecuted, accused of using the military to remove ‘Chief Judge of the Maldives Criminal Court’. Found guilty, Nasheed will lose the chance to contest elections; and the public will lose the first consistent voice for democratic change for nearly a quarter of a century.

On 17 January 2011, Abdulla Mohamed, who sat as Chief Judge of Criminal Court, was forcibly “removed” by the military. Political opponents of Nasheed, all once linked to former President Maumoon Abdul Gayoom, quickly screamed foul, praised “Top Judge Ablow”, wreaked havoc on Male’ streets, damaged public property in nightly riots, and by 7 February had co-opted the security forces in a drama that unfolded live on local media.

This Criminal Court, which in fact was the ‘subject’ of the political crisis, had kept the nightly ‘vigil’ for “Judge Ablow”, systematically releasing detainees and helping to sustain numbers out on the streets. Those released praised Allah on social media, their release a sign that victory was theirs and God was with them.

To the familiar eye, the crowd of no more than 300 to 400 people who came out nightly were easily identifiable. Leading opposition politicians, MPs, recognised gang activists, and petty criminals. Many had cases before the Criminal Court or had appeared before ”Judge Ablow” on some criminal allegation. They were joined by former security personnel ‘retired’ during the government transition and a few serving policemen adorned in pink t-shirts. With them was sitting member of the Judicial Service Commission – business tycoon, MP and presidential candidate Qasim Ibrahim – and Chair of the JSC’s Parliamentary Oversight Committee, MP Mohamed (Kutti) Nasheed. It certainly was not the ‘public’, as public would be defined in a democratic state.

I watched these unfolding scenes, stunned, as my fears were confirmed.

To all outward appearance, however, President Nasheed had faulted. He had, it seemed, interfered in the business of the independent judiciary, an area strictly forbidden to the executive.

The international community, wary of domestic politics and players, is cautious not to be seen as interfering in a matter of rule of law. Due process, while reiterating the importance of free and fair, inclusive elections, is the mantra of the democratic international community.

The sitting government echoes back the words: ‘rule of law’, ‘due process’. Home Minister Dr Mohamed Jameel, who served in President Gayoom’s cabinet as Justice Minister during the transitional years and was personally involved in selecting many of the sitting judges, is one of the loudest voices insisting on ‘rule of law’.

What is not obvious to the casual observer, or understood by distinguished members of the international community, is that while the government and the international community voice the same words, they may not have a shared understanding of the concepts so familiar to democracies that they do not even think to question how another may be using or abusing it. What is forgotten, it seems, is that the Maldives never was a democratic state, but is a state in transition.

The Maldives’ judiciary, unlike in Sri Lanka or even Egypt, has never been independent. The Constitution introduced the concept of an “Independent Judiciary” with requirements upon the state to appoint a new judiciary within two years, and 15 years transitional provision to develop it.

Hence, the suggestion that Nasheed interfered in the judiciary holds true only if built upon certain assumptions, such as the assumption that Abdulla Mohamed is a legitimate judge appointed through due process.

If this assumption – the premise for the case against President Nasheed – stands, if indeed he had disregarded due process, interfered in the judiciary, and physically removed Chief Judge of the Criminal Court from duty, President Nasheed must stand trial. Rule of law must not be disregarded for President Nasheed, Abdulla Mohamed, or myself, and must prevail in all instances for democracy to take root.

Having said that, what if that premise does not hold true?

What if Abdulla Mohamed, who had become a household name with frequent reports of his irregularities in the media and public speeches against President Nasheed and his government, was placed as Chief Judge of Criminal Criminal Court without due diligence or due process?

What if the Judicial Service Commission, backed by President Nasheed’s powerful opposition, had indeed breached the Constitution and corrupted the judiciary in an elaborate scam to deceive Maldivian citizens and the international community? What if Abdulla Mohamed is indeed unfit to sit as a judge?

What if, apart from the criminal conviction for hate speech and disrupting public order – on record before Abdulla Mohamed was first appointed a judge in 2005 – there is truth to the claims that Abdulla Mohamed systematically works with organised crime, “launders” criminals and is likely being blackmailed?

What if there is truth to reports that certain influential MPs are linked to organised crime, and Abdulla Mohamed is kept Chief of Criminal Court by the power and influence of these criminal elements in parliament?

Of course none of these questions will rise anew with the trial of President Nasheed, had they not existed or been raised before.

Questions on constitution breach by the Judicial Service Commission, and the constitutionality of Abdulla Mohamed’s reappointment, together with the reappointment of all other men and women sitting as judges prior to ratification of the Constitution, is a matter pending inquiry in parliament since 2010.

The Parliamentary Oversight Committee for Independent Commissions first summoned the JSC on 2 August 2010, following months of appeal, and after I went public with information pointing to high treason in the JSC.

The summons from parliament to the JSC clearly stated the inquiry was in relation to complaints filed by myself, leaving no doubt that the committee was finally ready to inquire into the matter.

However, the committee sitting, telecast live, turned out to be a farce, a clever cover-up, a signal for the JSC and ‘judges’ to go ahead. The scandalous three-hour sitting centered on allowing then JSC Chair Mujthaaz Fahmy to air his story, a story that he has no evidence to back, and a story I could easily disprove with the documents and audio evidence I had brought to the committee.

Not only did the parliament committee deem it unnecessary to hear my evidence, they decided I was not to speak at all after my initial response to Chair Fahmy’s statement, declaring “all members have equal opportunity to speak” – ie, once. Chair Fahmy and Vice Chair, the late MP Dr Afraashim Ali, responded on behalf of the Commission.

That the matter was a disagreement in the JSC, and the fact that I stood against the Commission, was irrelevant to the MPs. In fact, the DRP and current PPM MPs took the opportunity to ridicule, slander and attack me, and praise the JSC Chair and Vice Chairs’ perjury while I sat gagged. The only other member to join me in noting the Chair was committing perjury was member of the general public appointed by Parliament, Sheikh Shuaib Abdul Rahman.

Attorney General Husnu Al-Suood, who also sat as a member of JSC, remained silent.

MDP MPs were of little help. Not having given time to review the evidence they were either not fluent enough with the subject to see the JSC was committing perjury, or not interested in entering a battle where a sure win was far from guaranteed given the balance of power in the Committee and in Parliament.

The JSC session with the committee ended not with a conclusion on the issue, but having run out of time. Committee rules did not permit a further extension. The Chair quickly closed the sitting as one MP noted the issue of Article 285 was a very serious matter and was to be investigated.

The JSC, for its part, fabricated a “legal reasoning on Article 285”, organised a press conference unknown to Sheikh Shuaib Abdul Rahman and myself, and made a statement attacking and defaming me in what was supposedly their legal reasoning.

In 24 hours, the judges took a ceremonial ‘symbolic’ oath without check or scrutiny in a ceremony that shocked the entire nation as unexpected live footage of it appeared. It was a moment that replayed continuously on all local TV stations for the next 72 hours, and has been repeated often since. The video footage raised serious doubts in the public.

Questioned by the media immediately after the now infamous oath, parliament made a statement to the effect that the Article 285 inquiry was pending while Legal Counsel Dr Ahmed Abdulla Didi reviewed the matter.

However, all was forgotten within the week, as “political dialogue” encouraged by the international community diffused the situation.

The suspension of the interim Supreme Court ended with the appointment of a politically-agreed Supreme Court, and the constitution compromised. On the bench among others of dubious integrity sits the said Legal Counsel Dr.Ahmed Abdulla Didi, who, despite not qualifying even after an unusual amendment to the Judiciary Act hours after its ratification, was approved by Parliament in the same sitting that amended the Act.

The question of Article 285 was forgotten except for my continued ‘rants’. Repeated calls for an inquiry went unheeded despite an International Commission of Jurists report in February 2011, noting both substantive and procedural issues in the JSCs’ actions regarding Article 285.

Repeated concerns on the JSC acting against Constitution and State, the runaway judiciary, the politicisation of judges, and specifically the JSCs’ cover-up of Abdulla Mohamed and his threat to national security reported in communications to parliament and shared with military intelligence, were ignored. Nor was there any action against me by parliament or the court, all keeping silent on the subject.

If, there is any substance in what I repeat, wherein is rule of law or justice in the trial of President Nasheed?

The real questions in the Maldives case are not about Judge Abdulla Mohamed or the Hulhumale’ Magistrate Court. It is a battle centred around the Constitution; its meaningful execution and state building. It is a tug of war between President Nasheed, who attempted the judicial reform required by Constitution, and his opposition intent on preventing fulfillment of Article 285 and retaining their handpicked judges. Abdulla Mohamed is a shield.

Today, the future of the Maldives’ democracy is more than ever dependent on the goodwill, wisdom and diplomatic skills of the international community. The trial of President Nasheed is a standoff where a domestic resolution is out of the question.

Try President Nasheed, and myself too, but not without trust in the judiciary and the guarantee of a free and fair trial. Will the international community guarantee there is no aberration of justice in the name of democracy, rule of law and justice?

Velezinee served on the Maldives’ Judicial Service Commission (April 2009-May 2011) and is the author of ‘The failed silent coup: in defeat they reached for the gun‘ published in August 2012.

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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Comment: Who will hold the Judicial Service Commission Accountable?

The Parliamentary oversight committee for Independent Commissions has once again cancelled a meeting scheduled with the Judicial Service Commission (JSC), calling an hour before the meeting set for 11.15am this morning [Wednesday, December 15].

The JSC has remained dysfunctional for weeks, since in-fighting on Article 285 disrupted the Commission earlier this year. A serious concern, as the JSC is the only constitutional body to check judges’ misconduct and impunity. Over a 100 complaints remain unchecked.
The Parliament has failed to hold the JSC accountable despite repeated complaints and appeals by member Aishath Velezinee since February 25, 2010, when concerns were raised that JSC had unconstitutionally abolished Article 285 as symbolic.
The last appeal on the matter to Parliament was on August 4, 2010 requesting an injunction order to prevent the JSC from going ahead with the symbolic oath-taking before the Parliamentary oversight committee for Independent Commissions had looked into pending complaints.

Since then, member Velezinee has publicly accused the Speaker Abdulla Shahid and MP Dr. Afraasheem Ali, both ex-officio members of JSC, of unlawfully abolishing Article 285 of the Constitution and using the JSC as a tool in a covert coup attempt to derail constitutional democratic government through denying independence to judges, and preventing the establishment of an independent judiciary.

The Majlis, as well as media, has remained silent on JSC and Article 285, despite the very public declarations.

On December 1, 2010, the Secretary General of the Majlis sent a letter of invitation to JSC stating that the parliamentary oversight body, the Parliamentary oversight committee for Independent Commissions, requested a meeting with members of JSC on 6 December 2010.

Another letter arrived on December 5, 2010 informing that the said meeting was postponed to 9 December 2010.
Another letter arrived on December 9, 2010 informing the JSC that the Parliamentary oversight committee for Independent Commissions had decided to postpone the said meeting indefinitely, and that a date would be informed at a later date. No reason for the summons was specified in any of the letters sent by the Majlis, nor was a reason specified for the indefinite postponement.

Late afternoon on December 14, 2010 an urgent letter arrived from the Parliament Secretariat, informing that the Parliamentary oversight committee for Independent Commissions requested to meet with JSC members.

That is now cancelled, the cancellation letter informing once again that “a date for the said meeting would be informed at a later date”.
Earlier, the parliamentary oversight body failed to respond to a number of requests for intervention, first made in writing by Member Aishath Velezinee on 25 February 2010.

On Sunday, Dec 12, 2010, JSC member Velezinee sent a 34-page letter to the Parliament refusing to appear before any Parliamentary committee and explaining the reasons for her decision.

When the Parliamentary oversight committee for Independent Commissions met JSC on August 2, 2010, the first and only time it did to date, JSC members was informed halfway into the meeting that it was not in relation to complaints on Article 285. It was a “routine check”.

What the meeting was about, no one, neither members of the Parliamentary oversight committee for Independent Commissions nor JSC understood. It was mentioned that the matter of Article 285 was a serious issue and was being studied.

The matter of audio tapes on Article 285 having been edited at the request of certain members of JSC before they were submitted to Parliament was dismissed with the words, “We are not talking about audio tapes today”.

The matter of JSC members paying themselves despite a clear constitutional clause that specified no ex-officio member would be paid, was ignored.
The fact that JSC had not adopted Standard Operation Procedures and other regulations despite Article 40 of the JSC Act stating they be adopted within six months of appointment, a deadline which passed on January 26, 2010, went unnoticed.

The matter of JSC having censored its own Annual Report for 2009, removing information the JSC Act required to be included in the report, had not been noticed by any member of the Parliamentary oversight committee for Independent Commissions.

The question perhaps is, who can hold the Speaker accountable?

Aishath Velezinee is a member of the Judicial Service Commission of the Maldives (JSC). She holds a Diploma in Journalism (IIMC, India; 1988), BA in Government; and in Women’s Studies (University of Queensland, Australia; 2000) and a Masters’ in Development Studies (Institute for Social Studies, Netherlands; 2004).

http://www.velezinee.aishath.com/content/why

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected].

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Comment: How a democracy was derailed

Republished with permission from the report by Aishath Velezinee titled ‘Democracy Derailed: The unconstitutional annulment of Article 285; and its’ consequences for democratic government in the Maldives.’ Full version, with footnotes, can be downloaded here (English).

The Maldives is a long-time constitutional autocracy used to a President with all the powers of the State.

The President – signified in persona by former President Maumoon Abdul Gayoom who held the title the past 30 years – was a President who could, and often would, allot land for service, provide medical assistance and scholarship to the worthy, and could hand out jobs with titles and benefits to fit the social status of those hand-picked.

The President also policed the streets, undertook investigations, administered justice, interpreted law, set standards of “jurisprudence”, and held the final word and verdict as the last resort of appeal, the Supreme Justice, where the Courts failed.

Those who fell afoul of the regime were restrained for public order, and those who gained favour were blessed by the good government of the day. The stress was on homogeneity, a people of one language, one religion, one ideology, one voice and one mind.

The peaceful transition to separation of powers and constitutional democracy on August 07, 2008, then, is already situated in this socio-cultural and political context.

On the dawn of August 08, 2008, little of the political realities of a 30-year regime changed. With no interim caretaker arrangement, President Gayoom continued in office until elections; even then choosing to contest, running for his 7th five-year term, with the interim Supreme Court decision that the two-term limit on presidents did not apply to President Gayoom for he is a first time contender under the “new” Constitution.

The manifest change then, to the lay observer, as well as media and the public, is the change of a President in three decades, when President Mohamed Nasheed won the 2008 elections and took office on 11 November 2008.

Today, neither the media and general public, nor the politicians, appear to quite understand that all powers are not vested in the President once a State adopts separation of powers.

The role of the Parliament in government, the role of the Judiciary to promote democracy and ensure good government, the role of the Civil Service to be loyal to the government of the day and implement policy, the differential roles of independent bodies and their positions as powerful and trusted accountability agencies to hold together the constitutional democracy is overshadowed by politics.

The Judicial Services Commission

Ignored by the media and citizen as outside the main political arena, is the Judicial Service Commission (JSC); with the constitutional mandate to establish an independent judiciary in the first two-years of the Constitution, to protect independence of judges, and to promote public confidence in the judicial system.

An offspring of the former Ministry of Justice, the JSC was set up by MP Ahmed Zahir, a former Minister of Justice, and the first Chairperson of the JSC.

Staff of the abolished Ministry of Justice took the lead positions, bringing in their personal connections to judges developed over years of daily dealings when the Ministers of Justice provided administrative support, legal advice, as well as guidance on verdicts in some cases before the Courts.

Thus, self-interpreted as the Guardian of the Judiciary with a duty to protect the judges, the JSC rejects Rule of Law, Accountability and Transparency as “threats to judicial independence”.

JSC’s approach is to defend judges, deny complaints, interrogate complainants, ensure financial security and other benefits to judges, and to provide bodyguards and protection of the police to judges when public discontent against a judge becomes serious; leading to impunity amongst judges, not all, but the few whose names come up serially.

Few amongst the general public, or media, understand the critical position of the Judicial Service Commission in institutionalising democratic government, or its constitutional powers, duties and obligations; or its unique role in its first term of office.

Those who do understand either confuse the public more with their “polititalk” or remain silent, for they have far more to lose than gain of an Independent Judiciary.

The Parliament majority being those who administered the judges, and the justice system of yesterday, have shown no interest in checking JSC.

Worse still, is that the judges themselves are miseducated into the notion that independence of judges equals non-interference by the President. With this, the “leaders” of the judiciary adopted for themselves the role of the former Minister of Justice; and the Judges Association became a tool, used strategically, to confuse the public, and judges themselves.

The Interim Supreme Court took on “parental responsibilities”, miseducating of judges, putting out self-interested rulings, amending laws to reorganize the judiciary, and strengthening their hold on the judiciary as a whole, by usurping powers and taking control, of the JSC, denying an independent check on the judiciary.

Insulated behind closed doors, inadmissible to anyone but those ten members privileged under Article 158 of the Constitution, the JSC does what it wills, without check or penalty.

JSC’s resistance to change, denial of democracy, and breach of trust – the irresponsibility, irrationality, and self-interest of its members, and their refusal to uphold Constitutional duties and obligations – and, downright treachery in dismissing Article 285 as ‘symbolic’ is the greatest challenge to the Constitution (2008), Rule of Law and democratic government in the Maldives.

Why Article 285?

Article 285, is, in my informed opinion based on privileged access to restricted records on the judges database as well as records on their official files, and discussions with those few judges I have had the honour to meet, the backbone of

democratic government in the Maldives.

The drafters of the Constitution, many of whom now sit in Parliament (Majlis) including Speaker Abdulla Shahid and MP

Dr Afraasheem Ali – who are also ex-officio members of the JSC – shared the same vision, at least at the time of Constitution drafting.

It is a pragmatic clause, a necessity when one considers the Judiciary is often the weakest link in “new democracies” (UN, 2000); and an obligation when one considers the realities of the Maldives’ Administration of Justice under the

previous Constitution (1998); and the vast difference it had to the Independent Judiciary the Constitution (2008) envision to achieve in fifteen years, by 2023.

The judges appointed prior to 7 August 2008, were appointed by the Minister of Justice, some hand-picked on to the bench as pay-off for their various political contributions or some other service.

They all have a Certificate in Justice Studies (or similar title, of a duration of six months to two years), awarded on completion of a tailor-made crash course offered upon the adoption of the Constitution (1998).

Not all sitting judges have a formal education of any substance, nor are they fluent in a second language, and little opportunity for knowledge improvement or professional development was provided.

It was not necessary as all decisions could be guided by the legal teams at the Ministry of Justice. Only about 40 among about 200 sitting judges are graduates.

Of the 40 graduates not all hold an LLB – some have degrees in Sharia’ or in another subject, acquired from an Arab university.

The “ruling” of current Chair Adam Mohamed Abdulla being that all Arab Universities include Sharia’ as a mandatory subject in all programmes qualifying all graduates from Egypt, Yemen and Saudi Arabia to the bench.

Competency of a judge was decided based simply upon a judges’ physical health, ie. his ability to come into Court.

As for impunity and misconduct, records show judges have rarely received more than an administrative caution by the Minister of Justice for such serious crimes as breach of trust and abuse of power and negligence, as well as serious sexual offences, possession of pornography etc.

Most of the complaints lodged with the Ministry of Justice by members of the Public remain unattendedxiii in the judges’ personal files and include not only misconduct, but serious allegations of a criminal nature such as repeated sexual offences against minors.

The public has tales of islands where few women dare go to claim child support for fear of Magistrates who expect sexual favours in return, of islands where Magistrates dictate personal edict in place of law etc.

Whilst none of these public complaints were addressed, what was taken seriously, records show, was disobedience in refusals to follow orders of the Ministry of Justice. As long as the directives of the Minister of Justice were followed the judges had absolute powers to act with impunity if they so deemed. Some often did so.

A few had returned to the bench after serving criminal sentences, and some had continued on the bench with no penalty despite having been found guilty of dishonesty.

Article 285 placed upon JSC the duty and obligation to assess every sitting judge appointed prior the Constitution (2008) coming into force, to confirm whether or not they possess all the qualifications of a judge as required under Article 285.

The purpose, from a rights-based approach, is two-fold: first, to assure the public that all judges are qualified and worthy of their high office on the bench, and are thus capable of building and maintaining public confidence and trust in the judiciary; and second, to provide judges with the necessary knowledge, capacity and most important of all, confidence to work in independence.

The sitting judges recruited for the Administration of Justice, having had no orientation on the newly introduced doctrine of governance, Article 285 was a personal affront as evident from three statements issued by the Judges Association.

That Article 285 is an obligation to the people, and not an offence to judges, who after all were quite qualified to preside over trials where the Ministry of Justice [or later the Courts in Male’ could guide and direct cases, and provide support to judges, was never explained.

Instead, it became a tool for the self-acclaimed leaders of the judiciary to be used in fear-mongering and controlling the

judiciary.

Power Play and Politics

Interim Supreme Court Justice Abdulla Saeed who, as head of the Interim Supreme Court, declared himself the Chief Justice and the interim bench as the Supreme Court in the days running up to the end of the two-year interim term, did not see it as his duty to correct the judges’ misconception, but rather was actively engaged in miseducating judges, creating strife, and causing discord between the administration of President Nasheed and the Judiciary.

In the name of developing judges for the new Constitution and upgrading them to meet the educational standards required, Justice Abdulla Saeed brought to Male’ batches of Magistrates from the islands, using them as tools, and breaching the innocent trust they placed in Justice Abdulla Saeed as the Godfather of the Judiciary.

Dr Afraasheem Ali (MP) who chaired the JSC Committee to develop an on-the-job training plan for those judges who meet all other requirements, decided to have the Magistrates trained by his old school, the College of Islamic Studies, even going so far as to train the Magistrates himself, personally, as a part-time lecturer.

Once JSC set to work on deciding indicators for assessment, it became clear this was one for discord. On one side was Justice Abdul Ghani Mohamed of the High Court with a graduate degree in Sharia’ and Law, who wished to uphold the vision of the Constitution to have a high quality judiciary established in 15 years as provided by Article 285.

In opposition were Justice Mujuthaaz Fahmy of the Interim Supreme Court and Judge Abdulla Didi of the Criminal Court.

Justice Mujuthaaz Fahmy intently argued that lack of education could be not be considered an impediment, and nor should misconduct before 2000 be taken into account.

Quite a logical reading when one considers Justice Mujuthaaz held a six-month tailor-made Certificate of Sentencing, and had on record a conviction by the Anti-Corruption Board for embezzling State funds – a minor matter of pocketing Rf900 for overtime in 1998.

Judge Abdulla Didi rarely joins in discussion, unless it is the matter of Criminal Court “Chief Judge” Abdulla Mohamed’s

misconduct, a matter that has been under investigation for a whole year now, costing the State over Rf100,000 to date in fees for Committee sittings.

Justice Mujuthaaz Fahmy sulked, willfully dragging the matter until the balance was in his favour, with the High Court “mutiny” of 21 January 2010 where three Justices colluded to publicly accuse High Court Chief Justice Abdul Ghani Mohamed of misconduct and remove him from the JSC by a Resolution.

Justice Mujuthaaz Fahmy as Vice Chair took the helm replacing the outgoing Justice Abdul Ghani Mohamed, and all turned into mayhem at JSC as, what I have reason to believe is a high-level conspiracy, was carried out aggressively by the majority; six of the ten members whose personal and political interest it was to retain the former Administration of Justice.

The matter of Article 285 remained pending till the arrival of Justice Adam Mohamed Abdulla on 18 February 2010, when a new task-force of four judges (two from the Commission, and two hand-picked from outside by Justice Mujuthaaz Fahmy) set to work under the efficient direction of the Interim Civil Service Commission Chair, Dr Mohamed Latheef.

In perhaps the most methodical effort in JSC so far, Dr Latheef had the indicators/standards decided in

three days, working an hour and a half each day. The only consideration, it appeared, was to make sure no sitting judge fell outside the standards.

Once “decided”, there was no room for debate at the Commission. MP Dr Afraasheem Ali, with falsely assumed “authority” declared, speaking in his capacity as MP, that Article 285 was ‘symbolic’.

Speaker Abdulla Shahid remained silent, choosing to evade the question even when asked pointedly to explain to JSC

members the purpose and object of Article 285.

When Justice Mujuthaaz Fahmy took over, all the work done during Justice Abdul Ghani’s time disappeared off the record, including submissions I myself had made in writing.

None of it was tabled or shared amongst the members. The “majority”, all of whom stood to gain from a wholesome transfer rather than a transformation of the Judiciary in line with the Constitutional Democracy decided, by mob rule, that all judges would be reconfirmed – for reasons that certainly are not in the best interest of the people, nation, or constitution.

Unfettered by concerns raised by President Mohamed Nasheed, Chair of the Constitution Drafting Committee former MP Ibrahim Ismail, or the public; and with the tacit blessings of the Parliament majority, JSC held the judges under lock and key to ensure, the all judges were re-appointed for life.

That is an estimated 30 to 40 years when one considers the average age of judges and the retirement age of

70. No judge may be removed unless JSC recommends, and the Parliament votes a judge out.

JSC being a Members Only club, electronically locked within the Department of Judicial Administration premises, and under the parental guidance of the Supreme Court, no one, not a single journalist, judge or member of the public, is privy to the details of what went on at JSC.

The records of meetings are not available for public scrutiny, nor are they shared with the media or members of the judiciary. Even members are prevented from accessing audio records of sittings, the written minutes being edited by the Chair where he sees fit.

The fact is that the majority was achieved through pay-offs and “mob rule” rather than rule of law; and upheld self interest rather than national or public interest.

To benefit are:

(i) members of the previous regime holding majority in parliament, some of whom stand accused of serious crimes;

(ii) former Ministers of Justice and former Attorney Generals who appear before the Court as legal counsel for the MPs and other politicians accused of serious crimes;

(iii) the serious criminals who allegedly operate under the protection of certain members of the previous regime, by the assurance that the same cover-ups and abuse of justice would continue; and

(iv) “Chief Judge” Abdulla Mohamed of the Criminal Court who is set to sit comfortably in the Criminal Court for life, ie. approximately 30 years until retirement at age 70.

The fact is that fully aware of the public discontent, and the fact that at least two of the 10 members of the JSC had expressed concern and publicly criticised JSC’s actions on Article 285 as unconstitutional and downright treacherous; 59 judges, including 11 judges who do not fall under the jurisdiction of Article 285, sat docilely at the orders of the JSC Chair, and took oath under lock and key.

Supervising the lifetime appointments was interim Supreme Court Justice who had earlier initiated a Ruling declaring himself the Chief Justice.

What went on in the minds of those taking oath, they would know? What fear led them to submit to such degradation, they would know?

To my mind, and to many others who witnessed the scene, it was ample proof there is neither independent judge nor independent judiciary.

Independence begins with an independent mind, and the freedom and power to think for oneself.

In my mind, more questions remain:

Where goes the common individual right to a free and fair trial?

Where goes building public confidence and trust in the judiciary?

Where goes the judges’ right to independence and non-interference?

Where goes the independent judiciary, the backbone of democracy?

http://www.velezinee.aishath.com/content/why

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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