Society & Culture – Page 248 – Minivan News

Judges legitimised JSC’s actions with their silence

Is the law community finally getting ready to stand up to the JSC?

On Saturday night, as Earth Hour plunged the world into darkness, the Judicial Service Commission (JSC) quietly went about swearing in its controversial five new High Court appointments.

The ceremony, held at the JSC premises in the former Presidential Palace, marks the second time in less than a year that the JSC has sworn in judges under circumstances that are legally dubious and highly challenging for democratic consolidation.

The first occasion was in August 2010 when the JSC disregarded Article 285 of the Constitution relating to the educational and other qualifications of the bench and arranged for close to 200 judges to re-take their oaths, regardless of their professional or ethical qualifications.

160 of the judges had been originally appointed by the previous regime, and over a quarter of them possessed criminal records. Many more failed to meet the required educational qualifications by a long shot, having only attended primary school – an establishment that is yet to be known as a bastion of legal education.

Although the JSC had then decided to treat Article 285 as nothing more than ‘symbolic’, its Annual Report 2010 published this month lists a total of 191 judges as having been sworn in last year ‘under Article 285 (c)’.

The implication is clear, and clearly false – the judges were reappointed to fulfil the stipulations of Article 285.

According to the JSC – except for President’s Member Aishath Velezinee who launched an emotive appeal against the procedure as the judges prepared to re-take their oaths – such a ceremony adequately met the constitution’s ‘symbolic’ requirement for judicial reform.

None of the sitting judges, nor any other member of the law community, mounted any significant objections to JSC’s dismissal of the Constitution as ‘symbolic’ and proceeded to re-take their oaths, implicitly legitimising JSC’s approach.

JSC’s ‘winning’ streak

Until now, this initial tacit complicity of the law community in the JSC’s actions had remained largely unchanged as lawyers and judges all appeared to turn the other cheek as the number of allegations of unconstitutional policies and activities in the JSC continued to mount.

Indeed, none of the cases brought against the JSC have so far been successful. This state of affairs is even more remarkable when it is taken into account the JSC’s ‘wins’ have been due to technicalities rather than reasoned argument or skilled interpretations of the law.

In January last, for instance, the Civil Court threw out a lawsuit brought against the JSC by Treasure Island Limited, which alleged that the Commission had been deliberately negligent in its constitutional duty to investigate all complaints of judicial misconduct.

Despite an admission by the JSC during the hearings that it did not have a standardised procedure for dealing with complaints – or anything else for that matter – the Civil Court threw out the case when the plaintiff was late for what was to be the penultimate hearing.

The dismissal meant that the JSC’s complaints procedure – or lack thereof – eluded legal and public scrutiny despite clear indications that such an examination was necessary in light of JSC’s methods for dealing with complaints, which were at best ad hoc by its own admission.

Last Thursday, it was on almost exactly the same grounds that the Supreme Court dismissed Criminal Court Judge Abdul Bari Yousuf’s lawsuit against the JSC alleging that the policy adopted by the JSC to select candidates for the high Court bench was discriminatory and therefore unconstitutional.

Judge Abdul Bari, the Supreme Court ruled on Thursday, had violated court regulations by taking leave without giving prior notice to the court as is required of all claimants in an ongoing case. On these grounds the case was thrown out.

The Supreme Court’s decision to dismiss the case becomes all the more confounding when seen in light of the force and speed with which it moved to acquire the files from the Civil Court where Judge Bari first lodged it.

Citing ‘public interest’, and the magnitude of its importance to the Constitution, the Supreme Court on 21 January used an unprecedented Writ of Prohibition to force the Civil Court to hand over the case files.

Shortly after, the Supreme Court ruled that given the gravity of the matter, only the Supreme Court had jurisdiction over the case. The Civil Court, it said, did not have the authority to decide constitutional matters or matters relating to a higher court.

No need for a lawyer

After two sittings, in which JSC member Dr Afraasheem Ali – appointed as JSC’s representative to the Supreme Court after some frantic self-lobbying over the ‘big telephone in the JSC’ – denied all wrongdoing, the Supreme Court threw out the case.

Despite having been officially made aware of a leaked audio which provides evidence of the unorthodox – if not illegal – methods by which Dr Afraasheem managed to confirm himself as the JSC’s legal representative, the Supreme Court did not raise any objections to his new role as ‘defence counsel’.

Although the JSC is composed overwhelmingly of judges or other legal professionals Dr Afraasheem is not one of them. In fact, despite the growing number of lawsuits against it, the JSC is yet to hire a professional lawyer – hence the need for members to moonlight as defence counsel, qualified or not.

As it turned out, not much training or skills were called for as the Supreme Court threw out the case on 24 March without addressing the issues that the Court itself had deemed as highly important.

The Supreme Court decision, delivered after 4:00pm on Thursday, freed the JSC to swear in its new appointees. It did not waste any time, quickly arranging for the ceremony to take place not much more than 24 hours later.

Although Supreme Court regulations provide a seven-day period in which a claimant can appeal a ruling, JSC’s expedited oath-taking ceremony effectively pre-empted any such action by Judge Bari.

The Supreme Court’s decision to dismiss the case also means that the concerns raised by Family Court Chief Judge Hassan Saeed alleging similar violations of the Constitution by the JSC in its High Court appointments were not addressed either.

By the time he lodged his case, also at the Civil Court, the Supreme Court had ruled that only it had jurisdiction over the matter. His case, too, was then transferred to the higher court to be heard with Judge Abdul Bari’s case.

Personal interest versus public interest

Unlike the oath-taking ceremony in August last year, there appears to be less appetite among members of the judiciary to swallow whole the JSC’s interpretation of the Constitution this time around.

Back then none of the judges stood to make a personal loss in re-taking the oath. The negative impact of such an action would have been, and has been, on the public’s faith in the independence of the judiciary.

In the current dispute, however, the JSC’s appointment criteria as well as the Supreme Court’s dismissal of any alleged wrongdoing on the part of the JSC have cost the appellants – and other unsuccessful candidates – a seat on the High Court bench.

The personal cost appears to have galvanised the law community into action in ways that the JSC’s dismissal of the Constitution in August 2010 did not.

Judge Hassan Saeed, for instance, wrote to President Nasheed on Saturday, asking him to apply the powers vested in the executive by Article 115 of the Constitution, which accords the president both the right and the duty to intervene in furtherance of the rule of law.

Judge Hassan Saeed’s appeal to President Nasheed to use his executive powers to bring the JSC in line marks not only a potential turning point in the law community’s attitude towards the JSC and the role of the courts in supporting it; it also signals a u-turn in the judiciary’s perception of the executive’s relationship with the judiciary.

When President Nasheed criticised the JSC in June 2010, when it first decided to disregard Article 285 of the constitution, the Judges Association of Maldives (JAM) was scathing in its response.

In a press release, JAM described President Nasheed’s condemnations of the JSC’s actions at the time as ‘disrespectful towards the honour and dignity of judges’, and said his criticisms were indicative of the ‘negative view he holds of the judiciary’.

The Judges Association also accused the president of attempting to unduly influence the JSC, which it said, would ‘render separation of powers obsolete’.

It is not known yet whether President Nasheed has responded to Judge Hassan Saeed’s letter, a copy of which Minivan News has obtained.

If the president does heed the call to intervene in the matter, the law community’s reaction would tell whether or not it has arrived at a point where it is willing to stand up to threats to judicial independence – perceived or real.

As Pakistan’s law community demonstrated in 2007, the strongest ability to establish and protect the independence of the judiciary lies within itself and not outside of it.

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Shahum attempted to attack officers with a machete, claim police

Police Inspector Abdulla Nawaz of the Serious and Organised Crime Department has claimed that Ibrahim Shahum, arrested in connection with the recent murder of 21 year-old Ahusan Basheer, was planning to attack officers with a machete when he was found hiding inside some bushes on an uninhabited island.

Police began searching for Shahum after Basheer was stabbed to death on Alikileygefaanu Magu in Male’, one of the capital’s main roads.

”It is believed that he was attempting to attack police officers with the machete,” Nawaz said, of Shahum’s arrest. ”He was arrested with three other persons including an under-aged boy, all of them are suspected to be involved in the murder case.”

He added that police believed Shahum was had led the attack on Basheer, and identified his suspected accomplices as Athif Rasheed and Mohamed Visham.

”There is a reason why they attacked Basheer, but we can’t divulge the information as it might obstruct the investigation,” he said. ”We are also trying to determine whether they had any connection with the owner of the uninhabited island.”

The murder case came not after a week Shahum was released by the Criminal Court citing lack of cooperation from the Health Ministry in providing certain documents.

Shahum was kept in detention six months following the investigation of another murder case involving a 17 year-old boy who bled to death after being stabbed.

On March 17, a group of men stabbed a 21 year-old man to death near NC Park in the Galolhu district of Male’.

Police said the incident occurred around 3:30am in the morning in Alikileyegfaanu Magu.

”He was stabbed four times in the back and three times in the chest,” police then said in a statement.

After the attack to curb the violence in Male’ police commenced special operations and arrested more than 50 persons who were arrested on charges of planning assaults, which most of them were arrested without any probable grounds to arrest or keep in detention according to the Criminal Court.

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Staff threw stones at intruder and left him in the water to drown, alleges Baros staff member

A staff member at Baros Island Resort has claimed to have witnessed three staff members throwing stones at one of the four men who invaded the resort wearing balaclavas last Wednesday, as the intruder was standing on the jetty.

The body of 20 year-old Ali ‘Immortal’ Shafiu was later was later discovered floating dead in the lagoon. Staff restrained another of the intruders, while two others were found and arrested by police.

Friends of the deceased who were present at Indira Gandi Memorial Hospital (IGMH) when his body was brought to the hospital claimed to have seen wounds on left hand and left side of his chest, and a wound on his head one and a half inches deep.

Shafiu’s family members later told local newspaper Haveeru that they had seen wounds on different parts of the body, however police would not confirm the injuries claiming the investigation was ongoing.

“That day early in the morning my colleagues came and shook me awake saying thieves had invaded the resort,’’ the staff member told Minivan News, on condition of anonymity.

‘’I ran to the jetty and saw staff throwing stones at a person waiting at the end of the jetty. I saw him falling into the water, I think he was knocked unconscious and fell,’’ the staff member said.

“His body was in the water – it had no movement at all, I was worried and told them to pick him up.”

Staff did not retrieve the body and the body was left in the water for more than 30 minutes, the source said.

‘’His body was floating on the water like a log. Someone who had not seen the body falling would think that it was a log. There was no movement at all.’’

The staff member said that police arrived on the island and took the body from the water.

“His body was as hard as rock when he was taken out of the water, and suddenly white foam came out from his mouth,’’ the staff member said. “The police then took the body for examinations.’’

The staff member said that later that day, before staff realised that they might be subjected to revenge attacks, many staff were claiming to have attacked Shafiu.

“They were not intending to kill him, but after they knew he was dead they rejoiced,’’ the staff member alleged. “But later the three staff who led the attack on Shafiu started receiving phone calls and threats that they would be sorry.’’

After they received these calls, those who claimed have hit Shafiu suddenly claimed to have not even touched him, the source alleged.

“Later I asked my colleagues who had found the intruders first. They said it was the security officers who saw the four of them, and they went and called the Maldivian staff members,’’ the staff member said.

At a press conference this afternoon, police that they were now investigating the cause of three wounds to Shafiu’s head.

Inspector Abdulla Nawaz also said that police have discovered the boat which was allegedly used by seven men – only four of whom landed on the island.

Weapons were also discovered inside the boat, Nawaz said, including swords and a harpoon gun.

”Police have now arrested the other three men, who include the captain of the boat,” he said.

Police said the four persons found in the resort had allegedly damaged the resort’s accounts department in a bid to to steal the safe inside.

”The safe contained US$50,000 at that time,” said Nawaz. ”We are investigating whether the seven men had any connections with a persons working in the resort.”

He also said that the body of Shafiu was ”apparently dead” when police took him out of the water.

”Police officers who attended the scene observed that there was no movement and the body was very hard,” Nawaz said.

General Manager of Baros Island Resort and Spa, Jonathan Blitz, was on his day off when Minivan News called the resort, however a senior staff member said the resort was unwilling to comment as the police investigation was ongoing.

“It was early in the morning and we are still not clear what happened,” he said, expressing concern that the original Minivan News article on the incident had been posted on the TripAdvisor website “and guests were commenting.”

Baros was the second Maldivian resort this year to suffer an attempted robbery by people from outside the island.

In Janurary, staff at Kihaadhuffaru in Baa Atoll were threatened by a group of masked men brandishing machetes and swords, who escaped in a dingy with the resort’s safe.

A receptionist was reportedly gagged with tape and restrained with a cable tie during the incident.

Sub-Inspector Ahmed Shiyam said at the time that he did not believe resorts would need to review existing security measures in light of the Kihaadhuffaru theft.

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Authorities in the dark over Interpol’s Maldivian terror hunt

Maldivian authorities say they have no knowledge of any investigations of its nationals by Interpol regarding possible involvement in an alleged terrorist plot to attack players at the 2011 Cricket World Cup.

Sub-Inspector Ahmed Ali of the Maldives Police Service told Minivan News that it had been given no information on any Maldivian nationals wanted for allegedly planning attacks on the World Cup. The only arrest police have confirmed to have made of late that was linked to terrorism was the arrest of local man Iqbal Mohamed over alleged involvement in an attack on the capital in 2007.

Mohamed was himself yesterday released by the country’s Criminal Court. Chief Judge Abdulla Mohamed said the decision was made after an apparent “lack of information” supplied by police.

Today’s police comments were made as local paper Haveeru cited officials at Interpol, the international police organisation, as reportedly confirming that two Maldivian nationals suspected of involvement with Pakistani militant organisation Lashkar-e-Taiba (LET) were now wanted for planned attacks at the high-profile cricket tournament being held in Sri Lanka, India and Bangladesh.

The report came 24 hours after prominent regional media outlets such as the Times of India claimed that Iqbal Mohamed, who had been arrested by police earlier this month on charges relating to a homemade explosive device attack in Male’ in 2007, was suspected of being part of an alleged terror plot at the cricket World Cup. LeT was implicated in the 2008 attacks on Mumbai, India.

Haveeru said that Interpol representatives had confirmed that two unidentified Maldivian nationals were now wanted alongside four Pakistanis and an Afghan for alleged involvement in plans to strike the tournament; claims it has said were based on “reliable” information.

The report claimed that Interpol’s information had been based on the interrogation of several terror suspects it had arrested, which it was now using to collaborate with officials from South Asian nations like the Maldives over the matter.

Sub inspector Ali said that although the Maldives Police Force was a member of Interpol, it has not been collaborating over the alleged terror investigations of Maldivian suspects or supplied with any information on the matter.

“A Maldivian (Iqbal Mohamed) was arrested a few weeks back, but we don’t have any new information since then [about these terrorism reports],” he said.

Minister for Foreign Affairs Ahmed Naseem said allegations of Maldivian involvement in planning potential terrorist attacks during the 2011 World Cup was “old news” and that the Ministry had not been provided with details of any such investigations being carried out by Interpol.

“We really don’t have details about this. It is a matter for the police,” the spokesperson added.

Representatives from both the Pakistan Foreign Office and Interpol had not responded to Minivan News before going to press.

Interpol has not yet revealed to the media the identities of the two Maldivian suspects it is reportedly hunting, yet Iqbal Mohamed was yesterday identified by the Times of India as a “terrorist” suspect arrested who had been on his way to the Maldives from Karachi with “criminal intent”.

According to the report, Indian police authorities have already issued a general alert ahead of the tournament’s final match scheduled for April 2 in the city of Mumbai, while Australia was said to have last week updated a travel advisory for its citizens calling for a “high degree of caution” for anyone in the region during the event.

Speaking to Minivan News on 15 March, Sub-Inspector Ahmed Shiyam confirmed that Iqbal Mohamed had been arrested on arrival at Male’ International Airport from Pakistan on 10 March, after regional authorities had alerted their Maldivian counterparts of his movements.

The arrest, according to Shiyam, was made in connection to an attack in Male’ in 2007, where a device built from components such as a gas cylinder, a washing machine motor and a mobile phone exploded injuring 12 tourists – several seriously.

Shiyam told Minivan News at the time that although Iqbal was believed to have been in Pakistan during the Male’ attack, he had been wanted by police for questioning as part of their ongoing investigations into the 2007 incident over an alleged role in the plan.

The sub inspector claimed that the Maldives Police Service had been waiting for the Prosecutor General to present a case against the suspect ahead of any potential trial in the Maldives and had not been aware of any motivation for his return to the country.

“We really don’t know why has had travelled back to the Maldives, but we have now arrested him.”

However, Iqbal was confirmed to have been released from custody yesterday by the Maldives’ Criminal Court after his arrest on March 10.

Iqbal was himself the subject of a red notice issued by Interpol, which was said to have drawn police attention after Interpol’s Major Events Support Team (IMEST) operating in Sri Lanka during the Cricket World Cup identified the suspect as he was travelling through the country back to the Maldives.

According to Interpol, red notices are a system used to keep the 188 nations that make up its members informed of arrest warrants issued by judicial authorities. Although the notices are not formal arrest warrants, the organisation said that they are used to identify individuals wanted for crimes under a national jurisdiction.

Following Iqbal’s arrest, Press Secretary for the President Mohamed Zuhair said that he did not believe the suspect’s return to the Maldives raised concerns about further potential attacks in the country.

He claimed that the country’s National Security Advisor had recently addressed the issue of religious fundamentalists after a request from the country’s Immigration Commissioner and found no additional concerns. Zuhair added that the advisor had concluded that there was not thought to be any terror cells operating within the Maldives and claimed there was no need to further heighten national security against such threats.

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Criminal court releases suspect in alleged World Cup terror plot

The Maldives Police Service says it has no knowledge of claims made in international media that a Maldivian national was been arrested for alleged involvement in a planned terrorist attack on the International Cricket Council (ICC) World Cup currently being held in Sri Lanka, Bangladesh and India.

A spokesperson for the Maldives National Defense Force (MNDF) told Minivan News that it was unable to comment on allegations relating to security in another country, while a police official said that they had no information that a Maldivian was involved in any terrorism offences linked to the event and would not comment further on the matter.

According to the Times of India newspaper, Maldivian national Iqbal Mohamed, whom Minivan News reported earlier this month had been taken into custody at Male’ International Airport over his suspected involvement in the 2007 Sultans Park bombing in Male’, was arrested on suspicion of trying to attack this year’s Cricket World Cup event.

Police spokesperson Lance-Corporal Abdul Majeed Moosa confirmed to Minivan News today that the Criminal Court yesterday refused to extend Iqbal’s detention and ordered his release.

Chief Judge of the Criminal Court Abdulla Mohamed said he would provide more information on the decision when staff returned to the office.

The Times has meanwhile reported that that Iqbal was suspected to have been part of plans to strike the cricket World Cup.

“A ‘terrorist’ suspected of planning to attack the cricket World Cup has been arrested after help from authorities across South Asia including in Pakistan,” the Times of India wrote, citing International Police Organisation Interpol’s Chief Ronald Noble.

According to Noble, Pakistani, Sri Lankan and Maldivian authorities had worked together to identify, locate and arrest a “terrorist” on his way to the Maldives from Karachi on the grounds of “criminal intent”.

The arrest was made amidst a strict security crackdown in the region during the World Cup, with Pakistani Interior Minister Rehman Malik claiming that fears existed of a major unspecified terrorist attack at the high-profile event.

“There was a serious attempt of an act of terrorism during this (World Cup),” said Malik.

According to the Times of India report, local police authorities have already issued a general alert ahead of the tournament’s final match scheduled for April 2 in the city of Mumbai, while Australia was said to have yesterday updated a travel advisory for its citizens calling for a “high degree of caution” for anyone in the region during the event.

Speaking to Minivan News on 15 March, Sub-Inspector Ahmed Shiyam confirmed that Iqbal Mohamed had been arrested on arrival at Male’ International Airport from Pakistan earlier in the month, after regional authorities had alerted their Maldivian counterparts of his movements.

Shiyam told Minivan News at the time that although Iqbal Mohamed was believed to have been in Pakistan at the time of the Male’ attack, he had been wanted by police as part of their ongoing investigations into the 2007 incident due to an alleged role in the plan.

The sub inspector claimed that the Maldives Police Service was waiting for the Prosecutor General to present a case against the suspect ahead of any potential trial in the Maldives and had not been aware of any motivation for his return to the country.

“We really don’t why has had travelled back to the Maldives, but we have now arrested him.”

Mohamed was himself the subject of a red notice issued by Interpol, which was said to have drawn police attention after Interpol’s Major Events Support Team (IMEST) operating in Sri Lanka during the Cricket World Cup identified the suspect as he was travelling through the country back to the Maldives.

Following Moahmed’s arrest, Press Secretary for the President Mohamed Zuhair said that he did not believe the suspect’s return to the Maldives raised concerns about further potential attacks in the country.

Zuhair added that the advisor had concluded that there was not thought to be any terror cells operating within the Maldives and claimed there was no need to further heighten national security against such threats.

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JSC appoints Judge Naeem to Juvenile Court as punishment

The Judicial Service Commission (JSC) has appointed Judge Mohamed Naeem – who is currently a Civil Court Judge – to the Juvenile Court to punish him for disobeying the decision of a superior court.

The decision to transfer Naeem to the Juvenile Court was made during a meeting of the JSC held last Thursday, the commission said in a statement.

‘’The commission decided to do so as an action taken against Judge Mohamed Naeem for he has refused to conduct trials of cases concerning the state before the parliament gives consent to the [then] Attorney General [Dr Ahmed Ali Sawad],’’ reads the statement.

The JSC said that the case was investigated by the sub-committee formed to recommend disciplinary measures against judges.

Last Monday, the JSC announced that it had formed a subcommittee to investigate complaints about judges, indicating that its first subject was Civil Court Judge Naeem. This is the first case against a judge the JSC has conducted in more than a year.

The investigation of Naeem came after he reportedly declaring during the first hearing of a case filed against the state that he would not hear cases involving the state before parliament approved the reappointment of former Attorney General Dr Ahmed Ali Sawad.

Naeem’s decision was in defiance of precedent set by both a majority of Civil Court judges as well as the High Court, which had ruled that such cases could be heard before the AG received parliamentary consent.

The very same day parliament rejected for a second time Dr Sawad’s reappointment.

According to the JSC, the committee – which includes JSC Chair and Supreme Court Justice Adam Mohamed Abdulla, Judge Abdulla Didi and General Public Member Shuaib Abdurahman – was established under the Judges Act and that its first scheduled task was selected by a vote taken among its members.

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Two arrested for recording nude footage in Thinadhoo

Police Spokesperson Lance Corporal Abdul Majeed Moosa has said that police have arrested two persons in Thinadhoo after it was reported that a group had recorded nude footage of a group of visiting athletics officials.

Moosa said that the visiting officials went to the island to attend ‘Makita Inter Atoll Junior Athletics Championship’ held on Thinadhoo.

”We can’t give more information as the investigation is ongoing,” he said.

Local newspaper ‘Haveeru’ reported that the two nude videos were of two foreign officials.

The paper reported that sources familiar with the case has said that the videos were recorded inside the bathroom secretly and some of the videos have been leaked.

The incident has caused the other members of the officials team to be concerned that their videos might also have been recorded secretly.

All the officials stayed in one house and there were two toilets in that house which both males and females in the team used during their stay in Thinadhoo.

Recently police arrested 14 persons for recording nude videos and pictures of senior government officials through facebook.

Police have not yet provided further information of the case.

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“Sunlight is the best antiseptic”: the case for an independent judiciary

The structure of the Judicial Services Commission (JSC) is compromising its accountability and obstructing the creation of an independent judiciary, says Professor Murray Kellam, a former Australian Supreme Court Justice who has spent several weeks observing the group.

The UNDP brought Kellam to the Maldives to observe the JSC based on a recommendation in a report by the International Commission of Jurists (ICJ) that suggested the commission be subjected to independent outside oversight.

As well as a former Justice of the Supreme Court of Victoria, Kellam is the current Chief Commissioner of the Tasmanian Anti-Corruption Commission and also has extensive experience assisting with the development of legal systems in countries such as Burma and Bangladesh.

He has also been appointed an Officer of the Order of Australia, an award given for distinguished service of a high degree to Australia or humanity at large.

“I think there’s a real problem when you’ve got members of both the executive and the legislative body administering judicial affairs,” Kellam said, on conclusion of his visit to the Maldives.

“You have the Speaker, Attorney General and an MP sitting in judgement on their own recommendations. That situation doesn’t need describing any further.”

Kellam said his observations were not intended to be critical of the members of the JSC, but rather to assist in the development of an independent and respected body.

In other countries it was usual for the Chief Justice to chair the body responsible for judicial accountability, but the members were made up of respected people from the community “rather than those allied to the executive or legislature.”

“The process in your Constitution here is that [in the event of] gross misconduct and gross incompetence, the Majlis (parliament) has the job of dismissing them, and that’s consistent with other places in the world. But the problem is that the body making the recommendation is also the membership.”

Kellam was provided with full access to the JSC’s meetings and files during his visit, however he acknowledged that language was a barrier – most significantly, the lack of official English translations of most legislation.

“The unofficial translation of the Constitution is pretty good, but I have doubts about the accuracy of the translation for the JSC Act. The UNDP assisted, but the [language gap] makes it pretty difficult.”

However, Kellam said that he agreed with the ICJ’s recommendation that parliament should evaluate the JSC “and ensure it operates more transparently.”

“There may be an argument that the appointments and complaints processes [for judges] should be separated,” he said. “At the moment it appears that the expectations of the authors of the constitution are not being met.”

There had been, he noted, a requirement for the JSC to undergo training, ”but that was removed by the Supreme Court and subsequently by the legislature.”

Urgent legislation required

Beyond a review and possible reform of the JSC by parliament, the Majlis needed to urgently pass a Criminal and Civil Code, a Penal Code, and an Evidence Act, as currently, “the courts have no guidance as to the exercise of their powers under the constitution.”

“These legislative enactments ensure consistency on the part of the courts and a proper legal basis for the process of litigation,” he said, adding that under the current circumstances, “I can’t see how the courts can operate. The importance of the legislature passing such legislation cannot be overstated.”

As for oversight, the parliament, he said, was entitled to take an interest in the functioning of the judiciary, as the courts were funded by public expenditure.

However, Kellam did mirror the concerns of the ICJ at the interference of the executive, and particularly, the “the extra-constitutional use of the Maldives National Defence Force and police and defiance of court orders.”

He noted the ICJ’s concerns over public statements of members of government meeting with judges and members of parliament imploring the President to ignore both the courts and the legislature: “Actions such as this brought Hitler to power,” he warned.

Judges needed to be able to make decisions contrary to interests of the executive, and should not be subject to pressure from the politically powerful, commercially powerful or any other specific social interest groups.

“I have in my own career made decisions the government was extremely unhappy with – but they did what they were told in due course, because that’s the way the rule of law operates.”

At the same time, “‘Rule of law’ does not mean ‘rule of judges’. Judges are not free to do as they wish. They are subject to the Constitution and the laws enacted by parliament. It is not their role to make disparaging
remarks about parties, witnesses who appear before them, or to send signals to society at large in order to intimidate and undermine other basic freedoms such as freedom of expression.

“Respect is not gained through coercive use of power. The judiciary earns respect by its performance and its conduct,” Kellam said.

Framework in place

The Maldives’ Constitution provided an excellent model for an independent judiciary, “much better than the ones in many countries I’ve worked in,” Kellam said.

“There was quite clearly a real endeavour to set up accountability mechanisms, such as the JSC, Anti-Corruption Commission (ACC) and provision for an independent prosecutor – a really significant step.

“But having a model is one thing, executing the plan is another. In the end that depends on the calibre and integrity of people who run these organisations. They need to set the gold standard in terms of behaviour, conduct and transparency.”

Paying judges generously was a significant part of the equation, he said, recalling a judge he met in Cambodia who drove taxis at night to avoid having to accept bribes.

Australia, he commented, had never had a judge convicted of bribery.

“Judges misbehave in Australia just like elsewhere, but we do not have corruption. I think that’s a reflection of accountability, but also a significant reflection of the fact that they are well-paid. As a judge in Australia you would have to be extremely silly [to accept a bribe], because the risk of losing your salary and all your pension entitlements is simply too high.”

Transparency trumps nepotism

In both his interview with Minivan News and a lecture held on completion of his visit to the Maldives, Kellam repeatedly emphasised the importance of independence.

It was not, he said, necessarily a obstacle to independence that the Maldives was a small country with myriad family, political and business connections.

“I chair the Anti-Corruption Commission in Tasmania, a state with a population of 500,000 people,” he said. “Many families have been living there a very long time, and everyone knows everyone else which is a reason why they brought an outsider like me to chair their Anti-Corruption Commission.

Transparency, he said, was the answer to the problem, and was as much a defence for those drafting contracts with those they knew as a means of mitigation corruption.

“There should be a declaration at the start of meetings, where interests should be stated,” he said.

“If you are awarding a contract to your brother-in-law, which can happen in Tasmania, it must be on the table. The person awarding contract should make the declaration. It must be a similar problem for judges in island courts here – judges here know the islanders, but you can’t have them disqualifying themselves.

“We have a jury system in Australia, and in a town with a population of 20,000 the jury will know all the victims and the witnesses. The important thing is that there is transparency and it is on the stable.

“Sunlight is the best antiseptic. The real problem of perception happens when these things are not out in the open – when they are done under the table, and somebody says ‘Hang on, he’s related or they had dinner the other week.’ If it is in public, decisions can be made impartially. If it’s disclosed you can look at the tender process and say ‘Not withstanding that this person is the uncle of the person delivering on the contract, on the face of it this is transparent.’ That’s entirely different to somebody awarding a contract to a relative behind closed doors.”

Rulings had to also be open to public scrutiny, and actively published and subjected to public analysis. Judges and their verdicts were open to scrutiny and criticism, Kellam said, and in Australia it was understood that judges did not pursue cases of defamation against them.

The economic case for justice

An impartial judicial system was a key factor in encouraging foreign investment, Kellam said, and could have a direct and significant impact on the economy.

This was something that Singapore recognised 15 years ago, he said.

“They understood the value of a civil system that is incorruptible and competent. They spent a lot of money on their judiciary and Transparency International now rates their civil legal system as one of the best in the world.

“Singapore realised that one of the best ways to attract investment was to have a system whereby international investors knew they would get a fair go in domestic courts. If you look at the circumstances in other parts of the world where investors have no confidence in the judiciary, that deters investment and takes it offshore. They’ll go somewhere else.

Citing Adam Smith, considered one of the founders of modern capitalism, Kellam observed that “Commerce and manufacturers can seldom flourish long in any state which does not enjoy a regular administration of justice, in which people do not feel themselves secure in possession of their property, in which the faith of contracts is not supported by law.”

As a foreign investor, Kellam said, “you want to know that contact you enter into with domestic partners will be understood and enforced by courts if there is a breach. You want courts to judge you impartially – you don’t want to be discriminated against because you are a foreigner.”

“Secondly, it’s no good getting judgement if no there is enforcement – which is a major factor in developing countries. Sure you can get a judgement, but it’s not worth the paper it’s written on because there is no process for getting it enforced, and you can’t turn judgements into anything productive.”

Singapore had recognised this, and become not only a hub for foreign investment but also a regional hub for commercial arbitration.

“People from around the region will use Singapore as a place of law and business,” Kellam observed.

“The constitution sets up [an independent judiciary] for principled reasons. But there are not only good arguments for these in terms of principle, there are very good economic arguments. But the judges have got to understand that, and they’ve got to build it.”

Perhaps tellingly, President’s Member of the JSC Aishath Velezinee observed on her blog that “not a single member of the Judicial Service Commission (except for myself) or staff attended Professor Kellum’s lecture.

“What cannot be ignored is that neither the JSC nor the judges have the willingness and interest or the knowledge and capacity to reform the judiciary in accordance with the Constitution, despite the rhetoric.”

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Conrad resort claims resolution found to on-site strikes

Strike action at the Conrad Maldives Rangali Island resort was bought to an end last night as staff at the site returned to work following alleged disputes over service charge policy, management have said.

In a statement issued today, the resort, which is part of hospitality conglomerate Hilton Worldwide, claimed that operations were returning to normal after being affected in “a small way” by a number of its staff convening in their quarters on Tuesday (22 March) to call for increases in the amount received from service charges.

As the country continues to review labour laws that would outline policies for striking at resorts, possibly outlawing protests by workers on the “shop floor”, the Conrad Maldives Rangali Island said this week’s industrial action had not result in any customers prematurely checking out from the site.

With the wider national Labour Act still awaiting approval in the Majlis, the Conrad resort said that it had attempted to try and open up negotiations with staff following commencement of the strike action on Tuesday evening.

“The hotel respects the rights of all employees to express their points of view in a lawful and non-disruptive manner. As such, team members were invited to discuss the issue with the management team in order to resolve the matter quickly and fairly,” the resort stated. “The staff were unwilling to discuss the matter despite several approaches.”

By yesterday morning (March 23), figures from the Crown Company, which owns the resort in question, as well as representatives from the labour and tourism ministries arrived to discuss the strikers’ grievances – initially without success. However, the company has claimed it was able to find a resolution by 7:00pm on Wednesday evening with staff returning to work “immediately”.

Although the Conrad Rangali Island was unable to provide details to Minivan News of the exact changes it might be making to its operations to conclude the strikes at the time of going to press, the resort claimed in a previous statement that it was willing to review its operations.

“The management’s position is that it is happy to re-evaluate the calculation of the service charge. Additionally, the resort will arrange for independent auditing of accounts to demonstrate that the service charge is distributed in its entirety,” the company said yesterday in a statement.

“The staff had already been informed on Tuesday that salary increases will be offered across the board and are expected to be higher than in previous years following a month-long survey of wage levels in the country.”

‘Sim’ Mohamed Ibrahim from the Maldives Association of Tourism Industry (MATI) said following the resolution of the strikes that regulations that would outlaw strike action on resort property were currently under the consideration of the country’s parliament.

Sim claimed that the regulations, expected to be passed as part of a new Labour Act outlining a framework for the nation’s work practices had been drawn up by lawyers along with the assistance of a number of bodies including the President’s Office.

“There is regulation in the works that would govern strikes in the country,” he said. “It has been made very clear in public notifications from the labour ministry that has clarified that ‘wildcat strikes’ should not be tolerated.”

Although the strike regulations are still being reviewed within the Majlis, Sim said that they would likely be passed in their final form as part of a national labour act rather than an individual bill relating to industrial action.

He claimed additionally that the regulations were not related to outlawing strikes, but ensuring instead that industrial action did not take place on the private property of resort owners.

To this end of trying to ensure worker’s rights, Sim said he believed that the Ministry of Tourism, Arts and Culture had already sent details of correct resort grievances procedures to the striking workers, which he claimed had not been followed.

Workers’ groups in the country such as Tourism Employees Association of Maldives (TEAM) have been openly critical of initial drafts of the strike regulations though, which it claimed were less about regulating industrial action but rather outlawing them altogether.

TEAM president and serving Maldivian Democratic Party (MDP) MP Ahmed Easa has previously claimed that the organisation openly supported regulations that accepted that there has to be a reason to instigate strikes, as well the manner of how they should be conducted.

Back in November, a bill outlining possible standards for strike action was passed to the Majlis’ National Security Committee concerning possible amendments to regulations for industrial action at the country’s resort properties

The bill was initially passed to parliament in August by the Dhivehi Qaumee Party (DQP) in attempts to try and curb strikes such as those seen last year at Kurumba resort that reduced occupancy rates to zero for a period.

Parliamentary debate over the bill has seen both fierce opposition and support from figures across the tourism industry, who have argued that current unregulated strike action is detrimental to travel income.

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