Day: September 4, 2012

CNI report “based on false premise that Abdulla Mohamed is a constitutionally appointed judge”: Velezinee

The Commission of National Inquiry (CNI)’s report into the circumstances surrounding the controversial transfer of power on February 7 mistakenly presumes that the Maldives has an independent and constitutionally-appointed judiciary, former President’s Member of the Judicial Services Commission (JSC), Aishath Velezinee, has stated.

The report, focused on the events of February 6 to 8, claimed there was no evidence to support allegations by former President Mohamed Nasheed that he was ousted in a coup d’état, that his resignation was under duress, or that there was any mutiny by the police and military. It dwells heavily on “unlawful orders” given by Nasheed as justification for police disobedience and protests, in particular his ordering the detention of Chief Criminal Court Judge Abdulla Mohamed by the military.

“The report, by its failure to probe the events leading up to the removal of Abdulla Mohamed and the January 2012 protests, fails to recognise the systematic breach of the Constitution by the JSC and Majlis that forced President Nasheed to use the powers of Head of State to address the issue of Abdulla Mohamed,” said Velezinee, in a detailing statement responding to the report.

“The inquiry is based on a false premise, the assumption that Abdulla Mohamed is a constitutionally appointed judge, which is a political creation and ignores all evidence refuting this,” she stated.

Velezinee noted that Article 285 of the constitution – concerning the appointment and qualification of judges on conclusion of the interim period – was discarded by the JSC in 2010 as “symbolic”, “the CNI report indirectly legitimises a judiciary where at least 196 judges sworn in by the JSC/Interim Supreme Court between 4 August and 7 August 2012 are a nullity, having been appointed without due procedure, and without fulfilling the qualifications and qualities required of a Judge under the Constitution.”

She noted that many of the “prominent lawyers” and politicians who protested the arrest of Abdulla Mohamed’s removal “were MPs with criminal cases before Abdulla Mohamed and their lawyers.”

Furthermore, “the report does not mention that many of the ‘prominent lawyers’ who protested at the removal of Abdulla Mohamed now sit in office.”

“Suspicion is further raised when it is observed that the MPs who led the January 2012 [protests] were the same MPs who had obstructed attempts to get a parliamentary inquiry [into the JSC] by disrupting Committee [hearings], and included the current Chair of the Majlis Committee,”

The report further failed to note recent observations by the UN Human Rights Committee in July 2012 substantiating the JSC’s nullification of Article 285, she noted.

In its concluding observations, the UNHRC noted “concerned at the fact that the composition and the functioning of the JSC seriously compromises the realisation of measures to ensure the independence of the judiciary as well as its impartiality and integrity.”

The Committee is also concerned that such a situation undermines the judicial protection of human rights and fundamental freedoms in the State party (art. 2 (3), 14).

“The State party should take effective measures to reform the composition and the functioning of the Judicial Service Commission (JSC). It should also guarantee its independence and facilitate the impartiality and integrity of the Judiciary, so as to effectively protect human rights through the judicial process.

The CNI report itself recognised the poor standard of the judiciary, Velezinee observed, citing from it:

Perhaps the most fundamental requirement for a vibrant democracy is the rule of law which appears weak in the Maldives. Notably, the Commission was confronted regularly by allegations of the breach of the rule of law and clear absence of confidence in the institutions which are entrusted with upholding it.

Indeed, this appeared central to the frustrations of government under President Nasheed and his own lack of recourse to the judiciary to redress grievances and settle disputes. He did not appear alone.

Despite this, Velezinee noted that the report failed to recognise “that judicial reform is a fundamental Constitutional requirement under Article 285, or comprehend the centrality of Article 285 to the establishment of de facto independence of the judiciary in a state where de jure Independence of the judiciary was first introduced with the ratification of the Constitution in 2008.”

Instead, Velezinee stated, the report “explicitly politicises judicial reform as the political agenda of President Mohamed Nasheed and the Maldives Democratic Party (MDP); and fails to note that the political pledge in the MDP’s manifesto echoes Article 285 of the Constitution and its’ obligation upon the state of Maldives.”

By concluding that Judge Abdulla was just the “focus of their antipathy and antagonism”, the report “disregards major events that led to the events of January 2012, including but not limited to:

  • Events of 2010 around Constitution Article 285 and re-appointment of Judges
  • JSC’s unconstitutional nullification of Article 285 declaring it a “Symbolic Article” and re-appointing the sitting bench without due check
  • Failure of the Majlis to hold an inquiry into the JSC’s alleged Constitution breach and loss of an independent judiciary despite a commitment to hold an inquiry given by the Independent Bodies Oversight Committee on 2 August 2010
  • The fact that amongst those MPs and other political figures leading the January protests calling to “Free Judge Abdulla”, and seen celebrating President Nasheed’s “resignation” on 7 February 2012, were those same MPs who had obstructed all attempts to probe the said issues in Majlis Committees
  • The fact that these MPs, instead of upholding their duty and establishing the truth of the matter by holding an Open Inquiry allowing me to present evidence, politicised the issue and resorted to publicly attack myself, engaging in defamation and character-assassination whilst denying an inquiry. Action that gives good reason to believe in a cover-up, and a wider conspiracy against Constitutional Democratic Government that link events of 2010 (and beyond) to the events of 7 February 2012.
  • The fact that the matter of Abdulla Mohamed being a threat to national security was known to the Judicial Service Commission, the Maldives Police Services, the Maldives National Defence Forces and the Parliament in addition to the President; and that the system had failed to hold Abdulla Mohamed accountable, or the JSC accountable. Instead the JSC and Majlis were covering up for each other.”

The CNI report, Velezinee stated, “fails to consider how the collapse of Rule of Law could possibly have been engineered by those in positions of power, despite evidence of JSC’s Constitution breaches and Majlis cover-up provided to the CNI by myself.”

“The case of Abdulla Mohamed takes a completely different turn if it is established that Abdulla Mohamed is a political plant of President Maumoon Abdul Gayoom, and is unconstitutionally retained by political influence, and placed as Chief Judge of Criminal Court by law, with the Majlis encroaching upon Constitutional powers given to the Judicial Service Commission alone,” Velezinee concluded. “Were it so, it is incumbent upon the Head of State to exercise his powers to prevent abuse of the Criminal Court by a political plant.”

“I am deeply concerned that the CNI report legitimises a dangerous precedent to permit de facto lowering of international standards despite the assurance of the highest standards of democracy as practiced in an open democratic society throughout the Constitution.”

CMAG to meet

The Commonwealth Ministerial Action Group (CMAG) is due to meet and a consider the report in the next week.

The Australian Minister for Foreign Affairs, Senator Bob Carr, on Tuesday issued a statement acknowledging its release.

Senator Carr will chair next week’s meeting of the CMAG which suspended the Maldives from the organisation’s human rights and democracy arm and placed the Maldives on its formal agenda after the events of February.

“Australia urges all party leaders to take part in discussions which pave the way to free and fair elections and strengthen Maldives’ democratic institutions,” Senator Carr said.

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“Too little, too late”: President’s Office dismisses chances of MDP coalition

President Dr Mohamed Waheed Hassan has decided not to include the Maldivian Democratic Party (MDP) in his national unity government, his advisor Ahmed ‘Topi’ Thaufeeg has told local media.

“It is too little, too late”, said President’s Office Spokesman Masood Imad, adding, “[the MDP] remain a viable opposition.”

Immediately after his accession to the presidency, Waheed announced that he would leave some cabinet posts vacant for the MDP.

However, feeling President Waheed to have taken power illegally, the MDP refused these overtures.

After the Commission of National Inquiry (CNI) concluded that the transfer of power on February 7 did not amount to a coup, MDP Chairman ‘Reeko’ Moosa Manik attended the newly-coined ‘Leader’s Dialogue’ meeting on Sunday.

Whilst local media had reported that Moosa requested a place for the MDP in the current government, Moosa himself told Minivan News yesterday that he had only asked for clarification on the MDPs position – whether it should be considered the ruling, or the opposition party.

Responding to this argument, Masood today said: “The point here is that the MDP fails to understand is that this is not a parliamentary system, it is a presidential system.”

This constitutional problem was also included in the observations of the CNI’s international observers.

“There are tensions within the Constitution itself with a Presidential system engrafted onto a Parliamentary system which will always be problematic,” commented Sir Bruce Robertson and Professor John Packer.

MDP Spokesman Hamid Abdul Ghafoor, who described some of the observers comments as “mocking a young democracy”,  today said the party’s National Executive Committee (NEC) will discuss requesting a Supreme Court ruling on its role in the government.

“We don’t know who we are in government,” said Ghafoor.

“This is a sticky problem. The CNI’s assumptions are that the government has not changed, so it is the President’s prerogative to deliver on the MDP manifesto,” he continued.

President Waheed and his Gaumee Ittihad Party (GIP) joined the former coalition government, which included the MDP, the Jumhooree Party (JP) and the Adhaalath Party, to win the 2008 elections.

The coalition, however, began to break up after only 21 days when the JP withdrew. The Adhaalath Party was the last part to withdraw from the coalition in September 2011.

Local media today reported the Adhaalath party as having publicly lauded Waheed’s decision.

Sun Online reported Deputy Leader of Dhivehi Rayyithunge Party (DRP) Ibrahim Shareef as saying that the MDP ought to be allowed into the government if it adapts its policies.

Ghafoor interpreted these comments as evidence that certain leaders are “jittery”: “They want to straighten this out”.

The issue of a constitution comprising elements of both presidential and parliamentary systems was discussed by Waheed his official visit to India in May.

“You know our constitution is pretty much a cut-and-paste constitution. We have elements of parliamentary system as well as presidential system,” Waheed told the diplomatic community in New Delhi.

“The presidency is very much fashioned after presidency in the United States, and the parliament functions as a parliamentary system like in the UK. So there are issues that have to be resolved around that,” he continued.

Ghafoor also drew comparisons with the US system, arguing that after the 1974 resignation of President Richard Nixon, his Vice-President and successor Gerald Ford did not reshuffle the executive.

Referring to the MDP’s purported requests to join the current government, Masood said, “If they are allowed to join the current government now – where is democracy?”

“We are one year away from elections where we can let the Maldivian people decide,” he added.

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Crowd confronts police after officers arrest “wrong suspect”

Residents living in Bodurasgefaanu Magu behind the football stadium in Male’ on Monday night confronted a group of uniformed police from the Special Operations (SO) and Drug Enforcement Department (DED), alleging the officers had beaten and arrested a young boy in a case of mistaken identity.

A police officer was attacked by group of young men on Dhonadharaadh Hingun some time between 10-11pm. The residents of Bodurasgefaanu Magu claimed that the officers had returned in a group and “sought revenge” against the wrong person.

The group, consisting of 30-50 men and women, confronted the police bus and shouted at the officers.

“We were all here when a group of boys went beating a police officer, and a few minutes later this huge group of police officers came running over and severely beat the wrong boy who just arrived in the area minutes ago,’’ an elderly man in the area said, at the scene.

“We all cried and shouted to let them know that it was the wrong boy, but they would not listen they carried on hitting him in the back and head with their batons, and pushed him really hard into the bus,’’ the man said.

A second police bus later arrived in the area, where the crowd were still gathered, officers tried to talk with the people.

“Is it that you are blind or deaf that you did not hear or see all these people around here that were yelling at the top of their voice that you are beating the wrong boy,’’ a middle-aged man told the officers. “This is too much,” he said.

People gathered around the bus and began shouting at the police. The bus left the area and did not come back.

Police Sub-Inspector Hassan Haneef told Minivan News that he will clarify the matter and inform the media. However he had not responded at time of press, and was not answering further calls.

Police have previously responded to similar cases by requesting that such allegations be referred to the Police Integrity Commission (PIC), which is mandated to investigate complaints of police misconduct.

President of the PIC, Shahinda Ismail, expressed concern to Minivan News this week about a growing culture of police impunity.

“It is really upsetting – a huge concern – for me that the police leadership is showing a trend where unlawful officers are acting with impunity,” she said. “This can only lead to further violence.”

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Supreme Court precedent in Nexbis case makes ACC meaningless: ACC President

The Supreme Court of the Maldives last Sunday invalidated the a High Court injunction blocking the implementation of a border control system (BCS) in Ibrahim Nasir International Airport by Malaysia-based security solutions firm Nexbis.

The seven member bench of the Supreme Court invalidated the injunction, stating that “the subject of the injunction was not a subject where an injunction can be issued and thereby the bench of the Supreme Court unanimously rule that High Court order is invalid”.

The decisive ruling ends a long-running legal battle involving Department of Immigration, the Anti-Corruption Commission (ACC) and Nexbis. The ACC had alleged there was corruption in the bidding process.

Following the decision, Controller of Immigration Dr Mohamed Ali stated to local media that the system would soon be fully installed.

“A team of Nexbis staff will be coming over by the end of this week. A large portion of the system has already been installed. I hope we would be able to begin using the system very soon,” the controller said.

He reiterated that the immigration department currently uses a very basic application which has many issues and would also expire by the end of the year.

The new system he said would alleviate the existing problem of long queues and other issues, as well as increase the efficiency of the process.

He further said that when they when the system is implemented and begins functioning, biometrics from all departures and arrivals will be recorded. Afterward, “no one will dare to enter the Maldives illegally.”

“No one can stop the project,” he concluded.

State of limbo

Meanwhile, ACC President Hassan Luthfee has expressed concern and frustration over the Supreme Court decision stating that it has put the commission in a state of limbo deprived it of purpose.

“If this institution is simply an investigative body, then there is no purpose for our presence,” he said. “Even the police investigate cases, don’t they? So it is more cost effective for this state to have only the police to investigate cases instead of the ACC,” Luthfee said.

Referring to the ruling, Luthfee said that the ruling meant that the ACC had no power to prevent corruption, even if it was carried out on a large scale.

“In other countries, Anti Corruption Commissions have the powers of investigation, prevention and creating awareness. If an institution responsible for fighting corruption does not have these powers then it is useless,” he said.

Officials investigated were invoking their right to remain silent, Luthfee said, and refusing to take any responsibility.

“When an official chooses to remain silent, what is the purpose of sending such a case to the Prosecutor General? Who will take the responsibility for the damages caused by such actions?” Luthfee questioned.

He added that even if a local island council or a school engages in a activity that involves in corruption, the Supreme Court precedent meant there was nothing that the ACC could do.

“This is just a simple example. To be frank this is the size of the ACC. The Supreme Court should be a court that should assist the independent institutions formed within the constitutional framework of this country,” he added.

Nexbis and ACC at loggerheads

The border control system at Ibrahim Nasir International Airport has been subjected to several allegations of corruption linked to former Controller of Immigration Ilyas Hussain – brother in law of current President Mohamed Waheed Hassan.

Following the presidential elections of 2008, then President Mohamed Nasheed gave Ilyas Hussain the position of Controller of Immigration as a part of coalition agreement with Waheed’s party, at the time Nasheed’s Vice President

However, when the Nexbis case came to light, former President Nasheed removed Ilyas Hussain from the position and put him as the head of the Disaster Management Centre, replacing him with Abdulla Shahid.

Shahid was a vocal opponent of the Nexbis system, alleging that the terms agreed with the company would deprive the Immigration department of significant revenue for comparatively little return.

The former controller at the time expressed concern over both the cost and necessity of the project, calculating that as tourist arrivals continued to grow Nexbis would earn US$200 million in revenue over the project’s 20-year lifespan.

Comparing Nexbis’ earnings to the government’s estimated revenue from the deal of US$10 million, Shahid suggested the government instead maximise its income by operating a system given by a donor country.

“Border control is not something we are unable to comprehend – it is a normal thing all over the world,” Shahid told Minivan News at the time. “There is no stated cost of the equipment Nexbis is installing – we don’t know how much it is costing to install, only how much we have to pay. We need to get everything out in the open.”

Following the controversial transfer of power on February 7, President Waheed returned Ilyas Ibrahim to his former position as the controller of Immigration.

However as the corruption investigation progressed, President Waheed removed Ilyas Hussain from Immigration and installed him as Minister of State for Defence and National Security, Chief of Staff of the President’s Office Dr Mohamed Ali replaced him as Controller of Immigration.

Nexbis and ACC came to loggerheads the day after signing ceremony between Immigration Controller Ilyas Hussein Ibrahim and Nexbis CEO Johan Yong. The ACC opposed and sought and injunction after stating it had received “a serious complaint” regarding the “technical details” of the bid.

In November 2010, nearly a month after the signing of the agreement, shares of Nexbis dropped 6.3 percent on the back of rumours that the project had been suspended.

The speculations lead to Nexbis announcing that it would seek legal redress against parties in the Maldives, claiming that speculation over corruption was “politically motivated” in nature and had “wrought irreparable damage to Nexbis’ reputation and brand name.”

In August 2011 the Malaysian based mobile security system vendor on the local media threatened to take legal action over the stalled border agreement with the government.

In a letter to then Immigration Controller Abdulla Shahid on August 19, Nexbis complained that it had not received a reply from the Immigration Department to its inquiries after the cabinet decided to proceed with the project.

Nexbis stated in its letter that the company had spent “millions of dollars” to purchase equipment and had even paid import duties to the government, noting that the continuing delays were resulting in financial losses.

ACC filed a court case against the Rf500 million (US$39 million) Nexbis system in November 2011, two days after cabinet decided to resume the project.

The ACC in December also forwarded corruption cases against former Immigraiton Controller Ilyas Hussain Ibrahim and Director General of Finance Ministry, Saamee Ageel to the Prosecutor General’s Office (PG), claiming the pair had abused their authority for undue financial gain in awarding the Nexbis project.

On January 2012, the Civil Court ruled that ACC did not have the legal authority to order the Department of Immigration and Emigration to terminate the border control system contracted to Nexbis in November 2010.

Judge Ali Rasheed ruled that the ACC Act clearly allowed the commission to investigate corruption cases, but did not give ACC legal authority to issue an order which can annul a formal agreement signed between one or more parties.

He asserted that it was “unfair” to the contractors if ACC could annul an agreement without the contractors’ say, adding that such a decision violated the protection granted to the contractors under the Maldives Law of Contract.

Nexbis on February 2012, a week after the controversial transfer of power, filed a lawsuit at the Civil Court seeking Rf 669 million (US$43 million) in damages from former Immigration Controller Abdulla Shahid.

According to the lawsuit, Nexbis alleged Shahid refused to proceed with the project despite court approval and spread false information regarding the agreement to the media, tarnishing Nexbis’ global reputation.

Meanwhile, the Immigration department decided to proceed with the stalled border control system.

On April 2012, the ACC appealed the Civil Court’s ruling in the High Court.

The High Court favoured the ACC and issued an injunction, temporarily halting the roll out of the border control system pending the outcome of the ACC’s appeal against a Civil Court ruling that the ACC did not have the authority to halt the project.

Nexbis then filed an appeal at the Supreme Court against the High Court injunction.

The firm had earlier in May stated that despite the legal complications surrounding the deal, the border control project had completed its first phase, with Rf 10 million’s (US$650,000) worth of installation work having been finished.

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HRCM to discuss case of minor sentenced to 100 lashes for fornication

The Human Rights Commission of the Maldives (HRCM) has said it would on Tuesday discuss the case of a 16 year-old girl who was on Sunday sentenced to house arrest and 100 lashes for fornication with a 29 year-old man, confirmed Vice President Ahmed Tholal.

Permanent Magistrate of Raa Atoll Hulhudhuhfaaru, Magistrate Abdul Samad Abdulla, sentenced the girl to eight months under house arrest, and for public flogging once she reaches the age of 18.

Meanwhile the man, who has been identified as Ahmed Rasheed, Finivaage, R. Angolhitheemu, has been sentenced to 10 years in jail on charges of sexual assault on a minor.

The sentencing has attracted international media attention and appeared in the UK’s Daily Mail newspaper.

President of the Hulhudhuhfaaru Island Council, Mohamed Zubair, told Minivan News today that the crime had occurred approximately two months ago. He said that the matter had been filed in court by the girl’s family.

Zubair said that although the girl was of school-age, she had stopped attending classes months ago.

An official of the Hulhudhuhfaaru Magistrate Court, Ali Rashid, spoke in length to Minivan News about the case on Tuesday.

“The girl has been sentenced to eight months house arrest. The charges for an adult who has committed fornication is a year’s house arrest, but since she is a minor, she can only be given two thirds of the regular sentence,” he explained.

Rashid said that the girl had been sentenced for fornication because she had confessed to it. The man, however, had denied the charges.

“The man said he hadn’t committed fornication, but he admitted to having hugged and done certain other things with the girl. This amounts to sexual assault of a minor under the law. That’s why he has got the minimum sentence possible under the relevant law, 10 years in jail,” Rashid explained.

The Magistrate Court confirmed that the man was now being kept in custody by relevant authorities.

The official of the Hulhudhuhfaaru Magistrate Court referred Minivan News to Article 25 of the act detailing special actions to be taken in cases of sexual offences against children (Act number: 12/2009).

Article 25 says: “Unless proven otherwise, it cannot be considered that a child between ages 13-18 had given consent to committing a sexual act. And unless proven otherwise, it will be considered that the sexual act was committed without the child’s consent.”

As the case now stands, two contradicting sentences have been given to persons involved in the same case.

While, as per the magistrate court, the man has been convicted of sexual assault, which translates into an act committed without the consent of the girl, the girl herself has been sentenced on the charges of having consensual sex outside of wedlock.

Private lawyer Mohamed Shafaz Wajeeh, agreed with this observation.

“I agree that there is a strong contradiction here. Also, the man has been sentenced under common law. The act he committed is criminalised under the existing laws, those drafted and passed through the parliament. The girl, on the other hand, has been sentenced under Sharia law, which is not specifically written down. There is a discrepancy in how men and women are sentenced. At times females face more difficulty denying charges of fornication. This, I believe is a structural issue which needs to be addressed.”

An official of the Ministry of Gender, Family and Human Rights, said that the ministry would not speak about specific cases.

Refusing to identify herself, she said, “If the girl has been sentenced for a crime, it’s either the court or JJU (Juvenile Justice Unit) that needs to be concerned. We will be concerned once the girl is flogged, but as far as I know, she hasn’t been flogged yet. We do not want to associate ourselves with a case that we are not involved in.”

Minister of Gender, Family and Human Rights, Dhiyana Saeed, was not responding to calls at the time of press.

In November 2011, UN HIgh Commissioner for Human Rights, Navi Pillay, speaking in parliament, raised concerns about the issue of flogging in the Maldives.

Speaking on the issue, Pillay said, “This practice constitutes one of the most inhumane and degrading forms of violence against women, and should have no place in the legal framework of a democratic country.”

Her statements and calls for discussion on the issue were met with outrage from the opposition and religious Adhaalath party, giving rise to protests and demonstrations. The Foreign Ministry itself dismissed the calls for discussion on the issue, stating: “There is nothing to debate about in a matter clearly stated in the religion of Islam. No one can argue with God.”

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