Day: May 10, 2014

Criminal cases in PG leadership absence unconstitutional, says Drug Court judge

Any trials of criminal cases in the absence of a prosecutor general (PG) and a deputy PG violates the constitution, Drug Court Judge Mahaz Ali has said.

Writing on his personal blog, Mahaz disagreed with the attorney general’s (AG) recent suggestion that the official in the senior most position at the PG office must take over the PG’s responsibilities.

AG Mohamed Anil claimed the country was in the midst of a “state of necessity” in the aftermath of acting PG Hussain Shameem’s resignation earlier this week.

The doctrine of necessity is the basis on which extra-legal actions by state actors, designed to restore order, are deemed constitutional.

Both the Maldivian Democratic Party (MDP) and the Maldives Bar Association have also spoken out against the government’s stance on the matter.

State of necessity

Mahaz wrote that the state of necessity argument was valid only if there was no legal solution, suggesting that there was no reason President Abdulla Yameen could not propose a name for approval by the People’s Majlis.

“A state of necessity is faced only when all legal avenues have been exhausted. In the current situation, the solution is to appoint a new prosecutor general. The current People’s Majlis is not in a situation where it cannot carry out its duties,” wrote the judge.

“The authority that must nominate a candidate [the President] is able to do so. Unless these two parties are in a state in which they cannot carry out their constitutional duties, a state of necessity will not be faced in the prosecutor general’s case.”

Although Shameem has called on the executive and People’s Majlis to approve a PG immediately, President Yameen said he will only submit a new nominee to the newly elected house – set to convene on May 28.

After a drawn out nomination process, Yameen’s previous choice for the role – his nephew, Maumoon Hameed – failed to gain the required number of votes in parliament last month. In contrast to the previous session, pro-government parties will enjoy a healthy majority in the 18th Majlis.

Judge Mahaz argued that the Supreme Court order on 6 February – which ordered criminal courts to accept cases filed by the PG’s Office – did not provide a solution, only mentioning how to act in absence of a PG. The Supreme Court order was prompted by the Criminal Court’s January decision to refuse new cases until a new appointment was made.

Mahaz also referred to previous case law regarding the Attorney General’s Office, noting that no superior court had deemed similar instances to be ‘situations of necessity’ requiring the next in line to take charge of the office.

In July 2010, the eight Civil Court judges unanimously decided they would not proceed with civil cases in the absence of an AG following then-AG Husnu Suood’s resignation.

Violation of independence

The Bar Association of the Maldives has also joined the debate, arguing that the AG’s advise was inconsistent with the Prosecutor General Act, and that Shameem’s resignation had created a leadership vacuum.

The resignation of the deputy PG while the position of PG was vacant had left the office with no official who could now assume its legal responsibilities, the association said, arguing state prosecutors cannot represent the PG in the courts in the current situation.

“Given that the prosecutor general’s position is an independent and impartial position, this office believes the government’s exertion of influence by ordering state prosecutors to attend courts is a violation of the office’s independence,” the association said in a statement.

Despite the Prosecutor General’s Act requiring the appointment of a new PG within 30 days of the position’s vacancy, Shameem has headed the office for over five month’s following the resignation of his predecessor Ahmed Muiz in November.

The Criminal Court was forced to cancel more than 100 cases last week as state prosecutors refused to attend hearings, doubting their current legal capacity to represent the PG’s Office.

The Hithadhoo Court in Addu City is conducting criminal trials, however, and is issuing verdicts in the absence of a state prosecutor. Court officials told local media on Thursday that they did not accept the justification of absence put forth by lawyers from the PG’s Office.

In his resignation statement, Deputy PG Shameem had said he was unable to fulfill his duties due to the Criminal Court’s failure to prosecute foreigners involved in drug trafficking, delays in issuing rulings on drug related offenses, and “unreasonable obstacles” in filing cases at the court.

The President’s Office put out a third call for names this week, claiming the previous number of applicants had been low during the second call. Shameem had expressed interest in the position both times, while local media has speculated that a third call will allow Hameed to resubmit his application.

The MDP has also commented on the current situation, accusing President Yameen of nepotism:

“In contravention to principles of good governance in democratic countries, it is evident is more for the president in this current state to appoint his nephew or other relatives to the position of Prosecutor General.”

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Supreme Court forms committee to review judicial laws

The Maldives Supreme Court has formed a Multi Stakeholder Judicial Sector Law Reform Committee to review and amend judicial laws on Wednesday.

According to the Supreme Court, the committee aims to reform laws, regulations, procedures and practice rules “to pave the way for social, political, and economic changes as per the constitution, enable the judiciary to protect the democratic environment, and strengthen the criminal, civil, and juvenile justice systems.”

The committee is to consist of Supreme Court judges, the attorney general, minister of home affairs, minister of finance and treasury, prosecutor general and the commissioner of police. The Supreme Court will appoint a secretariat to facilitate the committee’s work.

Noting the difference between judicial reform and law reform, former judicial watchdog member Aishath Velezinee criticised the Supreme Court’s move as an “encroachment” on the powers of the People’s Majlis and said the results may “lead to injustice before justice.”

Although the Supreme Court may formulate regulations to improve service delivery and functioning of the court system, the apex court’s leadership role in compiling amendments to laws “is out of bounds,” she said.

The process is flawed as no one can challenge the Supreme Court’s authority, she continued.

Several documents—including the 2013 report by the UN Special Rapporteur on Independence of Judges and Lawyers Gabriela Knaul—have already made recommendations on judicial reform, she said, arguing that “forming a law reform committee does not match identified issues.”

Knaul’s comprehensive report on the Maldivian judiciary called for increased financial and human resources for the judiciary, establishing performance indicators to assess administration of justice and courts’ performances, human rights training for the judicial sector and creating an integrated system of case management.

She also called for the reinstatement of the Judicial Council tasked by the Judicature Act with administration of the judiciary. The Supreme Court had abolished the body in 2010 and taken over its powers, claiming the council was unconstitutional.

“Many interlocutors reported that the dissolution of the Judicial Council and the direct control of the Supreme Court over the Department of Judicial Administration have had the effect of centralizing administrative decisions in the hands of the Supreme Court,” the special rapporteur stated.

With the council’s abolishment, “the only platform for internal communication within the judiciary where difficulties, challenges, experiences and opinions could be exchanged, disappeared,” she added.

Velezinee claimed the new law reform committee is a further example of the Supreme Court using its “power of supremacy to hinder reform.”

She also criticised the “politicised” composition of the new committee due to the absence of independent state institutions on the committee. Although the prosecutor general is to sit on the committee, the position has been vacant since November 2013, she noted.

“If this is about human rights, why is the Human Rights Commission not involved?” she said.

Moreover, disgraced Supreme Court Judge Ali Hameed’s involvement in the process “undermines its purposes,” she said.

Hameed has been implicated in a series of sex tapes publicised on social media in 2013, but the JSC has failed to take any action against the judge. Meanwhile, the prosecutor general has also filed corruption charges against Hameed for misuse of state funds.

The Supreme Court has justified the expansion of its influence over judicial administration by invoking Article 141 and 156 of the constitution.

While Article 141(b) states that the Supreme Court “shall be the highest authority for the administration of justice in the Maldives,” Article 156 states, “The courts have the inherent power to protect and regulate their own process, in accordance with law and the interests of justice.”

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India offered to build naval dockyard in Maldives, says Indian media

India’s Army Chief General Bikram Singh has offered to build a dockyard worth MVR 7.7 billion (US$ 500 million) in the Maldives in his ongoing visit, Indian media has reported.

According to the Deccan Herald, China had already offered to develop the Uthuru Thilafalhu lagoon in the archipelago’s north.

Reclamation work is already underway in the area. Once completed, it will serve as the Maldivian Coastguard’s primary operations base and will provide a much-needed berthing space to naval ships and ocean liners.

India’s Foreign Secretary Sujatha Singh, during a visit to the Maldives in February, visited the Uthuru Thilafalhu project site. Minivan News understands discussions are underway on Indian investment in the project, but it is not clear if a decision has yet been made.

In recent months, India has been steadily increasing defense cooperation with the Maldives including the gifting of two ‘Dhruv’ Advanced Lightweight Helicopters (ALH) and development of the military hospital Senahiya.

Ties with India came under strain during President Dr Mohamed Waheed’s administration in the aftermath of Indian infrastructure giant GMR’s abrupt eviction. The company had won a concession agreement to develop the main airport.

Waheed went on to strengthen military ties with China, sparking Indian concern over “a Chinese policy to throw a ‘string of pearls’ – or a circle of influence – around India.”

Speaking during an official trip to India earlier this year, new President Abdulla Yameen stated that while the Maldives has “close ties” with China, “nothing will precede ties with India, which are far more precious”.

“While we have had a slight rough patch with India, the time of good relations far outweigh the rough patches we had. I suppose it is easy for us to be on the right track again,” Yameen said, referring to the airport dispute.

Singh’s visit is the first by a serving Indian Defense Chief since General Deepak Kapoor’s visit in February 2010.

An Indian High Commission press release on Tuesday said Singh’s three day visit – set to conclude today – will “further enhance bilateral defense cooperation.”

“India’s commitment to Maldives defense has been growing with each passing year. Both countries have inter-linked mutual security interests which need to be protected for the safety and security of the South Asian region and the Indian Ocean,” the statement said.

During his visit, Singh met with President Yameen, Defense Minister Mohamed Nazim and the Maldivian Chief of Defense Forces Ahmed Shiyam.

Singh also discussed the possibility of supplying fast-attack craft, amphibious landing craft and small arms from New Delhi, reported the Deccan Herald.

Another potential project is to train 40-60 officers of the Maldivian National Defence Force (MNDF) in Indian training establishments, the article continued.

“All such topics were discussed. But we will reveal details at a later time,” said MNDF Deputy Spokesperson Captain Ali Ihusaan, when asked for a comment on reports by Indian news sources.

Chinese investments including a US$54 million for an IT infrastructure project sparked Indian concern in 2013, with Indian Ministry of Communications and IT saying Beijing’s state owned companies must be “kept at bay.”

According to Indian media, the ministry – in an internal government note – suggested “substantial investment in the Maldives on similar projects [as being planned by China] ensuring that the traffic between India and the Maldives is handled through the equipment installed and commissioned in the Maldives by India.”

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Atoll Challenge paddles 165 kilometers, raises MVR 1 million for Thalassemia

A six-man kayak team has paddled 165 kilometers around Lhaviyani Atoll and raised over MVR 1 million (US$ 64, 840) for the Maldives Thalassemia Society.

The four-day “Atoll Challenge” visited all four inhabited islands and five resorts in the northern atoll to raise awareness on the common blood disorder and raise funds to buy 50 desferal pumps – a device that removes excess iron from Thalassemia patients’ blood.

The common genetic disorder causes severe anemia and patients require life long blood transfusions. The frequent transfusions cause iron-build up in the blood.

The Maldives has the highest incidence of Thalassemia in the world with 18 percent of the population carrying the recessive gene for the crippling disorder. One in every 120 births in the country is a Thalassemia patient.

Minister of Health Dr Mariyam Shakeela welcomed the kayakers back to Kuredhu Resort on May 8. Seaplane company Trans Maldivian Airways (TMA) was the largest donator to the challenge at US$ 10,000.

The Thalassemia Society has identified insufficient screening services, shortage of desferal pumps, lack of treatment in Malé and the atolls, and lack of a standard protocol for treatment of patients as the biggest challenges patients face.

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China’s Sinohydro to build airport apron

China’s state-owned engineering and construction company, Synohydro, is to build a US$ 9 million parking apron at the Ibrahim Nasir International Airport (INIA).

The agreement was signed between the Maldives Airports Company (MACL) and Sinohydro on May 8.

MACL Managing Director ‘Bandhu’ Ibrahim Saleem said the new apron – to be built on the northern tip of the runway – will be 350 meters long and 75 meters wide. Four Boeing 777 airplanes can park on the apron.

The project is to be completed within 12 months.

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