Category: Politics

High Court cancels hearing on Nasheed’s case against JSC, after judge takes last minute leave

The High Court has cancelled the scheduled hearing set to take place today concerning the case filed by former President Mohamed Nasheed against the Judicial Service Commission (JSC) contesting the legitimacy of the appointment of the three-member panel of judges in his trial.

The JSC has previously contested the High Court’s jurisdictionto rule on the procedural issues noted by Nasheed’s lawyers. The former President is being tried for his detention of Chief Judge of the Criminal Court, Abdulla Mohamed, prior to his controversial resignation in February 2012.

A High Court official confirmed to Minivan News that the hearing was cancelled but did not state a reason for the cancellation.

However, Nasheed’s legal team member Hassan Latheef told Minivan News the decision to cancel the hearing was made after the judge who was presiding over the case opted to “take leave” for the day.

“[High Court] officials called us and informed that the judge presiding over the case was on leave today, and therefore the hearing was cancelled,” said Latheef.

The cancellation of the hearing came just a few minutes before it was set to begin, much to the dismay of Nasheed, the opposition Maldivian Democratic Party (MDP)’s presidential candidate – who had cut short his campaign trip to Raa Atoll to appear for the hearing.

“We are very disappointed over the court’s decision which clearly shows its motive to obstruct Nasheed’s presidential campaign. Due to this [behaviour] Nasheed is barred from having the same opportunities as other candidates to campaign in the elections,” Latheef said, expressing his frustration over the cancellation.

Arguments

During the last hearing in which both the parties argued over procedural issues, Nasheed and his counsel sought to clarify the JSC’s procedural points contending that they were not completely clear.

The High Court judges panel gave Nasheed’s lawyers the opportunity to ask the JSC’s legal representation for clarification, while posing additional questions regarding the same issue themselves.

They then stated that it was unclear why the JSC had asked for the counsel of the Supreme Court in deciding the composition of the bench, and the justification under which the JSC considered the Supreme Court’s counsel to be of the same legal weight as a ruling of the court.

In responding to the questions posed to them, the JSC revealed that the names of the magistrates they had sent to the Supreme Court for their counsel were not the names nominated by the Hulhumale’ Magistrate Court.

The High Court bench questioned the JSC as to if there was a procedure in place which allowed for the assignment of judges to specific cases.

The JSC responded that there were certain circumstances in which judges can be assigned for specific cases, adding that the commission had done so previously in the past.

The bench further asked the JSC several times as to whether they considered the Supreme Court’s ‘counsel’ a ‘ruling’. The JSC’s legal team confirmed that they did.

The JSC’s legal representation stated that the Hulhumale’ Court Bench had been established under the counsel of the Supreme Court, and that this held the weight of a Supreme Court ruling.

Nasheed’s legal team contested this, stating that ‘counsel’ and a ‘ruling’ of the Supreme Court could not be considered to hold the same strength.

Upon receiving answers for some of the questions posed, Nasheed’s lawyers requested for more time to prepare a response, which the bench granted.

Request for intervention

Meanwhile, former MNDF Male Area Commander retired Brigadier General Ibrahim Mohamed Didi and his legal team have requested to intervene in the ongoing court battle between the former President and the JSC.

The retired Brigadier General is facing the same charges as Nasheed over the detention of Judge Abdulla Mohamed during January 2011, which eventually led to a police mutiny and finally, the controversial resignation of Nasheed from the presidency.

Didi is represented by lawyer Ismail Wisham who previously lodged a case contesting that the Hulhumale’ Magistrate Court was set up in contradiction of laws dictating the formation of courts. The case was later taken over by Supreme Court which later endorsed the legitimacy of the much debated magistrate court.

In response to the request made by Didi, local media reported that the High Court had claimed it would allow the intervention as soon as it had ruled on the procedural issues raised by the JSC.

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O’Level pass rate improves 10 percent on 2011

The Education Ministry has announced a 10 percent improvement in Cambridge O’Level examination pass rates for 2012.

President Mohamed Waheed claimed the results were due to education sector improvements, while former Education Minister Musthafa Luthfy claimed that these policies were enacted under the previous government.

The Education Ministry announced 2012’s Cambridge O’Level (grade 10) examination results on Saturday (May 25), noting that 31 students achieved global top 10 rankings, with five of these students having the “highest results worldwide” in various subject areas, according to local media.

The five students who achieved O’Level scores categorised as some of the “highest in the world” were presented with a prize and newly created presidential medal by President Waheed.

Additionally, 426 students achieved local top 10 rankings, meaning they achieved high scores in various subjects compared to other test takers in the Maldives.

“The number of students who passed five subjects was at 46 percent last year, whilst in 2011 it was at 37 percent,” said Education Minister Dr Asim Ahmed.

Receiving a ‘C’ or above in five subjects is considered a pass.

The the number of students who passed eight subjects increased two percent, from 17 in 2011 to 19 percent in 2012.

Overall 8,456 students in the Maldives participated in the 2012 exams, an increase from 6,100 in 2011.

Announcement of marks delayed

Preliminary results for the 2012’s Cambridge O’Level examination were not released sooner due to “difficulties” in analysis, the Ministry of Education said earlier this year, despite claiming “one of the highest pass rates to date”.

O’Level exams began in early October and concluded in late November 2012, the Education Ministry’s Department of Examinations (DPE) Director General Ibrahim Shakeeb told Minvian News.

“This is just how the process is; 90 days after the final exam session the preliminary results are available. Candidates can then ask to have their marks rechecked, which takes about a month,” Shakeeb explained.

“Students have a week or two to apply for rechecking, once the [preliminary] results are issued,” he continued. “Then the exams are sent to Cambridge.”

Preliminary O’Level exam results were issued to students at the end of January 2013.

“There were quite a large number of requests for rechecking, so it took Cambridge over a month to respond,” said Shakeeb.

“Final results are only issued after the recheck is complete. Cambridge does not release results country by country, rather [marks] are released online, globally,” he noted.

“Three to four months for the process to be completed is the norm,” he added.

Shakeeb told Minivan News earlier this year that the recheck process was ongoing and estimated it would be completed around late March.

Students are currently “in the middle” of the A’Level exam period, which began May 7 and will conclude June 24, according to Shakeeb.

Former Education Minister Shifa Mohamed previously claimed it was a change in Ministry of Education practice for preliminary O’Level results not to be publicly disclosed prior to the final results.

Preliminary Cambridge exam results arrive in January or February, with little difference between these and the final results, she explained.

“Analysis of these findings should only require three days,” Shifa said at the time.

Previous education policies

“The current government would not have been able to do anything in the period of time between coming to power [Febuary 2012] and when students sat for the exams [October 2012],” former Education Minister Dr Musthafa Luthfy told Minivan News today.

“The high exam pass percentage rate is due to what we did when we were in government,” he claimed. “Before us, there was no target set.”

The Maldivian Democratic Party (MDP) had aimed to raise O’Level pass rates from 27 to 60 percent in five years by implementing a holisitc educational policy involving multiple strategies, Luthfee explained.

The quality of Maldives school education and exam pass rates will continue to improve if the current administration abides by the policy guidelines put in place by the MDP government, he emphasised.

“There are several strategies which should be included in all aspects of education. Working on one aspect will not improve exam scores or educational quality,” said Luthfee.

“We rapidly established single session schooling for 55 percent of institutions to provide children the opportunity to engage in opportunities outside of the classroom and develop their character through extracurricular activities,” he explained. “This enabled improved student discipline and motivation.”

“Educational standards were also improved, by developing ‘smart school’ indicators to assess teachers, school authorities, and the Education Ministry,” he continued. “Previously there were no assessment standards.”

“Educational management – classroom and school – was enhanced, which included institutionalising mandatory inservice teacher training each term,” he added. “The education system was also decentralised, and school boards were developed to bring parents into the decision making process, which improved teacher and parent motivation.”

“We also supported private higher education and established the Maldives National University (MNU),” said Luthfy.

He claimed these policies have not been maintained under Waheed’s administration.

“This year there was no money to continue the single session schooling,” Luthfy said.

“If they continue to dismantle the strategies we’ve set, exam results will not continue to improve,” he noted. “However, if they abide by these strategies then quality of education and motivation will continue to increase.”

“The vigour of the policy program made the public aware of the importance of education and the importance of exam pass rates, as well as other educational aspects,” he declared.

The Education Ministry was not responding to enquiries at time of press.

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Couple charged with aborting child deny murder charges in court

The Criminal Court has  conducted its first hearing into charges of murder against a couple who allegedly aborted their 20-week old foetus.

The local media present at the court identified the couple as Aiminath Shaahy Aalam, 21 and Ibrahim Visam, 26, both from Addu City.

The mother Aiminath Shaahy Aalam was given the opportunity to respond to the charges and told the court she had previously stated how the incident occurred in the statement she gave to police.

The statement was read out in court, in which she confessed she had not sought medical care when she knew she was pregnant, and that she and her husband had discussed the matter and decided to abort the child. According to the statement, she confessed to taking abortion pills.

However, today in court she denied taking the pills with the intention of aborting the child and said she did not know what the pills she used were. She told the court she got the pills from a doctor working in the Dhilshaadh Clinic on Hithadhoo in Addu City.

In the statement she gave to the police investigators, she stated that her stomach had started aching at night while her husband was sleeping. She said said she woke up her husband and told him about it.

She said her husband then took off his shirt and she dropped the fetus on his shirt.

When the judge queried this, she said that she felt that something dropped on the shirt, but she didn’t see what it was, and neither did her husband showed her. Instead, he wrapped the shirt around it and put it into a plastic bag and took it away.

In  the court today, Aalam denied she was involved in killing the baby and told the judge that she wanted the state appoint a lawyer for her.

The father’s trial was also conducted today. He also denied the charges and requested the court give him time to appoint a lawyer, which the judge granted.

Police discovered the foetus buried on the beach of Maradhoo-Feydhoo in December 2012, after local witnesses reported a motorist acting suspiciously in the area, according to local media reports.

Abortion in the Maldives is illegal unless it is proved the conception is the result of rape, or that the pregnancy is a threat to the mother’s health.

The Prosecutor General’s Office forwarded the couple’s case to the Criminal Court on May 2.

Police have claimed that the buried foetus was found with its heart beating, but later died after being taken to the hospital.

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MP’s defection to president’s party a “betrayal”, says PPM MP

The defection of Thimarafushi MP Ahmed Shareef to President Dr Mohamed Waheed’s Gaumee Ithihaad Party (GIP) on Monday was a “betrayal”, Progressive Party of Maldives (PPM) MP Ahmed Nihan has declared.

Nihan said that with rumours circulating over the last two to three weeks concerning Shareef’s planned defection, PPM members within Thimarafushi were concerned about the MP’s move, as well as expressing wider criticisms about the conduct of President Waheed and the GIP.

However, he stressed that the PPM remained “very much committed” to the coalition government backing President Waheed. The present government came to power following the controversial transfer of power on February 7 last year, which saw President Mohamed Nasheed resign from office following a mutiny by sections of the police and military.

Nihan said following Shareef’s decision to defect from the party, rumours continued to circulate that another PPM MP was potentially considering joining with President Waheed ahead of September’s scheduled elections.

He said that the PPM was committed to supporting President Waheed’s government “for the sake of the nation”, despite calls from the opposition Maldivian Democratic Party (MDP) earlier this month to support an interim government ahead of September’s elections in order to secure “free and fair” voting.

“I strongly believe that PPM will continue to [President Waheed’s] government, but at the end of the day [the GIP] are the ones who are playing games here,” he said.

Criticisms

Despite the party pledging its ongoing support to the current government, the PPM has publicly levelled some criticisms at President Waheed this month about his alleged use of state resources for campaigning, as well as his decision to sack Dr Mohamed Jameel Ahmed as home minister.

The government at the time claimed that Jameel’s position was terminated over his decision to stand directly against President Waheed in September’s election as running mate to PPM presidential candidate Abdulla Yameen, which it claimed has created a conflict of interest.

Yameen was later quoted during a PPM rally that cabinet ministers in a coalition government are not obliged to assist the president’s election campaign.

He also claimed that PPM has not been given the number of government posts promised by Dr Waheed more than a year ago with the formation of the coalition government.

Nihan claimed that despite these concerns, the PPM had continued to back President Waheed’s government, adding that with the party having the second highest number of MPs within parliament behind the MDP, it had “defended” the president government in a number of crucial votes of late.

“Since February 7, 2012, we have been the key party in securing votes for Dr Waheed,” he said, adding that the “majority” of supporters who had welcomed President Waheed to various islands would have been members of the PPM.

However, with the defection of MP Shareef to GIP, Nihan claimed that that the party and its supporters would be concerned should any more of its elected representatives be asked to join the GIP.

“We hope [Presdent Waheed] will not take any more MPs from the party,” he said.

Speaking to local media today on his decision to defect to the GIP, MP Shareef said he had opted to change parties in a move he said would “most benefit” his constituents.

“I have decided to join President Waheed’s party. The party will carry out the arrangements,” he was quoted as saying by Sun Online.

GIP Spokesperson Abbas Adil Riza was not responding to calls at time of press. Meanwhile, Minivan News was awaiting a response from the coalition’s media team on Shareef’s decision.

Coalition backing

Ahead of September’s election, the government-aligned Dhivehi Rayyithunge Party (DRP) has announced that it will join the religious conservative Adhaalath Party and the Dhivehi Qaumee Party (DQP) in a coalition backing President Waheed.

Dr Waheed’s Gaumee Ithihaad Party (GIP) currently has 3,930 registered members while the DRP has 21,411 members, according to the Elections Commission (EC). The DRP is also the third largest party in parliament while the GIP has no representation in either the legislature or local councils.

The government-aligned Jumhoree Party (JP) meanwhile announced earlier this month that no decision has been made on whether to join a coalition backing President Dr Mohamed Waheed in September’s election, as it prepares to officially choose its presidential candidate and leader.

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Maldives “fully implements” three of UN’s 145 human rights recommendations: UPR mid-term assessment

The Maldives has “fully implemented” only three of the UN Human Rights Council’s 145 recommendations since its Universal Periodic Review (UPR) in March 2011.

A mid-term assessment of the Maldives’ commitment to human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR), stated that 12 recommendations had been “partially implemented”, 33 “not implemented” – or rejected outright – while 96 recommendations received “no response”.

Recommendations fully implemented included provisions relating to accepting the Rome Statute of the International Criminal Court (ICC), and the withdrawal of certain reservations to the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW).

The UPR report sought comment from assorted NGOs, the Maldivian state and the Human Rights Commission of the Maldives (HRCM) in compiling the progress so far.

It noted that while the Maldivian government had made a formal commitment to provide a mid-term report, “it did not respond to our enquiry.”

“[HRCM] did not respond to our enquiry either.”

In the absence of input from the government or the country’s national human rights body, the majority of responses and comments on the recommendations were provided by three NGOS: Earthjustice & Human Rights Advocates (EJ+HRA), Friends of Maldives (FOM), and the Global Initiative to End All Corporal Punishment of Children (GIEACPC).

Treatment of minorities

In response to a recommendation from Norway that the government try to promote tolerance towards migrants in the Maldives, FOM stated it was unaware of any efforts to prevent stigmatisation.

“The stigmatisation has risen to concerning levels, especially towards Bangladeshi, Indian and Srilankan labourers,” FOM stated.

FOM noted that a bill on the Prohibition of Human Trafficking and People Smuggling had been submitted to parliament in December 2012, but said this had not yet been tabled for discussion and had not been subject to consultation with either the public or the NGO sector.

Regarding a recommendation for laws concerning the treatment and human rights of the physically and mentally disabled, “Legislation protecting persons with physical and mental disabilities seem to be of little or no interest within lawmakers,” observed FOM. “There is very little awareness on the importance of this matter. This is particularly concerning in the areas of law enforcement. For example, there are no protocols within the police service when dealing with persons with physical or mental disabilities.”

Treatment of women and children

In response to a recommendation that the Maldives abolish corporal punishment and the practice of public flogging, particularly of women and children, GIEACPC noted that the draft penal code included a legal defence for the use of corporal punishment in the home “under the concept of ‘justifiable force’ on a child for the ‘prevention or punishment of his misconduct’, providing this does not result in ‘death, serious bodily
injury, extreme or unnecessary pain or distress’.”

“The draft was recently amended to provide for Sharia punishments, including amputation, though it is unclear as yet if this would be imposed on child offenders,” GIEACPC noted.

FOM noted that despite the government’s ratification of the CEDAW and withdrawal of reservations to certain clauses, “women in the Maldives still face corporal punishment, notably with the recent case of a 15 year-old girl condemned to flogging despite being the victim of sexual abuse.”

FOM observed that there was a “clear rejection by the judiciary to reform, and this has been a major challenge that the Parliament, Executive as well as the civil society have been facing for the past years.”

Bringing domestic laws concerning marriage, divorce, inheritance, equal rights, and sexual and domestic violence and abuse in line with CEDAW was “particularly difficult” due to the country’s extremely narrow interpretation of Sharia and its strict application, stated FOM.

Issues relating to the rights of women remained “still highly controversial between the government and NGOs”, FOM observed, noting that this was possibly due to the government’s alliance with the Adhaalath Party, “a political movement that is seen to have more fundamental views and narrow interpretations of the Islamic Sharia, which has negative effects in terms of rights of women and girls.”

FOM also highlighted a growing trend of “families withdrawing girls from school in the name of religion.”

“These girls are then coerced into marriage in ages as early as nine to twelve years. There have been no visible efforts to control this or protect the right to education of these children. Although regulations prescribe that the age for marriage is 18, religious fundamentalists take refuge in Islamic Sharia over these matters and withhold that the consent of these girls are in the hands of their fathers or guardians. No efforts to prevent or react to these incidents have been seen in the Maldives,” FOM noted.

Justice system

Despite “elevated public discontent” over the state of the judiciary, formal dialogue as to its reform had been limited, FOM noted.

Regarding a recommendation by Malaysia that the Maldives accept offers of human rights training for judges and judicial staff, FOM responded that it was “aware that several international organisations as well as some local NGOs offered funds and programs in order to enhance the knowledge of human rights for judges, and that such funds exist presently, namely with the UNDP. However the judiciary have on several occasions ignored or avoided such offers for enhancement of knowledge.”

While a voluntary code of conduct for judges had been developed by the Judicial Service Commission, “the implementation of this code is not monitored. In addition
the general public view is that the code needs several amendments.”

Meanwhile, a report containing recommendations by the UN Special Rapporteur for the Independence of Judges and Lawyers had met with no response from the government, and public dismissal by several members of parliament.

Human rights

FOM observed a “serious deterioration in [the Maldives] process of promoting and protection of human rights”, with “continued confrontations between the law enforcement and protesters calling for fundamental rights and freedoms have resulted in excessive police brutality, obstruction of the right to assembly through the amendment of the existing Regulations on Assembly, several physical attacks and threats on journalists and many more such incidents which have been ignored by the relevant authorities.”

“Members of the police force who are seen on video clips to have brutalised protesters have since been given promotions. A single case of police brutality that the Police Integrity Commission investigated and which the Prosecutor General charged for, was rejected by the Criminal Court,” FOM noted.

Responding to a recommendation by France that the Maldives ensure the safety of journalists, FOM noted that “the situation of the journalists are such that they are targeted and harassed for what they report on. Some received physical threats and it is believed that politically motivated attacks on journalists have left them fighting for their lives.”

UNHRC Panel report

A delegation from the Maldives defended the Maldives’ human rights record before the UNHRC in July 2012.

It was headed by Home Minister Dr Mohamed Jameel, former Justice Minister during the 30 year rule of President Maumoon Abdul Gayoom and co-author of a pamphlet entitled ‘President Nasheed’s devious plot to destroy the Islamic faith of Maldivians’, published in January 2012.

Dr Jameel was accompanied by State Minister for Foreign Affairs, Dunya Maumoon – Gayoom’s daughter – as well as the Maldives’ Permanent Representative in Geneva, Iruthisham Adam.

Asked by a panellist whether the country was seeking to reconcile human rights with Islam, Dr Jameel responded that human rights in the Maldives streamlined with Islam “with very few minor exceptions.”

“The general acceptance of Muslim jurists is that Islamic human rights were there long before we subscribed to universal human rights,” he said.

“We declare that there are no apparent contradictions between human rights and what is there in the Maldives constitution.”

On the subject of justice, Dr Jameel emphasised that any citizen could bring their grievances before the judiciary, over which the executive had “little or no influence.”

Following the delegation’s defence, the UNHRC recommended “radical changes” to Maldivian law to ensure compliance with the International Covenant on Civil and Political Rights (ICCPR).

These changes include the abolition of the death penalty, compensation for “systematic and systemic torture,” withdrawal of reservations to the ICCPR’s Article 18 regarding freedom of religion and belief, and reforming the country’s judiciary.

A panel member during the UNHRC session itself also noted the “troubling role of the judiciary at the centre” of the controversial transfer of power on February 7.

“The judiciary – which is admittedly in serious need of training and qualifications – is yet seemingly playing a role leading to the falling of governments,” the panel member observed.

Read the UPR mid-term assessment

Correction: An earlier version of this article incorrectly stated that the UPR was conducted in 2012. The Maldives UPR held between 4 November 2010 and 27 March 2011. On 4 November 2010, the Maldives performance was reviewed, queried, debated and responded to in a 3 hour discussion in which nearly 150 recommendations were made. After this discussion, a report was compiled and in March 2011, the Maldives gave a commitment to implement 145 of those recommendations.

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JSC appeals against “obstruction” following MDP protest march

The Judicial Service Commission (JSC) has appealed against “obstruction” of the commission’s legal and constitutional responsibilities in a press statement yesterday (May 26), following a protest march by the opposition Maldivian Democratic Party (MDP) on Saturday (May 25).

The party marched on the streets of Male’ to protest against JSC Chair and Supreme Court Justice Adam Mohamed Abdulla’s alleged attempts to unduly influence the trial of former President Mohamed Nasheed.

The MDP contends that Adam Mohamed was abusing his power and authority as head of the judicial watchdog body to intimidate judges on the High Court bench.

On April 1, the High Court ordered the Hulhumale’ Magistrate Court to suspend Nasheed’s trial pending a ruling on the legitimacy of the panel of judges appointed by the JSC to preside over the case.

The JSC has sent letters to the High Court requesting expedition of Nasheed’s case, the party noted in a press release last week.

The MDP objected to the judicial oversight body summoning the Chief Judge of the High Court for questioning over a complaint filed more than a year ago.

The move amounted to intimidation of judges and undue influence on judicial processes, the party contended, calling on the JSC to cease its “dirty and cowardly” efforts as the commission was the adverse party or respondent in the High Court case.

In the first hearing of the case, the JSC contested the High Court’s jurisdiction to rule on the Hulhumale’ Magistrate Court bench constituted by the commission.

“It is strange that the JSC’s legal counsel contested jurisdiction of the High Court to hear the case on the grounds that they had sought the advice of the Supreme Court in determining the bench,” MDP MP Mariya Ahmed Didi, spokeswoman of the former president said after the hearing.

Meanwhile, in its statement issued a day after the MDP protest march, the JSC noted that the constitution and Judicial Service Commission Act of 2008 mandated the commission to investigate complaints against judges and enforce disciplinary measures.

The commission was entrusted with powers to summon and question persons and take witness testimonies, the JSC stated.

There were “no legal or constitutional grounds” to interpret carrying out the commission’s legal responsibilities as intimidation or exerting undue influence on judges, the statement added.

The JSC statement concluded by calling on all parties to “not commit any act or participate in any activity that could obstruct the constitutional and legal responsibilities and duties of the commission.”

Responding to the statement yesterday, MDP MP and Spokesperson Hamid Abdul Ghafoor tweeted,

UN Special Rapporteur report

In her report to the United Nations Human Rights Council following a visit to the Maldives in February 2013, UN Special Rapporteur on Independence of Judges and Lawyers Gabriela Knaul expressed concern with “the significant backlog of complaints with the Judicial Service Commission that are not dealt with or at least are perceived as not being dealt with. Some judges that have several complaints and cases for misconduct against them are still sitting.”

Moreover, Knaul wrote that according to several judges, “disciplinary procedures before the Commission lead to public humiliation and damages to their reputation.”

“Some even said that, when summoned by the Commission, the principle of presumption of innocence is not respected and they do not have appropriate time and access to information to prepare for their cases. Judges are also often not told for what allegations they are being investigated. It is common that, after an appearance before the Commission, judges are not informed if their case was dropped, if a decision was taken, or if it is still pending,” Knaul wrote.

“The Special Rapporteur is worried that disciplinary proceedings before the Judicial Services Commission are not in line with international law and principles, and may sometimes be used to expose and question the integrity of judges and magistrates before the media and the general public before the conclusion of a proper investigation into the allegations. She wishes to underline that, according to the Basic Principles on the independence of the judiciary, judges are entitled to a fair hearing under an appropriate procedure, which should be subject to an independent review.”

Among a number of recommendations to reform the Maldivian justice system, Knaul suggested taking “appropriate measures to enforce the code of conduct of judges in a transparent and consistent manner, with full respect for the fundamental guarantees of fair hearing and bearing in mind the importance of the reputation of judges and magistrates.”

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A justice system in crisis: UN Special Rapporteur’s report

UN Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, has expressed “deep concern” over the failure of the judicial system to address “serious violations of human rights” during the Maldives’ 30 year dictatorship, warning of “more instability and unrest” should this continue to be neglected.

“It is indeed difficult to understand why one former President is being tried for an act he took outside of his prerogative, while another has not had to answer for any of the alleged human rights violations documented over the years,” wrote Knaul, in her final report to the UN Human Rights Council following her Maldives mission in February 2013.

The report is a comprehensive overview of the state of the Maldivian judiciary and its watchdog body, the Judicial Services Commission (JSC). Knaul examines the judiciary’s handling of the trial of former President Nasheed, the controversial reappointment of unqualified judges in 2010, and the politicisation of the JSC.

Knaul also examines parliament’s failure to pass critical pieces of legislation needed for the proper functioning of the judiciary and “legal certainty”, as well as raises serious concerns about an impending budget catastrophe facing the judicial system.

“The immediate implications of the budget cuts on the judiciary are appalling. For instance, the Department of Judicial Administration only has funds to pay staff salaries until November 2013 and it had to cancel training this year,” Knaul notes.

“The Civil Court reported that it would not have sufficient funds to pay its staff salaries after October 2013; furthermore, existing budgetary resources would not be sufficient to pay for utilities and facilities after June 2013,” she adds.

The Nasheed trial

Former President Mohamed Nasheed is currently facing criminal charges in the Hulhumale’ Magistrate Court for his detention of the Criminal Court’s Chief Judge, Abdulla Mohamed, days prior to the controversial transfer of power in February 2012.

“Judge Abdulla had allegedly shielded a number of powerful politicians in corruption cases by refusing to issue orders to investigate, and many complaints had been made regarding his conduct and supposed lack of ethics,” Knaul outlined.

“The Judicial Service Commission had completed an investigation on him in November 2011, holding him guilty of misconduct. This decision was appealed to the Civil Court, which ordered that the Judicial Service Commission’s complaint procedure be suspended.

“Although the Commission appealed the Civil Court’s ruling, Judge Abdulla was allowed to continue in his functions,” she added.

The opposition Maldivian Democratic Party (MDP) maintain the case against Nasheed is a politically-motivated attempt to convict and bar him from the September 7 presidential elections, while the new government has emphasised the judiciary’s independence and insisted on its policy of non-interference.

Following Knaul’s visit and her departure statement, several members of the JSC have also challenged the commission’s creation of the Hulhumale’ Court, and its appointment of the bench. The commission includes several of Nasheed’s direct political rivals, including a rival presidential candidate, resort tycoon, Jumhoree Party (JP) Leader and MP Gasim Ibrahim.

“The trial of the former President raises serious concerns regarding the fairness of proceedings,” Knaul notes, questioning the constitutionality of the Hulhumale’ Court and the appointment of the three-member panel of judges, “which seems to have been set up in an arbitrary manner, without following procedures set by law.”

“According to the law, the Prosecutor General’s office should have filed the case of Mr Nasheed with the Criminal Court. While the concerns of the Prosecutor General’s office regarding the evident conflict of interests in this case are understandable, since Judge Abdulla sits in this court, it is not for the Prosecutor to decide if a judge is impartial or not,” stated Knaul.

“The Prosecutor should act according to the law when filing a case, as it is the duty of judges to recuse themselves if they cannot be impartial in a particular case,” she explained.

“All allegations of unfair trial and lack of due process in Mr Nasheed’s case need to be promptly investigated, including the claims that the trial is being sped up to prevent Mr Nasheed’s participation in the 2013 elections,” she added.

Knaul noted a decision by the Supreme Court to declare the Hulhumale’ Magistrate Court as legitimate after the Commission filed a case with it in 2012.

“The Special Rapporteur was informed that the judge of the Supreme Court who cast the deciding vote in this case also sits as a member of the Judicial Services Commission, whose decision to establish the Hulhumalé court as a magistrates court was under review,” the report noted.

Politicisation of the JSC

Knaul observed that the JSC had a “complicated” relationship with the judiciary, given that the commission “considers that it has exclusive jurisdiction over all complaints against judges, including over criminal allegations, while the Prosecutor General understands that the criminal investigation agencies have the competence to investigate criminal conducts by anyone.”

Knaul underlined that “judges and magistrates, as well as other actors of the justice system, are criminally accountable for their actions. Criminal actions entail consequences and penalties that are different from those resulting from disciplinary or administrative investigations.”

The special rapporteur stated that there was near unanimous consensus during her visit that the composition of the JSC – which draws members from sources outside the judiciary, such as parliament, the civil service commission and others – was “inadequate and politicised”. This complaint was first highlighted in a report by the International Committee of Jurists (ICJ) in 2010.

“Because of this politicisation, the commission has allegedly been subjected to all sorts of external influence and has consequently been unable to function properly,” said Knaul.

State of the courts

Conflicts of interest and the resulting impact on judges’ impartiality was also a concern, noted Knaul.

“It seems that judges, and other actors of the State, do not want to fully acknowledge and understand this concept, leading to the dangerous perception from the public that the justice system is politicised and even corrupted,” she said.

Knaul also expressed “shock to hear that many members of the judiciary, including in the Supreme Court, hold memberships in political parties.”

The Supreme Court, she noted, has meanwhile been “deciding on the constitutionality of laws ex-officio, without following appropriate examination procedures, under the understanding that they are the supreme authority for the interpretation of the Constitution.”

The relationship between prosecutors and the judiciary was also difficult, Knaul noted, expressing “serious concern” that some courts “use the threat of contempt of court and disbarment to impose their decisions and superiority over prosecutors.”

“The lack of a centralised case-management system does not facilitate their tasks either. In some places, such as Addu City, one prosecutor covers four courts and is often called to different hearings at the same time,” she observed.

“Symbolic” reappointment of judges

Two months prior to the end of the constitution’s transitional period and the deadline for the appointment of new judges according to moral and professional criteria – article 285 – the interim Supreme Court informed President Nasheed “that all its members would permanently remain on the bench.”

This action, Knaul noted, had “no legal or constitutional basis.”

“The five judges who had been sitting on the transitional bench were appointed to the seven-member permanent bench, leaving many with the perception that the Supreme Court was appointed in a politicised manner,” she noted.

The rest of the courts followed suit several months later at the conclusion of the interim period, with the Commission “opting for interpreting article 285 of the Constitution in a rather symbolic way and [not scrutinising] judges’ qualifications thoroughly.”

“For instance,” Knaul noted, “not all criminal allegations pending against judges were investigated. This resulted in a seemingly rushed reappointment of all sitting judges but six, which in the opinion of many interlocutors corrupted the spirit of the constitutional transitional provision.”

While the 2008 Constitution had “completely overturned the structure of the judiciary”, at the conclusion of the JSC’s work on article 285, “the same people who were in place and in charge, conditioned under a system of patronage, remained in their positions.”

As a result, “many believe that some judges who are currently sitting lack the proper education and training […] A simple judicial certificate, obtained through part-time studies, is the only educational requirement to become a judge.”

Way forward

Knaul’s report contains four pages of recommendations for judicial reform, starting with a “constitutional review” of the composition of the Judicial Services Commission – the same conclusion reached by the ICJ in 2010.

“The Maldives finds itself at a difficult crossroad, where the democratic transition is being tested, while remnants of its authoritarian past are still hovering,” Knaul observed, stating that the power struggle she witnessed during her visit had “serious implications on the effective realisation of the rule of law in the Maldives.”

Among many other recommendations, Knaul called on the government to show “strong and nonpartisan leadership”, by pushing for “constructive dialogue aimed at establishing clear priorities for the country, the adoption of necessary core legislation, and policy measures to consolidate the democracy. Such leadership should be guided by the Maldives’ obligations under international human rights law, which provide for a sound and sustainable foundation for democracy.”

She also noted that “the delicate issue of accountability for past human rights violations also needs to be addressed.”

Read the full report

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Supreme Court takes over Civil Court case on legitimacy of transfer of power

The Supreme Court has taken over a case filed at the Civil Court by dismissed Human Rights Minister Dhiyana Saeed, who had requested a ruling declaring that the transfer of power on February 7, 2012 was illegitimate.

The Supreme Court ordered the lower court last week to suspend its proceedings and send over the case files before 3:00pm on Thursday (May 23). The court order (Dhivehi) stated that the apex court would determine whether the Civil Court had jurisdiction to hear the case.

The court order was issued following a request by the Attorney General’s Office (AGO) for the Supreme Court to decide on the question of jurisdiction.

At the first hearing of the Civil Court case, the AGO requested proceedings be halted pending a ruling from the Supreme Court. However, the judge decided to proceed with the hearing in the absence of a court order by the Supreme Court.

The Supreme Court order was revealed today by the recently launched official twitter account of the Civil Court.

Dhiyana Saeed – also former SAARC Secretary General and former President Mohamed Nasheed’s first Attorney General – had first submitted the case to the High Court, which however decided that it was outside the appeal court’s jurisdiction.

The case was filed at the Civil Court earlier this month.

The defendant in Dhiyana’s lawsuit was Speaker of Parliament Abdulla Shahid, who recently defected from the government-aligned Dhivehi Rayyithunge Party (DRP) to the opposition Maldivian Democratic Party (MDP) and is currently campaigning for former President Nasheed.

Nasheed resigned in the wake of a violent mutiny by Special Operations (SO) police officers, who assaulted government supporters, ransacked the ruling party Haruge (meeting hall), protested at the Republic Square, clashed with the military, vandalised the police headquarters and stormed the state broadcaster on the morning of February 7.

Saeed’s lawsuit noted that Shahid was the state official with the authority under article 121 of the constitution to declare the office of the president vacant, should an incumbent president resign or vacate the office.

“It was the Speaker of Parliament who declared the office of president vacant, be it had he done it knowingly, mistakenly or unknowingly,” Saeed told newspaper Haveeru. “This doesn’t mean Shahid committed a criminal offense. It also does not mean that he partook in the events or that he made the decision [maliciously].”

She contended that Speaker Shahid had failed to look into the circumstances surrounding Nasheed’s resignation before accepting the letter.

Saeed told Minivan News that she and her co-counsels “stopped short of asking for Nasheed’s reinstatement,” adding that she did not have “the locus standi to ask for a particular relief.”

“If the ruling comes in our favour, it might be possible for Nasheed to institute a second proceeding for reinstatement. As far as this case is concerned, our interest is in the rule of law and invoking constitutional process to uphold the legal order as stipulated by the constitution,” Saeed explained at the time.

Supreme Court intervention

Meanwhile, in her report to the United Nations Human Rights Council following a visit to the Maldives, UN Special Rapporteur on Independence of Judges and Lawyers Gabriela Knaul observed that it was “troublesome that some of the Supreme Court’s interventions are perceived as arbitrary and as serving the judges’ own personal interests.”

“Moreover, the Supreme Court is said to have taken away cases directly from the superior courts before they were adjudicated, without explaining which criteria or procedures were applied,” Knaul wrote.

The Supreme Court has on a number of occasions issued writs of mandamus taking over cases from lower courts. In November 2012, the Supreme Court instructed the High Court to suspend proceedings on an appeal by former President Nasheed concerning the legitimacy of the Hulhumale’ Magistrate Court.

At the same time, the apex court ordered the Civil Court to send over all files on a case submitted by a lawyer, Ismail Visham, disputing the legal status of the Hulhumale’ Magistrate Court.

The Supreme Court also intervened in litigation concerning a border control project awarded to Malaysian mobile security firm Nexbis.

Transfer of power

Following her dismissal from the cabinet by President Dr Mohamed Waheed last year, Saeed released a personal memoir alleging that Nasheed’s political rivals had conspired to assassinate him.

Saeed alleged that the controversial transfer of presidential power on February 7 was the result of a premeditated and well-orchestrated plan, and questioned the findings of the Commonwealth-backed Commission of National Inquiry (CoNI), which concluded that Nasheed had resigned voluntarily.

In January 2013, parliament’s Government Oversight Committee commenced a review of the CoNI report and heard testimony from six of the highest-ranking officers of the security services at the time of the transfer of power.

Following its inquiry, Committee Chair MP Ali Waheed claimed that the report produced by CoNI was “flawed” based on the findings of the committee.

The CoNI report lacked “key information [senior police and military officers] had given” while “others claimed their information was wrongly presented,” the MDP MP said at the time.

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Police summon JSC member over gang link allegations

Police have summoned the president’s appointed member to the Judicial Services Commission (JSC), Mohamed ‘Reynis’ Saleem, for questioning regarding allegations he commissioned gang activities.

Saleem reported to police headquarters in Male’ yesterday (May 25) to answer questions related to an ongoing police investigation.

He has been accused of “exploiting a gang to commit crimes, including mugging,” according to local media. Saleem allegedly enlisted a gang to recover money owed to him.

The case under investigation is not related to the Dr Afrasheem Ali murder, a police media official told Minivan News today (May 26).

“As the investigation is ongoing, I am not able to provide any further details. We are facing difficulties now,” the official said.

The police do not have any plans to arrest Saleem or forward charges to the Prosecutor General’s Office at this time.

Meanwhile, Saleem has refuted the allegations, claiming he has no links to gang members, or anyone affiliated with gangs, and he did not enlist gangs to conduct criminal activities.

“The first thing I want to make clear is that I don’t have any links with gangs, or links with any person connected with gangs,” Saleem told local media.

“The question the police asked was whether I had sent a group to collect some money owed to me by someone. I said that I never sent any group to collect any money for me. So if someone owed me money, I would go to court. I shouldn’t have to involve a group,” explained Saleem.

Saleem also denied allegations he had links to the Maldives National Defence Force (MNDF) officer Azleef Rauf, who was accused of planning the murder of MP Dr Afrasheem Ali by suspect Hussein Humam, and was subsequently arrested on May 23.

“A serious question is being raised, about a person named Azleef. When I read the papers today, there were reports about a person named Azleef. Right now is a very critical moment, and they have associated my name with his name. I don’t want any newspaper writing in this manner,” said Saleem.

Saleem claimed that his police summons was politically motivated and related to his current JSC responsibilities, but that he would “disclose details [about the allegation] when the right time comes.”

“It’s a personal issue”: JSC

“We believe the issue is unrelated to the JSC or JSC work,” JSC Secretary General Aboobakuru Mohamed told Minivan News today.

“It is a personal issue [of Saleem’s] and the commission is not going to do anything or comment,” said Mohamed.

“We don’t appoint members, the President or Majlis (parliament) does, and should take up the matter,” he added.

Former President’s Member on the JSC Aishath Velezinee told Minivan News that JSC members under police investigation should not participate in the commission while this was ongoing.

“When any JSC member is being investigated they should not be participating in the commission. It reflects on the commission and the status of the judiciary,” she said.

“The JSC should be above criticism. How can the public trust judges if JSC members are under question?” she asked.

“Saleem should refrain from participating in the JSC voluntarily, that would be the best course of action,” she added.

Velezinee explained that because “Maldivians do not think like that,” parliament should suspend Saleem from the JSC until the investigation is complete, as was the course of action taken with the Civil Service Commission (CSC) President Mohamed Fahmy.

“Parliament should put Saleem on leave, not as a punishment but until the investigation is over,” stated Velezinee.

“It doesn’t matter who it is, [allegations of] involvement in serious crime require a full investigation by the police,” she noted.

She further detailed that the appropriate course of action requires police to inform the Prosecutor General, who should then inform Parliament so they can take action.

“I welcome the police to investigate, although the police are not without question themselves,” said Velezinee.

“The government itself is in question, anything that happens at this moment will be politicised,” she added.

President’s Office Spokespersons Masood Imad and Mohamed Thaufeeq, as well as Parliament Speaker MP Abdulla Shahid were not responding to calls at time of press.

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