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


13 thoughts on “A justice system in crisis: UN Special Rapporteur’s report”

  1. Gabriela Knaul dear, how can you expect a 100% sunni muslim nation to have a civilised legal system that respects international standards of human rights?
    These primitive people are still flogging women in the twenty first century!!........in compliance with sharia law.
    You can now expect the mad mullahs of Maldives to rampage through the streets of Male.....yet again groan, groan.....to 'protect islam' and throw hissy fits at your interference.
    Sounds familiar? The same drama followed Navi Pillay's visit not so long ago.
    Best to leave these neanderthals in their seventh century fantasy world.

  2. @MissIndia NewDelhi on Mon, 27th May 2013 12:41 AM

    Seventh century fantasy world is what the Mullahs want. They have the constitution modelled to fit this fantasy, literally dragging all the rest of us, with them.

    We need help. Bottom line. We need all the help for international organisations. Not sarcasm! Not arrogance! Not anger vented upon all of us!

  3. Very true only Maumoon can get away with murder,brutality missing people during 30 years of dictatorship. Also not to mention his brother Abdulla Hameed as well.... For the international community is it easy to say they are concern.... We are going back 20 - 30 years back right in front of your eyes....I believe its time for action....Nothing regard to Maumoon has been addressed and the dates have passed... So Stop talking please we need solution, and fast. Thank you

  4. @Andrew Andreas: I hear you man.

    It is true, sometimes, we who are not Maldivian can become frustrated and make racist remarks against Maldivians, and THAT is not at all helpful. The times I have been racist have been times I have been acting vengefully towards things that have been said against me. For that, I am extremely sorry, I admit that was my selfishness not my care, hurt activates the selfish side of all of us, but we have to become stronger and learn to resist it.

    So, I am sorry, no excuses.

    I would like to let you know that that my true feeling is that the natural Maldivian is so gentle, so kind, so intelligent.

    So THAT is why it is very sad to see the naturally beautiful soul of the Maldivian being made agressive by fear.

  5. The international community has a big role to play in bringing people like Gayoom to justice. But that is not all. Our whole justice system needs help, urgently. In fact, without a functioning justice system, we have no hope of digging ourselves out of the mess we have got ourselves into.

    I am a great supporter of democracy, but justice must prevail before democrcy can take root and establish itself. Please keep putting pressure on our unresponsive leaders to attend to this.

  6. Nasheed hd spent over 15 million rf to investigate the crimes and fraud cases that had happened during gayyoom regime but he never was able to come up with anything concrete and rather had used those money to pay some of his associates through legal contract.

    Since he had spent so much money to investigate, using his own people in the , why he was not able to get something out from the commission he formed to investigate those issues within 3 years and specially after spending so much money from the public.

    May be both Nasheed and Gayoom has an understanding each other not to do any things against each other knowing that both Nasheed and Gayoom had robbed this country.

    They both are scratching each others back.

  7. MINIVAN: I have here put the above three comments togtehr, publish them all as one if you could as they are all connected.

    Maumoon, Anni, Yameen, Gasim, Judge Abdullah, Waheed and any other politicians or power brokers really do need to take the moral high ground and forgive each other and drop any cases against each other that may be in process. It would be good for Maldivian society. They are grown, mature men who seek to be respected as leaders, so forgiveness is a sacrifice that they have to make for the nation of the Maldives. A leader should never waste the resources of the nation, the time of the courts, people, to seek their own selfish desires for a redress of their personal grievances. It would be taking away from the resources of the people whom the leaders are, ideally speaking, meant to exist for. This is the ideal of a leader from both a democratic and a Muslim perspective. So by their own definition of what should constitutes the quality of a good leader – (the nation first rhetoric which is popular in Maldives) a leader should not serve his own desires for justice or for anything – but he should serve the needs and desires of the people.

    It is a moral outrage that they could be so selfish!

    If any members of the public wish to press charges for human rights abuses against either Anni OR Maumoon or any politician or power broker, they should do so, I believe. They SHOULD seek JUSTICE, as the leadership needs to be accountable TO THE PEOPLE.

    “Turn the other cheek” is advice for a power broker, a leader, to prevent him from becoming a tyrant. It is a way to put that leader in touch with the pain of their own people, to make that leader feel the anger of their people so he FEELS their needs through their pain! EMPATHY! A good leader should be hurt again, and again by the pain of his people, as it is THAT pain which should motivate the leader to be a better SERVANT of the people’s NEEDS!

    By feeling the pain of the people by taking their criticism and anger, that leader is motivated by that pain to alleviate the causes of the pain.

    Turning the other cheek was never meant to be advice for those oppressed by that tyrant.

    @Bear hug: Yeah real as

  8. Is there any system that is not in crisis in the Maldives. Even the gang systems are in crisis these days

  9. So when is the next tedious march through Male to 'protect islam'?
    Islam must be in the gravest danger to warrant the 'protection' of Maldivian 'true believers' at regular intervals. It is quite boring for us hindus to see the TV news with yet another bunch of bearded mullahs, rampaging through the streets, frothing at the mouth and shouting hysterically at some perceived slight against islam.
    The TV news from Pakistan.....your sunni mates.....is especially amusing. PTV is widely available on cable in India and is a popular comedy channel. There is never any entertainment, like music or dancing, but endless mindnumbing discourses on islam repeated every hour. That probably explains why sunni muslims have embraced drug culture in such a big way. When you guys leave the mosques do you go straight home for a fix to numb the boredom?
    There seems to be 'protect islam' marches in Pakistan every day with bomb explosions for special effect.
    Sorry to take the p**s but you Maldivians are the most timid and gutless people I know. You seem unable to stand up against the uneducated lunatic clerics who keep you in the dark ages. Small wonder then that you are the biggest victims of fundamentalist islam. The moderates amongst you have been silenced by fundamentalist thugs who murder and main anybody with a different viewpoint.
    In London last week, two fundamentalist muslim thugs of Nigerian origin butchered a British soldier in broad daylight outside an army barracks whilst shouting 'allahu akbar'.....is this the future you want for your country?
    Can't remember hindus going on rampages through Delhi to 'protect hinduism' and any pundit telling me how to conduct my life will get his butt kicked.
    I am curious to know what happens to Maldivians who are christian, buddhist, hindu, athiest, agnostic, gay or transgendered? Do they get beheaded under sharia law and then quietly buried on the beach at night?.....or are do get their throats cut by some mullah stormtrooper from the Gestapo Islamic Ministry and their bodies dumped on Thilafushi?
    Muslims, especially sunni muslims, have no tolerance for other faiths or even for other muslim beliefs like shias, ahmadiyyas or sufis. Why do you morons believe you are the epicentre of the friggin universe?
    Like I said before we 'kuffar' hindus are so civilised by comparison........

  10. @MISMSR INDIA!!!


  11. The international organisations would like to Dhivehistan but you can only take the horse to water, you can't make a it drink.

    Recommendations such as this will be seen by Dhivehistanis as an attack against their Holy Allah's Laws. These laws, which would stone adulterers and burn homosexuals, are supposedly the epitome of human rights and any attempt at improvement will be faced with death threats, suicide bombings and descriptions of of the Islamic Hell.

    Since Ms Knaul is an unveiled "white" WOMAN who eats pork and drink alcohol, anything she says is invalid in a Shariah court of Dhivehistan. She holds no authority with the local mullah-judges (who can barely read English, much less the report) and will dismiss her as someone deficient in intelligence and religion. Dhivehistanis will simply diagnose her as a madwoman and keep on supporting the old guard and resisting civilization.

    Such arrogance does not need help. It needs a kick in the groin.


Comments are closed.