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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Velazinee may be 100 percent right on the appointment of the judges - the process is manipulated by anti-MDP forces. But does that matter now.
Procedural irregularities should not give Anni the right to arrest a judge. You cannot right a wrong with another wrong. That's the slippery slope.
Its time that Velzinee realize that rules are not powerful in itsel. Powerful are those who manipulate the rules most.
Anni was clearly out manipulated by opposition. He was neither following the rules himself. So why cry over split milk.
Good luck for 2013. Try harder next time.
You can't abduct a man by force. Nasheed had many options available to him before going to that stage. Many options. Saying that Nasheed was defending the judiciary and constitution when trampling on it's every page ... Ridiculous.
Velizinee is right, however it is not wise to reopen this can of worms. It is an undisputed fact that the Maldivian population is politically very polarized and it is clear that the CNI conclusion was based on political expediency rather than principles of justice.
No free a fair election can bring justice. That comes with the political maturity and understanding within a society.
The Maldivian people neither deserve nor will they have rule of law until they recognize and accept dissent or differing views. Unfortunately it is xenophobia, intolerance and religious bigotry which is on the rise.
The issue is not with regard to whether Abdullah Mohamed is a judge or not a judge, the issue is with regard to the basic and fundamental rights of a human being, where one is free from arbitrary arrests, maybe former political appointee to the judicial service commission Ms. Aishath Velezinee might not realize this but as a human being one is afforded certain rights which are indispensible.
1.Abdullah Mohamed Judge or Not was kidnapped in the dead of the night, dragged from his home, taken to an isolated island and psychologically tortured and that is something that cannot be justified in a democratic society, maybe in North Korea Ms. Velezinee’s argument might be justifiable for arbitrary arrest and torture.
And human rights is not something that is afforded to judges alone, hence the argument of “judge or not” is a very ignorant argument.
2.If we were to look at whether Abdullah Mohamed is a Judge or not, we would first have to abide by the constitution, decisions in a democratic society is made based on a majority vote while not infringing the rights protected in the constitution.
-The judicial service commission as per Article 285 (b) of the constitution was mandated with the task to vet the existing judges, the judicial service commission under the same Article is limited to vet within a 2 year period starting from 7th august 2008.
-Secondly until Article 285 of the constitution is fulfilled existing judges shall continue as judges as per Article 285 (a).
Looking at 285(a) it is extremely clear that previous judges will continue in office until the judicial service commission decides “otherwise” within 2 years from the date of the constitution.
Whether Abdullah Mohamed is a judge or not is not something that is complicated as Article 285 (a) clearly states that existing judges will continue in office. Abdullah Mohamed was a judge that was appointed prior to the 2008 constitution.
Though I could leave it at that, since Article 285 (a) of the constitution alone defeats the idiocy of Ms. Aishath Velezinee’s Article, I will have to move a bit further.
•Article 285 (b) empowers and tasks the judicial service commission to vet the existing judges within a “2” year period, hence for Ms. Aishath Velezinee to express her views with regard to appointments on 4th August 2010 is a not just a way bit too late, but it shows she was complicit in the judicial service commissions vetting mechanism. If she had strong issues with regard to Article 285 vetting process she should NOT have waited till 4th August 2010, when the deadline is 7th August 2010, she had from 7th August 2008 to 4th August 2010 but she chose to wait almost “2 years” till 3 days before the judicial service commission loses the power to vet existing judges.
•The judicial service commission is a 10 member institution as with regard to any institution with a body, decisions are made on a majority vote, the vetting processes where existing judges were appointed was through a mechanism that was established by 9 votes out of 10 judicial service commission members, if she was dissatisfied with the process, it does not make a difference.
Apart from that I would also like to point out that the topic that Ms. Aishath Velezinee is most obsessed with is the appointment of lower court judges as Article 285 applies to lower court judges, but in a judiciary, the strength of the decision relies on upper tiers of the judiciary, namely the highest court- The Supreme Court.
Supreme Court appointment was a political deal, where the nominees to the bench were not even questioned and was endorsed by over 99% of the parliament members, the appointment which took place in August 2010, where justices were appointed to the highest court without any vetting, without any questioning, without any scrutiny was by the former president Mohamed Nasheed in consultation with his political appointee to the Judicial Service Commission Ms. Aishath Velezinee and was endorsed by all the political parties at the parliament.
What a shame!
And she talks about reforming the judiciary? after selling the highest court for a political cake.
http://proxy.refo.info/u.php?u=e960287f1f8c606f7cOi8vd3d3Lm1hbGRpdmVzaW5mby5nb3YubXYvaG9tZS91cGxvYWQvZG93bmxvYWRzL0NvbXBpbGF0aW9uLnBkZg%3D%3D&b=9
inquiry had nothing to do with abdulla mohamed, it was about the legality of the transfer of power.
whether he was a judge or even if he was a threat to national security, he still has constitutional rights, and the government breached it by abducting him using the military and holding him at an undisclosed location for an indefinite, undisclosed amount of time. if he was a national threat, then that also needs to be proved.
sounds like this issue might go to court, velizenee should take her justification to a court if she truly believes it will hold up.
This is clear cut and totally correct. The change over was imorale and illegal as well. Shame on the coalition and the CoNI report.
Very strange anyone speaks of ignoring a wrong because the time has passed. If Article 285 was not followed, it must be followed.
Better late than never.
First, let me thank Minivan News for the coverage given to my statement on the #CoNI Report. Whilst most local media ignored or ridiculed, Minivan News has continued to give due coverage to Article 285, Judicial Reform, JSC and related events.
Second, quick response to “shame”:
The issue of JSC’s Constitution breach was first brought to the attention of the People’s Majlis (Constitutional oversight body of JSC), and the President on 25 February 2010. http://velezinee.aishath.com/sites/default/files/25-FEB-letter-president-and-majlis_president.pdf
Please visit my blog http://www.velezinee.wordpress.com to get information on the Judicial Service Commission (JSC), Article 285, and related issues published between 1 May 2010 and August 2010.
A daily log of events in JSC and my commentary on issues surrounding the JSC, Article 285 and Judicial Reform is published on Facebook Page Article 285 from 1 June 2010.
My website http://www.velezinee.aishath.com covers much of my work in Judicial Service Commission, and later in advocacy to redress Article 285 and Judicial Reform, and an Independent Judiciary, as guaranteed to the People, and State, by the Constitution.
I will not enter here into the arguments on Abdulla Mohamed and Human Rights. Misreading of International Human Rights Covenants and the Constitution appears a problem common to all institutions – JSC, Courts, Parliament, HRCM and the Attorney General – and not necessarily through ignorance. A prime example is found in JSC’s “defence statement on Article 285″ announced on 3 August 2010:
http://jsc.gov.mv/ups/03-Augst-2010-_-285-ge-Qanoonee-tarha.pdf
Thank you
Aishath Velezinee
I have to agree that the CONI report is spectaculary short of very major issues. Looks like they wanted it to finish and it must be more comforting to stay retired in Singapore than trying to sort out a very complicated issue in an extremely complicated society. The rest of the commissioners are pawns of the game and irrelevent anyways....
Ty Aishath Velezinee you a real hero. Keep it up.
Veleziny ,we have seen how you behaved right in front our eyes on that day. I guess you think you only know our constitution ? Why the hell you are not concerns when Anni was clearly challenging the constitution and threatening judiciary to come along with his line.
Why you never said anything when Anni locked supreme courty ?
Why you never said anything when Ani threaten the people to be part of MDP and if not he will show his evils side to those who do not agree with his principles and MDP .
You are a scum and nothing more
What a hypocritical society, arbitrary arrest of Abdulla and violating his rights has brought down a government……! On the other side there is gross violation of human rights on daily basis, police brutality, abuse of women, economic rights freedom of conscience, and you name it. The human rights are totally taken out of context in this banana republic to satisfy individual interpretation that he sees fit within his narrow mind. As human rights worshiper, I am totally in favour of Anni for arresting Judge Abdulla and those all judges and politician in Maldives who are worse than animals they have no human rights, they have animal rights and the best place for them is to be caged in the zoo. These politicians are advocating against democracy and the very essence of human rights. Anni has never arrested ordinary innocent people on the street. In banana republic the so called government has no right to arrest and torture the ordinary people under the name terrorism, and social evil doers, because all these acts are as the result of these barbaric uneducated politician who are to be punished for these crimes even they are committed by helpless ordinary individuals. It is tonally ok to arrest and cage people who have political view that is in line with Nazism, and fascism,
Going back to history, Are we?
We I have a serious reservations against Abul Barakaathul Barubary, when he coerced all my country men to convert from Budhism to Arabism.
The current version is written as all countrymen agreed to this. This is wrong and a huge deception.
Lets open this case and resolve first!
Judge Abdulla is a rogue judge who abandoned his judicial responsibility and integrity. He himself nullifies or influences to nullify police summons with regard to his politically affiliated people and himself and hindered the investigation of cases of corruption, murder and drug trafficking. Yet the Gayooms gang made him a hero and encourages him to break the rule of law. Arresting him was to uphold the constitution and the rule of law.
The old rule of Gayoom’s law applies here, if an Atoll chief or civil servant is accounted for theft of government funds, Gayoom brings him closer and gives him a promotion, so that he could use him at future event to manipulate the governing mechanism.
the guy shame might be suffering from political aneasthesia - bereft of any sense
Crimes he condones were committed under extenuating circumstances , leaving room for impunity
regards to shame, tsk tsk and other hollow heads
peace on you all
Anni and gayyoom are the men who are responsible for this mess.
Anni is a dictator and he had used the criminal to side himself to create a chaos in the country .
CNI report decriminalises Abdulla Mohamed's sexual misconduct with a minor. It reiterates Dr.Afrasheem's claims that Article 285 is 'symbolic' while conveniently ignoring President Nasheed's predicament with a defunct parliament, judiciary and 'independent' institutions. Just an ad-hoc report overwhelming in political pragmatism. Maldivians maybe an easily manipulated populace -- but I doubt if the people will be willing to disregard what they saw right before their eyes falling victim to this ludicrous exoneration of the world's first ever live televised coup --what some describe as a 'CNI report'.
CNI report ? What CNI report? All there is, is a farcical exuberance of a bunch of clowns in suit and tie.
Nasir is Absolutely right. Couldn't have said it any more clearly. And no matter how much people like Nazeef from Radio Atoll try to compare the detention of Abdulla Mohamed with all the other brutal detentions currently happening is not going to change the fact.
Hey people remember advocating an eye for an eye...advocate for Prez Nasheed to be forced to have a 30 days holiday without family in Girifushi...Equal and fair...RIGHT???
The fact that Prez Nasheed is going to be charged for this detention while ignoring the torture of many under former and current government is just the HEIGHT of hypocrisy.
Velezeenees statements are based on the false premise that a woman's words are relevant to anything.
Childbirth and nurturing are the God ordained domains of her gender. To that she should devote her time instead of politics and law, which are better suited to the intellectual aptitudes and calculating rationality of men.
Inshallah' , these times of degeneracy, promiscuity, immorality and working women will pass.
Veleziny is not a real lawyer and she is self claimed lawyer and she does not have true qualification of any law institution .
She spend most her time on drugs and 50% of her time is spent on sleep and 30% of her time is under the influence of alcohol or intoxicated and 20% of her time , she may be she is in a status where she may know what is going around her.
Anni was the head of the nation, he has a responsibility to maintain law and order in the Maldives.
If he was responsible for maintaining the law and order, and if it was not happening then he has every right to take steps to make it happen.
Abdulla Mohamed was an obstacle to maintain law and order in the Maldives. He once released a dangerous prisoner, as a threat to the Minister of Health. What would you do to save the Minister's life. You keep 100 policemen with the minister, or you arrest the prisoner put him back in jail, and the next morning you will find the Judge Abdulla Mohamed passing a court order not to touch the prisoner. This is not what happened, What happened was that same prisoner killed another man. Now comes the question of morality whether, you ought to remove the Judge who is responsible for all these criminal activities, or ignoring what he was doing. You can also look at few other recent cases of Supreme Court, where an MP lost his seat for unfair judgement and SC verdict on Anti Corruption Commission whose main responsibility to act as a watch-man for the government and society to control corruption and maintain law and orders.
Now, with regard to the CONi, once should not mix things that lead to the resignation of the president Nasheed. We clearly saw, what happened and said on the 7 Feb, by Nazim, who is the current defense Minister. "He said, he asked the president to resign by 1.30pm that day including the Police Commissioner and it is not-negotiable". This is a civilian informing the public, the police and military personnel what he told the Defence Minister inside the Military Headquarters. Another guy Umar was speaking in the Central Square calling the president hand over all the powers early that morning to the Vice President and asking the security forces not to obey the command of the Commander in Chief. We all have heard this or seen it live on TV live programs.
Now whether it is a Coup or not we are the people who know it. It cant be link to any case of an individual. It is people who are power hungry, who knew that Nasheed can't be beaten by going to polls, and cant wait for him to finish his 5 year term. They never thought of investigation or the aftermath of the Coup and found them to invent all this lies to cover it. They have clearly succeeded to lie the nation and the international community, but it is another thing to believe in it.
Vel,
First of all your obvious politicization makes your arguments weak. You were a political appointee on the JSC therefore you did not represent the Civil Society or any rights groups. You represented the President's political interests and therefore your actions reflect the same.
I agree with Shame, any real commitment to judicial reform should begin from the top. We should all fight for the Supreme Court to be reconstituted with a respectable bench rather than the puppets placed there in the Nasheed-struck deal. Nasheed disappointed a lot of people on that day. So did other political parties.
Exempting Muthasim Adnan and Abdullah Saeed our Supreme Court bench is way less than supreme.
Nasheed should have gathered a squad of assassins and have had that child abuser 'judge' liquidated, as a message to the rest of the child abusers.
His kindness was a flaw - one that he understands now, and will hopefully fix.
Oh, and for those who whine about human rights - a child abuser has no rights whatsoever.
CNI report is baseless, biased and illogical in its conclusion that the resignation by president Nasheed was no coercion in spite of the fact that the military officers demanded his resignation at the height of violence started by the police in mutiny later joined by MNDF servicemen.
Also, the report mentioned the critical participation by three persons in the violence of February 7. One of these was Nazim, now the minister of defence. He was seen in a video announcing outside the MNDF HQ at the Republican Square that he had met some senior officers of the MNDF and delivered and ultimatum to the president Nasheed that he must resign without any condition or negotiation. It must be noted that it was unconditional and non-negotiable.
Besides, the MNDF officers warned president Nasheed that if he did not resign his and his family’s security cannot be guaranteed. This is in violation of the Constitution and laws pertaining to the security forces. Therefore, president Nasheed’s resignation was forced by the armed forces with the threat of risk to life of his family and himself.
The resignation must be voluntary to be valid under the Constitution and vacate the presidency.
Abdullah Mohamed is disrepute. You do not have to be a lawyer to know the constitution or to know that he is not fit to remain on the bench. He was an Islam teacher before he became a judge. I have heard from his former students that he was vocal about his misogynistic and xenophobic views, even back then. He endorsed flogging, even for rape victims. He celebrated the attacks on the World Trade Centre in NYC. This is the reality. He has been so far behind the etiquette or intelligence of a judge. Even his political ally, Maumoon charged him for his misogynistic religious sermons. He asked a child abuse victim to act out her abuse in court in front of the accused. He acquitted an accused who admitted to the crime. Do I really need to go on. This is common knowledge, a judge expressing political views should not be allowed to remain as one. These people are enabled by how detached the Maldivian society has been from the criminal justice system. It goes back to the mentality with which the judiciary especially is viewed. Even in earlier times, holy men and religious scholars were given positions despite not having any training in sharia or law. During Maumoon's time he was the head of it all, and justice is only a word. We have never seen it in practise. They are now making regulations for us lawyers to not be allowed to speak against the courts. This is an erosion of the hard earned democratic freedoms. The entire system is reversing, and we continue to enable it. We continue to fund training and other programmes for unqualified judges, even ones that have criminal convictions. If this isn't a grave betrayal of the 2008 Constitution, I don't know what is. ABDULLAH MOHAMED'S RIGHTSSHOULD NIT OUTWEIGH RIGHTS OF ORDINARY CITIZENS.