Comment: Election-phobic politicians cowering behind judiciary

“So you are proposing to incarcerate Mr Nasheed, are you?” a reporter recently asked a leader in the so-called Maldives Unity Coalition.

“Yes, we are. We will keep him in prison for a long time,” he replied.

The reporter winces.

“I see,” he says, just managing to look respectful. “So, you won’t have him to compete with your candidate to win elections?”

Ingenious, these people must think themselves.

“It’s one way to force you to the top, of course. But I shouldn’t call it civilised, or democratic,” he blurts out. “Justice has to be enforced, so, we don’t look at it like that,” the politician says. “Posterity will.”

The defeat of 2008 common amongst them, political losers of that election have tripped up and toppled the elected government in just three years.

Getting the peculiar lexicon right – the so called “harmonious diplomatic narrative” about the police mutiny amidst-coup and the actions of politicians leading up to the regime-change – took the Commission of National Inquiry (CoNI) a while, and eventually they had to ‘selvam’ the whole thing.

The so-called Unity Coalition that toppled the elected government comprises leaders of parties that have ostensibly not conducted organisational or internal elections in a transparent or an all-inclusive manner since inception. Despite having to resort to stark and obvious giveaways of election-phobia, they are looking to hunker down and stay on in power, obviously for as long as possible.

Getting on about it through the judiciary

Almost all senior MDP members are political victims of the previous regime, many having undergone torture and time in their prisons. However the new democratic regime, seeming to steer clear of paving the way and facilitating transitional justice, probably led opponents to cut up rough and go on talking openly about putting Mr Nasheed away in prison again.

Maldivians know that sitting presently in the Judicial Service Commission (JSC), the oversight body for the judiciary, are political opponents of President Nasheed – opponents in whose personal and political interest it is to incarcerate and disqualify their main challenger prior to elections. They have been publicly talking about it for months.

While members of the DRP, PPM and others in that bandwagon actively work to regularise discrepancies in the house, political leaders involved in regime-change such as MP Gasim Ibrahim and Majlis Speaker Abdulla Shahid continue to be influential members of the Judicial Service Commission.

Meanwhile, breaches of the Constitution by the Judicial Service Commission, such as the nullification of Article 285 – which stipulates qualification criteria for judges – by declaring it as a “symbolic article”; the subsequent reappointment of the pre-2008 Constitution judges without required checks; the prevention of meaningful changes and the establishment up of an independent judiciary are all pending in parliament without further inquiry.

The legitimacy of Chief Judge of the Criminal Court Abdulla Mohamed’s re-appointment as a judge can only be determined by an inquiry into the Judicial Service Commission and its actions over Article 285. All attempts to address issues of the Judicial Service Commission – especially with regard to its contravening Article 285 and pending complaints against Abdullah Mohamed – have been blocked by the opposition MPs of the DRP, PPM, and the DQP, by systematically disrupting every sitting in which these matters are raised. These MPs have gone so far as to publicly state that they will stonewall and prevaricate all pending issues concerning Article 285.

Ethical misconduct

While Article 285 embodies qualifications for judges, the case ofAbdulla Mohamed, glorified by the opposition as ‘Abdulla Gazi’, the hero of regime-change and victim of Nasheed’s government, have been widely published.  In 2005, then Attorney General Dr Hassan Saeed first forwarded to the President’s Office concerns about the conduct of Abdulla Mohamed after he allegedly requested an underage victim of sexual abuse to reenact her abuse in open Court.

In 2009, the new democratic government forwarded those documents to the Judicial Service Commission (JSC), which was requested to launch an investigation into the outstanding complaints as well as the alleged obstruction of “high-profile corruption investigations”.

The JSC decided not to proceed with the investigation on July 30, 2009. However in November that year, the JSC completed an investigation into a complaint of ethical misconduct against the judge.

The case was presented to the JSC in January 2010 by former President’s member of the JSC, Aishath Velezinee, after Abdulla Mohamed appeared on private network DhiTV and expressed “biased political views”.

Velezinee observed at the time that it was the first time the JSC had ever completed an investigation into a judge’s misconduct.

“There are many allegations against Abdulla Mohamed, but one is enough,” she said at the time. “If the JSC decides, all investigation reports, documents and oral statements will be submitted to parliament, which can then decide to remove him with a simple two-thirds majority”, she said.

Weeks later, Ibrahim Shahum Adam of Galolhu Cozy, listed by police as one of the nine most dangerous criminals in Maldives, and in prison for his alleged involvement in a stabbing near Maafannu “Maziya Grounds” during July, 2010 that killed 17-year-old Mohamed Hussein of Maafannu Beauty Flower,  was abruptly released by ‘Abdulla Gazi’ saying he wanted to hold the Health Minister accountable, as police had claimed a difficulty in obtaining a health certificate.

Shahum had also earlier attacked a fellow student attending an Imam course inside a teashop, and the victim, Ahmed Naeem of Carnationmaage, Alif Alif atoll Thoddu, had testified in court .

Days after Shahum was released by Abdullah “Gazi”, he was arrested again by police for the alleged  stabbing murder of 21-year-old Ahusan Basheer of Varudheege, Hithadhoo, Addu City, while the young man was walking along a street in Male’.

In October 2011, the ruling Maldivian Democratic Party (MDP) appealed for assistance from the international community over the “increasingly blatant collusion between politicians loyal to the former autocratic President, Maumoon Abdul Gayoom, and senior members of the judiciary – most of whom were appointed by Gayoom during his 30 years of power.”

On October 26, Judge Abdulla ruled that the arrest of Gassan Maumoon – son of former President Maumoon Abdul Gayoom – on suspicion of hurling a wooden block at protesters leading to a participant being disabled for life, was unlawful. This established a precedent that police could not arrest suspects without an arrest warrant “unless the arresting officer observes the offence being committed”.

The contentious ruling led police to release 11 suspects while the Prosecutor General’s Office (PGO) sought legal clarification on criminal justice procedures.

JSC a stakeholder in trial

It is laughable that the Judicial Service Commission is itself a stakeholder in the ongoing case against President Nasheed, as it is the very failure of that Commission to uphold the rule of law and fulfill its Constitutional mandate that underlies the creation of “Judge” Abdulla Mohamed, the subject of the trial.

Thus it is difficult to ‘selvam’ the fact that it is contradictory to the principle of natural justice for the Judicial Service Commission to decide the bench or in any way interfere and/or influence the trial.

The Judicial Service Commission intervened in Nasheed’s trial with blatant impunity, by abusing its powers to appoint judges to courts and deciding the bench for the trial itself. The Judicial Service Commission temporarily transferred three magistrates from other magistrate courts specifically to create the three member panel that is presiding over President Nasheed’s trial.

Some months earlier, the Anti Corruption Commission was widely quoted in the press on the appointment of the wife of a JSC member, Magistrate Shiyama, to the so-called Hulhumale’ Court, and the allegations continue that the Hulhumale’ Court is kept by the Judicial Service Commission in violation of the Judicature Act as a reward to Shiyama who, with a diploma in legal studies, does not qualify for appointment as a magistrate to a superior court.

Meanwhile, many people who attended the enforced first hearing of this so called trial believe that the Prosecutor General filed the case against President Nasheed invoking Article 81 of the Penal Code in open contravention of Article 17 of the Maldives Constitution under which every citizen is entitled to rights and freedoms without any discrimination, regardless of their political beliefs.

There has been no previous instance of a magistrates’ panel being convened to prosecute any case or individual charged under Article 81 of the Penal Code. Thus, it is common belief that appointing a magistrates’ panel to prosecute this case, by appointing magistrates from different jurisdictions including one who is currently under investigation by the Judicial Services Commission, is a direct violation of Article 17 of the Maldives Constitution.

Calls for Judicial reform get louder

Calls for judicial reform in Maldives are getting broader acceptance with talk rife these days in tea shops, coffee houses and Usfasgandu, of widespread corruption and corruptibility among judges.

Meanwhile some lawyers are publicly detailing tactics used by various judges to deny litigants due process.  Alleged such tactics include intimidation, muzzling, ignoring court rules, creating new rules, fabrication of facts, testifying for a party, issuance of absurd legal opinions, torturing the law as well as other creative means that have boggled the minds of numerous laypeople, lawyers and even judges.

These discussions are removing the halo of honorability that surrounds many “respected” judges and demonstrating how, for many judges, the canons of judicial conduct and Article 285 were enacted only for public consumption. It also demonstrates how certain judges, when challenged to explain their decision or stance, act no different than the same common criminals they were appointed to judge.

Judges accused of being corrupt are acting with the knowledge that their decisions will most likely be affirmed by fellow judges on appeal, pursuant to a tacit “fraternity” code. In other words, trial court judges openly utter absurdities in their opinions with the knowledge that fellow judges at the appellate court are not too keen on reversals.

They are also accused of acting with the knowledge that any commission charged with investigating judicial misconduct at the state level can at present ‘selvam’ such reports and dismiss any complaints against fellow judges.

Can they ‘selvam’ the vote?

Out in Singapore and Bangalore, schemes are going on at full blast to ‘selvam’ a submission in procuring Dr Duhbuhlyoo a good international job, after his much lauded and ruthless puppet role here. After all, the deputy, Duhbuhlyoo D, other friends among glorified foreign touts, and merchants of blood-oranges, all parodying here in the guise of diplomats and others flaunting professional respectability, are thinking of questionable money transactions in the PR, hospitality, border control and other deals pegged to Maldives.

Here in the Maldives, those who have faith in human ingenuity and meaningful change for the good, those who consider it necessary every once in a while for the right-thinking element of the community to slip it across certain of the baser sort – are at it regular like these days. They exude the confidence that all this will begin to come right again soon, through ballots proving the best weapon, against both a shady judiciary and those cowering behind it.

Mohamed Zuhair was former President Mohamed Nasheed’s Press Secretary from November 2008 to February 2012.

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