Comment: In black and white

This is the first of a series of articles as I attempt to unpack the Naaz Report, ‘Access to Justice in the Maldives: Through the Eyes of a Colourless Lens’ published in May 2013 and available here.

The eyes behind the colourless lens

1. Aminath Naaz, the eyes behind the colourless lens who authored the publication, Access to Justice in the Maldives: Through the Eyes of a Colourless Lens (published May, 2013) is one of the few legal experts without a direct conflict of interest who had access to the Maldives’ Judicial Service Commission (JSC) and the Maldives’ Courts at all levels.

She also had direct contact with the Supreme Court judges both during the interim period and after, as well as access to all other State institutions, UN agencies, international organisations and NGOs in the period when the Maldives was to build the constitutional democratic state. Or at least the backbone of a democratic government: an independent judiciary.

2. Naaz was also the only Maldivian outside of the closed JSC and the Department of Judicial Administration (DJA), who had access to the Judicial Service Commission and the records therein.

3. Naaz, who as Project Director of the UN Maldives led the “Protecting Human Rights and Access to Justice Project,” was in an influential position of unique power and authority, as well as a position of immense responsibility given that this was at a historic moment in the Maldives when the State was in transition.

The Maldives was at the time in transition from a long established constitutional autocracy with all powers vested in the Head of State, to a multi-party constitutional democracy with separation of powers and the introduction of independent offices and bodies for check and balance.

4. At this exciting and critical juncture in Maldives’ history, a time of constitution building, of state building, when for the first time ever the Maldives was set to introduce and build democratic state apparatus, orientate duty bearers to the newly introduced standards and practices alien to the existing culture, Naaz was an expert in a position to explain concepts and guide events – as Naaz herself has observed.

5. Naaz was situated “inside,” with the necessary knowledge of democratic concepts, standards and best practices as well as the law – a Maldivian with a law degree from Australia who had studied, worked and lived in Australia, a democratic nation. She had the knowledge to fill the gap or limitation she herself observed in the Maldives, from the general public to policymakers to technical experts in government and state bodies who are ignorant of the “new concepts that have been so rapidly introduced to the country” (Naaz, 2013: 5).

6. Naaz introduces herself as “a practicing lawyer in Australia [who] has been in the legal field for over 12 years”; she is privileged in having had opportunity to study, work and live in a democratic nation, and be exposed to the governance practices and standards upheld in a democratic state over a long term period where, it may easily be assumed, one would assimilate and internalise the culture, together with the adoption of language and accent.

7. I, myself a member of the Maldives’ Judicial Service Commission at the time, kept trust in Naaz, and where doubts crept, I shrugged them off – a sensitive subject due to the politics of Article 285 – convincing myself Naaz understood the real issues: the treachery that had taken place in the Judicial Service Commission (JSC) and loss of an independent judiciary, its consequences for the State and the  risk to democratic government.

I kept hope Naaz would intervene – at the right time, right place, in the right way – to ensure the Maldives upheld its constitution and international obligations. After all, she was an expert in a position of influence, and I lost no opportunity to keep her fully informed of all I was observing as a sitting member of JSC (2009-11), and my actions therein. Naaz herself talked to me a number of times, frustrated by the JSC, and the ignorance that existed.

8. Thus, I have been waiting since 2010 for Naaz to speak on the substantive and meaningful issues around access to justice in the Maldives and an independent judiciary, a constitutional right of the people from a legal, human rights perspective. Such debate, and discussion, has been almost nonexistent in the politics of democratic transition in the Maldives.

9. Following the events of 2010 and constitutional breach by the Judicial Service Commission on which I was a sitting member at the time, in December 2010 I published a ‘working paper,’ Democracy Derailed: The unconstitutional Annulment of Article 285 and its Consequences for Democratic Government in the Maldives. It dealt with the issues in the Maldives’ democratic transition, and what I believed was a constitutional crisis we had found ourselves in due to abuse of powers and breach of trust by the JSC, the parliament and other duty bearers who failed to hold the JSC accountable despite repeated appeals, and the loss of an independent judiciary to treason by a few powerful actors within the state.

In December 2009, I published my observations and analysis of the existing situation, dangers and risks to constitutional government. This was of course shared with Naaz who was leading the UN Access to Justice Project.

10. Naaz was silent. Nor did the UN express concern at the failure of the state to meaningfully execute Article 285, or the events that followed. I have written in detail of what I witnessed in my book The Silent Coup; In Defeat They Reached for The Gun of what I witnessed – the conspiracy in which the Maldives’ judiciary was hijacked in transition using the JSC as a tool.

11. UN agencies were the only international presence on the ground in the Maldives in 2010, apart from handful embassies, and as such, I had appealed through Naaz to the then UN Resident Coordinator Mr Andrew Cox, to help in “saving Article 285”.

12. Mr Andrew Cox had found my “madness” discomfiting, my appearance unappealing, and my language incomprehensible, and it was to Naaz I turned as one with the presence and language to advocate the cause I fought. He was always civil to me, but never acted, and I was never sure he comprehended what I spoke of.

Much later, I learnt Cox had gone to the extent of warning the International Committee of Jurists (ICJ) of my mental status. ICJ was the only organisation to take the issue seriously and send a fact finding mission to the Maldives following the Article 285 controversy.

13. Hence, Naaz was the intermediary [with the UN]. I relied on Naaz to push the constitutional case for the meaningful execution of Article 285 and the establishment of an independent judiciary, as well as for assistance to alert the international community, specifically the UN Special Rapporteur on Independence of Judges and Lawyers, and the International Commission of Jurists (ICJ) on what was happening in JSC, and Majlis cover up. After all, Naaz fully understood my “madness” and the state of affairs within JSC and in the judiciary as a whole.

14. All attempts at an inquiry blocked, the judges took oath en masse in a controversial ceremony on August 4, 2010. Naaz was on the ground and was active meeting the JSC during the time. Immediately after the events of August 4, 2010 Naaz was seen in media photos meeting the Speaker Abdulla Shahid. It was usual for the Speaker, President and Chief Justice to meet UN project directors and give the photos to the media. The discussions, it was reported, were on access to justice, strengthening the judiciary and developing the judges.

15. Article 285 was never executed, and the allegations never investigated. Nor were the controversial events of August 4, 2010 ever raised to a proper platform and investigated despite repeated challenges in the media by politicians who defended the JSC without inquiry.

16. Naaz, as Project Director, poured in UN funds to strengthen and legitimise the judges who sat in question. The issues of constitutional supremacy, rule of law and due procedure were never raised by Naaz, or the UN, with relation to Article 285. Nor did Naaz recognise the centrality of Article 285 to democratic government, and the protection of fundamental constitutional rights.

17. President Mohamed Nasheed who took oath of office on November 11, 2008, following the first ever democratic elections held in the Maldives’ history, stunned the country when he “resigned” on February 7, 2012 in a live televised statement. He was flanked by ex-military and ex-police seniors, the current Minister of Defence and National Security Mohamed Nazim, and the current Commissioner of Police Abdulla Riyaz who had no official portfolio on February 7, 2012 to explain their presence at the scene that day.

The televised resignation had followed weeks of violence, which, in the light of evidence that has emerged since, could have been planned and staged by police and military leaders together with the politically motivated Sheikhs, backed publicly by opposition leaders. On that day, February 7, 2012 Naaz was a UN Project Director of the “Protecting Human Rights and Access to Justice Project.

18. The controversial transfer of power was a coup d’état that remains unproven, among other reasons, I believe, for the lack of an independent judiciary. It is surprising Naaz has found this irrelevant to her report. I, however, find it central to the subject and stated purpose of her publication and would like to highlight it as a major event that will in my opinion, continue with grave consequences to the future of the Maldives.

19. In the days immediately after the events of February 7, 2012 a photo went viral on social media – #mvcoup – show a smiling Naaz in Republic Square, shortly after the forced resignation of President Nasheed, holding a national flag in her hand:

20. In a comment on twitter after the publication of the Naaz report, Ibrahim Ihsaan (@iiihsan), a Maldivian law student who claims to know Naaz from “working on drafting legal aid scheme for UNDP in  those days,” says he  met Naaz in Republic Square that day, and had asked her, “What is the UN doing?”

Her response, in Dhivehi, was “Vaanvee goiy mi vee”: “It’s happened as it should”, and then she added, “because Anni [President Nasheed] did not release Ablo Qaazee.’”

21. Naaz had expressed the same sentiment on her Facebook status of February 7, 2012 declaring it to be “The happiest day of my life,” in a post she later deleted.

22. She subsequently left the UN post. Shortly afterwards she reappeared in the President’s Office working as some sort of presidential aide for President Mohamed Waheed, who took Office as President on February 7, 2012. Dr Waheed had selected Waheed Deen, a businessman, resort owner, and society-man of wide social contacts known for his philanthropy, as Vice President.

Aishath Velezinee (@Velezinee on twitter) is an independent democracy activist and writer. She was the Editor of Adduvas Weekly 2005-07 and served on the Maldives’ Judicial Service Commission (2009-11). She claims the Commission she sat on breached constitution in transition; and advocates for redress of Article 285, and a full overhaul of the judiciary as a necessary step for democracy consolidation.

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