I have read with concern a number of articles and commentaries over recent weeks which appear to be based on two false premises: first, that the Maldives judiciary is independent and impartial; and second, that it is capable of delivering a fair trial to the democratically elected President of this country, Mr Mohamed Nasheed.
Neither premise holds-up to careful scrutiny.
The first false-premise, which is regularly put forward by members of the Government, especially Dr Hassan Saeed, as well as by the Maldives’ own ‘independent’ UN Resident Coordinator, Mr Andrew Cox, appears to be based on a misguided reading of the concept of ‘independence’. In essence, this misreading holds that if our Constitution says that the judiciary is ‘independent’ then it must be so, irrespective of what the on-the-ground reality tells us.
The 2008 Constitution does of course establish a separation of powers and makes clear, in article 142, that “judges are independent”. But just because the Constitution says this is so, does not, of course, magic the situation into existence.
What the Constitution also does therefore is set up mechanisms to ensure judicial independence, impartiality and integrity. It therefore makes clear that all judges will, under the new Constitution, be subject to a reappointment process (article 285) and that to be (re)appointed, judges (article 149) “must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of a high moral character”.
Central to this process is the Judicial Services Commission (JSC), which is responsible for both the (re)appointment process and for upholding the impartiality and integrity of judges including by listening to complaints and taking “disciplinary action” against them if necessary (article 159b).
The importance of these mechanisms is clear when one recalls that all judges at the time of the entry-into-force of the new Constitution had been appointed by, and owed their loyalties to, former President Gayoom during his 30-year rule.
However, as Aishath Velezinee, President Nasheed’s former member on the JSC, has demonstrated in her book “The Failed Silent Coup”, former President Gayoom succeeded, through securing a post-election de facto majority in the Majlis, in controlling the appointment of members to the JSC and thus of controlling the JSC’s reappointment and disciplinary procedures.
As a result, despite ample evidence of some judges possessing neither the competence, qualifications nor moral character to be reappointed, the JSC quickly moved to swear them all in, arguing that the criteria laid down by the Constitution to control reappointment were only “symbolic” .
When Velezinee objected she was manhandled out of the room.
In the years thereafter, the JSC compounded this failure by refusing to process any of the multiple public complaints it received against Gayoom-era justices. When, in 2011, it finally bowed to public pressure and recommended disciplinary action be taken against Judge Abdullah Mohamed, a man accused of serial wrongdoings over many years, the judge in question simply asked his friends in the Civil Court to annul the proceedings.
When the Civil Court did so, it removed the last pretense that the Maldives’ judiciary is independent, impartial or accountable. As of that date, the Maldives’ judiciary became a failed institution.
So what of the second premise: that such a judiciary is capable of delivering a fair trial to President Nasheed, who is ‘accused’ of arresting Judge Abdullah Mohamed after the judge used his friends in the Civil Court to circumvent the Constitution and then used his position in the Criminal Court to repeatedly free not just allies of former President Gayoom, but also a number of known criminals?
Here, it is perhaps worth turning to respected international experts, international organisations and NGOs which have studied the Maldives judiciary and the justice sector more broadly.
The systematic problems facing the judicial system have been widely documented and were perhaps best summed-up by legal expert Professor Paul Robinson who advised the Maldives on judicial reform.
In his 2005 report, he characterised the Maldives criminal justice system as “systematically failing to do justice and regularly doing injustice”.
One of Professor Robinson’s main recommendations – to conduct a complete overhaul of the country’s archaic Penal Code – remains unimplemented. As a consequence, the Prosecutor-General is insisting on prosecuting President Nasheed on the basis of a Code drafted in the 1960s and which is based on a document produced in India in the 19th century.
In February 2011, the International Commission of Jurists (ICJ) visited the Maldives and issued a report which echoed many of Professor Robinson’s earlier concerns and demonstrated that, irrespective of the new Constitution, little had changed.
In its report, the ICJ expressed concern at “the apparent failure of the JSC to fulfill its constitutional mandate of properly vetting and reappointing judges” as well as the “judicialisation of politics”.
“The JSC”, according to the ICJ, “was unable to carry out its functions in a sufficiently transparent, timely, and impartial manner”. The ICJ concluded that the complete lack of judicial accountability in the Maldives undermines public confidence and calls into question the institution’s independence.
In July 2012, the United Nations Human Rights Committee considered the state of the Maldives judiciary. In its concluding statement, the Committee said it was “deeply concerned about the state of the judiciary in the Maldives”.
“The State has admitted that this body’s independence is seriously compromised” noted the Committee, which called for serious reform of the Supreme Court, the judiciary more broadly and the Judicial Service Commission.
These findings were mirrored by both Amnesty International and the International Federation for Human Rights (FIDH) in late 2012, following their visits to the Maldives. For example, FIDH in its report “From Sunrise to Sunset” on human rights in the Maldives, noted that despite important constitutional changes, “different sections of the judiciary have failed to become fully independent”, while pointing out that the JSC lacks transparency and its members are prone to “conflicts of interest”.
With the above in mind, it is difficult to understand how members of the government or some parts of the international community can claim with any degree of sincerity that our judiciary is either independent or capable of delivering a fair trial for President Nasheed or the hundreds of other Maldives Democratic Party (MDP) members currently facing prosecution for “terrorism” and other trumped-up charges.
If justice is indeed blind, then why are hundreds of MDP supporters awaiting trial, while not one police officer or member of the current government has been held accountable for the widely-documented brutality unleashed against protesters since February 7?
And if justice is indeed blind, then why are cases against MDP supporters being fast-tracked while there are over 2000 other cases pending with the Prosecutor-General? Why have all the serious corruption cases against Gayoom’s political allies been either sidelined or discontinued?
Perhaps the most damning indictment of the Maldives judiciary is that, at this time of political division, it is the one subject about which nearly everyone in the country can agree. Whether you are for President Nasheed or against him; whether you think February 7 was a legitimate change in government or a coup, nearly everyone – at least outside the President’s Office – agrees that our judicial sector are not fit for purpose.
And yet it is this deeply flawed institution, wielding a two hundred year old legal code that is supposedly able to deliver a fair trial for President Nasheed.
Over recent years, we have achieved much. We have amended our Constitution, embraced party politics, held our first free and fair elections, voted-out a 30 year old autocracy and voted-in our first democratically elected leader.
But the judiciary has failed to come even close to matching this pace of change and remains, by-and-large, the same institution as it was during the Gayoom era – unreformed and unrepentant.
Eva Abdulla is an MP in the opposition Maldivian Democratic Party (MDP).
All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]
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There is no hope for justice or democracy unless the judiciary is reformed and independent. Is it now?
DerangedZionistMalDeviantWhoDoesn'tWearHijabAbdullah wrote:
"Whether you are for President Nasheed or against him; whether you think February 7 was a legitimate change in government or a coup"
That should be a comma there. Your misuse of the semi-colon is egregiously stupid, as is the rest of your article.
The reason that the MalDeviant-Democratic-Party's cases are being expedited is because they pose a unique and organized threat to the stability and safety of our country.
It was not PPM who ran up and down the country burning buildings on February 7th, nor have they been the ones making a general nuisance of themselves since then with degenetate marches whilst blaring maniacal messages and stupid music via loudspeakers.
Every other party in the country has at least a modicum of respect for our religion. MDP members, however, regularly engage in fornication and have routinely been captured by our men in uniform whilst performing black magic and conjuring Djinn to attack their political opponents.
If you recall, the frequency with which they did this once reached a point where the resources of our policing institutions were stretched incredibly thin. And yet even then, the MDP had the temerity to complain about "Crime"?
In short, Eva, you are a liar.
No daughter of mine is going to be allowed to read if the only use to which women put their literacy to is to engage in dishonesty and base propoganda.
It is may be true to say judiciary is independent; probably the whole issue is not its independency. The problem lies in the people who run the judicial affairs, these people have no ethics, and basically they all are semiliterate who believe some middle age tribal way of dealing with society so called Sharia Law is something fallen from heaven and they are the masters in defining and executing these divine orders.
Their actions and thinking does not come from what is real on the ground, these thoughts and actions already fashioned by Sharia Law. Most backward societies have tendency toward discrimination, Sharia in other words is a good tool for these semiliterate to rule discriminately because the backward Shaira is based on patriarchic system of family hierarchy.
So long the whole judiciary is not replaced with modern educated people, these cronyism, corruption, discrimination, jealousy that is inherent by nature in the backward societies and s galvanized by Shairia, the judiciary always will be biased and rule of law will not prevail and their independency is more dangerous than a controlled judiciary.
I have met a Gazee who has very extreme view on fairness and rule of Law. According to him Allah has created everything discriminately, Even in Allah treats his messengers differently and the countries and cities have privileges to others in Allah’s eyes. The best city is Makka, the best language is Arabic and the best people are Arabs and the best messenger is Mohamed according to him. Has has gone to an extent to prove this from Nature, the small and vulnerable are created for bigger and strong one. These are the people who are there to up hold democracy and human rights.
Awesome Dhivehi Hanguraama, simply awesome.
Probably your best post yet. Keep writing your scholastic insights brother.
Here we have several internationally recognized legal institutions and experts stating categorically that the Judiciary is not fit for purpose and to balance that, we have you talking of Djinns, black magic and criticizing punctuation!!
You should be on stage. I would PAY to watch you perform.
An excellent article Eva Abdulla. The regime's plan is obvious, they do not want Nasheed as a politicl opponent and the 'trial' is their way of making sure that he does not complicate things for them. The outcome of this 'trial' is already decided. Unfortunately we are not talking about justice; but a political drama played out to legitimise a pre-determined verdict. Thank you Eva for a brave and informative piece of writing.
As for Dhivehi haangurama (oops! I have misspelt that word!) let me suggest you keep checking for commas, spelling mistakes colons and semi-colons in peoples (oops! I have done another naughty thing! I missed an apostrophe) writing so you can find fault with the technicalities and not worry too much about what people have to stay. That should keep you happy. And 'No daughter of mine is going to be allowed to read...' says a lot about your threatened state of mind. Girls reading is really scary, isn't it? They might even start to think for themselves!
@Dhivehi Hanguraama, your comment is deeply satisfying. At times it is hard to convey to the outside world just how absurd the political discourse in Maldives has become and just how inflammatory, ignorant and backward-thinking some members of the anti-MDP lobby are. But by completely ignoring the substantive points raised in this article, and instead, personally attacking the author for not wearing a Hijab, questioning the right of girls to be "allowed to read" and accusing members of the democratic party of performing "black magic", I think you have demonstrated this dynamic quite nicely.
Finally, if you wish to present yourself as a devout guardian of grammatical correctness in the English language, your credibility in this respect would be greatly enhanced by spell-checking your next rant.
Eva! lets not blame the judiciary or the those who brought about the coup. The fact is Nasheed just failed. He is an utter failure, a total disaster, just because he can speak the ordinary mans language does not make him a democrat, a freedom fighter etc, he just failed miserably. He does not have the ability to govern a nation, cannot even govern himself. Nasheed is a facist in a democrats or populist costume. I agree he has a certain charm that attracts the vulnerable in the society.
@Nashida
And how did I "completely ignore" the substantive points raised in this article?
You write as if I commented on Eva's (atrocious) punctuation and left it at that.
I specifically alluded to how the MDP's engagement in activities that are both criminalised and dangerous justify that their cases are being expedited.
Eva blames this on a lack of political impartiality on the part of the judiciary, whereas in reality it is a matter of national security and countering the threat of policing resources being stretched excessively thin.
Black magic and Djinns are real, and are routinely employed by the MDP to harm their political rivals. Your denial of this only demonstrates what an unhinged, deluded political partisan you really are.
I suppose all those arrests of MDP supporters engaging in the very things I describe didn't happen either.
Eva Abdulla, we do appreciate your work in reforming the judiciary but don't you have a better candidate other than Seyku Nasheed to vouch for!This nation has seen the wrath of seyku Nasheed more than God, considering the lies and chaos he has spread!
Just considering his actions and the way he speaks(no consistency at all) has convinced me how hypocritical and seyku he is,
but who can blame you,with your stubbornness and being a relative of seyku Nasheed (nasheed himself suggested Eva for the candidacy of the parliament but you speak of gayyoom appointing relatives;talk about putting your own foot in to your mouth, kekeke)
and hating Islam to an extent where you spread blatant lies and challenge god.No wonder you don't speak much in the parliament now!!??
(by the way i did not read the article considering it came from Eva who did not object thimarafushi musthafa challenging the courts and refusing to obey it and why didn't seyku nasheed try to reform it before these cases came in!It only shows that seyku nasheed wanted to save his place in the parliament and not for the benifit of the country!!???)
Eva, your clarity renders the opponent helpless, thus the foul language, the uninformed religious flirts and the seemingly academic verbosity. An opposing view have been rendered simply untenable. We await a semblance of clarity from the fragmented remnants of an unrepentant dictatorship.
At the risk of having several MDP supporters attack me and label me a sympathizer of this party or that, I must bring to Eva Abdulla's attention several facts that she missed out in this article.
- The first Judicial Services Commission formed in the country was controlled by the MDP and chaired by Hassan Afeef who served as Nasheed's Home Minister and as an MP from the party prior to 2009. This Judicial Services Commission, led by the MDP not only failed to implement any reforms within the judiciary but engaged in politics just like all other parties in the Maldives. Afeef also personally approved the MDP-led JSC's decision to close the doors of the judiciary to foreign-trained LLB-holders who had been sent abroad specifically for the purpose of strengthening human resource capacity within the courts.
- The Maldivian Penal Code is outdated yes, but Nasheed should be charged for arresting a person outside the law if the Code allows. Eva should inquire of her cousin Nasheed why his government insisted on using the same outdated Penal Code to justify the arrest of a political rival for "slandering the Government". It was Justice Abdulla Mohamed's decision to grant the release of this politician from police custody that led to his subsequent arrest and detention and so on and so forth.
- Nasheed and the MDP are not the champions of judicial reform. Eva would be aware of this fact. Foreign institutions (not rented NGOs who publish politically-biased statements without verification) have finally decided not to place their trust in an individual or a political party. Rather they are now actively engaging with the judiciary and other independent institutions to try and usher in key reforms.
- The purpose of this article is to cast doubt on a trial which is very straightforward. Nasheed violated the Constitution and international treaties to which the Maldives is party to by arresting a person and holding him incommunicado without respect for due process and the inalienable rights of man. How that is defensible is beyond me.
Articles on judicial reform should ideally come from non-political figures who possess some semblance of credibility. This article would be better published on MDP's official website.
You see it on MDP insaaf ge dathuru end up in a bloody coup.Gayoom regime is so corrupt for them to take there hand of judiciary.
Example Thirmafushi Musthafaa forward a bill about a US$800 million bill to the parliament the court remove him out of post.
The second by election the Island guraidoo was guarded by the Police no observe or a reporter were allowed go in Gayooms Party took the seat.
i am one helping the uncuffedmv to get interview my motor bicycle were smash.WE Could just hardly manage to finish the interview.
They brought a bloody coup and the democratic government fall shape no justice for them.President Naseed that they found guilty not them.
Andrew Cox is certainly not 'independent', as Eva implies.
It is well known he joined Waheed's 'club of the disgruntled' as early as 2010. And over the course of the past few years, he has been surrounded by bias, pro-judiciary people like Naaz, who drip-drip-dripped poison into his uncritical ear.
In January this year, Nasheed - fed up of Cox's disloyalty - formally complained to Helen Clark, head of UNDP, and asked for him to be removed.
Then, something wonderful happened for Cox's career. Nasheed was ousted in a coup by Waheed. His enemy was out, his friend and ally president! Low and behold, now Cox is using his position as Male's only dhon meeha diplomat to shore up his friend.
If Nasheed is re-elected president, he should vet the next UNDP res rep with far more care, and hire someone qualified for the job.
wonder what eva has to say about the parliament the other democratic pillar that she happens to be a member of? last time i checked she was giving a monkey show to stop this years parliament opening. very democracy loving!
A failed country has a failed judiciary..To some truth is always bitter...
Another premise :
Justice is simply not to be done, but to be seen as done impartially. How on earth would you not recognize the broad day light double standards of the courts and JSC. Just through the existing courts, if at all comes to light, would be miraculous.
Well lay out article, Eva.
A notable fact is that Professor Robinson's study quoted in the article was produced in August 2004, at the request of Dr Hassan Saeed, who was the then Attorney General. The consultation was sponsored by the UNDP. Professor Robinson is the Colin S Diver Distinguished Professor at Law at the University of Pennsylvania Law School.
Following that study, a draft discussion paper was produced in June 2005, by
Hon. Justice Markus R Einfeld, a QC who hailed from Australia, on strengthening the Maldivian judicial system. This paper was also produced at the request of the then Attorney General, Dr Hassan Saeed, this time supported by the Commonwealth Secretariat.
In his draft paper, Justice Einfeld made the following observations :
"All judges, including the Chief Justice of the High Court, are appointed by the President." (3.6)
"The judicial system is in considerable disarray. There is no judicial
independence, Judges receive little or no legal training and they have minimal expertise. ... There is little respect for and trust in the judiciary." (8.2)
As the article suggests, robust reforms were proposed to CHANGE the pitiful state of the country's judiciary which the experts found from their studies in 2004 and 2005. However, events since shows just how unwilling existing members of the judiciary, influential politicians and other public servants have been, to support the proposed substantive changes. And what of the legal professionals and law community of this country? What is their role in this? It is as though the establishment of a judicial system that would deliver justice and not injustice to the citizens of this country is of no importance to those in positions of power who can bring about such change.
Judges are citizens. Politicians are citizens. Therefore, at the end of the
day, it is Maldivian citizens, regardless of which profession, who are
culpable because they have effectively failed in their civic duty to serve this country given the opportunity to do so. It would not be an exaggeration to say that judicial reform has been deliberately failed, which shows the absence of commitment by influential citizens to the people of this country, to peace, stability and development of our society. It is really as simple as that. It is indeed a wretched state for its own influential citizens, to put their nation in.
The fair Eva’s article highlights facts that are universally accepted of the Judiciary in the Maldives -That there is an urgent need of reform of the whole system. This has been recognized by Former Presidents of the Maldives Gayoom & Nasheed and the present President of Maldives Dr. Waheed. So what are we bickering about? Nobody contests the fact that the Maldivian Judiciary is need of urgent repair
Everything created has a beginning and the judicial systems reforms in the modern era was undeniably initiated by the often vilified President Gayoom. Obviously the process started with Gayoom’s era new Constitution. He also recognized that this was a long term process and started the process of human resources development by sending students out for Law education and training.
So what did President Nasheed materially do to continue these judicial reforms? In Gayoom’s time tens of students went out for legal training. How did Nasheed make use of them? Did Nasheed continue the judicial reforms started by Gayoom? If so what exactly did he do?
The only Judicial reform that he seems to have implemented is introduce the precedent that the Executive could at its beck and call interfere with the High court, Supreme court and could even abduct and incarcerate judges that did not carry out the Executives will.
It seems to me that one thing is stark clear. In spite of a million inherent problems the Judiciary is functioning. The fact that Nasheed is accused of breaking specific laws and is held accountable for those breaches of laws is proof that it’s functional. Does this send a message to any future President of Maldives or any citizen of Maldives, who is planning to break the law? Yes.
Can President Nasheed get a fair trial?
The fair Eva’s opinion NO. All the people who have enjoyed freebies from President Nasheed’s interesting 3 years in office would have to say NO. I think it’s reasonable that we turn to an Independent Observer, who has the confidence of President Nasheed himself based on the persons long and wide experience in the Maldives, who is aware of all the prevalent opinions concerning the judiciary. In short a person well aware of the works of 1. Prof Paul Robinson’s work 2. The International Commission of Jurists work, 3. UN Human Rights Commissions work and the 4. FIDH work on the Judiciary in the Maldives. 5. & others. Such a person is Sir McKinnon, who represents the Commonwealth in Maldives.
This is what Minivan reported on 11th Oct 2012 re Sr. McKinnon
Asked whether he shared Nasheed’s concerns that he would not be tried fairly, “I think on this particular case [the judiciary] know very well that there’s more than just a few Maldivian people watching this trial.”
“The international players are watching and I believe that the Maldivian judiciary will be very careful,” McKinnon said.
“It certainly can be fair and it should be fair. These people know exactly what is expected of a judiciary, but there is a high level of political sensitivity in that country, there’s a tense atmosphere which does get more difficult from time to time. But there is still the possibility of having a fair trial, yes,” he said.
I think the time has come for all players whatever party they belong to or whether they are related to personalities or not to let the law takes its course. Already we see that Judiciary is not backing down & willing to assert its new found Independence. They are well paid, have jobs for their lives and know that they are under the microscope and already know they are free from errant Presidents. They know that their survival depends on one thing alone – Imposing their independence.
Finally to be complete I borrow from the always brilliant Tsk Tsk.
“- Nasheed and the MDP are not the champions of judicial reform. Eva would be aware of this fact. Foreign institutions (not rented NGOs who publish politically-biased statements without verification) have finally decided not to place their trust in an individual or a political party. Rather they are now actively engaging with the judiciary and other independent institutions to try and usher in key reforms.”
Indeed this looks promising for our Democratic aspirations. We the ordinary citizens, without Presidential relations can sit back and watch Justice take its course. We have palpable little pointers that speak volumes for itself; like after President Nasheed’s arrest on the way to Male the police actually stopping to buy President his favorite B&H cigarettes and that President Nasheed enjoying the high life he adores even though for a small break from the business of facing up to reality. We pray JUSTICE BE DONE. Nothing more nothing less.
The simple fact is that Nasheed is the best politician who will make life better for the "common,ordinary" people of the country. The little people who have no voice or influence.
He will not get a fair trial. Sad,really.