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).
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