Comment: What case, if there is no Judge Abdulla?

This article was first published in Ceylon Today on 27 February 2013, and is reproduced with the permission of the author.

President Mohamed Nasheed is being prosecuted, accused of using the military to remove ‘Chief Judge of the Maldives Criminal Court’. Found guilty, Nasheed will lose the chance to contest elections; and the public will lose the first consistent voice for democratic change for nearly a quarter of a century.

On 17 January 2011, Abdulla Mohamed, who sat as Chief Judge of Criminal Court, was forcibly “removed” by the military. Political opponents of Nasheed, all once linked to former President Maumoon Abdul Gayoom, quickly screamed foul, praised “Top Judge Ablow”, wreaked havoc on Male’ streets, damaged public property in nightly riots, and by 7 February had co-opted the security forces in a drama that unfolded live on local media.

This Criminal Court, which in fact was the ‘subject’ of the political crisis, had kept the nightly ‘vigil’ for “Judge Ablow”, systematically releasing detainees and helping to sustain numbers out on the streets. Those released praised Allah on social media, their release a sign that victory was theirs and God was with them.

To the familiar eye, the crowd of no more than 300 to 400 people who came out nightly were easily identifiable. Leading opposition politicians, MPs, recognised gang activists, and petty criminals. Many had cases before the Criminal Court or had appeared before ”Judge Ablow” on some criminal allegation. They were joined by former security personnel ‘retired’ during the government transition and a few serving policemen adorned in pink t-shirts. With them was sitting member of the Judicial Service Commission – business tycoon, MP and presidential candidate Qasim Ibrahim – and Chair of the JSC’s Parliamentary Oversight Committee, MP Mohamed (Kutti) Nasheed. It certainly was not the ‘public’, as public would be defined in a democratic state.

I watched these unfolding scenes, stunned, as my fears were confirmed.

To all outward appearance, however, President Nasheed had faulted. He had, it seemed, interfered in the business of the independent judiciary, an area strictly forbidden to the executive.

The international community, wary of domestic politics and players, is cautious not to be seen as interfering in a matter of rule of law. Due process, while reiterating the importance of free and fair, inclusive elections, is the mantra of the democratic international community.

The sitting government echoes back the words: ‘rule of law’, ‘due process’. Home Minister Dr Mohamed Jameel, who served in President Gayoom’s cabinet as Justice Minister during the transitional years and was personally involved in selecting many of the sitting judges, is one of the loudest voices insisting on ‘rule of law’.

What is not obvious to the casual observer, or understood by distinguished members of the international community, is that while the government and the international community voice the same words, they may not have a shared understanding of the concepts so familiar to democracies that they do not even think to question how another may be using or abusing it. What is forgotten, it seems, is that the Maldives never was a democratic state, but is a state in transition.

The Maldives’ judiciary, unlike in Sri Lanka or even Egypt, has never been independent. The Constitution introduced the concept of an “Independent Judiciary” with requirements upon the state to appoint a new judiciary within two years, and 15 years transitional provision to develop it.

Hence, the suggestion that Nasheed interfered in the judiciary holds true only if built upon certain assumptions, such as the assumption that Abdulla Mohamed is a legitimate judge appointed through due process.

If this assumption – the premise for the case against President Nasheed – stands, if indeed he had disregarded due process, interfered in the judiciary, and physically removed Chief Judge of the Criminal Court from duty, President Nasheed must stand trial. Rule of law must not be disregarded for President Nasheed, Abdulla Mohamed, or myself, and must prevail in all instances for democracy to take root.

Having said that, what if that premise does not hold true?

What if Abdulla Mohamed, who had become a household name with frequent reports of his irregularities in the media and public speeches against President Nasheed and his government, was placed as Chief Judge of Criminal Criminal Court without due diligence or due process?

What if the Judicial Service Commission, backed by President Nasheed’s powerful opposition, had indeed breached the Constitution and corrupted the judiciary in an elaborate scam to deceive Maldivian citizens and the international community? What if Abdulla Mohamed is indeed unfit to sit as a judge?

What if, apart from the criminal conviction for hate speech and disrupting public order – on record before Abdulla Mohamed was first appointed a judge in 2005 – there is truth to the claims that Abdulla Mohamed systematically works with organised crime, “launders” criminals and is likely being blackmailed?

What if there is truth to reports that certain influential MPs are linked to organised crime, and Abdulla Mohamed is kept Chief of Criminal Court by the power and influence of these criminal elements in parliament?

Of course none of these questions will rise anew with the trial of President Nasheed, had they not existed or been raised before.

Questions on constitution breach by the Judicial Service Commission, and the constitutionality of Abdulla Mohamed’s reappointment, together with the reappointment of all other men and women sitting as judges prior to ratification of the Constitution, is a matter pending inquiry in parliament since 2010.

The Parliamentary Oversight Committee for Independent Commissions first summoned the JSC on 2 August 2010, following months of appeal, and after I went public with information pointing to high treason in the JSC.

The summons from parliament to the JSC clearly stated the inquiry was in relation to complaints filed by myself, leaving no doubt that the committee was finally ready to inquire into the matter.

However, the committee sitting, telecast live, turned out to be a farce, a clever cover-up, a signal for the JSC and ‘judges’ to go ahead. The scandalous three-hour sitting centered on allowing then JSC Chair Mujthaaz Fahmy to air his story, a story that he has no evidence to back, and a story I could easily disprove with the documents and audio evidence I had brought to the committee.

Not only did the parliament committee deem it unnecessary to hear my evidence, they decided I was not to speak at all after my initial response to Chair Fahmy’s statement, declaring “all members have equal opportunity to speak” – ie, once. Chair Fahmy and Vice Chair, the late MP Dr Afraashim Ali, responded on behalf of the Commission.

That the matter was a disagreement in the JSC, and the fact that I stood against the Commission, was irrelevant to the MPs. In fact, the DRP and current PPM MPs took the opportunity to ridicule, slander and attack me, and praise the JSC Chair and Vice Chairs’ perjury while I sat gagged. The only other member to join me in noting the Chair was committing perjury was member of the general public appointed by Parliament, Sheikh Shuaib Abdul Rahman.

Attorney General Husnu Al-Suood, who also sat as a member of JSC, remained silent.

MDP MPs were of little help. Not having given time to review the evidence they were either not fluent enough with the subject to see the JSC was committing perjury, or not interested in entering a battle where a sure win was far from guaranteed given the balance of power in the Committee and in Parliament.

The JSC session with the committee ended not with a conclusion on the issue, but having run out of time. Committee rules did not permit a further extension. The Chair quickly closed the sitting as one MP noted the issue of Article 285 was a very serious matter and was to be investigated.

The JSC, for its part, fabricated a “legal reasoning on Article 285”, organised a press conference unknown to Sheikh Shuaib Abdul Rahman and myself, and made a statement attacking and defaming me in what was supposedly their legal reasoning.

In 24 hours, the judges took a ceremonial ‘symbolic’ oath without check or scrutiny in a ceremony that shocked the entire nation as unexpected live footage of it appeared. It was a moment that replayed continuously on all local TV stations for the next 72 hours, and has been repeated often since. The video footage raised serious doubts in the public.

Questioned by the media immediately after the now infamous oath, parliament made a statement to the effect that the Article 285 inquiry was pending while Legal Counsel Dr Ahmed Abdulla Didi reviewed the matter.

However, all was forgotten within the week, as “political dialogue” encouraged by the international community diffused the situation.

The suspension of the interim Supreme Court ended with the appointment of a politically-agreed Supreme Court, and the constitution compromised. On the bench among others of dubious integrity sits the said Legal Counsel Dr.Ahmed Abdulla Didi, who, despite not qualifying even after an unusual amendment to the Judiciary Act hours after its ratification, was approved by Parliament in the same sitting that amended the Act.

The question of Article 285 was forgotten except for my continued ‘rants’. Repeated calls for an inquiry went unheeded despite an International Commission of Jurists report in February 2011, noting both substantive and procedural issues in the JSCs’ actions regarding Article 285.

Repeated concerns on the JSC acting against Constitution and State, the runaway judiciary, the  politicisation of judges, and specifically the JSCs’ cover-up of Abdulla Mohamed and his threat to national security reported in communications to parliament and shared with military intelligence, were ignored. Nor was there any action against me by parliament or the court, all keeping silent on the subject.

If, there is any substance in what I repeat, wherein is rule of law or justice in the trial of President Nasheed?

The real questions in the Maldives case are not about Judge Abdulla Mohamed or the Hulhumale’ Magistrate Court. It is a battle centred around the Constitution; its meaningful execution and state building. It is a tug of war between President Nasheed, who attempted the judicial reform required by Constitution, and his opposition intent on preventing fulfillment of Article 285 and retaining their handpicked judges. Abdulla Mohamed is a shield.

Today, the future of the Maldives’ democracy is more than ever dependent on the goodwill, wisdom and diplomatic skills of the international community. The trial of President Nasheed is a standoff where a domestic resolution is out of the question.

Try President Nasheed, and myself too, but not without trust in the judiciary and the guarantee of a free and fair trial. Will the international community guarantee there is no aberration of justice in the name of democracy, rule of law and justice?

Velezinee served on the Maldives’ Judicial Service Commission (April 2009-May 2011) and is the author of ‘The failed silent coup: in defeat they reached for the gun‘ published in August 2012.

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