The UK’s Bar Human Rights Committee (BHRC) has expressed “serious concern” over the appointment of judges by the Judicial Services Commission (JSC) in the trial of former President Mohamed Nasheed.
Accounts of the appointment process, “if accurate, suggest egregious unconstitutional behaviour by the JSC in selecting the judicial bench to hear Mr Nasheed’s case,” stated BHRC Executive Committee member Blinne Ní Ghrálaigh, who visited the Maldives to observe recent proceedings against Nasheed.
The committee has conducted several independent trial observations of proceedings involving the former President, who is charged over the detention of Chief Judge of the Criminal Court, Abdulla Mohamed, during the final days of his presidency.
Nasheed and his Maldivian Democratic Party (MDP) maintain that the charges are a politically motivated attempt to prevent him contesting the 2013 presidential elections, challenging both the legitimacy of the Hulhumale’ Magistrate Court hearing the case, and the JSC’s appointment of judges to the case. The JSC itself includes several of Nasheed’s direct political opponents, including rival presidential candidate, resort tycoon Gasim Ibrahim.
The Nasheed trial was meanwhile suspended by Chief Judge of the High Court last week pending a ruling into the legitimacy of the bench’s appointment – an action which led all other High Court judges to file a complaint against the Chief Judge with the JSC.
“It is difficult to see how proceedings presided over by a judicial bench, cherrypicked for their likelihood to convict by a highly politicised JSC, which includes a number of Mr Nasheed’s direct political rivals, could in any way be deemed to comply with constitutional and international fair trial rights, including the right to an ‘independent court established by law’,” stated Ghrálaigh, in her concluding remarks.
“The BHRC welcomes the current investigation by Parliament’s Independent Commission’s Oversight Committee into the judicial selection process in the case, but notes with concern the refusal by the JSC to cooperate with that investigation,” she added.
“Lack of transparency in the constitution of judicial benches and in the assignment of cases fundamentally undermines the proper administration of justice: fair trial guarantees and the requirements of natural justice demand not only that justice be done, but that it be seen to be done,” her report states.
The report provides a detailed overview of state of the judiciary and political context in the lead up to Nasheed’s resignation and prosecution.
Ghrálaigh states that given concerns about the JSC’s politicisation and “serious questions” concerning its appointment of judges to the Hulhumale’ Magistrate Court, “it is perhaps surprising that the court should have decided of its own motion (“ex proprio motu”) to deny the request made by Mr Nasheed’s legal team to postpone the proceedings until after the elections, in the absence of any objection by the prosecuting authorities to such an adjournment.”
“Although there is nothing to prohibit courts from making decisions governing their process ex proprio motu, the allegations concerning the manner of selection of the Hulhumalé Magistrates’ Court panel render the Court’s stated reasoning for its decision all the more disquieting,” she stated.
The BHRC was not seeking to downplay the seriousness of the charges against Nasheed, she noted.
“However, what is clear is that the case is far from straightforward. Central both to the context of Judge Abdulla’s arrest and to the nature of the criminal proceedings against the former president are fundamental questions of judicial independence in the Maldives.”
“The charge against Mr Nasheed is that he acted “in a manner contrary to law” in ordering the arrest and detention of a senior judge. Although the details of the prosecution case have yet to be set out, it is clear that the Article 81 offence with which Mr Nasheed is charged is not a trivial one,” the report states.
“The BHRC notes with concern the increasing number of reports and statements by international bodies, including those referenced in this report, which conclude that the Maldives does not have an independent and impartial judiciary,” the report states.
“The BHRC further notes the view inside and outside the Maldives that the failure by the institutions of the State, in particular the JSC, properly to implement constitutionally mandated reforms to create an impartial judiciary, independent from political pressures, and the failure properly to investigate and/or sanction allegations of egregious, unlawful and/or unconstitutional judicial conduct, have served significantly to derail the State’s transition to a functioning constitutional democracy,”
Given extensive local and international concern over the state of the Maldivian judiciary, Ghrálaigh observes that the context for the criminalisation of Nasheed’s detention of Judge Abdulla, hangs on whether the Chief Judge is, as stipulated by Article 81 under which Nasheed is being charge, “an innocent person”.
“It is against that background, and in the context of a number of serious complaints against Judge Abdulla, that the order for his arrest was made. That background is intrinsically bound up in the nature of the charge against Mr Nasheed: the wording of Article 81, which criminalises a public servant for “us[ing] the authority of his office to intentionally arrest or detain an[…] innocent person contrary to the law” suggests that the context to the arrest, and in particular the allegations against Judge Abdulla, will necessarily be central to the determination of the charges against the former President,” the BHRC report states.
Ghrálaigh notes that the JSC was “also subject to significant criticism for its failure properly to oversee individual complaints against individual judges. One judge against whom a number of serious complaints were levied was Judge Abdulla, accused inter alia of “implicat[ion] in 14 cases of obstruction of policy duty”, including “strategically delaying cases involving opposition [Gayoom loyalist] members”, “twist[ing] and interpret[ing] laws so they could not be enforced against certain politicians”, “accepting bribes to release convicts”13 and “hijack[ing] the whole court”.
“I was informed that a JSC complaints committee charged in December 2009 with investigating Judge Abdulla, failed to issue any findings, following an injunction sought by, and granted to the judge by the Civil Court, preventing his further investigation by the JSC and/or the publication of any report concerning his conduct,” Ghrálaigh noted.
The JSC, responsible for reappointing judges including Judge Abdulla in 2010 at the conclusion of the constitutional interim period, “failed properly ‘to fulfill its constitutional mandate of proper vetting and reappointing of judicial candidates’, a failure regarding which international bodies, including the International Commission of Jurists, have expressed concern,” she added.
“Rather, in August 2010, amidst much controversy, it proceeded to confirm almost every Gayoom-regime judge, qualified or not, in office for life, finding that the constitutional provisions regarding judicial appointment were merely “symbolic”.
“Consequently, the Maldivian judiciary remains largely unchanged since the country’s transition to a constitutional democracy: the vast majority of judges in office, including Judge Abdulla, are political appointees of former President Gayoom, and many still lack any formal training in law.”
Furthermore, “The blocking in the People’s Majlis of key pieces of legislation including the Penal Code and the Criminal Evidence Act, that would provide for equality and uniformity in the application of a codified body of law, means that mainly untrained judges continue to wield considerable discretion in their determination of cases.”