Leader of the Jumhoree Party (JP) and Parliament’s representative to the Judicial Service Commission (JSC), MP Gasim Ibrahim, has accused UN Special Rapporteur on Independence of Judges and Lawyers Gabriela Knaul of lying and joking about the state of the Maldivian judiciary.
During her preliminary observations on the country’s judicial system, Gabriela Knaul expressed concern over the politicisation of JSC – the body constitutionally mandated to oversee the functioning of the judiciary.
Addressing a relatively small party gathering held in its headquarters in Male, Gasim – also the party’s presidential candidate – claimed that JSC had been acting within the boundaries of the law and that the process of the appointment of judges adhered to constitutional stipulations and the law.
“[Gabriela Knaul] claimed that the judges were not appointed transparently, I am sure that is an outright lie. She is lying, she did not even check any document at all nor did she listen to anybody. She is repeating something that was spoon-fed to her by someone else. I am someone who sits in JSC. She claimed there were no regulations or mechanism there. That is a big joke,” Gasim claimed.
“She wouldn’t tell bigger lie”
“We had made all the announcements through the media and we even clearly stated necessary criterion required as well as how the interviews will be carried out. We were acting on what we had announced. She couldn’t tell a bigger lie than that,” Gasim said.
Gasim claimed that the composition of theJSC was decided after a strong debate between members of the assembly, and contended that “nobody can criticise its decisions, not even under international law”.
“That is why I am telling you all this. We the people should not believe the reports compiled by people who come like this without verifying it. This is an influence that has a different motive,” Gasim accused.
Gasim – who is also the Chairman of the Villa Group of companies that owns several resorts in the country – said that a UN representative had once come to Maldives and claimed it could never build a tourism industry.
“A person came like that in 1972. After much surveying, he claimed that the Maldives cannot host a viable tourism industry. Is that true today? But that is what was in the UN report. That is what is on the report by the World Bank. Does the Maldives not have a tourism industry now? He said we cannot; according to him we did not have electricity, water or a transport system but just a bunch of small islands. What would he know?” Gasim said.
Gasim also referred to the presidential elections.
“Is the US judiciary very good? What happened when [George W] Bush sought re-election? You would all know how that election went. Florida High Court ordered for a recount of the vote. When the issue came, Al Gore began winning and winning. Then the Republican Party, who was very upset with that, filed a case at the Federal High Court. The Federal High Court ordered not to count the votes and that President is Bush. Following that order, Al Gore admitted defeat and congratulated Bush on his re-election. This is something the world witnessed,” he told his supporters.
The incident to which Gasim Ibrahim referred took place in the US Presidential Elections 2000, in which George W Bush was running for office for the first time against then Vice President Al Gore. The election was called a victory for Bush after the US Supreme Court declared the ruling made by Florida Supreme Court requiring a state wide recount of votes was unconstitutional. Bush later ran for re-election against then Senator John Kerry in which he won the race by 286 to 251 electoral votes.
Knaul’s preliminary observations highlighted that the JSC – mandated with the appointment, transfer and removal of judges – was unable to perform its constitutional duty adequately in its current form.
Her comment was among a number of preliminary observations on the Maldives’ judiciary and wider legal ecosystem, following an eight day fact-finding mission.
As well as recommendations to address what she said were minimal levels of public “trust” in the nation’s judicial system, Knaul also addressed matters such as the trial of former President Mohamed Nasheed – who is currently facing trial for his detention of Chief Judge of Criminal Court last year, charges he claims are politically motivated to prevent him from contesting presidential elections later this year.
She also criticised the appointment of judges presiding over the case against former President Mohamed Nasheed, alleging that the set up was made in an “arbitrary manner”.
“Being totally technical, it seems to me that the set-up, the appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws,” Knaul said.
Her key concerns included the politicisation of the JSC, flaws and inconsistencies over the independence of the judiciary and lack of transparency and accountability.
“I have heard from numerous sources that the current composition of the JSC is inadequate and politicised. Because of this politicisation, the Commission has been subjected to all sorts of external influence and consequently has been unable to function properly,” Knaul stated.
Knaul said she believed it best for such a body to be composed of retired or sitting judges. She added that it may be advisable for some representation of the legal profession or academics to be included.
However, she maintained that no political representation at all should be allowed in a commission such as the JSC.
“I believe that an appointment body acting independently from both the executive and legislative branches of government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice,” Knaul added.
Knaul stated that upon conclusion of her mission meetings, she had found that the concept of independence of the judiciary has been “misconstrued and misinterpreted” by all actors, including the judiciary itself, in the Maldives.
“The requirement of independence and impartiality does not aim at benefiting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial,” Knaul stated, while emphasising the important role of integrity and accountability in judicial independence, and hence its role in the implementation of the rule of law.
Stating that it is vital to establish mechanisms of accountability for judges, prosecutors and court staff, Knaul said: “Such mechanisms must guarantee that the investigation of any actor in the judicial system safeguards the person’s right to a fair hearing. Investigations should be based on objective criteria, the process should respect the basic principles of a fair trial and an independent review of all decisions should be available.”
Transparency and accountability
“When selection criteria [of judges] used by such a body [as the JSC] are objective, clear, based on merit, transparent and well publicised, public understanding of the process and the basis for the appointment of judges increases, and the perception of unfair selection of appointments can be avoided,” Knaul said.
Knaul also spoke of the lack of transparency in the assignment of cases, the constitution of benches in all courts, including the Supreme Court.
“When cases are assigned in a subjective manner, the system becomes much more vulnerable to manipulation, corruption, and external pressure. Information on the assignment of cases should be clearly available to the public in order to counter suspicions of malpractice and corruption,” she observed.
Knaul stated that while transparency is public administration is an obligatory requirement in a democracy, transparency remains a challenge for the Maldivian judiciary.
Furthermore, Knaul highlighted the absence of some fundamental legislation – including the Penal Code, Criminal Procedure Code and the Evidence Act – in the Maldives, adding that this posed huge challenges to upholding the rule of law.
Knaul was appointed to deliver recommendations on potential areas of reform to the Maldives’ legal system, at the 23rd session of the UN Human Rights Council in May, 2013.
Velezinee ruined the JSC: Gasim
Gasim meanwhile alleged that the JSC could not function properly due to then President Mohamed Nasheed’s appointee to the commission, Aishath Velezinee.
Velezinee was an outspoken critic and whistleblower on judicial inconsistencies and lapses. She has consistently maintained that the JSC is complicit in protecting judges appointed under the former 30 year autocracy, colluding with parliament to ensure legal impunity for senior supporters of the old regime. In January 2011 she was stabbed twice in the back in broad daylight.
“At first, the JSC were not able to carry out its duties because of a person called Aishath Velezinee who was appointed to the commission by [President] Nasheed of Canaryge’. She destroyed the whole place. The damage she inflicted on the JSC was so severe that we had to do so much work to bring the place back to order,” he claimed.
Gasim said judiciaries in all countries had problems and that this was not a different case in the Maldives. He also contended in all the countries have to be reformed.
“A person called Gabriela came and met us. She told us there are lots of issues that need to be corrected within the judiciary. Judiciaries in all countries should be reformed. Which country has a judiciary that does not need to be reformed?” Gasim asked.