Q&A: Kirsty Brimelow, QC

Kirsty Brimelow QC is one of three UK legal experts on former President Mohamed Nasheed’s legal team. The new government has pursued criminal charges against Nasheed for his decision to detain Chief Judge of the Criminal Court, Abdulla Mohamed, charges Nasheed contends are a politically-motivated attempt to prevent him from contesting the 2013 Presidential elections.

Brimelow is an experienced criminal law specialist with expertise in international human rights, and has worked in a number of small island states including Jamaica, Trinidad and Tobago.

JJ Robinson: How much background knowledge did you have on the political situation in the Maldives prior to deciding to join Nasheed’s defence team?

Kirsty Brimelow: Very little other than the usual views of the Maldives as beautiful islands for romantic holidays – I had never been here before. I had heard about the climate change aspect of Maldives at the time of the Copenhagen summit – it was something I remember reading about. I thought that it would be terrible if Male’ was under water in 20 years.

JJ: How much had you followed the February 2012 transfer of power?

KB: No I hadn’t followed it. When I was contacted [to join Nasheed’s legal team] I looked it all up. I don’t know if it was reported in English newspapers. I don’t remember reading anything about it. At the time the news was dominated by news of Syria and starvation in the world’s youngest democracy, Sudan. I think they dominated the headlines, and the London Olympics more than anything else that was going on.

JJ: What was behind your decision to join Nasheed’s legal team?

KB: As an international lawyer there is a real interest in how rule of law operates in different jurisdictions. In recent years I’ve done a lot of work in small island states – I am Legal Advisor to the Constitution Commission of Fiji, I worked in Trinidad and Tobago as part of the team defending the chief justice, and was appointed Counsel to a Commmision of Inquiry into a massive international fraud inquiry in Antigua. I have also worked in Jamaica.

I suppose I am interested in the Maldives as a new democracy, and how that struggle is being played out. I am also really interested in the Maldives both as international and human rights lawyer. I have real interest in fairness of procedures and that there are independent and impartial judges. No court system can operate if you have biased judges, or judges who are of a standard such that justice cannot be carried out.

JJ: How much do you know about the Maldivian judiciary and its condition?

KB: I’ve read a couple of reports which have the same conclusion – that the judiciary is not functioning at a level that can deliver justice. But I read these reports as background – I have really been concentrating on this specific case.

JJ: The Maldivian Democratic Party (MDP) have made a case on the basis of challenging the legitimacy of the Hulhumale Magistrate Court where Nasheed is being tried, rather than defending the specific charges against him. Do you think this is a good approach, and can you argue that in court: “I don’t respect your legitimacy, your honour”?

KB: There are different arguments going on at the moment. The high court application [regarding the legitimacy of the Hulhumale Court] is a legitimate argument accepted as such by the Attorney General. It is a jurisdictional public law matter now removed from criminal law.

The validity of the jurisdiction of courts is fundamental – people can’t just set up their own courts because they feel like it, and they can’t just put in who they like as judges of that court. It has to be done in a transparent and independent way in order for the courts to have any respect.

JJ: Why should courts care about the respect of the public?

KB: The general public in any democratic society cares about its justice system because that underpins its democratic society. If you think your justice system is corrupt – that whatever evidence you have when you’re in court will be ignored because you have a corrupt system – then that is bad for democracy.

Democracy can’t survive with a corrupt justice system. I think people do care about that. But obviously the select people who want to keep it corrupt, don’t.

JJ: This is the first time there has been foreign legal representation applying to appear in the Criminal Court, as far as I’m aware. Are you allowed in?

KB: At the moment there is apparently a policy that says you have to be Maldivian and/or married to a Maldivian to appear in court. It is very restrictive. It is going to be a matter we are going to challenge.

It obviously depends on the particular country, but most small island states have developed a system where foreign lawyers are able to practice within that system on a case by case basis. For example I have appeared [in court] in the Caribbean. The reason is that the smaller the place the smaller the pool of lawyers, and the bigger the case, the more political difficulties and influences that could be brought to bear on people from that society. So if you bring someone in from outside it can bring the balance back.

It is also a good way to increase knowledge and expertise. For example my knowledge is based on international human rights law, whereas if you are practicing in a small state you don’t have that comfort of being able to specialise. International law is not foreign law – it is part of the law of the Maldives, and to develop it you need that knowledge running through [the system]. The way you do that is allow international lawyers.

The Maldivian lawyers I’m working with are keen to make the application so that I could represent President Nasheed in court together with them. It would be their application on my behalf.

JJ: Dhivehi can make the country quite inaccessible to outsiders – to what extent is that a challenge in this case?

KB: Of course it’s a challenge and as to how it would operate [in court], nobody’s ever tried it before. As far as I understand English is widely spoken fluently, and i’m told many Maldivians prefer to speak English. Obviously it would have to be translated in court – but that happens in many jurisdictions with no difficulty. I don’t see it as meaning that the position would be impossible – there would have to be systems in place.

JJ: The judges on the panel hearing Nasheed’s trial were appointed by the Judicial Services Commission (JSC), and include two of Nasheed’s direct political opponents – Jumhoree Party Leader Gasim Ibrahim and Speaker of Parliament, Dhivehi Rayithunge Party (DRP) MP Abdulla Shahid. In this environment, and given the politicisation of the case, is it reasonable to expect that Nasheed can have a fair trial at all in the Maldives?

KB: I think at present if the trial were to go ahead in the Hulhumale Court, as presently constituted, there are real issues as to whether there is any chance at all as to whether Nasheed will have a fair trial. There are real issues and real concerns.

JJ: What is the approach then? The MDP has challenged the court’s legitimacy, but what about defending Nasheed’s decision to detain the Chief Judge of the Crimnial Court? Would you advise defending these charges or lean towards challenging the court’s legitimacy?

KB: Nasheed at his recent rally said that based on the evidence served against him, he should be acquitted.

The trial has two aspects: there are real issues as to fairness and those aspects fall into two categories, which relate to the court itself, which will be argued further, and the second aspect relates to the ability of President Nasheed to properly defend himself. I can’t go into details because those submissions have not been made to the trial court.

JJ: How similar are the challenges in the Maldives compared to other small island states?

KB: Each place is very different – but a common thread is the real difficulty getting a neutral tribunal to consider the evidence. Most countries have a problem where so much is in the newspapers already that people have formed opinions by the time the matter comes to court. In fact the trial is run in the newspaper, usually against the defendant, who isn’t in a position to present his defence in the newspaper as well, so it becomes one-sided and by the time the case comes to court people have the view that the person is guilty.

That would not happen in a larger jurisdiction where there are all sorts of laws to prevent people coming to court with a closed mind. That’s a problem here.

The Maldives has specific problems, such as those documented issues in relation to the judiciary, and those issues are quite extreme and are not found in many other small island states I’ve worked in. Many of those states such as Jamaica have a strong judiciary.

JJ: What would be some of those concerning issues?

KB: I don’t want to be upsetting the trial. I can quote from the reports though. Things like the statistics of those serving in the judiciary with criminal convictions and so on. It must be a concern to a fair minded observer as to what sort of justice is being dispensed if you are appearing before someone with criminal convictions, for example. That kind of thing is what I mean.

JJ: To what extent do you think the trial of Nasheed could be a catalyst for judicial reform in the Maldives?

KB: I think it is an important trial for the Maldives, and it could be a catalyst for reform in that the issues which are being raised are fundamental to a functioning justice system, and they are serious, so it should at the very least trigger debate in parliament in a democratic country.

There has to be a robust system which will regulate judges objectively, so someone coming to court can have faith in the system. If there is no check on judges in terms of their independence and honesty, as well as ability, then the courts just simply become a means of reaching a preordained result that everyone has already predicted.

Then quite simply it is not a justice system – it is a figleaf. Everything else flows from that – stability, fairness in terms of elections, parliament; if you’ve got a vacuum in your justice system you quite simply don’t have democracy.

You have to have a robust system to deal with complaints [against the judiciary]. In international law and particularly the Convention of Civil and Political Rights it sets out that privileges and immunities for judges can only go so far, and that they are not meant to stretch to afford protection ‘no matter what’.

My interest is in fair trial procedures, and that fair trial rights are upheld. There are real issues in this case, which is why I’m part of the legal team.

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16 thoughts on “Q&A: Kirsty Brimelow, QC”

  1. So, let me get this straight. When Waheed hiresa foriegner as a Legal Counsel, then it's a problem. When Ganja`boa does it, its all hail the chief. Do you know, what this means? This means stand ready when the bon-fires are lit, Minivannews et al. You will be in the middle of the spit-fire. Anni & co. Yes siree Bob.

    You want stability now. We will give you stability.

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  2. @Karzoid - the difference is when Waheed hires foreigners as Legal Counsel he pays them with our money! Yes, the people's money. When Nasheed hires them he does not pay them with my money or yours! Got it?

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  3. we want justice,except when we are charged with a crime! when we are forced to face justice, it is time for reform and halt all proceedings until then! is it really about the judiciary and jutice or is it about nasheed, for these people?

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  4. @ Karzoid
    Yes, we know what it means; it means your amaa.

    @ bpl
    No, it's not about judiciary and justice or Nasheed; it's about your amaa.

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  5. Wonderfully done.

    Why don't our politicians and lawyers learn to make a statement like Ms. Brimelow has done here. Thasmeen Ali seems to do a bang up job of it but then again the public don't seem to go for class and decorum.

    Anyhow, agree with most of the points raised by Brimelow and very much respect her for maintaining her professionalism throughout the interview.

    We are all agreed that there is a lot to do strengthen our judiciary. There is a lot that the JSC (which in real terms equals the political parties in Maldives) can do in the short-term to improve public confidence in the judiciary. The key ingredient here is political will. Our civil society is too weak and levels of public awareness about democracy is too low to expect a popular movement for judicial reform.

    What we have left to hope for is that political and business interests find it expedient to set the judiciary down the right path. International pressure can go a long way in the absence of any local movement.

    There are serious shortcomings to this approach however. One being the politicization of the discourse on judicial reform. When you have a single political party attacking an institution while other political parties defend then the courts end up getting labelled as for or against X party. Whether this is true or not is another matter entirely. We need to tone down the rhetoric and bring real issues within the judiciary to the fore.

    The focus right now is only the subjective side with political interests dominating the limelight to attack individual judges or courts based on their previous or running engagement with the judiciary.

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  6. Firstly Ms Kirsty wants to challenge her participation as a lawyer to Nasheed. As clearly Maldivian regulations says, a foreigner cannot be involved, WHY SHOULD SHE CHALLENGE?
    challenging the world to legitimize abduction of a judge?
    If abduction is not illegitimate in your dictionary, you must be disqualified from QC.

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  7. I think every Maldivian should be happy with the new developments. President Nasheed with his foreign legal experts is afforded the best defence that money can buy.

    All Maldivians accept that Judiciary needs reforms and I'm sure this case would go a long way in helping us in this. No matter what what we absolutely need at this point of time and on our road to democracy is a clear message to the Maldives that the rule of law is here.

    Sadly President Nasheed the first democratically elected President was seen to try and repeal the democratic reforms put in place in 2008. No body even talks any more about his arresting leading political opponents without due process, bribing MP's to gain a working parliamentary majority, locking up the Supreme Court and ignoring the higher court orders.

    It's therefore my prayer that justice is served on at least the abduction of this judge. My interest is just that his case serve as a lesson to all wannabe authoritarians aspiring to be President that he/she is not above the law. Maldives is unique. Everything happens in a tea cup and if President Nasheed gets away with his lawlessness and abuse of power then we are putting the first nial in the coffin of democracy.

    So lets get this right.

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  8. I hope sanity and transparency will be part of this trial now. We welcome her!

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  9. Kirsty- please remember that the track record of this government to turn things round to suit themselves is quite amazing. Now we have foreign experts involved. My prediction is that the verdict is already decided and after all the debating and arguing, the judges will follow the party line in deciding that Nasheed is guilty. Then they will tell the contry and the world, that in a fair trial, with foreign observer, they found Nasheed guilty. I am extremely happy that there are peple of your calibre involved, but just be aware that things are totally back to front in the Maldivian justice system.

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  10. some points about judgement upon people in islam.

    in Islam there is a saying of our prophet that 2 out of 3 judges will be in hell fire. first one because he knew he was wrong but anyhow sentenced people unjustly. second one because he didn't knew so by ignorance he was unjust.

    Also judges will be the in the first batches of people who will be judged upon by god, because they were in judgement upon people in their life time.

    in the time of the rightly guided men, people will go and try to hide upon receiving the news that he has been selected as a judge. Many pious scholars of Islam rejected the position and endured punishment by rulers for fear of taking the position of being a judge..

    There is an admonition to lean towards leniency, giving benefit of doubt, make every excuse possible not to be harsh on people to judges, which the ignorant judges mostly do not know. Even if they knew about these concepts it would be hard to be judicious in these matters. one would be torn between the need to be just and the need to be 'soft' on people which is in strict terms the an injustice...

    Christians have taken this concept of mercy too far by taking just one example out of context and in bible about a prostitute who shall be punished by only a sinless person, which is an impossibility since nobody is sinless.

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  11. As expected, we have a very polished interview from Kirsty Brimelow. Indeed, many a Maldivian politician (or lawyer) can learn much from just this piece alone.

    Almost everyone agrees about the problems in the judiciary, but no one has a working solution so far. Here's my not-so-humble suggestion. As I see it, the main issue facing the judiciary is one of human resources. The whole system is way under funded in terms of human resources.

    Currently, we have a law making body (Majlis) comprised of people with an average IQ measured in double digits. Next, those responsible for dispensing the law are in an even worse situation.

    One of the very first things, we should have started in 2008 ought to have been educating our young men and women in the legal profession. We need a new generation to displace the old guard who graduated from various dodgy Madhrasaas! It will happen, given time, but we need to expedite this process, and is the first step towards a sustainable and functioning legislature in the Maldives.

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  12. @leaf on Thu, 8th Nov 2012 7:22 AM

    "in Islam there is a saying of our prophet that 2 out of 3 judges will be in hell fire."

    I hope you don't take that too literally. Of course, we don't really know what Mohammed actually meant by that, but human experience even up to the time of Mohammed taught him that we are not particularly good at dispensing justice.

    Of course, things were probably a bit more chaotic during that time, but not by much compared to today. Mohammed was a very intelligent man, and a lot of what he said rings true even today (regardless of whether God was involved in any of it or not).

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  13. thanks @ Ahmed.
    Not literally but figuratively.
    and the causes of each judge been to enter hell fire have been explained v simply.
    1) unjust by being technical. The pursuit of justice shall be for that end. however modern justice practices seem geared just to do that. it pitches technicalities vs technicalities. that's why we see murderers who commit murder in broad day light leaving court free with big smiles on their faces after killing people.

    2) being unjust by ignorance and not trying enough to arrive at justice.

    One last point about Muhammad (peace be upon him)being intelligent; this is a very common non-muslim reply that frequently goes on to say that Islam was invented, Quruan was written all by one man. But this is very shallow take on this matter. Because intelligence alone doesnt make a person successful.

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  14. @ Leaf

    May peace and Allah mercy be upon you. Justice in this world is non existent nowadays thus is proof enough for our prophets words being absolutely correct.

    @Ahmed bin..

    Have you read the piece of writing about the earths end due to the sun by professor Ugail which was recently published in Haveeru.
    I couldn't agree more on the prophets words and this as it was written by a modern professor who might have little belief in god. But hey, this was also the prophets intelligence giving way to future tragedies?? What's your thought about this??

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  15. @D

    Please read, read widely and explore, in order to ascertain the veracity of the claims made by so called Prophets.

    Nostradamus made fairly accurate predictions of future eventualities, absent extensive teachings from gnostic, nostarian Christian monks like Bahira or Waraqa Bin Naufal (Prophet Muhammad's (PBUH) wife's first cousin). Nostradamus was never cannonized as a Prophet nor a Saint. See, even during ancient times there were practices and rituals carried out to develop and enhance one's mental faculties. Even now, there are people in the Maldives, whom I know of, who could consciously tap into
    "intelligent sources" from different plains and fairly accurately predict the future (which again is relative, we being the current observers). These future events, may be for only our consumption, but could very well be events that have already ocurred!!!

    Hence, one needs to be careful in swallowing what is being fed and shoved down their throats by the so called learned scholars who have graduated from seminaries or madrasas on the outskirts of Wazirustan.

    Please read, read and read and make every attempt to grasp the truth. What is morally correct, may not be factually correct. Whole heap of reasearch has and is being done across the globe on the origin of this thing called religion, which has no doubt wreacked havoc on earth and is responbile for the demise of more people
    than the two world wars combined!

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