The UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, arrived in the Maldives on Saturday (February 16) for a visit scheduled to last until February 24.
During her visit, Knaul will “examine measures taken to ensure the independence of the judiciary, prosecutors and lawyers, as well as their protection, and the obstacles encountered for an adequate, impartial and independent administration of justice”, the UN said in a statement.
Knaul, a judge from Brazil, will then submit her report and recommendations to the government and the UN Human Rights Council.
In its concluding statement following the Maldives’ Universal Periodic Review in 2012, the UN Human Rights Committee expressed concern that the composition and functioning of the Judicial Service Commission (JSC) “seriously compromises the realisation of measures to ensure the independence of the Judiciary as well as its impartiality and integrity.”
“The Committee is also concerned that such a situation undermines the judicial protection of human rights and fundamental freedoms in the [Maldives]. The [Maldives] should take effective measures to reform the composition and the functioning of the Judicial Service Commission (JSC),” the UN report stated.
“It should also guarantee its independence and facilitate the impartiality and integrity of the Judiciary, so as to effectively protect human rights through the judicial process,” it added.
Although unrelated, Knaul’s visit comes days after former President Mohamed Nasheed sought refuge from a court summons inside the Indian High Commission in Male’.
The Hulhumale’ Magistrate Court, which is trying Nasheed for his detention of Chief Criminal Court Judge Abdulla Mohamed during his final days in office, was created by the Judicial Services Commission (JSC).
The JSC, which includes several of Nasheed’s direct political opponents including rival presidential candidate Gasim Ibrahim, also appointed the three-member panel of judges overhearing Nasheed’s trial.
Parliament’s Independent Institutions Oversight Committee had declared that the JSC’s creation of the Hulhumale’ Magistrate Court was unconstitutional.
However, the Supreme Court declared parliament overruled, issuing a statement that “no institution should meddle with the business of the courts”, and claiming that as it held authority over “constitutional and legal affairs” it would “not allow such interference to take place.”
“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” the Supreme Court stated.
A subsequent request by the JSC that the Supreme Court bench rule on the court’s legitimacy resulted in a four to three vote in favour. The casting vote was made by Supreme Court Judge Adam Mohamed, also President of the JSC.
A troubled judiciary
Besides the UN Human Rights Committee, numerous international organisations and reports have challenged the political independence of the JSC and the judiciary.
A report by independent observers of the Nasheed trial from the UK Bar Human Rights Committee concluded that “a primary motivation behind the present trial is a desire by those in power to exclude Mr Nasheed from standing in the 2013 elections, and notes international opinion that this would not be a positive outcome for the Maldives.”
A report by the International Committee of Jurists (ICJ) in February 2011 found that many judges were lacking in qualifications and independent attitude.
“How often do ordinary Maldivians look to the courts for justice? Is there a sense that ‘We [Maldivians] have an independent judiciary that is capable of resolving problems?’ I think the answer is no,” surmised Roger Normand, former Director of the ICJ’s Asia Pacific operations at the time.
“Historically, [independent resolution] has not been the role of judges [in the Maldives]. Judges were an outcome or a product of the executive power. This is not a controversial statement, this is an outline of what their legal role was in the previous [government],” Normand said.
The ICJ was highly critical of the the JSC, which it said was “unable to carry out its functions” to impartially vet and reappoint judges on the basis of qualification and background.
“To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment,” Normand said.
Former JSC member and whistleblower Aishath Velezinee first raised problems in the judiciary and JSC in August 2010.
“My experience, from being part of the complaints committee in the JSC, is that whenever a complaint is received, we have two judges on the complaints committee who will defend the [accused] judge, trashing the complainant, and talk about ‘taking action’ against these people ‘who are picking on judges’,” said Velezinee, in a 2010 interview.
“Then they will put out a press release: ‘Nobody should interfere with work of judges.’ Their interpretation is that ‘nobody should criticise us. We are above and beyond the law.’”
She was subsequently stabbed three times in the back in broad daylight on Male’s main tourist street in January 2011.
A more recent report produced by local NGO the Raajje Foundation and supported by the UNDP and the US State Department, noted that the JSC’s mission under the 2008 constitution to ensure the new judiciary was was clean, competent, and protected from political influence, “has sadly gone unfulfilled.”
“The courts have essentially been able to capture the JSC so as to ensure that the old judiciary remained in place under the new constitutional order,” the report noted, predicting the most likely national outcome a cycle of failed states.
President Dr Mohamed Waheed Hassan Manik has insisted on the government’s independence of the judiciary, stating that the court case “”has nothing to do with my government. Upholding the rule of law means nobody is above the law. I would like to assure the people of Maldives that the law and order will be maintained,” he said, in a statement on Sunday.
“My government has upheld the rule of law and respected all independent institutions. I am pleased to note that unlike in the past, within the last year, the President has not interfered in the work of the judiciary, the police, or the independent commissions,” Waheed’s statement read.
Meanwhile, Home Minister Mohamed Jameel – formerly Justice Minister under the 30 year autocracy of Maumoon Abdul Gayoom – told local media that it was “crucial [the judiciary] conclude the case against Nasheed before the approaching presidential elections, in the interests of the nation and to maintain peace in it.”
“Every single day that goes by without the case being concluded contributes to creating doubt in the Maldivian people’s minds about the judiciary,” Jameel said.