Comment: Abuse of Article 285 makes us all complicit in the state of our judiciary

A skewed foundation will not a straight building raise, so goes an old Maldivian saying. The arrest of a Criminal Court judge by the army does not belong in a democratic landscape. We all cry foul – Unconstitutional! Dictatorial! Autocratic! Yes, of course. If the judge being removed was put on the bench constitutionally, our current situation would indeed be beyond the democratic pale.

But the abuse of the Constitution which gave rise to ‘Justice’ Abdulla Mohammed did not occur when he was arrested on 16 January 2012. It happened on August 7, 2010, when Article 285 of the Constitution, which required the judiciary to be cleansed of the unqualified and the criminal by that date was allowed to lapse without so much as a murmur from the general public or the civil society. That was the time when we should have cried foul, when the NGOs, the Human Rights Commission, and learned members of the judiciary should have come out to protest the abuse of our democracy.

But no one did, except for a lone individual who was mocked, ostracised and finally stabbed in the back for her efforts. It was on this day that we began our journey on this crooked path, it was then that we all became complicit in today’s actions – we knowingly allowed criminals, child molesters, fraudsters and mobsters to remain on the benches of our courts. We did this, and now, as we confront the consequences of our (in)actions, we conveniently forget our role in it.

The 2008 Maldivian Constitution must be one of the most abused such documents in the history of democracy. Within the space of three years, it has become the plaything of every Mohammed, Ahmed and Fathimath within arm’s length of political power. When Parliamentarians are taken to court for embezzling millions from the public coffers, it is the Constitution that is cited as containing no stipulation that makes lying or fraud a crime. When opposition leaders malign the executive and the country itself with baseless lies, it is the Constitution that is once again cited; its provision of freedom of expression held up as freedom to defame with impunity. When religious intolerance is exercised to such high levels that living a life free of fear is all but impossible for a Maldivian in the Maldives, it is the Constitution that is once again cited as the source for legitimising such repression.

The Maldivian Constitution does not allow criminals to be judges; it does not give free reign to defamation; and it does not condone religious intolerance. Those who say that ‘Justice’ Abdulla Mohammed has been removed unconstitutionally, read Article 285 and compare what it says against the man’s criminal record and his penchant for victims of sexual offences to re-enact their abuse in court to satisfy his twisted appetites. Those who cite Article 27 of the Constitution as giving freedom to defame, read Article 33, which says that everyone has the right to a good name and protection of their reputation. And those who cite Article 9 of the Constitution as stipulating that every Maldivian citizen must remain a Muslim by law, it would be a worthwhile exercise to re-read it with some due diligence.

Article 9 (d) says that nobody can become a Maldivian citizen unless they are Muslims. The word ‘become’ requires the taking of a deliberate action. Children born to Maldivian parents, which cover well over 99 percent of the population, do not have to become citizens, they are born such. The Constitution also says that nothing can take Maldivian citizenship away from an individual that already possesses the same. Where then is the Constitutional requirement that demands every Maldivian citizen to be a Muslim? And where does all this talk of having to be a Sunni Muslim come from? The Constitution only requires the President, and members of Parliament, the Cabinet and the judiciary to be Sunni Muslims. As far as ordinary citizens go, there is not a word in the Constitution about which sect of Islam a citizen must belong to.

The facts of the matter are that we are a people who have become pawns in a game played by a handful of oligarchs who want to retain political and financial power at any cost. All the talk of fighting for democracy, for ‘Islam’, for the people – it is nothing but a register of words conveniently deployed to build a façade of legitimacy both nationally and internationally.

Just look at the people involved in all these ‘crises’ that have rocked the country in the last two months. There were few among the leaders of the ‘Defending Islam’ protest on 23 December 2010 who did not own a tourist resort or did not have a vested interest in the industry. That these people who make millions of dollars everyday from peddling their products to ‘infidels’ would be so audacious as to call for the purification of Maldivian Muslimness is shocking in itself.

What is more breathtakingly shameless is that among those calling for strengthening Sharia in the Maldives was DQP’s Dr Hassan Saeed who co-authored the book, Freedom of Religion, Apostasy and Islam (2007), which is introduced as ‘a contribution to the thinking that freedom of religion is a fundamental principle of Islam…’

That the co-author of this book would be at a gathering that protested against religious tolerance and rallied people to strengthen Sharia rule in the Maldives is a betrayal not just of the Maldivian people but of the ethics and principles of the wider academic community to which he belongs. It beggars belief that such a figure would stand up in an effort to work people up into a frenzy to support the other side of his own argument, and is now on a crusade to prove an alleged hidden ‘anti-Islamic agenda’ pursued by the current government. There could be no more blatant an example of just how low these ‘political leaders’ of the new Maldivian democracy are willing to stoop to get their backsides onto the executive chair.

If the Maldivian democracy is to be rescued from the clutches of these oligarchs, we the public need to take ownership of our Constitution. Their vested agendas have been made clear: (a) take Maldivians to the depths of religious intolerance which would stop the general public from laying a claim to their rightful share of the tourism industry, hence leaving them in control of the billions that pour in every year; and (b) bring down the current government whatever it takes. Or, to put it in their own words, ‘put President Nasheed behind bars’.

We need to distance ourselves from these political games. It should not matter to us whether it is President Nasheed, Rasheed or Waleed that is in power, as long as we, the people, are able to retain and exercise our will to be governed democratically. And to do that, we need to begin to think for ourselves rather than jump on every malevolent bandwagon that comes our way.

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]


28 thoughts on “Comment: Abuse of Article 285 makes us all complicit in the state of our judiciary”

  1. @ Azra, If the judge was appointed unconstitutionally the government would have intervened immediately. They would not have waited two years to break down his door late at night and abduct the judge.

  2. There is clear logical thread and thought in this article.

    What the author does not know or do not want to acknowledge is that in Islam, logic cannot be applied always. in some cases, its all about faith. You have to believe,without a shadow of doubt, in something you have never seen. No human has ever seen. By extrapolation, something no human will ever see.

    Overall, Islam has very stupid and illogical ideas that has no place in the 21st century. However, Islam also some very good practices, logical ones, which everyone must follow, for the sake of mankind.

    The logical ones are common in all religions.

  3. You have highlighted here a unstated point,

    "...August 7, 2010, when Article 285 of the Constitution, which required the judiciary to be cleansed of the unqualified and the criminal by that date was allowed to lapse without so much as a murmur from the general public or the civil society."

    This unconstitutional atrocity was carried out by the then DRP majority in parliament, but indeed all ho stood by is complicit.

    Lets us all thing critically and amend these mistakes. lets the hijacked Judiciary be cleansed.

  4. The government was foolish not to intervene beforehand to stop corrupt criminals getting a life post on the bench.

  5. I support “A skewed foundation will not a straight building raise, so goes an old Maldivian saying.”

    The current president, Mr. Mohamed Nasheed is a man with a CRIMINAL CONVICTION for “theft”, he was sentenced and served his time, he was charged with stealing state properties when he broke into Velaanaage (trespass) where he took various antique artifacts (theft) which would have otherwise been transferred to the National Museum.
    The question would arise, how a person with such a criminal conviction can become the president when the constitution clearly states that, a person who has committed an offense which imposes hadd would not qualify for the position.

    Now let’s move on to Abdullah Mohamed and Article 285, Article 285 states that if a judge has possess the qualifications in Article 149, he SHOULD be reinstated as a judge WITHIN 2 years from the date of the constitution.

    Before I continue any further, Aishath Velezinee was one of the few people who said that though the constitution stipulates the 2 years, that she would completely disregard what the constitution states and that the oath ceremony should be postponed, until she amends the constitution in a way that there is no 2 year limit on the exercise.

    Now 149 of the constitution states:
    (a) A person appointed as a Judge in accordance with law, must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, and must be of high moral character.
    (b)In addition to the qualifications specified in article (a), a Judge shall possess the following qualifications:-
    1. be a Muslim and a follower of a Sunni school of Islam;
    2. be twenty-five years of age;
    3. has not been convicted of an offence for which a hadd is prescribed in Islam, criminal breach of trust, or bribery;
    4. be of sound mind.

    Now please Azra Naseem, can you link me to the judgment where Chief Justice of the Criminal Court Abdullah Mohamed was convicted for such an offense? Because there is no point for the constitution to specifically specify certain criminal offences if it has no purpose.
    I am sure that he was never convicted for an offense as prescribed in the constitution.

    Waiting ……

    Reference for the readers: english translation of the constitution -

  6. Thank you, Dr Azra Naseem, for this piece. I read it with much interest, and ervery single paragraph can be extended to another long piece. You've summarised our current sad state of affairs very well, indeed.

    What is left there to say? Just to reiterate my example, that most of my fellow country men and women are like stones that have been lying in water for centuries. Even though the outside is all wet, the inside is bone dry. What I'm referring to is our Islamic faith. Not much of it has penetrated our souls even after 800 or so years. Look at the anger on our faces. Where's the compassion of Islam?

    Azra starts her article about our skewed foundation. Well, building the foundation for a democratic system for governing people is not like constructing a physical object. There's no country in the world that got this right the first time, if they ever did! So we're no different.

    We've sadly come to the point where the only thing that unites the various political factions of the country is a theme of highly dangerous religious intolerance. Most of the very same people got together in 2008, to confront a 30 year old dictatorship. At that time, they held the moral high ground as the list of Gayyoom's misdemeanours was just too long and a relatively easy target.

    What really worries me is seeing people that I wouldn't expect getting embroiled in this dangerous fiasco. Let's look at the only credible opposition left, i.e. DRP. It's leader Thasmeen is a highly educated and intelligent person. So is Ahmed Mohammed, Andey and most of the rest of the guys on the front line (I maintain that all those with IQ <= 70 have joined PPM).

    Through their collective intelligence, they can really set themselves apart and take on the government on more substantial issues than a deeply flawed and ultimately destructive pseudo-religious agenda. Why don't they do so? Is it really because they believe Islam is under real threat in this country and that's the only cause left to fight for? Or is it just the ideal excuse to work up the populace into a frenzy?

    Finally, Nasheed's administration has been committing mistake after mistake. Although I fully support the action taken by the military and do not blame a single officer for what's happened, I do blame their political masters. You lose the moral high ground once you start down the road they've started. Knee jerk reactions will come to haunt them.

    Clearly, there are many more Abdulla Mohammeds around. Locking up one of them isn't going to change anything at all (if this is meant to send a message, clearly it's not working). You need a much more intelligent approach to penetrate the "web". It really is a web, and Nasheed should be aware of it; the more embroiled he gets in it, the more he will get trapped!

  7. Thank you! This question is about protecting the democracy we fought for. Not the judiciary that we got. This government is not attacking the judiciary, just the most corrupt element of it. But the heart of the problem lies deeper as Azra has mentioned. We need to go deeper.

  8. If the judges were appointed unconstitutionally, the govt also had the right to go to Supreme Court, but it did not. Same way you Dr. Azra also had the same right. But chose not to. It is as if you are saying a wrong plus wrong would be equal to one right. Well, I beg to differ. Wrong+wrong would still be equal to wrong. So, it is wrong to abduct the judge irrespective of what he has done.

    And also, the sexual enactment incident that is widely reffered, it was a time when there was little awareness about the sensitivity of such things within the justic system. It is not just the courts that were not sensitive towards the victims, the police, too paid little attention to the victims. Yes, former AG Dr. Hassan Saeed in a letter apparently had mentioned Judge Abdulla asked a little child to enact her sexual abuse. But there is no information on that beyond that, what was the circumstance, who was there, was it just the judge or all..

  9. I just heard about MDP activist Alhan Fahmy declaring that Abdulla Mohammed will remain in custody until the Courts deliver fair justice.

    By inference I take this to mean that Abdulla Mohammed's ransom is "fair justice" from the Courts. This is totally unacceptable. If these are the sort of characters that President Nasheed is surrounding himself with, then he is doomed!

    Alhan Fahmy has implicated himself in the kidnap of a citizen by his own account. I never thought that it would come to that, but they are making their intentions quite clear. This is very short sighted and very dangerous. By association, not only is President Nasheed undermining all the good things he has brought to our country, he is also destoying whatever legitimacy he may have left. Get rid of your knee jerk activits, Mr President!

  10. Nice peace of work Azra or whoever you may be. Unfortunately no one has so far been able to articulate this scenario so well. It's time that people stopped shouting and spoke...and listened.

  11. I am not aware of a political transition elsewhere in the World, where the previous Dictatorship maintains total freedom from the reach of the Law. The present Judiciary represents the past. It may not be a bad idea to invite a panel of Judges endorsed by the International Community to assist the Maldives with an independent audit of our Judiciary.

  12. Dr Azra Naseem has written a very good article, and there two or three good comments. Maldive Islands have a long way to go, in order to establish itself as a functioning democracy.

    To the outside world, Maldives is already a super-power; but what kind of super-power? It is a holiday-island super-power.

    The food people eat, everyday, on these holiday islands- the majority of Maldivians cannot afford the like of it. Even in a country like Finland, the majority of people do not eat like this on a daily and weekly basis.

    Maldives is a paradise for non-Maldivians. It is hell, utter hell for the majority of Maldivians.

    Most of the comments on Minivannews are so shallow that I do not think many readers can understand the depths of the arguments of this article.

    We are too much in the grip of big money. We have too much religion.I do not think the judiciary is vey highly respected inside the country.

    Our Islam is something to be afraid of. There is no love. There is no compassion. There is no education. No intelligence.

    My dear friends, we must think more, and perhaps pray more. I have not heard the word 'prayer' mentioned at all.

  13. you are born to Muslim parents and the Constitution assumes you are Muslim and you will not leave your religion.And the constitution says you cannot give up being a citizen.There is a big catch. So Azra what do you do?How do you sleep,Azra. What is the solution?Emigrate to Ireland,the land of Guiness and not step your foot on the land called Ane Raajje where the dreaded security thugs can make you disappear. Nothing has changed.We will always be a police state.A state full of corruption.You should know how corruption got you chance to study in UK.

  14. Could someone please enlighten on the offense that Judge Abdulla Mohamed may have committed in the past? When was it? When did he receive the punishment?

  15. So you can say a lot about Abdulla Gazee, ha, so easy when you take his right to defend him self.

    Reminds me of the bully in 8th grade.

  16. Dear Azra,

    Having said all this, there still remains the little problem of abducting a citizen and keeping his location hidden for more than 24 hours. This violates the basic rights of a person to have human dignity and personal safety (even if for the moment we don't talk about his legal right to an attorney). And yes, this right applies equally even to Judge Abdulla.

    This whole episode constitutes 'forced disappearance', a crime against humanity. Also ignoring the Supreme court's ruling to release him also violates the constitution. So who is responsible for this little string of crimes? Surely not Judge Abdulla!

    Sad to say your article forgot to mention this side of the event, which incidentally, is the side the International Criminal Court may be most interested in (not that your imaginative narrative is uninteresting). Moreover, the EU has already put out a statement expressing their concern specifically with regard to this very issue of the state violating a citizen's rights.

  17. The problem is that the judiciary is not prosecuting any case against Abdulla no matter what evidence is presented to them.

    Azra has written a good very article. As Ahmed bin Addu says, the other issue is that a lot of people in MDP frontlines who makes the most noise are imbeciles. If they make sensible and reasonable decisions, this issue would not have been there.
    If Abdulla was arrested by the Police with the back up of the MNDF, this issue would not be as bad as it is now.
    Even if the sent the Military Police this would not have been that bad.
    Given the fact, I personally do not agree to the way he was arrested and the following comments of Alhan and the rest.

    Lets be sensible in all this. To me the biggest threat is from the extremists. And I say extremists. I am a lot older than most of you and have seen three regimes very well.
    We were good Muslims even in Nasir's time and we were good Muslims, during Gayoom's time and we are still good Muslims now. Nothing has changed for most of us the way we follow Islam. But according to the Mullah's we are not Muslims unless we follow the way they tell us. So to me they have a hidden agenda to control the masses using religion as the mode to do so.

    What saddens me is that intelligent people in the opposition is also using religion and the extremists for their own agenda. They think they can do a deal with them for their own political gains. I am sure that they cannot do so and they are feeding a multi headed hydra who would devour them when the time comes and they would destroy the Maldives we know and we all love.

  18. It really does not matter whether this person is corrupt or not! The issue is you cant kidnap anyone like this! I just dont under stand how people who advocated for democracy and freedom of speech are justifying such actions. I never expected presidet nasheed would stoop to this level.

  19. We didn't fight for Evan Naseem's rights because he was a model citizen. We fought for it based on a principle. Same applies here. Whether it is Judge AM or MAG, we give them due process. End does not justify them means in this case. Destroying our democracy by setting dangerous precedents is just not acceptable.

  20. @ manik on Sun, 22nd Jan 2012 6:43 AM, totally agree with your views.
    Sheikh Ali Hussain Didi I believe was an example of true faith, belief and who loved the nation much more than personal gains and wealth! May Allah rest his soul in peace!

    And Dr. Azra, a very enlightening article!

    It is indeed saddening to hear politicians and lawyers alike, repeatedly referring to articles of the constitution that do not allow unlawful arrests etc., etc., and forget about anything and everything else!

    Though I am no judge, common sense and belief in justice brings me to the conclusion that the day Abdulla released a murder suspect in order to hold a ministry accountable; his credibility as a judge was lost and the judiciary system along with the many lawyers who claim they are a part of the system, should have stood up against his action and saved him from this happening and their system being branded corrupt!

  21. I hate Azra.. I hate her... for not bringing this in local language and putting this in the public where ordinary local people can read or hear her... i hate her.. we never hear anything sensible in our news channels in local language any more, even from the government side.. and it take one article from Azra, and now I am a convert.. this article rubbed away all the dust accumulated in my mind. All the dust from the constant bombardment of utter "freedom of speach"… I hate her…

  22. Great article: My favourite part was:

    "The general public... laying a claim to their rightful share of the tourism industry, hence leaving them in control of the billions that pour in every year.."


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