Tag: access to justice

Supreme Court controls the judiciary, says HRCM report to United Nations

The Maldivian judiciary is controlled and influenced by the Supreme Court to the detriment of superior and lower courts, states the Human Rights Commission of Maldives’ (HRCM) report to the United Nation’s Human Rights Council’s Universal Period Review (UPR).

“Judicial system is controlled and influenced by the Supreme Court, weakening judicial powers vested in other superior courts and lower courts,” the HRCM contended.

“Supreme Court issued a circular ordering all state institutions not to communicate to individual courts regarding any information relating to the judiciary except through the Supreme Court. HRCM is facing difficulties in gathering information related to judiciary due to lack of cooperation.”

The UPR studies the human rights records of all 193 UN member states, aiming to prompt, support, and expand the protection of human rights. After having been reviewed first in 2010, the Maldives will again undergo inspection in 2015.

Through a raft of regulations enacted in recent months, the Maldives Supreme Court has sought to consolidate control over administrative affairs of the judiciary.

The new regulations require Supreme Court approval for judges seeking transfer to a different court and the court’s permission for judges and judicial employees to attend overseas workshops, seminars, conferences, or training programmes.

In May, the Supreme Court enacted new rules stipulating that the Department of Judicial Administration (DJA) – tasked with management of the courts and public relations as well as providing facilities, training, archiving systems and security for judges – will function in accordance with policies set by the apex court bench and under the direct supervision of a designated justice.

Former Judicial Service Commission (JSC) member Aishath Velezinee told Minivan News at the time “the appointment of a Supreme Court judge to [oversee] the DJA is tantamount to control of the courts.”

In a comprehensive report on the Maldivian judiciary released in May 2013, United Nations Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, wrote that centralising administrative decisions in the hands of the Supreme Court “has undoubtedly contributed to the strong impression that lower courts are excluded from the administration of justice and decision-making processes.”

She also referred to “several complaints about internal tensions in the judiciary, where lower courts are left with the feeling that the Supreme Court only works for its own interests, without taking into account the situation of other judges and magistrates.”

Access to justice

In the ‘access to justice’ section of its report, the HRCM noted that the enforcement of a new penal code would be “a positive development towards a better legislative framework.”

“However, due to shortfalls in judicial system, functioning of the judiciary is often questionable on various grounds including independence, transparency, interference, influence, competency, consistency, and accessibility,” the report observed.

“State responded to UN Special Rapporteur on the Independence of Judges and Lawyers as trying to undermine the country’s court system. [International Commission of Jurists] has issued a number of recommendations to build competency of judiciary with no progressive action by the state,” it continued.

“According to [Transparency Maldives], majority of public lack confidence in the court system. Majority of cases, both criminal and civil, often get delayed for more than a year, and is prosecuted in the capital which forces plaintiffs and defendants from atolls to travel to and stay in capital, which is costly.”

The HRCM recommended implementation of recommendations by both the Special Rapporteur and the ICJ as well as codification and harmonisation of Shariah law and common law in accordance with the Constitution.

“Enact important laws leaving no room for inconsistencies in judicial decision making,” read the recommendations.

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Desire for democracy fundamentally a need for justice: President Nasheed

Germany will provide Rf 6 million (US$390,000) over the next two years for the expansion of the UNDP’s Access to Justice project in the Maldives.

Speaking at a signing ceremony held in the President’s Office today, attended by most cabinet members, German Ambassador to Sri Lanka and the Maldives Jens Plötner said it was Germany’s “firm conviction that without a functioning justice system there can be no democracy.”

“In the recent history of the Maldives a few brave women and men fought for democracy, citizens of the country then conquered democracy through the ballot box, but to keep democracy it takes justice – without that people will very quickly lose faith in democracy and the system,” Plötner said.

“We ourselves as a country with a tragic history, after two world wars, lost faith in ourselves. We didn’t know what to be proud of any more given what had been committed in German name.

“What finally emerged was that we were proud of the justice system we have today in Germany. We followed constitutional patriotism, because we are proud of the way law and right is delivered in Germany. This is the essence of the hard lessons we have learned through two world wars started in our name.”

Himself a former student of law, Plötner observed that the concept itself was “something very abstract and philosophical.”

“But it is also about men and women sitting there in impressive robes in big buildings, and breaking high principles down to day-to day-sentences for somebody smashing up a car – or something more awful.

“To do that you need good training, but that’s not enough. The judge and all those who work with him or her are such an essential element of democracy that they have to eat drink and breathe democracy every minute of the day. If they do that, democracy is stable.”

President Mohamed Nasheed said German support for judicial reform in the Maldives had its beginnings in a conversation with German Chancellor Angela Merkel last year.

“She was wondering what were our main challenges as we embarked on a new era of democratic governance,” Nasheed said.

“People’s desire for democracy in the Maldives was fundamentally because of a need for justice – things were often done unfairly and very harshly. That was a situation a fair number of us wanted to overcome. To that end we felt the first building block should be peaceful political activity. It took us a fair amount of time to do that, but we achieved it.”

Looking at the assembled ministers and political appointees, Nasheed said “a number of people in this room did not believe that political pluralism was appropriate for this society. We all had an idea of a singular form of government through which we might dispense justice as well as governance. But a few of us felt it was difficult to reinvent the wheel. We kept asking for political pluralism and parties, and finally we were successful.”

During the drafting of the new constitution, Nasheed acknowledged that “very little thought” was given to how the new judiciary was arranged, despite the urging of many lawyers in the system.

“When the powers were separated and the Maldivan Democratic Party (MDP) became the executive we came into a situation where the previous regime had a majority in the parliament.

“But in many minds the situation with the judiciary was far more worrying. Nothing had changed – we had exactly the same people, the same judges, the same manner of thinking and of dispensing justice.”

The constitution did not ask for an overhaul of the justice system, Nasheed noted, but it did ask for the formulation of a new Supreme Court bench.

“We ran into a number of difficulties. Firstly, the interim bench decided they were a permanent bench. That created all sorts of issues, finally to the extent that the executive had to step in and say ‘No, we have to have a new bench, and we are not going to open the Supreme Court without it.’”

It was, Nasheed admitted, “all very risky, challenging and difficult. But finally we came up with a bench – and with the support of every MP.”

However the Judicial Services Commission (JSC), tasked with regulated the judiciary, was a difficult task to reform “as the JSC as a whole was very imbalanced politically.”

“Again we are having to step in and we will reform the JSC, although not outside the framework of the constitution.”

Nasheed observed that the government’s new financial changes – such as the introduction of a new system of taxation, were “perhaps far more radical that introduction of political pluralism in the semi-liberal society that we had. Again there is the anger, antagonism, frustrations and uncertainties.”

The President said he felt the country was moving in the right direction, but expressed concern that the Maldives had slipped in the anti-corruption index.

“I like to think this is not because were more corrupt than we used to be, but rather that we have come to understand how corrupt we are through our new found freedom of expression – we are able to point fingers more readily, and the information available on corruption is far higher than it has ever been before.”

He noted that the government had 27 Auditor General reports detailing embezzlement and misuse of state funds “that we have done nothing with – partly because we need to strengthen our judiciary before we can embark on this.”

“We don’t want to go into a witch-hunt, or use the strong arm of the law, we want to use rationale and reason. We want to be able to prosecute, and dispense justice.”

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