This article first appeared on DhivehiSitee.com. Republished with permission
On Sunday, former President of Maldives, Mohamed Nasheed, was arrested. The arrest warrant issued by Criminal Court stated “terrorism charges brought against the subject and fears that he may not attend the Court or go into hiding” as reason for arrest.
The evidence and substantiation for Court decision was given as, “how matters had transpired when a case against subject was heard at the Hulhumale’ Magistrate Court, and Police Intelligence reports”. The arrest warrant was provided on the request of the Prosecutor General who was according to the arrest warrant, “investigating case”.
Till then, there had been no mention of terrorism charges against Nasheed by any authority nor had an investigation into terrorist activities by Nasheed taken place.
Local media soon reported the trial has been scheduled in Criminal Court for 4pm today, and it emerged that the Prosecutor General had filed new terrorism charges in Criminal Court after withdrawing the case against Nasheed pending in Hulhumale’ Magistrate Court for over two years as Nasheed challenged the cherrypicking of his trial bench by the Judicial Service Commssion and the procedural appeals dragged on without decision.
As the new trial begins in a couple of hours, there is more reason than ever before to object to the farce.
The current Prosecutor General Muhthaz Muhsin is a former Criminal Court judge, who worked as a junior judge under Criminal Court chief Judge Abdulla Mohamed who is himself the subject in the case against Nasheed.
Media reports the Criminal Court has selected a bench of three judges – Judge Abdulla Didi, Judge Ahmed Rasheed and Judge Shujau Usman – for the case.
The first two are both former members of the Judicial Service Commission (JSC) who played crucial roles within JSC in both re-appointing Abdulla Mohamed as judge despite him not meeting criteria and pending serious misconduct issues, and in covering up misconduct after re-appointment.
Moreover, both carry bias against Nasheed evident in JSC records, especially in discussions of misconduct allegations against Judge Abdulla Mohamed filed with the JSC by the President’s Office in 2009 when Nasheed was in office.
Judge Didi served on the JSC from it’s establishment as an interim commission in 2008 till 2015 as the lower courts appointee. Ahmed Rasheed elected by the law community served on the JSC from 2009 to 2015 and was appointed a Criminal Court judge by the JSC just days ago.
The third, Shujau Usman, was re-appointed a Magistrate by JSC despite a criminal record and was one of three magistrates cherry-picked by the JSC for the Hulhumale’ Magistrate Court bench for Nasheed’s case.
Nasheed’s trial then is not simply political persecution by the government of President Yameen but an already orchestrated trial, managed by the JSC, with the Prosecutor General and the Criminal Court bench already set against Nasheed and ready to avenge Abdulla Mohamed.
Meanwhile, heading the JSC today is Supreme Court Justice Ali Hameed infamous for his white underpants and sex tapes gone viral on the internet.
Aishath Velezinee sat on the Judicial Services Commission from 2009-2011.
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 editoria[email protected]
Article first published on Dhivehi Sitee. Republished with permission.
A year ago the Supreme Court of the Maldives reigned supreme. The court, and at times the chief justice alone, ran wild with ‘the powers of the Supreme Cour’, citing Article 145 (c) for Supreme Court interference in all manner of issues.
Article 268 on supremacy of the Constitution binds the Supreme Court too – but both the Supreme Court andparliament majority were wilfully blind to this as they got their way, citing the Constitution to justify outrageous breaches of the Constitution.
Few among the general public in a polity with a history of authoritarian rule and unfamiliar with the concept of the rule of law understood contraventions of the Constitution, especially when the breaches were blatantly defended by the Supreme Court. In the absence of a culture of democracy it was often reduced to whatever the ‘majority’ decide – by hook or by crook.
To win was the ultimate goal in elections as well as in litigation, no matter how. Reason by the minority was drowned out and, with the Supreme Court politicised and the parliament majority with the president, an executive dictatorship reigned in the shadow of the supreme Supreme Court.
The gravity of the situation became visible to the public and the international community during the 2013 presidential elections, when the court repeatedly intervened in the election process, often working the graveyard shift to issue midnight decrees and directives to control the elections. Polls were nullified and voting was repeatedly rescheduled to ensure an election win for Abdulla Yameen Abdul Gayoom, half-brother of the 30-year dictator Maumoon Abdul Gayoom.
Why the Supreme Court may have had an interest in seeing Yameen as the president may be seen in Yameen’s statement to the Commission of National Inquiry (CoNI) that decided the 7 February 2012 coup was not a coup
Soon after the presidential elections, the Supreme Court also facilitated a win for President Yameen’s Progressive Party of Maldives (PPM) in parliamentary elections, removing the Elections Commissioner and his deputy in the country’s first suo moto case. The Elections Commissioner was accused of contempt of the court and undermining its powers.
During the election campaign President Yameen, like PPM MPs in their campaigns, pledged to protect the judiciary from interference, condemning the local and international calls for judicial reform as “interference”. The Supreme Court is the highest authority, the bearer of the last word in all matters of law, and none had the power to criticise or demand reform of the judiciary – both the Supreme Court and President Yameen agreed.
Dismissive of all expert reports on the Maldives judiciary, the Supreme Court adopted contempt of court regulations to prohibit media and public criticism and went as far as to initiate court action against the Human Rights Commission of the Maldives (HRCM) in suo moto vs HRCM – charging all members of the HRCM with high treason for their 2014 report to the Universal Periodic Review for noting that the Supreme Court unduly influences and controls the judiciary.
Chief Justice Ahmed Faiz Hussain played his cards to win. From giving the oath to Vice President Dr Mohamed Waheed without question and legitimising the 7 February 2012 coup d’état, to guaranteeing a win for coup-leader Yameen in the 2013 elections, facilitating a PPM majority in parliament and remaining silent while the PPM majority systematically undermined the Constitution and ruled by law instead of upholding the rule of law, Faiz never faltered.
None of this mattered, however, when on December 14 – following an amendment to the Judicature Act which required the Supreme Court bench to be reduced from seven to five justice, the PPM majority in parliament removed both Faiz and Justice Muthasim Adnan — the only voice of reason, and often only voice of dissent from majority opinion in the court.
Supreme Court Justice and Chief of the Interim Supreme Court Abdulla Saeed – who I maintain engineered hijacking of the judiciary in 2010 in what I have since called the silent coup – was rewarded with the title of chief justice. Solemnising the historic oath of the new chief justice was none other than Supreme Court Justice Ali Hameed, whose dirty laundry made international headlines after the court ruled against display of white underpants in public protests. The white pants became a protest prop against Hameed after videos appearing to show the judge with foreign sex workers in a hotel in Sri Lanka went viral on the internet.
The Final Nail in the Coffin
Amendments to the Judicature Act were passed by the parliament majority on Wednesday and ratified by President Yameen on Thursday.
Under the new amendments, the bench was to be reduced from seven to five justices, and the High Court bench is to be chopped into three equal parts, with three of the nine justices assigned to three geographical regions. A total of 43 MPs voted for the change, all members of PPM – the government majority, and errant members of the opposition.
Within hours of ratification, the Judicial Service Commission (JSC) who had staunchly refused to assess or remove a single judge as required for the de facto transition under Constitution Article 285, announced a decision to submit names Faiz and Adnan for removal. No reasons were given as to why or how the JSC reached the decision to remove them. The media was simply told it was a secret decision and that the commission had decided not to reveal procedure or reason.
On Saturday, while the opposition, senior lawyers, commentators, media, social media activists, civil society, the public, and even the Civil Court declared the amendments to the Judicature Act unconstitutional and illegitimate, politicians bargained to win the two-thirds simple majority required to remove a judge.
On Sunday morning, while opposition-led protests were kept at a distance by Police barricades around the parliament building, government MPs voted to remove the pair. The MDP issued a three-line whip to reject the dismissal of the justices, but with at least five opposition MPs making themselves absent from the proceedings, the required two-thirds vote was guaranteed.
MDP MPs and some JP MPs raised the matter of the unconstitutionality of the amendment to Judicature Act — the fact is that Article 154 of the Constitution, under which the Majlis had scheduled to remove the justices, does not permit the removal of a judge except where the JSC finds the person grossly incompetent, or guilty of gross misconduct. MPs also noted no such report from the JSC regarding the two judges who were to be removed had been made available to them, nor was it on record with the parliament.
It was noted that the only documentation before parliament was a three-line note from the JSC seeking the removal of Faiz and Adanan, and that this was forced upon the JSC by parliament via the unconstitutional amendment to the Judicature Act.
The parliament majority leader spoke for the government, laughing at opposition claims of unconstitutionality, and citing Constitution’s Article 70 and the powers of the parliament therein to “make any law on any matter and any manner, whenever and wherever Parliament wish”. The fact that there are limits upon the parliament, and that the parliament may not enact a law detrimental to the Constitution was lost upon him.
The vote was won and, on Sunday afternoon, it was reported that JSC had proposed Supreme Court Justice Abdulla Saeed for the post of Chief Justice. Sunday evening, Parliament was back in session and Abdulla Saeed was appointed the new Chief Justice with 55 votes. Before midnight, Abdulla Saeed had taken oath.
Corrupting of the Judiciary
In 2010, the JSC – supported by the then-opposition parliament majority – refused to execute Article 285 and re-appointed all sitting judges en masse. Further, both the JSC and opposition MPs misled the public on the commission’s actions leading up to the collective judges’ oath on 4 August 4, 2010.
The JSC published what it called the ‘legal reasoning on the Article 285 decision‘ speaking of the “human rights of judges” and citing Constitution section 51 (h), and ICCPR Article 14:2, and UDHR Article 11 on rights of the accused, to explain why no sitting judge may be removed for misconduct or failing to be of good character.
“No one can be penalized (dismissed) by a retrospective law,” the JSC claimed in 2010 – the “law” referred to here by the JSC being the 2008 Constitution.
The JSC’s decision stood as few protested against it, and complaints to parliament oversight committee, the Anti Corruption Commission and the Human Rights Commission on the JSC’s treason were ignored or covered up.
The appointment of the Supreme Court itself was a political decision influenced by the existing power balance in the parliament and the pressure from the international community for “political negotiation and peace”.
The removal of Faiz and Adnan from the Supreme Court bench through amendment legislation is not the first breach. A number of similar unconstitutional actions where political ‘majority’ power reigned supreme have set the precedent. Some major comparable instances are found in the following:
The removal of the chair of the JSC, High Court Chief Justice Abdul Ghani Mohamed through a High Court decree on January 21, 2010. The decision was taken by three of the five High Court justices while the fourth was on leave, and, without the knowledge of Abdul Ghani himself. The move contravened democratic principles. The JSC did not investigate the misconduct and abuse of power by the three High Court judges – despite the adoption of a motion to do so – and appointed two of the said three High Court justices to the Supreme Court, and the third as chief justice of the High Court.
The legitimisation of JSC’s breach of Constitution Article 285 by the Judicature Act of August 10, 2010, which brought down the standards and qualifications stipulated in the Constitution for judges.
The amendment to the Judicature Act on 10 August 2010, the same day it was passed and ratified, to qualify Dr Ahmed Abdulla Didi for the Supreme Court bench.
The legitimisation of the 7 February 2012 coup d’état by majority power in parliament.
The removal of the Auditor General through amendment to the Auditor General’s Act in 2014.
Another coup d’état?
If a coup d’état is understood as hijacking of state powers, and bringing down of legitimate Constitutional government, and/or the derailment of Constitutional government, the Maldives has once against carried out a coup d’état, this time going full circle to complete what I have called earlier the silent coup.
With Monday’s move, all state powers are once again with the president who has got himself parliament majority with the power to write and rewrite law; and the shamelessness to do so without regard to the Constitution, democratic principles, public outrage, or international criticism.
With the Supreme Court secured, parliament is now on fast track, undoing the Constitutional rights and safeguards. Next step will be the elimination of all opposition including independent voices, all by Court order and verdicts, once again by the powers of the Constitution.
Where do the people of Maldives go with this case of the mutiny of the state against it’s own Constitution and people?
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]
The Maldivian Democratic Party (MDP) has requested a stay order to stop the Majlis vote this afternoon to remove two of the country’s seven Supreme Court judges.
The opposition has asked the Civil Court to halt the 1:30pm vote and examine the process by which the Judicial Services Commission (JSC) recommended the dismissal of Chief Justice Ahmed Faiz and Justice Musthasim Adnan.
The Civil Court yesterday issued a resolution condemning the move, stating that the People’s Majlis had “forced” the JSC to deem Faiz and Adnan unfit for the bench through an “unconstitutional” amendment to the Judicature Act.
Amendments to the act were passed in the Majlis last week calling for the reduction of the Supreme Court bench. The JSC – given three days to decide upon the judges to be removed – opted for Faiz and Adnan within 24 hours.
Former JSC member and whistleblower Aishath Velezinee has said: “The fact that JSC has taken a decision – and that within hours of ratification – shows this is a pre-decided conclusion, a political decision and is not based on any legitimate reasoning.”
“The constitutional duty of JSC is to protect independence of judges and, in my opinion, the JSC should have challenged the unconstitutional amendment. The JSC could have petitioned the High Court to decide on the constitutionality of the amendment.”
Private lawyers have today taken up the case in the High Court, with Hasaan Maaz Shareef, Mohamed Faisal, and Shaheen Hameed also asking for the vote to be halted and for the annulment of what they consider to be unconstitutional changes to the Judicature Act.
Meanwhile, former Attorney General Husnu Suood has also said the amendment is illegal.
“The most important aspect of judicial independence is security of tenure. The amendments brought to the Judicature Act eliminate this attribute. There will be no judicial independence if the Supreme Court judges are at the mercy of the People’s Majlis and the executive.”
“If the Majlis and the president can change the bench as they see fit, this fundamental basis is lost. There will never be judicial independence in the Maldives.”
Security of tenure was introduced in the 2008 Constitution in order to create an independent judiciary, although further requirements to improve the ethical and educational standards of judges were bypassed after the failure of the JSC to implement Article 285.
MDP MP and Majlis Deputy Speaker ‘Reeko’ Moosa Manik last week described the formation of the current Supreme Court bench as a “shameful” political bargain between the MDP and then–opposition parties in 2010.
Civil Society groups have also released statements today expressing alarm at developments, pointing out that the decision will undermine the independence of the judiciary, as well as compromising the judges’ right to defend themselves.
The Maldivian Democracy Network (MDN) has described the proposed removal of the judges as being in contravention of constitutional procedures – “a travesty in the guise of upholding the Constitution”.
“The aforementioned decision has been made contrary to the standard of incompetence for judges issued by the JSC itself. A procedurally irregular decision, such as this, cannot be considered legally binding,” stated the NGO.
MDN also questioned additional amendments to establish High Court branches in the north and south of the country, suggesting that the manner in which the authority to transfer High Court judges had been moved from the JSC to the Supreme Court “gives room to suggest that such changes are politically motivated”.
Meanwhile, Transparency Maldives (TM) – in a statement expressing alarm persistent infringement of the constitution – has questioned the sincerity of what pro-government MPs have described as a move toward judicial reform.
“Any move to reform the judiciary must be sincere and look at the entire judicial system, especially the judicial watchdog body, JSC, so that meaningful and real reform may take place,” said the anti-corruption NGO.
The Judicial Service Commission’s (JSC) decision to clear Supreme Court Judge Ali Hameed of misconduct in a sex tape scandal is “an insult to Islam,” and against principles of Islamic jurisprudence, critics have said.
The judicial watchdog yesterday ruled Hameed innocent, claiming it can only take disciplinary action if there is sufficient evidence to indict Hameed in a court as per the Islamic Shariah and Maldivian law.
The JSC justified its ruling on a police decision to close investigations after failing to gain new evidence.
The JSC member representing the public Sheikh Shuaib Abdul Rahman said the JSC had contravened Islamic principles in its decision.
“This is a misconduct case. Not a criminal case. Under Islamic fiqh (jurisprudence), misconduct complaints require less evidence than criminal and civil complaints. Judges can be dismissed if there’s too many public complaints against him,” he said.
“I believe there is enough evidence to take action,” he added.
Meanwhile, former JSC member and whistleblower Aishath Velezinee characterized the JSC decision as “the ultimate insult to Islam and Maldivian society.”
“This is a judiciary that sentences underage rape victims to be flogged. When they decide a Supreme Court judge, after being seen in a video that has gone viral, having illicit sex with multiple women, is not guilty of misconduct, what more can we say?”
Velezinee called on the public to protest, stating the decision shows the judiciary does not understand the law or the Shariah. Public silence on the matter will only allow the judiciary to “make a scandal of justice,” she added.
“To allow the Supreme Court, without protest, to decide any matter that affects you is to accept Ali Hameed has a right to judge for you. Protest!”
Ali Hameed is also accused of several counts of corruption and has been implicated in a separate tape where he appears to admit to a role in the fall of former President Mohamed Nasheed.
Several lawyers have echoed Shuaib’s concerns arguing the JSC does not have to follow the stringent standards used in a criminal trial in a case of misconduct.
“The JSC inquiry is not a criminal trial. They do not have to prove it by the standards employed in criminal proceedings. Their task is not to see if a judge is guilty beyond reasonable doubt. The JSC inquiry is about misconduct, it is a disciplinary issue,” lawyer and former Minister of Youth and Sports Hassan Latheef said.
UN Special Rapporteur on Independence of Judges and Lawyers, Gabriela Knaul, in a 2013 report, also said disciplinary or administrative investigations entail different penalties than those arising from criminal procedures.
“Judges and magistrates, as well as other actors of the justice system are criminally accountable for their actions. Criminal actions entail consequences and penalties that are different from those resulting from disciplinary or administrative investigations,” said Knaul.
Latheef said judges must have public confidence, and Ali Hameed should have voluntarily resigned when the tapes were first leaked on social media in 2013.
“Islamic Sharia says all judges must have public confidence. Anyone who is perceived otherwise, cannot be a judge. A judge cannot be open to blackmail,” he added.
Latheef also called on the police to continue with investigations and said the police’s decision to file the case must be looked into.
According to local media, the investigation had stalled after the Criminal Court refused to provide a warrant to obtain a facial photograph of Ali Hameed and another to search his residence.
Former Attorney General Husnu Al Suood also said the JSC had not complied with procedures in its conclusion and accused the commission of political bias.
Suood was appointed to a JSC subcommittee to investigate the case in December, but was expelled in January after the Supreme Court called for his removal after finding him guilty of contempt of court.
“I don’t think JSC has complied with existing procedures when they concluded this matter. This is a decision that needs to be revisited when the JSC is free from executive and judicial influence,” he said.
In Knaul’s report, she stated there was near unanimous consensus during her visit that the composition of the JSC – which draws members from sources outside the judiciary, such as the parliament, lawyers, and civil service commission – was “inadequate and politicized.”
“Because of this politicization, the commission has allegedly been subjected to all sorts of external influence and has consequently been unable to function properly,” said Knaul.
Suood claimed President Abdulla Yameen is at present working to fix the JSC membership in the coming term.
Opposition MP Ahmed Hamza was removed from the JSC in January after he announced his decision to run for the March parliamentary polls.
Meanwhile, the Supreme Court this week ruled any individual licensed as a lawyer, including judges and MPs, can vote to elect a member from the lawyer community to the commission.
Lawyers have spoken against the matter, arguing the decision compromised the independence of the legal profession.
Eight of nine incumbent MPs who contested opposition Maldivian Democratic Party’s (MDP) Majlis primaries on Saturday have won the party ticket.
Sitting MP for Henveiru Dhekunu Hamid Abdul Ghafoor only gained 47 votes and lost the party ticket to Malé City Council member Mohamed ‘Rukuma’ Abdul Kareem who won 328 votes.
Of the 85 People’s Majlis constituencies, 27 MDP candidates won the party ticket uncontested. The MDP had initially scheduled voting for the remaining 58 constituencies on Friday, but cancelled polls for 56 after administrative and voter registry issues. Polling was completed in only two constituencies on Friday.
The MDP rescheduled polling for 18 constituencies – including 10 of the 13 Malé city constituencies – and is to hold voting for the remaining 38 constituencies this week.
In Malé City, MP and party Chairperson Reeko Moosa Manik competed against former Minister of Youth, Human Resources and Sports Hassan Latheef, and won the ticket for the Hulhuhenveiru constituency.
MP Mariya Ahmed Didi won against former Judicial Services Commission member Aisthath Velezinee with 249 votes. Velezinee gained 75 votes.
People’s Majlis Speaker Abdulla Shahid who currently represents Vaavu Atoll Keyodhoo constituency won the MDP’s ticket for Malé City’s Henveiru Uthuru constituency.
Malé MPs Eva Abdulla, Ali Azim, and Imthiyaz Fahmy won the MDP ticket without a primary.
In the atolls, MPs Rugiyya Ahmed, Mohamed Aslam, Ilyas Labeeb and Ahmed Hamza retained the party tickets for Mahibadhoo, Hithadhoo Uthuru, Hulhudhoo, and Bilehdhoo constituencies, respectively.
MP for Kaafu Atoll Thulusdhoo constituency Rozaina Adam won the party ticket for Addu Atoll Meedhoo constituency.
Non-incumbents who won the MDP primary are:
Malé City Council member Ibrahim Shujau for Galholhu Dhekunu in Malé
Former Housing Minister Mohamed Aslam for Maafannu Dhekunu in Malé
Malé City Council member Mohamed Falah for Maafannu Hulhangu in Malé
Former State Minister for Home Affairs Sheikh Hussein Rasheed for Vilimaafannu in Malé
Former MP Ibrahim ‘Ibra’ Ismail for Machangoalhi Dhekunu in Malé
Aishath Leena for Kulhudufushi Dhekunu in Haa Dhaal Atoll
Ibrahim Jihad for Meedhoo in Dhaalu Atoll
Leena is the wife of MP Ali Waheed and Jihad is MP Ahmed Hamza’s brother.
Speaking to Minivan News, MDP’s election committee chair Ibrahim Waheed said polling had proceeded smoothly on Saturday.
He claimed members of the ruling Progressive Party of the Maldives (PPM) had attempted to hijack the MDP’s primary on Friday, by disrupting the vote claiming their names were not on the party register.
Waheed said the MDP received 12,000 new membership forms between December 10 and 19 – the deadline for registering new members to vote in the MDP Majlis primary.
Of the 12,000, over 4,000 forms were members of parties belonging to the ruling coalition. The MDP believes the new members were added to manipulate the vote and had decided not to accept forms of individuals who are registered with other parties, Waheed said.
The MDP received 50 complaints regarding the voter registry, and resolved 11 of them, he said. The complaints do not affect the results, he added.
Aishath Velezinee was formerly the President’s Member on the Judicial Services Commission (JSC), the watchdog body assigned to appoint and investigate complaints against judges.
Three years ago she turned whistleblower and alleged the JSC was complicit in protecting judges appointed under the Gayoom’s government, and was colluding with parliament to ensure legal impunity for senior opposition supporters. In January 2011 she was stabbed twice in the back in broad daylight.
Contentious actions by the Maldives’ judiciary have sparked international concern, particularly the Supreme Court ruling to indefinitely delay the presidential election runoff scheduled for this Saturday September 28.
Minivan News discusses some of the challenges regarding the judiciary, democracy, and transitional justice in the Maldives with Aishath Velezinee.
Leah R Malone: In regard to the Supreme Court’s contentious actions involving the ongoing Elections Commission case., a friend remarked that it was the result of “too much democracy” creating a dysfunctional balance of power between the three branches of government, which has allowed the Supreme Court to establish a judicial tyranny.
Is the current instability in the Maldives and the dysfunctional tripartite system the result of “too much democracy”? Why is the balance of power between the executive, judicial and legislative branches of government skewed?
Aishath Velezinee: I think people don’t seem to understand what democracy is. Democracy is not all about freedom and separation of powers – it doesn’t mean every branch of government gets to go their own way. It’s about balance. They forget that regarding the separation of powers, the purpose is mainly to create balance – so one branch [of government] does not run away with their powers and encroach on the other(s). The purpose is so that one branch will check the other.
What’s now happening is that – in the name of independence – every institution is encroaching on the powers of the other. There is no balance. There is no check. [Instead] now there is a contest to see who is the most powerful. What we really need to remember is that we haven’t had separation of powers. We were supposed to build a democratic state and the constitution very clearly outlined how we were supposed to do that. There was going to be a presidential election, there was going to be a parliamentary election, and then there was going to be the most important step, the appointment of an independent judiciary.
That third [judicial] power was hijacked by people who had been called judges before. I’m saying people who were called ‘judges’ before because, prior to the 2008 constitution, judge was a job title given to certain civil servants who sat in the court and passed sentences. They did not have law backgrounds. They did not have judicial experience. The Justice Ministry had legal sections that were providing them with guidance on cases, on how cases must be concluded, and half the time the magistrate [judge] just had to look up the sentence in the penal code and deliver it.
They were like newsreaders in a television newsroom. [While] there would be the people behind the scenes writing the news and looking into stories, the newsreader is someone who dresses up and sits in front of camera and reads, delivering the news to the audience. So these judges were trained like that. They sat on the bench, the chair of the seat of the judge, and they delivered the verdict. They were people who looked like judges were supposed to be. The real work was done in the Ministry of Justice by teams – they had sections for northern, central, southern areas [of the Maldives], etc. – that’s how the system worked.
Suddenly the 2008 constitution said “Okay, now we have an independent judiciary.” Every judge is independent, they must oversee their own trials, the cases before them, and deliver the verdicts. [But] what experience do these people have? So they were doing similar things to what they’d done before – they would copy [previous verdicts]. It’s like monkey see monkey do, but monkey doesn’t know how they do.
LRM: Do you think the Supreme Court’s actions are tyrannical?
AV: Indeed it is tyrannical. In 2010 I submitted a case to the JSC – an urgent motion to look into the matter of judicial tyranny. It already was happening in 2010, [but] of course the JSC did not table the case. What’s going on in the JSC today was going on in the JSC in 2010 too. It all started late 2009 [and has continued] to now – it’s just gotten worse now.
It is indeed judicial tyranny and now has become a life and death issue for the courts, because the judges’ jobs are threatened. It’s become obvious to the world so it’s much easier for the state to really execute Article 285.
Until now one of the problem was that the international community – and everyone who commented and advised [the Maldives] – really didn’t have proper knowledge of the [Maldives’] constitution and what it provided for. They understood that every democracy has a judiciary that is independent. Nobody considered we never had a judiciary before, therefore we cannot have an independent judiciary without meaningfully executing Article 285.
LRM: How has this impacted rule of law and why is rule of law essential for the safety and stability of the nation? Is the country currently in a rule of law vacuum?
AV: Rule of law is the basis of democratic government. Rule of law cannot exist without an independent judiciary and a responsible parliament that holds the independent commissions accountable. Rule of law did not exist in 2010. Due process was not followed in confirming all these judges for life – taking it [Article 285] as a symbolic thing, taking a symbolic oath, that wasn’t rule of law. We lost rule of law way before the [February 2012] coup. I don’t think from 2008 – [even] with the constitution – I don’t think we have ever been able to establish rule of law as understood in a democratic state.
If you listen to the [pro-government] people talking like the former Minister Jameel – now Yameen’s running mate – when they talk of rule of law it is all about punishing somebody, it’s all about crime and punishment. They don’t seem to understand law as anything more than punishment, [but there is also] the process, setting standards, due process, [legal] practice – the way things are done, these things are lost.
LRM: In previous interviews with Minivan News You have often spoken about a ‘silent coup’ – a collusion between the judiciary, the JSC and opposition-aligned members of parliament to preserve the pliability of the judiciary as it was under former Justice Ministry and President Maumoon Abdul Gayoom.
Do you believe the Supreme Court action to thwart the democratic presidential election is an extension of this?
AV: Yes, exactly – it is the one coup that has been going on. Initially I don’t think they imagined they would need to go take up arms, force President Nasheed to resign under duress, and violently crackdown on his supporters. They would have thought [because] they hijacked the courts in 2010, they could have used the courts to bring down President Nasheed. That is what they were targeting and doing.
The whole criminal justice system in this country was controlled by those who are alleged to be behind the serious, organized crime in this country, so they wanted to bring President Nasheed down through the courts. They failed doing that, and then the 7th of February coup came – and we all know it is very much connected to the removal of Abdulla Mohamed who sits on the Criminal Court.
I can’t call him Judge Abdulla, I have never called him judge, he’s Abdulla Mohamed, a man who sits in the Criminal Court because he’s kept there by political forces. He wasn’t appointed duly – and neither of the other judges – by the JSC.
What is now happening is they got away with the coup on 7th February. They have very cleverly covered it up – made it appear to the outside world that it was legitimate. What has happened is our failure to acknowledge the mistakes with the judiciary, with [properly enacting] Article 285. Still today our failure to acknowledge those mistakes is giving the impression to the world that we do have an independent judiciary, even if the judiciary is bad. If we have a legitimate judiciary then the world cannot speak about it.
My point is that we do not have a legitimate judiciary because we failed to execute the constitution as we were supposed to do. But the politicians are finding it very hard to admit to their mistakes and that is giving the wrong impression to the world. If we accept we have a judiciary then we have to honor it. Now I think it has become – even to the general public, people who really don’t understand the concepts – very obvious that these courts are not functional, that these courts are biased, they are politicized. Judges do not have the integrity and trust required [of their station], nobody trusts these judges.
For example, the behavior of Supreme Court Judge Ali Hameed and his sex videos… Maldives is 100 percent Islamic, puritan community, I think that [his actions are] unbelievable and that he is sitting there on the bench delivering verdicts is something even the grandmothers are finding hard to accept.
AV: As far as I’m concerned, the courts have no business interfering in this election process at all. More than that I am saying the Supreme Court is a political agreement, a political deal. It’s not a legitimate court, so therefore I don’t believe the courts have any right to deliver verdicts on anything.
I have not petitioned the courts for anything because to me there are no courts. It’s not easy living without courts. I also have issues I would like to take up, but I just don’t have access to courts. The state has failed to provide courts.
LRM: What actions must be taken to establish a legitimate, functioning judiciary?
AV: I think everyone has to come out and speak the full truth now. Some of the politicians who were the people behind the hijack of the judiciary – I have named people before, [Parliamentary] Speaker Abdulla Shahid, Dhivehi Rayithunge Party (DRP) Leader [and President Waheed’s running mate] Ahmed Thasmeen – all of them have now acknowledged that they made mistakes in 2010. We have heard DRP MP Rozeina speak of Gayoom, who was the DRP leader at that time, forcing them to do these things. They have acknowledged what was going on 2010.
It is now time for everyone to sit down, come out and say “really we made a mistake”, unfortunately, possibly because democracy was in the infant stage and most of the people were quite ignorant of what was supposed to happen with the constitution. We all made mistakes and we have lost a judiciary [as the result]. That has to be acknowledged and we cannot reform a judiciary without a legitimate government first.
First thing is elections – we should try and have them on schedule. That must be followed by executing Article 285 fully, under close scrutiny of the international community, in a way the general public from all [political] parties can grasp.
In addition to Article 285 not being implemented properly, what other shortcomings need to be addressed to ensure the JSC’s ability to function? What other transitional justice measures still need to be taken?
AV: People talk about the JSC being a problem, but it was the people who were the problem – just like in other places, it was the people who were committing treason. The JSC first and foremost needs to be open and transparent and that would limit room for mischief in there. That is the major step needed.
Opening [the country] to the democratic process is already reform. I’m very concerned about this talk of re-writing the constitution and changing laws to do this and that. That, I think, will create more mess at this time. The JSC will need to be reformed, the composition will need to be reformed at some point. It is known that, in most countries in developed democracies, the judges look after themselves – make sure all judges are disciplined and there is no misconduct in the courts. But here, given the status of the judiciary, it would be a danger to hand over the JSC to the judges.
As it is now, it should be made to function in a proper democratic manner, where their meetings are transparent, where the agenda for meetings are open, media has access to the meetings, and – like in the Majlis – anything passed by the JSC must be published in proper format, and they should not be given room for corruption inside the commission.
LRM: Do you think Gasim Ibrahim’s former position as a JSC member has compromised the commission or the Supreme Court’s adjudication of the Election’s Commission case?
AV: Because the JSC is not functioning in a proper manner, because decisions are not taken democratically, because it’s all closed session – then anyone in there could influence things. When I was sitting in the commission, we were supposed to screen the judges – it just didn’t happen – there was no way it was going to happen, they didn’t want to do it.
That’s not how it should function, if the media were there it would have been reported – the public would have understood what was going on. So underhand things were going on and Gasim Ibrahim manipulated the whole thing as there was room to do so.
LRM: What implications has the judiciary’s failure had on other state institutions? Particularly the Maldives Police Service (MPS), Maldives National Defence Force (MNDF), ministries, the various independent commissions?
AV: When the judiciary fails, there is no law for anybody to go and seek justice. So even when the police do the most perfect job – with the judiciary not being there – there’s no point. I’m not saying the police are doing their work to the best of their abilities now, or that they are doing it right, but even if they were doing it, the courts are the ones who decide. I think the bottom line is courts, and it is the courts who would hold the police accountable.
LRM: Do you think they have been holding the police accountable?
AV: I think there’s been long-time relationships between the judges and the long-time people in the police, and the long-time people in the institutions. We are very much a person based society. There are social relationships – that’s the way to get things done. You have a friend in the bank, you have a friend in the police, you have a friend in the court – we are still continuing with the same system. I think that’s one of the reasons the law community could not speak on Article 285 and the judicial corruption and issues we are facing today.
Even if they talk, who would they go to when they depend on the courts to earn their living. They can’t be talking about it when they know there is no institution to look into the matter. Most people do not report judges misconduct to the JSC, but they used to confide in me. I can’t take up personal experiences of people to the JSC, I took up what was in the media – what became public.
Those things they had to report, but I found people were hesitant to report misconduct of judges because they cannot appear in court the next day. The judge accused of being involved would be informed by whoever in the JSC and they would then withhold the lawyer for contempt of court of something. It’s not functioning.
LRM: Has the Supreme Court regulation enacted in June 2012 prevented the Elections Commission from receiving a fair defence?
AV: It’s a control measure meant to gag the lawyers, meant to cover up their own incompetency and their own inaction. Like I said before, lawyers will not dare stand up against it, but when the UN special rapporteur was here, the judges and the lawyers have spoken to her of these issues because they could trust her.
LRM: How has Supreme Court Judge Ali Hameed’s implication in a series of sex videos compromised the Supreme Court bench? What behavioural standards should judges adhere to?
AV: I think what the Supreme Court has told by their silence is that it’s fine to have sex, it’s fine to have sex with multiple women, it’s fine to have sex tapes all over the internet. I don’t see why the courts are sentencing people for fornication or any sexual activity or behaviour. There is no devious sexual behaviour in this country anymore.
LRM: The UN special rapporteur noted the politicised nature of the Supreme Court, the JSC, and the lack of public trust in the judiciary. However, today President Waheed commented that the judiciary makes “sound and impartial decisions” and the public recognises the legitimacy of the courts. Is Waheed’s assessment accurate?
AV: I think the president making such a comment is already showing that he is influencing the courts, he has no business in commenting on what is going on in the Supreme Court.
I think he should be calling on the Supreme Court to expedite proceedings if he is accepting these proceedings are legitimate. He should be concerned that the Supreme Court is dragging it on and has put out this order to indefinitely postpone elections. That should be the worry of the president right now. He should be asking to expedite elections.
LRM: Are the claims that MDP supporters are being targeted by the courts accurate or inflated?
AV: It’s history repeating – we’ve seen this happening before. We’re back to the February 2012 coup stage where the MDP is being chased and being persecuted. I think the whole purpose of delaying the elections is to eliminate [Mohamed] Nasheed in any way they can and to harass MDP so that they would create opportunity for MDP to force someone – other than the MDP or Yameen – to win the elections, for them to hold onto the power they have through the coup now.
LRM: How does the compromised state of judiciary endanger the Maldivian public?
AV: Everyone is personally impacted, but people don’t understand it. What is reported is the political cases m – what about the woman who goes on a custody case? Is she getting justice? What about the prostitutes issues? What about the land and civil court cases? We’re talking about people who do not have the knowledge required of a judge, who do not have the experience required of a judge, people who do not have the integrity, people who do not understand what independence means, people who do not fully understate Article 2 of the constitution at all. So what rights are protected by having a person called a judge sitting up on a bench and giving sentences. I think justice is completely lost in this country.
The focus is very much on the politics of the courts, so it gives the wrong impression to the international community that this is all about politics and its about control of the courts politically. That is part of it but there is also the other part – that the judiciary is not up to standard, and by standard I’m not talking about the top quality in the world, I’m talking about basic understanding of democratic concepts and the constitution.
They may understand the laws – they may know them by heart, most of the laws we have are pre-2008 – but they really don’t understand the foundations, the constitution. Absolutely not.
LRM: The UN special rapporteur also noted that “the delicate issue of accountability for past human rights violations also needs to be addressed.” What has been the judiciary’s role be in creating a culture of impunity and thwarting redress?
AV: I think we are jumping the gun here, we have to first have a judiciary before we can address any of the past cases. We can’t have hand-picked men sitting on the bench and delivering on this. They will be asking them to pardon everybody – we need a judiciary first.
LRM: What implications does the Supreme Court ruling to indefinitely delay the democratic presidential election’s runoff have on the Maldives’ democratic transition from Gayoom’s 30-year authoritarian rule?
AV: It’s not a democracy just because we have a democratically elected president – we’ve had that from 2008 and we’ve seen we could not run a democratic government – could not establish a democratic state with just a president alone. So, unless we create all the institutions of a democratic state, we might still fall into the same trouble we have in 2012.
So we should be focusing on state building, we should be looking very carefully at the constitution – following the constitution to the letter and in spirit, and building up a democratic state. We should start from ground zero again. We should start from the bottom. We should take the constitution as a new thing once again. We would have the experiences of where we failed before.
The whole country should join hands – it’s the PPM logo, ‘everyone united’ – we should be a democratic state and the first step, if they are really for it, would be to accept they are failing and go for second round election. If they win – they have won. But if they lose – if they want to build a democracy -they would accept they have lost in a democratic election, and then would play their role as responsible opposition and ensure that the government that is elected does not commit corruption and crimes and make sure the government builds a democratic state.
LRM: What actions/inactions have been made by the international community that have legitimised the judiciary? What actions should the international community take?
AV: Mistakes in not understanding the issues that are in the judiciary, not understanding that we were in a process of transition, not understanding the importance of Article 285. I think all of these are on Gabriella Knaul’s record – her report provides a comprehensive view of the whole coup and the international community should be reading that, looking at it, trying to understand what happened here and trying to ensure that the same mistakes are not repeated in the future.
Right now we need to focus on elections, we need to have elections on schedule and everyone needs to try and hold the state accountable to its own constitution, which demands that an election be held 21 days from the first round.
I will be voting in the presidential election on Saturday September 28 and will place my ballot into a ballot box or into white ‘jangiyaa’ (‘underpants’).
The former Presidential Member of the Judicial Service Commission (JSC) Aishath Velezinee has called on international organisations to lead a transitional arrangement for the judiciary prior to September’s presidential elections.
UN Special Rapporteur for the Independence of Judges and Lawyers Gabriela Knaul’s final report to the UN Human Rights Council extensively outlined the political, budgetary and societal challenges facing the judiciary and wider legal community, as well as the politicisation of the Judicial Services Commission (JSC) and its failure to appoint qualified judges under Article 285 of the constitution.
“The UN special rapporteur’s report has raised very serious concerns that the public should be thinking about, because it has implications that affects every single individual in this country, the report is not for the state alone,” said Velezinee during a press conference held on June 5.
“The report raises questions regarding the impartiality of the supreme court. It highlights a political bias in the supreme court,” Velezinee said. “If we are going to allow the supreme court to be the decider on elections, there is very little reason for the public to have confidence in the election results.”
Velezinee noted that because only three months remain before the September 7 presidential elections, “It is time for the parliament and for the leaders to sit down together and come to a transitional arrangement.”
“That transitional arrangement should include a bench or some system outside of existing courts, outside of the supreme court, that will have a final say on all election related issues,” she stated.
“It can’t be done only locally. We need the expertise, presence and participation of the International Commission of Jurists as well as the UN in a transitional arrangement,” she continued.
“Considering the status of the state today, we need a partnership. Bilateral participation would not be something to promote, the best thing would be to have broader participation with international partners,” Velezinee added.
Resistance to consolidating democracy
“Our country today is at a serious critical junction and the issues are all coming from resistance to consolidating democracy,” said Velezinee.
“One of the most serious issues noted in the [UN special rapporteur’s] report is the misconstruing of democratic concepts in the constitution, and the use of these for personal gain by state officials within the JSC, Supreme Court, as well as parliament.”
“After elections the judiciary must be overhauled,” she declared.
The JSC was required to re-appoint judges under Article 285 of the constitution who possessed “educational qualifications, experience and recognised competence to discharge the duties and responsibilities of a judge, and must be of high moral character.”
“It is only through acknowledgement and acceptance that we have breached the constitution on article 285 that we will have the opportunity and the legitimacy to overhaul the judiciary,” explained Velezinee.
“That is very important, unless we do that we may fall into a cycle of coups… and this will go on unless the judiciary functions correctly.”
Velezinee said that while only the Maldivian Democratic Party (MDP) “has stood by the constitution”, it had failed so far to directly address the controversial re-appointment of unqualified judges to the judiciary.
“I have heard the MDP talk about problems in the judiciary and with individual judges, but I am disappointed I have not yet heard them speak of the constitutional breach of article 285,” she told Minivan News.
“[Parliamentary Speaker Abdulla] Shahid is an expert on democracy and is ready to intervene to return the Maldives to the constitution,” claimed Velezinee. “Having Shahid join the MDP is good because now they can go ahead and return the country [to constitutional rule].”
“I also welcome [former Attorney General Husnu] Suood breaking his silence and taking initiative. It’s a good sign he’s speaking up,” she added.
Eariler this week Suood claimed that the JSC had been taken over “dark powers”, and that it was fully under the control of certain political figures.
Suood further contended that the presidential candidate for the government-aligned Progressive Party of Maldives (PPM) Abdulla Yameen Abdul Gayoom, the Deputy Speaker of Parliament and PPM MP Ahmed Nazim, and retired Supreme Court Judge Mujthaz Fahmy have long been in the business of influencing the judges and the verdicts they had been issuing.
“The entire judiciary is under the influence of [retired Supreme Court Judge] Mujthaaz Fahmy,” he alleged.
Suood further alleged that Deputy Speaker Nazim had close ties with members of the JSC, and said several judges had told him that Yameen Abdul Gayoom – half brother of former President of 30 years, Maumoon Abdul Gayoom – had on several occasions given instructions to the judges over the phone as to how their sentences should be phrased.
Religious conservatism and extremist violence have been increasing in the Maldives over the past decade, while incidents of Maldivians joining overseas jihadist groups are becoming more common, according to a report published in the Combating Terrorism Center (CTC) Sentinel, a publication based out of the West Point military academy in the US.
The article entitled The Threat from Rising Extremism in the Maldives, observes that growing religious extremism and political uncertainty could result in more violence and negatively affect the nation’s tourism industry, which would be “devastating” to the Maldives.
“This has coincided with a number of violent attacks on liberal activists and other citizens who have expressed outspoken support for moderate religious practices,” the report notes.
If current trends continue “extremist incidents may rise, with violence targeted against the country’s more liberal citizens,” it states.
According to the report, five key factors have contributed to the growing extremism and violence:
the encouragement of “more hard line Islamist elements in the country” during the 30 year autocratic rule of former President Maumoon Abdul Gayoom;
an increasing number of people seeking education in foreign madrasas;
grassroots radicalisation through civil society and political parties;
escalating extremist incidents of violence and involvement with jihadist groups.
“The country has already suffered one terrorist attack targeting foreign tourists, and a number of Maldivians have traveled to Pakistan’s tribal areas to receive jihadist training. Moreover, evidence exists that jihadists tried to form a terrorist group in the country in 2007-2008,” the report states.
The study recommends that Maldivian political and religious developments be followed closely.
Encouraging of hard line Islamic elements
Islam was introduced to the Maldives in the 12th century and subsequent religious practices have been the “moderate, more liberal form of the religion”.
“Yet, during Gayoom’s three decade autocratic rule, the Egyptian-trained religious scholar enacted a number of measures that, at least inadvertently, encouraged more hard line Islamist elements in the country,” the report concluded.
“From imposing a ban on Christian missionary radio to apprehending migrant service providers for allegedly preaching and practicing their own religion, Gayoom’s regime initiated an era of state-backed religious intolerance and radicalisation in the Maldives.”
The Protection of Religious Unity Act, passed in 1994, mandated that no other religion but Islam could be practiced.
In 1996, Gayoom constituted the Supreme Council for Islamic Affairs, renamed the Ministry of Islamic Affairs in 2008, to preside over religious affairs in the Maldives.
“This body of clerics pressured the government to carry out moral and cultural policing of alleged “anti-Islamic activities”,” the report states.
For example, in 2008 the Ministry requested police “ban nightclubs and discotheques for New Year’s Eve celebrations because they were contrary to Islam”.
“By the end of Gayoom’s time in office in 2008, the dress code for women had grown increasingly conservative, and more and more men grew out their beards,” the report states.
Women now dress more conservatively with fewer brightly colored clothes. Instead they “increasingly wear black robes and headscarves and on more conservative islands such as Himandhoo, women wear black abayas and face veils,” it added.
The democratic transition “gave a greater voice to religious conservatives and those calling for the rigid implementation of Shari`a (Islamic law) in the Maldives,” states the report. “This became especially evident following the implementation of political reforms and the transition to multi-party democracy in 2008.”
The first democratic presidential elections in the Maldives were held in 2008, with Mohamed Nasheed defeating Gayoom in the second round with 54 percent of the votes.
However, the Nasheed administration was accused of defiling Islam by “promoting Western ideals and culture and restricted the spread of more austere Islamic practices,” the article notes.
This resulted in the December 2011 “Defend Islam” protests led by opposition political parties, religious groups, civil society organisations and thousands of supporters in the country’s capital, Male’.
These protests “unleashed a chain of events that culminated in a bloodless coup on February 7, 2012 that toppled the Maldives’ first democratically-elected government,” declared the study.
Appeal of education in foreign madrasas
Education in foreign madrasas has also contributed to growing extremism within the Maldives, with students “unwittingly attending more radical madrasas” and preaching these views upon their return.
“The offer of free education in madrasas in Pakistan and Saudi Arabia is widely acknowledged as a core means of radicalising Maldivians locally, with well-meaning parents sending their children off on scholarships to ‘study Islam’,” the report states.
Following the 2007 terrorist attack in Male’s Sultan Park, “Gayoom himself warned of this problem”.
“Maldivians are influenced by what is happening in the world. They go to Pakistan, study in madrasas and come back with extreme religious ideas,” the report quoted Gayoom as saying.
“The contemporary Maldivian political environment favors radical and political Islam taking root in Maldivian society, especially when political parties and civil society increasingly take refuge in religion,” the report states, citing Maldivian academic Dr Azra Naseem.
In 2010, new regulations prohibited “talking about religions other than Islam in Maldives, and propagating such religions through the use of any kind of medium.” The Ministry of Islamic Affairs published this legislation under the Protection of Religious Unity Act of 1994.
However, the report found that the “major force behind more austere religious practices in the Maldives is the Adhaalath (Justice) Party (AP), which has controlled the Ministry of Islamic Affairs, with Sheikh Shaheem Ali Saeed as its current minister”.
Given that the AP supports strict implementation of Shari’a Law, the party has “outspokenly argued that music and singing are haram (forbidden) and called for an end to the sale of alcohol at the country’s hundreds of luxury resorts,” said the report.
In February 2013, Saeed warned that “various Christian organisations and missionaries are strongly involved and active in our society because they want to ‘wipe out’ Islam from the Maldives”. He subsequently started a campaign against Christians and “Freemasons”, the report stated.
Two non-government organisations (NGOs), Jamiyyathu Salaf (JS) and the Islamic Foundation of Maldives (IFM), are considered religiously conservative Salafists who “work with the country’s political parties to further the cause of Islamism in the Maldives,” the report stated.
Extremists have directly targeted Maldivian liberal intellectuals, writers and activists, the study notes.
“On January 3, 2011, assailants attempted to kill Aishath Velezinee, an activist fighting for the independence of the country’s justice system, by stabbing her in the back in broad daylight,” said the report.
Velezinee is a whistleblower that in 2010 identified members of the Judicial Service Commission (JSC) who were “conspiring with key political figures to hijack the judiciary and bring down the country’s first democratically-elected government,” the report added.
The study found that the Ministry of Islamic Affairs was “at least indirectly encouraged extremism” by initiating “crackdowns” on media outlets for anti-Islamic content.
The blog of prominent free speech and religious freedom campaigner, Khilath ‘Hilath’ Rasheed, was blocked in 2011. A month afterward, Rasheed’s skull was fractured when 10 men attacked him with stones during a peaceful rally he organised in Male’.
Rasheed was arrested a few days after the incident and jailed for 24 days for participating in the rally.
In June 2012, Rasheed was nearly killed “after extremists cut his throat open with a box cutter”.
“After the attempt on his life, Rasheed named three political leaders—Islamic Affairs Minister Mohamed Shaheem Ali Saeed, Adhaalath Party President Imran Abdulla and Jumhooree Party lawmaker Ibrahim Muttalib Shaheem – as being indirectly responsible for the attempt on his life,” the report states.
Later in 2012, the moderate religious scholar and lawmaker, Afrasheem Ali, was stabbed to death at his home in Male’. He was considered an Islamic moderate who was “outspoken in his controversial positions,” reads the report.
In February 2013, “a reporter for the Maldivian Democratic Party (MDP)-aligned Raajje TV station, Ibrahim ‘Aswad’ Waheed, was beaten unconscious with an iron bar while riding on a motorcycle near the artificial beach area of Male’,” the study added.
Previously, during the 2011 South Asian Association for Regional Cooperation (SAARC), protesters “intolerant toward other religious and cultural symbols” damaged monuments gifted to the Maldives by Pakistan, Bhutan, Sri Lanka.
Islamic radicals on February 7 2012 also vandalised archaeological artifacts in the National Museum that were mostly ancient Hindu and Buddhist relics, destroying 99 percent of the evidence of Maldivian pre-Islamic history.
“In April 2006, a Maldivian national, Ali Jaleel, and a small group of jihadists from the Maldives attempted to travel to Pakistan to train for violent jihad in Afghanistan or Iraq,” the report reads.
While his first attempt was unsuccessful, Jaleel did eventually travel to Pakistan and “launched a suicide attack at the Inter Services Intelligence (ISI) headquarters in Lahore in May 2009.”
In September 2007, Islamic extremists committed a terrorist attack in the Maldives aimed at the tourism industry.
A bomb exploded in Male’s Sultan Park and wounded 12 foreigners. The three men arrested and later jailed for the bombing confessed that their goal was to “target, attack and injure non-Muslims to fulfill jihad,” states the report.
A month following the bombing, the investigation led to Darul-Khair mosque on Himandhoo Island. However, “some 90 masked and helmeted members of the mosque confronted police, wielding wooden planks and refusing to let the police enter,” said the report.
Although the Maldivian army eventually established control, “The stand-off resulted in a number of injuries, and one police officer had his fingers cut off.” In November, a video of the mosque confrontation was posted on the al-Qa’ida-linked alEkhlaas web forum by a group called Ansar al-Mujahidin with the message “your brothers in the Maldives are calling you,” the report states.
Evidence suggests that three Maldivian jihadists planned to establish a terrorist group in the country around 2007-2008 and send members for military training in Pakistan.
“At least one of these individuals did in fact travel to Pakistan, as Yoosuf Izadhy was arrested in Pakistan’s South Waziristan Agency in March 2009, along with eight other Maldivians,” states the report.
In 2009, then-President Nasheed warned that “Maldivian people are being recruited by Taliban and they are fighting in Pakistan,” quotes the report.
“Despite its reputation as an idyllic paradise popular among Western tourists, political and religious developments in the Maldives should be monitored closely,” the report concludes.
The trial of former President Mohamed Nasheed on charges of illegally detaining a judge appears to be a politically motivated attempt to bar the Maldivian Democratic Party (MDP) candidate from the 2013 presidential election, the Bar Human Rights Committee (BHRC) concluded in a report launched on Thursday (December 13).
The report was compiled by Stephen Cragg on behalf of the BHRC, the international human rights arm of the Bar of England and Wales, following a visit to the Maldives from November 3 to 6 to observe hearings of former President Nasheed’s trial.
“BHRC notes that Mr Nasheed’s lawyers have petitioned the prosecutor-general to review whether the prosecution of Mr Nasheed is in the public interest, and it seems to BHRC that this is an application worthy of very serious consideration,” the report stated.
“BHRC is concerned 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.”
According to a press release by the BHRC, the report was based on “an investigation into the circumstances surrounding the trial of ex-President Mohamed Nasheed.” The BHRC observer, Stephen Cragg, is a member of the bar and barrister at Doughty Street Chambers.
Former President Nasheed faces criminal charges for the military’s controversial detention of Chief Judge of the Criminal Court Abdulla Mohamed on January 16 this year.
Home Minister Hassan Afeef sought to justify the arrest at the time on the grounds that the judge was a national security threat after he blocked investigation of his misconduct by the judicial watchdog and quashed a police summons for him.
In the conclusions of the BHRC report, the author observed that the detention of the judge was “not a simple case of abuse of power.”
“Rather, the underlying narrative of the situation is that of a president desperate to bring change to a new democracy after decades of oppression, and finding himself thwarted by the inability of the organs of state set up by the constitution to deliver much needed reform,” the report stated.
Referring to “the large number of international reports” that have found the Maldivian judiciary to be flawed, the BHRC noted that the Judicial Service Commission (JSC) “failed in its twin tasks of ensuring that the judiciary has the appropriate experience and qualifications, and in bringing to book the judges who fail to fully and fairly implement the rule of law.”
“Implicit in these criticisms is that Mr Nasheed cannot be guaranteed a fair trial,” the report concluded.
The BHRC is a UK-based independent body “concerned with protecting the rights of advocates, judges and human rights defenders around the world.”
JSC and failure of oversight
The BHRC report also noted that article 285 of the constitution mandated the JSC to determine whether or not the judges on the bench possessed “the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, [and] high moral character.”
“However, the JSC failed to bring in any standards in the two years allowed and in August 2010 almost all judges, good and bad, were re-instated in post at that point amidst much controversy,” the report observed.
“The JSC (made up of politicians, lawyers and judges) has also been criticised as ineffective in its other role of overseeing complaints about judges. Complaints about the worst judges built up and were not investigated. A large number of complaints were made about the head of the criminal court in Malé, Judge Abdulla Mohamed,” the BHRC report explained.
She claimed this protection was provided despite the existence of “reasonable proof to show that Chief Judge of the Criminal Court Abdulla Mohamed was systematically committing the atrocity of setting free dangerous criminals and declaring them innocent with complete disregard to the evidence [presented at court].”
Despite Judge Abdulla having been sentenced for a criminal offence, Velezinee wrote that Speaker Abdulla Shahid pushed for his reappointment and later “bequeathed the Criminal Court to Abdulla Mohamed until 2026″ under the Judges Act, which was passed hastily during the constitutional crisis period in July-August 2010.
Velezinee meanwhile told the author of the BHRC report that it was “the State’s duty to remove [Judge Abdulla] from the judiciary”.
“She has written a remarkable memoir of her time on the JSC, describing the machinations and tribulations of the Committee, and its failure to establish ethical or moral standards for judges,” the report noted.
Meanwhile, on January 16, 2012, “frustrated by an inability to remove allegedly bad judges, President Nasheed (or one of his ministers, it is still not entirely clear) ordered the detention of Judge Abdulla,” the BHRC report continued.
“He was taken to an island and kept there for almost three weeks, despite the protests of lawyers and judges. It does not seem that he was badly treated, and the government emphasised the lack of other effective powers to justify its actions.”
It added that the Supreme Court demanded the immediate release of the judge “as he was arrested not in conformity with the laws and regulations, and the acts of MNDF [Maldives National Defence Force] was outside its mandatory power.”
The BHRC report noted that Nasheed was charged under article 81 of the penal code, which states: “It shall be an offence for any public servant to use the authority of his office to intentionally arrest or detain any innocent person in a manner contrary to law. A person guilty of this offence shall be punished with exile or imprisonment for a period not exceeding 3 years or a fine not exceeding MVR 2,000.”
The former President’s legal team informed the author that “a range of defences will be advanced” in his trial.
“For example, is the President a public servant to whom the Article applies? Does the Article relate only to the person who, in fact, takes a person into custody or directly orders an arrest? What effect does the term ‘innocent’ have in the Article?” the report explained.
“The team is to request that the Prosecutor General reconsiders whether the prosecution against Mr Nasheed should proceed, arguing that it is not in the public interest that it should do so. It was explained that if Mr Nasheed is sentenced to more than a year in custody then (even if he is immediately pardoned) he will be excluded from running in the 2013 elections.”
The author of the report also spoke to a number of lawyers, politicians and the Prosecutor General during their visit, and “almost all criticised the failure of the JSC to bring about reform of the judiciary in the way expected by the new constitution.”
“Opinion was split between those who thought there was no option but to prosecute Nasheed, and those who wanted the wider context to be taken into account by the prosecutor,” the report noted.
“There was a strong feeling amongst some that the politicians of the old regime had escaped prosecution for much worse abuses of power. The foreign government representatives I spoke to clearly see Nasheed as a force for good in the region and desperately want a solution to the current proceedings which will allow him to stand in the election next year.”
Independent MP Mohamed ‘Kutti’ Nasheed, chair of parliament’s Independent Institutions Oversight Committee, meanwhile explained that the absence of powers to replace members of the JSC “severely restricted” the parliamentary committee from ensuring that the JSC was functioning effectively.
Nasheed also criticised the Supreme Court for overturning Acts of Parliament that “purported to legislate for the justice system” as part of its stance that “anything to do with the administration of justice was a matter for the [Supreme] Court.”
Former MP Ibrahim Ismail ‘Ibra’, chair of the constitution drafting committee of the Special Majlis, meanwhile contended that the President “had no choice but to arrest Judge Abdulla” as the only option to “remove a rogue judge from the criminal justice system.”
Ibra explained that the “backdrop to President Nasheed taking or authorising the action he did against the judge” was the JSC’s failure to investigate serious complaints, some dating back to 2005.
Prosecutor General Ahmed Muizz however insisted that “it was right that Mr Nasheed should face trial and that even before Mr Nasheed had lost power it was considered the right thing to do.”
“I asked him whether there was a code of practice which governed prosecution decisions. He said that there was but that it was not in the public domain. He said that it was possible for prosecution decisions to take into account the public interest, but was a little vague as to how this was actually done,” the report stated.
“He mentioned that when Mr Nasheed had been president there had been a decision in the public interest not to pursue him in relation to fairly minor electoral offences. He did say that it was possible for the prosecutors to reconsider, following charge, whether a prosecution should continue.”