The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, has criticised the appointment of judges presiding over the case against former President Mohamed Nasheed, for his controversial arrest of Criminal Court Chief Judge Abdulla Mohamed in 2011.
“Being totally technical, it seems to me that the set-up, the appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws,” Knaul said, while responding to questions from media after delivering her statement on Sunday.
Nasheed is currently facing trial at the Hulhumale’ Magistrate Court, the legality of which has been much contested in recent weeks.
The Special Rapporteur commented on the matter of Nasheed’s trial being conducted by the Hulhumale’ Magistrate Court.
“According to the law, the constitutional court which has jurisdiction to hear this case is the Criminal Court. While I understand the concerns of the Prosecutor General’s (PG) Office regarding the possible eventual conflict of interest since Judge Abdulla sits in the court, it is not for the prosecutor to decide if the judge will be impartial,” Knaul stated.
“It is the duty of the judge or judges to recuse themselves when they feel they would not be impartial in presiding over any case,” Knaul said.
Speaking about the case of the detention itself, Knaul stated that judging by the briefings received in her meetings in the country, the detention seems to have taken place outside the parameters laid down by the constitution.
“Regardless of the merits of the allegations of corruption or misconduct on the judge, I do believe that proceedings against judges should also be fair and impartial,” Knaul said.
“I think in disciplinary proceedings, especially disciplinary hearings, a judge should have the right to a fair trial. And all decisions taken should be subject to an independent review.”
In presenting her preliminary findings after the eight day fact-finding mission, Knaul stated that she found the concept of independence of the judiciary has been “misconstrued and misinterpreted” by all actors, including the judiciary itself.
Knaul also spoke about the Judicial Services Commission (JSC) – the body mandated with appointment, transfer and removal of judges – stating that the commission is politicised, subject to external influence, and hence unable to fulfill its mandate effectively.
Knaul also highlighted the lack of transparency in the assignment of cases and the constitution of benches in all courts, including the Supreme Court.
“When cases are assigned in a subjective manner, the system becomes much more vulnerable to manipulation, corruption, and external pressure. Information on the assignment of cases should be clearly available to the public in order to counter suspicions of malpractice and corruption,” she observed.
Knaul asserted again that the composition of the JSC must be revised. She has written in her statement that “an appointment body acting independently from both the executive and the legislative branches of government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice.”
Responding to a question posed by a journalist asking if the rapporteur believed it wise for such a ‘high-profile’ case to be delayed, Knaul said that the judiciary should be effective for everyone who seeks justice.
“According to the constitution, the judiciary should not choose cases based on X,Y, or Z person. It should be equal in applying or delivering justice. It is necessary to have an objective criteria for selecting cases and to assign cases in court. If you apply these processes, you make the system work in the least subjective manner possible,” Knaul stated.
Attorney General Azima Shakoor received the preliminary findings from Rapporteur Gabriela Knaul on behalf of the government of the Maldives.
“In the discussion the Government also noted the responsibility of international partners in establishing a conducive environment where institutions of the the State, particularly the judiciary, are respected by the public,” an official statement on the Ministry of Foreign Affairs website read.
The statement did not include any details of whether or not the government planned to take any action in response to the rapporteur’s findings and comments on the judicial system.
When the question was asked of President’s Office Spokesperson Masood Imad, he referred Minivan News to the Attorney General, saying “she is probably a more relevant person to talk about this matter.”
Attorney General Azima Shakoor said she was unable to speak on the subject once Minivan News posed the question to her.
The government also did not offer any response to the additional comments Knauls made regarding Nasheed’s trial after delivering her written statement.
MDP claims commitment to judicial reform
Responding to the Special Rapporteur’s findings, the Maldivian Democratic Party (MDP) has said it is ready to work with other political parties to immediately begin work on urgent reforms to the judiciary and the judicial accountability mechanisms.
“Establishing a truly independent, professional and widely respected judiciary is central to ending the political turmoil in the Maldives and to consolidating democracy in our country. We have always accepted this. Yet Gayoom, Waheed and others who have benefited and continue to benefit from our current corrupt and biased judiciary never have,” MDP’s international spokesperson, Hamid Abdul Ghafoor, said in a statement.
“Today, as we digest yet another report by an eminent international body that clearly says our judiciary is not fit for purpose, it is time for all political parties to put aside their differences and work together to urgently reform our justice sector. This means immediately halting the political trials launched against President Nasheed and the hundreds of pro-democracy activists currently facing ‘terrorism’ and other trumped-up charges. It also means establishing a caretaker government to oversee judicial reform and to prepare the ground for genuinely free and fair elections,” Ghafoor said.
The party’s statement also noted Knaul’s concern over the system of appointment of judges, stating “the Special Rapporteur expressed support for the concerns repeatedly raised by Aishath Velezinee, a former member of the JSC and whistleblower (who, in 2011, was stabbed and almost killed because of her outspoken comments), who said that the very starting point of judicial independence – the post 2008 Constitution system of screening and reappointing judges – was marred by malpractice and corruption.”
Referring to the rapporteur’s comments on selectivity in case assignment, prioritisation and bench constitution, the MDP alleged it had led to “hundreds of important cases against allies of former President Gayoom and members of the current government being kicked into the legal ‘long grass’, while the Prosecutor-General, the judicial administration authorities and the courts enthusiastically pursue political trials against President Nasheed and other MDP members.”
MDP echoed Special Rapporteur Knaul in stating that these deep-rooted problems had led to the public having an alarming lack of trust in the judiciary.