The Maldivian prison population could be reduced by up to two-thirds if the government would “de-criminalise the offence of drug usage and propose mandatory rehabilitation”, according a report by the government and the United Nations Development Program (UNDP). The reform could reduce the number of youth incarcerated for minor offences, the report suggested.
The report also found that “the existing legislative framework and the current penal system does not support the human rights guaranteed under the Constitution, nor is it compatible with best practices outlined in the UN Standard Minimum Rules on Treatment of Prisoners.”
The “Prison Assessment and Proposed Rehabilitation and Reintegration of Offenders Report“, published on September 5, was conducted by Dr Aishath Ali Naaz and UNDP program specialist Naaz Aminath. The report surveyed 60 percent of the prison population as of February 2011 to assess current prison conditions and make recommendations.
It is the first report of this scope to be done in the Maldives.
Aminath said the report took five months to prepare. “It involved very consistent record-taking and visits to prisons. About part way through we realized that we needed a legal framework to make a more comprehensive report, so we met with MPs across the board to understand the strengths and weaknesses.” The team had met with government officials throughout the project.
Aminath said timing the release of the report was difficult after the release of prisoners from Maafushi prison in July.
Key issues identified in the report were a lack of legislative framework to support rehabilitation and reintegration programs; widespread accusations of corruption and inappropriate political influence among institutions; poor prison design; and inadequate budgeting and human resources.
The report’s first recommendation for reform was to “de-criminalise the offense of drug usage” and require rehabilitation, according to the offender’s criminal record.
A second recommendation to “establish a restorative justice program to minimize offenders being incarcerated for minor offences” would regulate the currently heavy flow of Maldivian youth into the prison system.
Of prisoners in the Maldives, the majority are males under 30 years of age who are educated below O-levels. At the time of the report, 66 percent of inmates polled were in jail for drug use or possession.
“There are small time drug users of 23 years of age who are being being sentenced for 70 years in prison,” said Aminath. “When you visit other countries, the jails are divided between minimum and maximum security according to the sentence. You know that criminals in maximum security areas are really hard-core. You also find that drug trafficking is a serious offense in most countries, and traffickers do the most time in jail. But here, traffickers get 25 years while small-time users get 60 to 80 years. These are not hard-core criminals, but they’re put away for almost their entire lives.”
Aminath noted that in the past, drug users who test positive for drugs were given two charges: one for using drugs, and another for testing positive. At present, only individuals in possession of a prohibited drug are prosecuted.”
“I’m not condoning drugs,” said Aminath, “but I think we need to help.”
The report criticised Maldivian prisons for being understaffed and poorly managed.
“The problem in the Maldives is that there aren’t proper prisons,” said Aminath. “It’s hard to even say what the capacity of these facilities is.”
After the fires in 2009, Maafushi prison in March and October 2009, Aminath said that basic living equipment like mattresses were not replaced. Maafushi and Male prisons do not have kitchens, and “there is no structure to support the prisoners who are there,” she said.
Asseyri prison was originally designed as a juvenile rehabilitation center. But Aminath noted that it remained empty until this past year, and since then has been filled with inmates of all ages. She said individuals she asked regarding it’s changed purpose were uniformed.
Inmates surveyed said medical services were inadequate. An investigation found that Maafushi prison compensated by sending an average of ten people to Male each day for medical purposes–an excursion which opens opportunities for smuggling good into prison.
Inmates also complained about a lack of structure in prison life. The report lists claims of torture, inhumane treatment, drug availability and false messages of hope from politicians as examples.
Prison regulations also make it difficult for inmates to develop their own structure. Aside from the Qur’an, inmates are not allowed to have any reading material. Only Asseyri and Maafushi prisons have ‘libraries’–rooms with a few books located outside the gated complex. “It’s risky to go there because it’s not within a protected area, and there simply aren’t enough staff to organise daily library trips,” said Aminath. “Plus, there isn’t much to read there. Really, I wouldn’t even call it a library.”
Naaz and Aminath asked prisoners to describe the types of rehab programs they felt were needed. Most recommended religious education (86.4 percent), counseling therapies (76.1 percent) and life skills (75.1 percent).
Among the report’s recommendations for reform is the development of a Mental Health act. It also encourages Parliament to pass legislation that was proposed 3 years ago, including a criminal procedure code, a penal code, an evidence act, and a parole bill.
Another suggestion is to establish a prison industry to train prisoners in vocational skills, a program that would directly support rehabilitation and reintegration programs.
Aminath said the research team is in conversation with the State Minister, and the Home Minister supports the recommendations.
Speaking at a press conference yesterday, Home Minister Hassan Afeef said, “the Government is committed to improving the rehabilitation system, given
how large a problem drugs are for our community.”
But change won’t happen overnight, Aminath cautioned. She said all institutions “need to strengthen the legal framework and get more involved with the community to make these changes. This applies to all institutions across the board here.”
Correction: A previous version of this story stated that the UNDP team had “‘met with government officials across the board to understand the strengths and weaknesses.'” It should have stated that the UNDP team had “met with MPs across the board to understand the strengths and weaknesses and advocate passing legislative framework bills.” The UNDP team had been in correspondence with government officials from the beginning of the project.
The previous version of the story also stated that, “Aminath noted that drug users who test positive for drugs are given two charges: one for using drugs, and another for testing positive.” It should have stated that “Aminath noted that in the past, drug users who test positive for drugs were given two charges: one for using drugs, and another for testing positive. At present, only individuals in possession of a prohibited drug are prosecuted.”
The previous version also stated that “Asseyri prison was originally designed as a juvenile detention center.” It should have stated that “Asseyri prison was originally designed as a juvenile rehabilitation center. Also, individuals who Aminath asked about its current use as a standard detention center were uninformed. Minivan News apologises for any confusion.”
The Maldives legal system is failing to serve its citizens despite many “positive developments” that have been made in an effort to depoliticise the courts; with many of judges found lacking in qualifications and independent attitude, according to the International Commission of Jurists (ICJ).
“How often do ordinary Maldivians look to the courts for justice? Is there a sense that ‘We [Maldivians] have an independent judiciary that is capable of resolving problems?’ I think the answer is no,” surmised Roger Normand, Director of the ICJ’s Asia Pacific operations.
“Historically, [independent resolution] has not been the role of judges. Judges were an outcome or a product of the executive power. This is not a controversial statement, this is an outline of what their legal role was in the previous [government],” Normand stated.
Normand’s claims were made as the ICJ published a report on the Maldives legal system that outlining a huge number of challenges to ensure the country’s courts are in the long-term transparent in their decision making. It is hoped that the developments can remove the opportunities for abuse from government and opposition politicians alike, the ICJ stated.
The report itself is highly critical of both the role of some members of government in calling for protests and gatherings outside judges’ homes, as well as the Judicial Services Commission (JSC) that it said was “unable to carry out its functions” to impartially vet and reappoint judges on the basis of qualification and background.
“To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment,” the report stated. “Also troubling is that members of the judiciary have been subject to threats and intimidation as well as improper inducements by both governing and opposition party members.”
The ICJ said the report, entitled ‘Securing an Independent Judiciary in a Time of Transition’, had raised particular concerns over the “constitutional crisis” that occurred last year concerning the legitimacy of the courts and judges and the conduct of the government of President Mohamed Nasheed in addressing this.
Despite these concerns, Normand claimed that while there were “significant” problems with judiciary in the Maldives, and that the structure of a watchdog body such as the JSC needed much work needed to resolve, he was encouraged that there appeared to be a political mandate to bring changes to the legal system. However, the ICJ Asia Pacific director stressed that a non-independent judiciary could not simply change directly to an independent body.
“To have a sudden change, where suddenly judges are independent – this can’t just be signed on a piece of paper or constitution, it’s an attitude and a practice,” he said. “I think it’s safe to say we don’t have those attitudes and practices in the Maldives, but I also think the size of the developments are very positive.”
According to Normand and the ICJ, part of the challenge in trying to provide an independent judiciary is to ensure public support and acceptance of the country’s legal institutions and their verdicts, which in itself was linked to transparency within the decisions of bodies like the JSC.
“Judicial accountability is key to cultivating such public confidence and is an integral aspect of judicial independence,” the report stated. “Accountability must be manifest both at institutional level, in terms of court administration and access to justice, and at the individual level. This enables judges to decide cases without fear or favour and that they strictly apply the law to the facts before them.”
Recommendations
The report recommends a number of areas, such as education and training programmes for court appointees, bringing foreign experts to assist long-term, and advise on developments that it believes the Supreme Court could adopt to boost its own accountability.
In areas such as education, the ICJ said that seven-year periods outlined under the national Judges Act was used more effectively to enhance the qualifications of judges as well as ensure that a code of ethics was introduced in line with international agreements such as the Bangalore Principles on Judicial Conduct.
In addition, the ICJ claimed that steps could also be taken to ensure the Department of Judicial Administration was used to try to provide smoother administration of justice,such as requiring all levels of court to issue written reasons for its actions and establishing a judicial database so the court and public could refer to similar case law and precedents.
Normand stressed that the Maldives was relatively unique in that its courts would turn to Sharia law where Maldivian legislation didn’t apply, but that it was not alone in such experiences.
“We would recommend [collaboration with] countries that have experience of working both with common law – using previous legal cases to set precedent – and Sharia law, Pakistan is one example, Malaysia is another,” said Normand. “There are other countries where the issues the Maldives faces have been looked at before. It’s not the first time so you need to take advantage of this.”
The ICJ also recommended steps it hoped the JSC would take to act with greater transparency after coming under criticism and allegations of possible corruption.
Beyond adopting regulations and procedures to create greater accountability into the JSC’s decision making by recording detailed minutes of its meetings, a technical secretariat could also be established by a neutral party that could limit the workload to allow the organisation to work to its constitutional requirements.
The ICJ added that these developments needed to be backed by using international experts to help oversee work, and also ensure the high “moral integrity” of judges in relation to their criminal records that is also outlined under various international treaties and agreements.
The report also outlined recommendations for the country’s parliament and government to adhere to in their conduct in relation to the courts such as launching public awareness campaigns in relations to the requirements under the constitution of various legal institutions. The government was also called on to provide funding and strengthen the faculty of law and Sharia in the country, and the Majlis were called upon to pass vital laws such as the Penal Code and Criminal Procedure Code to allow swifter and more impartial delivery of justice.
The organisation also called for reform of the JSC in relation to concerns the report and others have raised over issues of transparency.
“As a principle, the JSC must become more transparent and effective in processing the complaints by the public about judges,” added Normand. “In fact, it is important for the judges themselves that the institution of the judiciary has the confidence of the public – that you’re qualified, that you’re not a criminal – it’s important for everyone.”
Taking the example of other nations such as Indonesia that are claimed to witnessed huge problems with trying to establish an independent and efficient judicial service, Normand claimed there were positive examples of countries like the Maldives that had seen vast improvements in the impartiality of its courts.
The Islamic Foundation of the Maldives, led by Ibrahim Fauzy, have filed a case with the High Court of the Maldives in a bid to remove two articles of the Religious Unity Act, Act number 6/94.
President of the Foundation Fauzy told Minivan News that the two articles deemed contentious were articles A and B of the Act.
”The two articles state that a permission from the government will be required to preach, contradicting article 27 an 29 of the constitution which states that everyone has the right to freedom of expression subject to the tenets of Islam,” said the Islamic Foundation in a statement.
The Islamic Foundation said that Sheikh Fareed’s permission to preach was confiscated in 2003 but later returned in 2008.
During the last hearing of the case conducted in the Criminal Court, the state attorney admitted the case was presented according to the recent constitution while Sheikh Fareed’s lawyer Shaheem Ahmed claimed that the laws under the Religious Unity Act would be voided upon ratification as they were contrary to the constitution.
”The case was accepted by the High Court and it is being processed,” said Fauzy.
After the Islamic Foundation presented the case in the High Court, the Criminal Case has halted thecase against Sheikh Ibrahim Fareed pending the High Court verdict.
Sheikh Fareed was charged with violating the Religious Unity Act four years ago.
The Maldives is often described as ‘paradise’ or ‘heaven’, or is often described as the most peaceful and most beautiful nation in the world.
We have white sandy beaches, coconut palm trees hanging their leaves to the sea, as seen in the pictures, and the charming view of the sunset.
And this nation is also largely considered by the international community to be one of the best countries for freedom and rights.
Now let’s take a glance inside the so-called ‘paradise’ and see what we find. I am a Maldivian and I love this nation with all my heart. However, the truth will remain as the truth, although most of them try to hide it… forgive me and my words as I continue.
The constitution of the Maldives is just a bunch of words put together in a book with a green cover. In other words, its just an image portrayed to the international community, to show them how much the government pays attention for the rights of the citizens and for the freedom of the citizens. And also to show how democratic the society is.
Believe it or not, we do not have even one third of the rights and freedoms guaranteed in the constitution.
Seeing the chapter on freedom and rights – the second chapter of the constitution – brought comfort to a lot of citizens. Well, it did comfort the citizens before we realised it is guaranteed not for the poor ordinary citizens, but only for the wealthy and high-profile people of the nation.
More than half of the youth are into drugs, one way or another. Either dealing it or using it. You all know this is to be true.
The police have no idea how to deal with this issue. The only solution they apply is intimidation, harsh words, handcuffs and batons.
As a matter-of-fact, police have developed a nasty habit of arresting kids roaming the streets.
Police keep these arrested kids in detention for 23 hours and releases them presenting them face justice. Where is the article 45 of the constitution? Article 45: “Everyone has the right not to be arbitrarily detained, arrested or imprisoned.”
I would like to tell Commissioner of Police Mohamed Faseeh that this is not helping. In fact, it makes the situation of Male’ worse day by day. They cannot be stopped using that method. Think twice Mr Faseeh. If it could prevent the crimes, there would be no more gangs in Male’ because every time police conduct operations, hundreds are arrested and released. The ultimate price of it is ‘nothing’.
Most of the arrested kids are presented with wide opportunities to engage in crimes and gangs during their 23 hours stay behind the bars. The people they meet behind the bars become very friendly.
I have witnessed, on more than one night, kids sitting in public areas being arrested on no charges and being released after 23 hours without being presented to court. Their whole life shatters after being victimised by such a police ‘special operation’.
His family disowns him for bringing disgrace to the family. What other choice does he have? Other than joining the friends police forced him to meet behind the bars?
These kids are helpless. They live in tiny little congested houses with their entire family. They have no place to lie down inside their homes. That forces them to roam around, to sit on public benches. But if they get arrested while sitting there, where is the article 32 of the constitution? Article 32: “Everyone has the right to freedom of peaceful assembly without prior permission of the State.”
I have seen some of them refusing arrest as they have not committed any offense. However, the police warns them they have the power to arrest, and that for demanding for their freedom and rights, one can be arrested for 23 hours.
Our little green book includes the phrases “unlawful arrest” and “unlawful order”. Article 64: “No employee of the State shall impose any orders on a person except under authority of a law. Everyone has the right not to obey an unlawful order.”
In the meantime, the real gangsters have been at large. They have been progressing their work and have built nests not only in the capital city Male’ but also in other islands. It is public knowledge. As a result, there has been a significant and notable increase in the crime rate across the islands very recently.
Crimes are increasing at a steady rate. Gangs spreading their work nationwide.
It’s about time the police took appropriate measures on this issue for sake of the future of our next generation. The political parties and MPs can’t deal with these issues as they are too busy with their own wars.
The law enforcing agency’s pathetic manner of dealing with the issue will never solve it either. The police may think their aggressiveness and hostile actions towards these boys will assist them. If you think so, you’ve got it so wrong.
It only encourages them to challenge the police. If the police confront them thisway, I am sure they would never give up, they would rather suffer a broken rib. Hostile action and aggressiveness is not the answer to our problems. The other day you release them, they will be out there again.
Police officers also need to improve their own ethics before they are sent out to correct others’ mistakes. I have met females who complain that it is common practice for police officers patrolling the streets to stop by and whistle at young woman on the streets. To me that’s inexplicably disgraceful.
Police officers speak rudely, to show people they are powerful. Yes, you are and we know that. We wonder how many lives of innocent kids you will ruin before you catch one single criminal.
The wisest of us Maldivians would leave the country. Do not even think of the word ‘enjoy’ while you are living here. One could be arrested for having a chat with a friend in a public place. When the police say jump, you just ask “how high?”.
The articles stated in our constitution are very sophisticated, but we do not get to taste the sweetness of it. Article 63 of the constitution states: “Any law or part of any law contrary to the fundamental rights or freedoms guaranteed by this Chapter shall be void or void to the extent of such inconsistency.”
So I doubt if the police law is valid. I do not know what will be your perspective. I just exercise my right to express my opinion when I feel it’s time.
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 Civil Court of the Maldives has ruled that the government’s detention of Abdulla Yameen, People’s Alliance (PA) and half-brother of former President Gayoom, was unconstitutional.
The PA is a minor opposition party which in coalition with the major Dhivehi Rayyithunge Party (DRP) has a parliamentary majority. The government has accused Yameen of bribery and treason, however following his arrest in June the Supreme Court refused to extend the period of his detention.
The Maldives National Defence Force (MNDF) held Yameen in isolation on the presidential retreat of ‘Aarah’ for nine days, releasing him on July 23. The government and the MNDF claimed Yameen’s detention was “for his own protection” after several groups of protesters clashed with police outside the MP’s house.
In July the MNDF took Yameen into protective custody after a group of Maldivian Democratic Party (MDP) supporters gathered near his house and threw stones and water bottles.
MNDF claimed that Yameen was kept in isolation for his own safety and that he requested MNDF provide him security. However Yameen claimed he was taken by MNDF against his will.
In his verdict, Sameer noted that MNDF did not had the power to detain Yameen in Aarah for his protection under the MNDF law, article number 105 [b] and 243 of the constitution.
Chief Judge of the Civil Court Ali Sameer further ruled that the MNDF did not have the authority to restrict Yameen’s rights and freedoms, as guaranteed under the constitution.
Sameer declared that MNDF violated articles 41, 19, 21, 26, 30, 37, 45 and 46 of the constitution.
Any freedom and right guaranteed by the constitution could only be restricted according to a law enacted under article 16 of the constitution, or following the declaration of a state of emergency, Sameer said.
He added that it was a responsibility of all state institutions to uphold freedoms and rights mentioned in the constitution.
Prominent lawyer Shaheen Hameed has said that the government did not have the authority to restrict judges of the Supreme Court from entering the court, reported radio station SunFM.
Shaheen Hameed is the nephew of former President Gayoom, and has represented current President Mohamed Nasheed when he was arrested by the former administration.
SunFM reported that Shaheen claimed he had lately noticed the armed forces and power of executive attempting to work beyond the laws.
Moreover, Shaheen Hameed claimed the government was influencing the juducial system, an institution stated as independent in the constitution of the Maldives, and that the attempt was “against the spirit of the constitution.”
The government contends that the Supreme Court and the interim judges ceased to have legitimacy on conclusion of the transitional period last Saturday, with the annulment of Chapter 14 governing transitional matters, and has urged parliament to legislate the appointment of a new Supreme Court as a matter of urgency.
Tourism Minister Dr Ahmed Ali Sawad has been nominated as the new attorney general of the Maldives, according to a senior government official.
Husnu Suood resigned yesterday, taking some responsibility for the constitutional crisis, and urged Speaker Abdulla Shahid to step down as well.
The source told Minivan News that Dr Sawad was ready to take the oath of office pending the missing law on judges, which the administration is waiting for parliament to pass.
‘’As soon as the parliament passes the new law on judges, the new Attorney General will take the oath,’’ said the source.
Dr Sawad was not contactable at time of press.
Meanwhile, the MNDF has blocked the the interim Supreme Court judges from entering the Supreme Court, on advice from the former Attorney General that the interim Chief Justice and judges at the Supreme Court ceased to have any legitimacy following the interim period deadline last Saturday.
When queried why the Supreme Court judges were not allowed to enter to the court, the source replied “that’s because they are not judges.’’
The opposition – and yesterday, the Civil Court – contends that the interim Supreme Court continues to function until a new court is appointed by parliament. The government claims this chapter was annulled after the two year deadline.
The former Attorney General Husnu Suood resigned claiming his position is untenable in the “constitutional void” triggered by parliament’s failure to enact legislation ensuring the continuation of state institutions such as the judiciary.
In his resignation letter, Suood stated that he had resigned because he did not believe that the state could be operated according to the constitution, because he had noted that state institutions had failed to fulfil their responsibilities as obliged by the constitution.
As a consequence, Suood wrote he did not have the opportunity to perform his own duties and responsibilities under article 133 of the constitution, prompting his resignation.
All three arms of state – executive, judiciary and legislature – are now deadlocked.
The Maldives faces a constitutional meltdown following a difference of opinion between opposition parties and the government regarding the legitimacy of institutions such as the Supreme Court, after the transition period expired last night.
According to the government’s interpretation, institutions such as the civil service commission, Human Rights Commission of the Maldives (HRCM) and the courts ceased to have legitimacy on conclusion of the interim period at midnight, after parliament failed to legislate for their continuity.
The Attorney General resigned this morning, claiming that while he had some responsibility for the ‘constitutional void’, a great deal more lay with the opposition-majority parliament and Speaker Abdulla Shahid, an MP of the main opposition DRP.
President Mohamed Nasheed had nominated a Chief Justice of the Supreme Court and was reportedly waiting for parliament to pass a bill on judges to determine how many more justices should be elected to the bench, however the Speaker cancelled the session prior to the deadline despite expressing earlier confidence that the interim matters would be resolved before the deadline.
“The Majlis failed to get its work done on time. This left the President with two options: allow the country to have no Supreme Court at all; or issue a decree so at least the administrative functions of the Supreme Court can continue. The President chose the latter option,” said Press Secretary Mohamed Zuhair.
Nasheed issued a decree at midnight that the trial courts – the Criminal and High Courts – would continue to function, while the interim appellate court consisting of four members “of high repute” would oversee the administrative aspects of the Supreme Court, such as receiving appeals.
“We hope Majlis members will hurry up and pass the required legislation so the court can function as envisaged under the Constitution,” Zuhair said.
However the four members of the government’s short-lived appellate court resigned this afternoon, Zuhair later confirmed, citing commitment to other duties but most likely seeking to avoid the political cross hairs aimed at the positions.
Moreover, the Civil Court today ruled that the Supreme Court bench remains valid, and that the Maldives National Defence Force (MNDF) was obliged to return the keys to the building to the sitting judges.
The government will appeal in the High Court – despite the resignation of the Attorney General – using the MNDF, which has its own lawyers, Zuhair stated.
Similarly, the opposition argues that under Article 284 of the Constitution, the Supreme Court is not beholden to the interim deadline and is obliged to function as normal, until the new court is appointed by parliament.
Article 284 under the chapter on transitional matters reads: “The Supreme Court appointed pursuant to this Chapter shall continue until the establishment of the Supreme Court”.
“There’s no argument about it; it’s very clear,” said former Attorney General Azima Shukoor, legal representation to opposition People’s Alliance (PA) MP Abdulla Yameen, whom the government detained for more than a week on accusations of treason and bribery.
“There are no issues with dates – [the Constitution] very clearly states that there has to be a Supreme Court of five members. The government is trying to take control of the judiciary.”
The government contends that the entire chapter on transitional matters – including Article 284 and others governing the interim Supreme Court – were annulled at the conclusion of the transitional period last night, plunging the country into a “constitutional void” following parliament’s failure to legislate the continuation of several institutions.
President’s member on the Judicial Services Commission (JSC), Aishath Velezinee, said the clause relating to the Supreme Court was “not indefinite”, and referred to appointment of judges “at any time within the two year transitional time period.”
“[Husnu Suood] was arguing last night that parliament needed to meet before midnight and approve an extension of the interim period, which seemed like a very sensible thing to do,” Velezinee said. “If [parliament] were working in good faith, they would have done that.”
Writing on his personal blog, independent MP for Kulhudhufushi South, Mohamed Nasheed, who was the legal reform minister when the constitution was ratified, concurred that the country had “officially fallen into a constitutional void” following parliament’s failure to complete transitional matters in the two year period set by the constitution.
Nasheed, who first warned of the repercussions of missing the constitutional deadline for last year’s parliamentary elections, argues that institutions or posts created after a constitutionally stipulated deadline would not be legitimate.
As a consequence, he writes, the legal status of parliament, the Elections Commission and the Anti-Corruption Commission were in doubt, as all three were formed after the deadlines elapsed.
Moreover, he added, the deadline for local council elections passed in July 2009, the new Supreme Court has not been formed, the reappointment of judges was questionable, lower courts had not been instituted and an Auditor General as well as members to the Civil Service Commission and Human Rights Commission are yet to be appointed.
That both the executive and legislature had failed to deliver the lawful state envisioned in the Constitution, Nasheed writes, was a source of “shame and sadness”.
With the two main parties at loggerheads, Nasheed writes that the distance between the parties has only grown and there was no longer an environment conducive to political negotiation and compromise.
Instead of assigning blame, he urged, both sides should be looking for a solution to the crisis.
As a solution, Nasheed suggested the parliament complete transitional matters as soon as possible, and then call a public referendum to determine whether citizens approved of the post-interim process.
The referendum could be held concurrently with local council elections, he suggested, whereby citizens could be asked to endorse new provisions inserted to the constitution to legitimise the “belated” institutions.
“If a solution cannot be found within the constitution, shouldn’t we get the direct say of citizens?” he asked.
Meanwhile, in an possible bid to encourage the opposition to return to the chamber, the Foreign Ministry has suspended the ambassadors to Sri Lanka, China, and Saudi Arabia, all three of whom were appointed by the former administration and were not endorsed by parliament prior to the interim deadline.
The government has also been negotiating with the International Commission of Jurists (ICJ) to send a mission to the Maldives to help establish an independent judiciary.
Commonwealth Secretariat Spokesperson Eduardo del Buey confirmed the Commonwealth Secretariat had received a request from the government of Maldives “for assistance in constituting an interim appellate court drawn from Commonwealth judges.”
“We are considering this request as a priority, and will respond to the Government shortly. In responding, we will be discussing with the Government how best to ensure adherence to the Latimer House Principles, which define the separation of the three branches of Government and to which all Commonwealth governments have committed themselves,” del Buey said.
Velezinee has also called for the mediation of the UN Special Rapporteur on Independent Judiciary, claiming that she did not believe anyone in the country would be trusted enough by both sides to establish the core institution.
Despite the burgeoning political crisis of the the last few days, and aside from minor scuffles between protesters outside parliament last night, Male’ has been relatively calm and turmoil largely restricted to the political echelons.
The holy month of Ramadan begins on August 11, when the pace in the normally frenetic capital typically slows considerably.
The international community has urged the Maldives executive to respect the rule of law in negotiating a solution to its current political deadlock with the Majlis (parliament), and in handling its accusations of corruption and treason against several prominent MPs and high-profile businessmen.
In a democracy the judiciary is the crucial arbitrator of any such disputes between the other two arms of government. But Aishath Velezinee, the President’s Member of the Judicial Services Commission (JSC), the independent institution tasked with reforming the judiciary and ensuring both its independence and accountability to the public, believes the current state of the judiciary renders it unfit to do so.
Article 285 of the Constitution outlines an interim period for the reappointment of the judiciary by the JSC, according to minimum standards, with a deadline of August 7, 2010. After this, a judge may only be removed for gross incompetency or misconduct in a resolution passed by a two-thirds majority in parliament – the same number required for impeaching the President or Vice President.
Last week the JSC reappointed 160 of the judges appointed by the former government, despite a quarter of the bench possessing criminal records and many others with only primary school level education. The Supreme Court meanwhile sent the President a letter claiming it had ruled itself tenure for life.
Velezinee blows the whistle, speaking to Minivan News about the JSC’s failure to ensure the accountability of the judiciary, the compromise of its own independence at the hands of the Majlis – and the ramifications for the country in the lead up to the August deadline.
JJ Robinson: What is the function of the Judicial Services Commission?
Aishath Velezinee: The main function of the JSC – as I see it – is to maintain judicial integrity, and to build public confidence in the judiciary and individual judges.
The way we would do it under a democratic governance structure would be to hear the complaints of the people, and to look into these matters objectively and independently, and take action if necessary, to assure the public there is no hanky-panky [going on].
But instead of that, we are putting out press releases saying things like: “You can’t criticise judges”, “You can’t criticise the judiciary”, and ‘‘the president is exercising influence over judges”.
JJ: So the JSC is working as shield organisation for judges rather than as a watchdog?
AV: Very much. It is a shield for judges, and the evidence for that is very obvious. We have all this evidence in the media now from what is happening in the criminal court – a fact is a fact.
Why did [Criminal Court] Judge Abdulla Mohamed open the Criminal Court at midnight when two high-profile [opposition MPs Abdulla Yameen and Gasim Ibrahim] were arrested?
From August 2008 to today there have been many instances when the public might have wanted the court to open outside hours. But no – before that day, they have never opened the court out of hours for anybody else.
This was the first time they have done it – and then put out press releases saying it happened at 9pm? This is not the truth. We have evidence it is wrong.
But the Commission takes for granted that whatever the judge says is right. We can’t protect judges and oversee them.
JJ: This was the case taken to the Criminal Court by Yameen’s defence lawyer [former attorney general Azima Shukoor]?
AV: That’s not standard procedure. According to regulations the Criminal Court can only accept submissions from the State.
It would not have been an issue – the defence lawyer would have been given the opportunity to argue the case when the State went to the court. But Yameen’s lawyer initiated it – and got into the Criminal Court in the wee hours of the night – that is strange.
I’m not saying it is right or wrong – I don’t know. But what I do know is that this is out of the ordinary. The JSC has an obligation to the people to ensure the Criminal Court has done nothing wrong.
JJ: How did the JSC react?
AV: They did nothing. Article 22(b) of the Judicial Services Act gives us the power to look into matters arising in public on our own initiative. But what did the JSC do? They said nobody had complained: “We haven’t received an official complaint.” They were waiting for an individual to come and complain.
My experience, from being part of the complaints committee in the JSC, is that whenever a complaint is received, we have two judges on the complaints committee who will defend the [accused] judge, trashing the complainant, and talk about “taking action” against these people “who are picking on judges”.
Then they will put out a press release: “Nobody should interfere with work of judges.” Their interpretation is that “nobody should criticise us. We are above and beyond the law.”
Since January – when the JSC censored its own annual report, despite the law clearly saying what we should include – they decided to hide the names of all judges who had complaints made against them.
Instead, they released the details – including quite private information – about the complainants.
Civil Court judge Mohamed Naeem has "a box-file" of complaints pending, says Velezinee
JJ: What is the current state of the judiciary?
AV: The current judiciary has 198 judges that were appointed prior to this Constitution being adopted. Those judges were appointed by the then-executive: the Ministry of Justice. The appointment procedure, the criteria – none of these were transparent.
They were only given ‘on-the-job’ training. This ‘Certificate in Justice Studies’ they say they have is on-the-job training given after the 1998 Constitution was adopted, to teach them how to run the country according to that Constitution.
How do we expect these people – without exposure to democratic principles and cultures, without exposure to the world, with only basic education, and with only tailor-made on-the-job training for a different Constitution – how do we expect them to respect and uphold this Constitution?
A majority have not even completed primary school. A quarter have criminal convictions: sexual misconduct, embezzlement, violence, disruption of public harmony, all sorts of things – convictions, not accusations.
We are not even looking at the 100 plus complaints we have in the JSC that are unattended to. They have not been tabled. Civil Court Judge Mohamed Naeem has a box-file of complaints against him. And Criminal Court Judge Abdulla Mohamed has way too many against him.
JJ: Given the condition of the judiciary, and if the government is in a state of political deadlock with parliament, how is the government able to legitimise accusations against the MPs it has accused of corruption and treason?
AV: That is where we have the problem. The international community seem to have forgotten that this is a new-found democracy. We have in all our institutions people who have been in the previous government. We haven’t changed everybody – and they are still following their own culture, not the law.
How can [the international community] ask for the rule of law to be followed when there are no courts of law? Where are the courts? Where are the judges? A majority never even finished primary school.
Supreme Court Justice and President of the JSC, Mujthaz Fahmy
JJ: What possible reason was there for appointing judges with only primary grade education?
AV: It’s very obvious – just look at the records. As a member of the JSC I have been privy to records kept from before [the current government]. In their files, there are reprimands against judges for not sentencing as they were directed. That was a crime when the Minister of Justice ran the courts. The Ministry of Justice directed judges as to how sentences should be passed, and that was perfectly legitimate under that Constitution.
JJ: Has anything changed since 2008 and when the judges were appointed under the former government?
AV: Yes – what has changed is that [the judges] were freed from the executive. So they are very happy with the freedom they have received. But unfortunately they haven’t understood what that freedom and independence means.
They are looking for a father-figure, and they have found him in the current President of the JSC, Supreme Court Justice Mujthaz Fahmy. He has taken on this role, and he is now the king and father of the judges.
So they are all looking up to him to protect their interests. If you look at all the press releases from the Judges’ Association – which is run from Mujthaz Fahmy’s home address – he makes arbitrary decisions in the JSC and then puts out press statements from this organisation run from his home, to defend his own position.
We are in a very big game. Mujthaz Fahmy has been under the thumb of the former executive for way too long – the man is going on 50, he has been on the bench for 25 years, he has never had anybody come and argue with him – he can’t stand anybody who challenges him. So he’s got a problem with me sitting on the Commission because I do not take his word as the law. The man thinks that anything that comes out of his mouth is the law, and the majority of the JSC members take it as a fact.
But if you look into the documentation, if you look into the recordings – nothing that comes out of that man’s mouth will hold. Those interviews he is giving, all he is using is this image he has built up of himself as ‘the esteemed justice’. That is what he is using to convince the public that he is right. And they are trashing me in public and in biased media, just so people do not listen to me.
I do not ask anybody to take my word. I am saying: hear the recordings in the commission. Listen to what they say.
They have this belief that whatever happens in the Commission must be kept a secret amongst ourselves. This was run like a secret society – we have a pact of secrecy amongst us. I broke it, because I do not believe in tyranny of the majority. What we are seeing here is a repeat of what happened in the High Court in January, what we are currently seeing happen in the Majlis, and the same things are now happening in the JSC.
Elements of the parliament are collaborating with the JSC, says Velezinee
JJ: What are the links between the Majlis and the judiciary?
AV: That is a very serious issue. I am currently sitting on this seat as the President’s appointed member of the JSC, but prior to this, I was was the member of the general public appointed by the Majlis. They have forgotten that part.
I have brought this to Majlis attention. When the Commission voted on what I call the minimum ‘sub-standards’ for the judiciary, I sent a complaint to the Majlis. The same letter I sent to the President and the President of the Law Society. I sent it to the Speaker of the Majlis, as well as the chair of the Independent Commissions Committee, Mohamed Mujthaz.
When the JSC finalised the ‘substandards’, the Majlis into recess. So I went to the Anti-Corruption Commission (ACC), because it was the only constitutional structure where I could go to hold the JSC accountable. It is rather odd for one Commission member to go to another commission and ask them to investigate her own commission.
I met the ACC on May 12. The JSC say they adopted the substandards on May 11. Later I collected all the documentation, and wrote a report – because this is not going to be something easy to investigate. This is a whole conspiracy cooked up from the time the JSC was initially constituted. It has been planned, and it is very clear this is a plot.
When the Majlis reopened in June, I sent an official complaint to the Independent Commissions Committee which they accepted. On June 16, the Majlis wrote two letters to the JSC, one letter requesting all documentation and recordings relating to Article 285 – my complaint.
The JSC is not respecting Constitution and is doing as it pleases. Their disregard of Article 285, and their decision to adopt substandards for judges, comes from their belief in a promise made by the former government.
They do not refer to the Constitution in adopting the standards. They refer to conversations they had with the majority party at that time, a delegation led by our dear JSC President, Mujthaz Fahmy. He and a team of judges met with the politicians to negotiate a guarantee that no judge would be removed under the new Constitution.
Although we have Article 285 in the Constitution – to give the people a judiciary they can trust and respect – we have the President of the Commission responsible for the implementation of this article working on this political understanding with the former government.
This is very clear from the recordings.
All I’m asking is for third party to look into this – and that third party is the Majlis. After the Majlis took all the documentation and recordings, they had requested the JSC meet with the Majlis Independent Commissions Committee at 2:30pm on June 23.
If you go back to your news files, that was the day when the Majlis floor heated up. Since then the Speaker [DRP MP Abdulla Shahid] has suspended the Majlis.
The committee accepted the complaint – if they had not, they would not have asked us to come and discuss this with them.
I believe the speaker is taking undue advantage of this political crisis. The Speaker of the Majlis is now coming and sitting in the JSC [office] day and night, during Friday, holidays and Independence Day. The Speaker is sitting in the JSC trying to expedite this process of reappointing judges before the Majlis starts on August 1. What is going on here?
The Supreme Court, formerly the Presidential Palace
JJ: What is going on?
AV: I believe that when the Majlis was suspended, they should have directed the JSC to at least halt what was going on until they have looked into the matter. It is a very serious complaint I have made – it is a very serious allegation. And if that allegation and complaint is unfounded, I am willing to stand before the people, in Republic Square, and be shot.
I believe we have all the evidence we need to look into this matter – but under this Constitution, we have to go to the Majlis. But where is the Majlis? And what is the Speaker doing in the JSC?
What about all those other complaints? The Commission’s president is not letting us work on them. We have in our rules that any member can ask for a matter to be tabled. I asked him to look into the matter – and do you know what he did? He sent me a letter to my home address – as though I was not a member of the Commission – and asked me to write it in a proper form and bring it to the attention [of reception].
The JSC has decided Article 285 is symbolic, that article 22(b) does not exist, while the esteemed people of the law in the commission, include the Commission President, Supreme Court Justice Mujthaz Fahmy, explain to me that article 22(b) gives me the power to write a letter, fill in a form and submit a complaint. I asking – why did the drafters of this law put in a clause to give me a right I already have as any ordinary citizen?
Where we are right now – with the lack of confidence in the judiciary – it all lies with Mujthaz Fahmy.
JJ: What do you mean when you talk about “a plot”? How interconnected is this?
AV: They are trying to expedite the reappointment of judges without looking into my complaint. If you look into my complaint, you will find this has been done in an unconstitutional way.
What they are doing right now is going to kill the Constitution.
We are not going to consolidate democracy if they succeed in getting away with what they are doing right now. The Speaker has suspended the Majlis whilst a very serious complaint is with the Majlis committee, and now he is sitting in the JSC doing this.
If there is a matter pending in a court of law, usually they ask for a court order until the matter is settled. You don’t just carry on as if nothing is happening.
We have a petition signed by 1562 people – the JUST campaign – calling for an honest and impartial judiciary. This was not even put on the Commission’s agenda – it said it did not find it necessary to take it into account, and on that day I was not given opportunity to participate because on the agenda was the matter of approving judges under the substandards.
We are asked to put before any other matter the people, and the Constitution. Instead, the Commission is working in the interests of these individual few judges who have hijacked the judiciary. Mujthaz Fahmy must go.
JJ: So these Commission members met with politicians from the former government, to obtain a guarantee that sitting judges would remain on the bench, and not be subject to reappointment under Article 285? What do the politicians get back from the judges?
AV: We are talking about corruption. The change in government came in 2008 because people were fed up with a corrupt administration and autocratic governance.
But all those people who were in power entered parliament. The Speaker, who is right now sitting in the JSC working night and day expediting the reappointment of the judges, was also part of that administration. It is within their interest to keep this judiciary here, and not work in the interests of this Constitution, or the People.
Their personal interests take precedence over everything else. I’m afraid that is what we are seeing.
JJ: Do you feel the media has been taking this case seriously enough?
AV: I’ve been writing to all the concerned authorities since Januruary. I’ve been going on and on about the JSC and the dictatorship within it for a long, long time. I knew where we were heading, I have been warning the Majlis and talking to people from various parties. I have been talking about Article 285 for so long that I have become ‘the old article 285 madwoman.’
JJ: Do you think the current political crisis can be resolved without a functioning judiciary?
AV: Absolutely not. But then a functioning judiciary cannot be introduced without this crisis being resolved. How can the international community ask for the rule of law to be followed when there are no courts of law?
We need an impartial investigation of what is going on. And I believe the Maldives does not have anyone able to conduct an impartial investigation. We need assistance – the International Commission of Jurists (ICJ) should be here. The UN Special Rapporteur on Independence of the Judiciary should be here, right now.
This is not the fault of the judiciary. We have a large bench, and most of the judges have absolutely no idea about what is going on. They have not even been given orientation on the new Constitution.
I had the opportunity to meet magistrates from four Atolls. They know the law. But what they need is a basic understanding of the principles of this Constitution, of the foundations of democracy. Because it is through those lenses that they should be interpreting the Constitution.
I am not in favour of the removal of all judges. But I demand that all judges with criminal records be removed – they should not be sitting there even now, and there’s 40-50 of them – a quarter of the bench.
Why is the JSC remaining silent? Why is the Speaker of the Majlis in the JSC [office]? By his silence, and through the act of suspending the Majlis, the Speaker has given the JSC the opportunity to complete this act of treason they are currently committing.
The deadline for the judicial reform period under the new constitution in August 7. The Speaker and the President of the JSC are working overtime to get all these judges reappointed before the Majlis restarts on August 1. That is treason.
Supreme Court Judge Uz Ahmed Faiz Hussain, the President's nomination for Chief Justice
JJ: What benefit would outside arbitration bring?
AV: It is difficult because all our documentation is in Dhivehi. But we need an independent and impartial body to look into this properly. Forget listening to me or Mujthaz. Forget listening to politicians, and investigate. We need an impartial mediator.
It is very easy for the international community to turn around and blame the executive for taking a dictatorial attitude. We are demanding the executive uphold the rule of law. But what about the Majlis? Where is the rule of law when the Speaker suspends the Majlis and hides in the JSC expediting the reappointment of judges? Where are the courts to go to?
We need the public to understand the Constitution, and we need all duty-bearers to uphold the Constitution. I’m afraid half the members of the JSC do not understand the principles of democracy or the role of the JSC, or the mandate we have. Then there are a few who understand it very well but remain silent while all this goes on
JJ: The President recently nominated Supreme Court Judge Uz Ahmed Faiz Hussain as the new Chief Justice, and is awaiting Majlis approval. How likely is this to resolve the current situation, given the Majlis is currently suspended?
AV: Uz Ahmed Faiz Hussain is a well-respected man amongst the judges. I have never heard anybody question his independence or impartiality. He is a learned man and amongst all the politicking and hanky-panky going on, he has maintained his integrity.
But the Majlis has to appoint him and the Majlis may not even get that far – the Supreme Court has already declared itself permanent.
I’m telling you: this is big. What we are seeing is all interconnected – it is one big plot to try – in any way possible – to return power to the corrupt.
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