Comment: What do you call a lawless State?

On Tuesday the Maldives appointed a Supreme Court bench in one of the few displays of cross-party cooperation seen in parliament since the ratification of the 2008 Constitution.

But Raadhafathi, a Maldivian national currently working on a project to strengthen the justice sector of the Maldives, and with experience training judges and inspecting courts all over the country, claims the road to an experienced, impartial and capable judiciary will be long and arduous.

The Maldives is in a state of transition. A new Constitution, a new Supreme Court, a new President, multi-party systems and many other factors creating a crucial period for the judiciary as well as for the country as a whole.

I am writing this to highlight the justice sector of Maldives.

Since independence the Maldives has acceded or ratified the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination against Women (CEDAW), Convention Against Torture (CAT), Convention on the Rights of the Child (CRC) and Convention on the Rights of Persons with Disabilities (CRPD). The Maldives was officially awarded a seat in the UN Human Rights Council in Geneva in May 2010.

The Constitution adopted in 2008 provides for independence of the judiciary, creates new individual liberties, establishes judicial review and gives certain responsibilities relating to the judiciary to the Judicial Services Commission (JSC). These developments present challenges as well as opportunities for the judiciary.

The dynamic reforms of the past two years require that the judiciary transforms itself to ensure that it has the capacity to address the issues brought before it in the coming years. The Maldives is geographically unique in that it is comprised of 20 Atolls containing nearly 1200 islands, out of which 200 are inhabited. This presents numerous governmental challenges which judiciaries in other countries do not face.

During the past five months I have:

  • Been involved in the training of 18 Judges from the Malé courts and 23 Magistrates from the Island Courts on Human Rights and the Constitution;
  • Interviewed NGO’s, Human Rights Commission of the Maldives, Migrant Workers, Bangladesh Embassy, Indian High Commission, Department of Immigration and private lawyers.
  • Visited all the police stations, prisons and detention facilities in the Malé surrounds;
  • Interviewed prisoners and prison staff
  • Visited and interviewed drug rehabilitation facilities
  • Visited all the courts in Malé and interviewed judges and court staff including the [interim] Chief Justice of the Supreme Court
  • Visited Southern and Northern Atolls Courts and interviewed Magistrates, Atoll police commanders, Investigation officers, court staff, prosecutors and court users in the community.

It is evident there is an urgent need to increase the capacity of judges and the court staff to handle the number and complexity of the cases brought to the judiciary, in particular protecting rights enshrined in the Constitution. In addition, Human Rights is a new concept in Maldives and very few people poses the necessary skills and knowledge.

Major features and problems of the legal and judicial system operating in the Maldives

There are total of 208 judges/magistrates in Maldives. Although rights are defined and independent institutions exist to ensure rights are protected, the weakness of the current legal framework lies with the lack of trained professionals in the justice sector, in particular judges, magistrates, prosecutors and police.

98 percent of the legal profession in Maldives (including prosecutors, lawyers, judges, magistrates) are less than qualified to be in the legal profession. Most judges and magistrates have only completed secondary education, and they are not required to be lawyers.

Very few have completed undergraduate or post graduate degree from a western country. Most degrees are from Egypt or Saudi Arabia, and they are usually from unrelated fields. Some have received a Diploma in Sha’riah Law from Institutions established in Malé.

There is no common denominator in judicial training and experience. Some have learned in Arabic, some in Dhivehi, a few in English (the majority of the Judges I have met do not speak English to a serious degree).

The average age of judges at present is 28-32 years.

This situation gives rise to many problems such as reconciling Shari’ah law and the codified common law, as well as the attitudes of judges trained in the Shari’ah law and lawyers trained in common law traditions of the Commonwealth. In addition, the lack of laws governing legal procedure exacerbates the situation further, ensuring there is no consistency in their judgments or conduct of cases.

The judicial system is in considerable chaos. There are no Rules of Court, instead certain rules and regulations are found in more informal publications called ‘Court Circulars’.

In criminal cases, there is no formal onus of proof, and Judges can and do conduct cases any way they want. Every Judge does his or her cases differently and unpredictably.

State attorneys can appear in private legal cases and can be and are members of the Majlis. These arrangements are a direct breach of the separation of powers doctrine. This again demonstrates a failure to appreciate how a democracy and the separation of powers are intended to operate.

The right to a fair trial is a cornerstone of democratic societies. How a person is treated when accused of a crime provides a concrete demonstration of how far a state respects human rights. Unfortunately in the Maldives:

  • Courts assume guilt based on the prosecution case before the ‘trial’
  • A Russian national who only speaks Russian is provided an English Interpreter
  • Prosecution did not provide the documents filed to the accused. Prosecution stated “providing a copy to the accused is not included in the budget.”
  • If a woman submits an application for a divorce, the courts treat the woman with disrespect and 99 percent of the time, they are not granted a divorce regardless of evidence produced – even in domestic violence cases.
  • Prosecution takes too long to file a case, particularly in the islands.
  • Legal profession lacks basic advocacy skills
  • Majority of the legal profession are not competent. They are independent by law but not in practice. As for impartiality – the island courts in particular – this is not exercised due to the small community they live in. Island prosecutors often discuss matters with the magistrates. The prosecution is also allowed to go and spend time with the court staff, while the accused is waits outside in the waiting room.
  • Most judges do not know that public can attend hearings. Hence often those who attend are sent away. The other issue is lack of space in the tiny court rooms.
  • Accused not given an opportunity to cross-examine

Despite all this, the JSC, the independent body responsible for the judiciary, approved all judges to be appointed without term (tenure to retire at 70). If the JSC were to continue the way they have been conducting themselves, there is no hope to strengthen the judiciary of Maldives nor to protect rights enshrined in the Constitution.

The transitional period (Chapter 14 of the Constitution) ended on 7 August 2010.  While the Supreme Court has been appointed, unfortunately the judiciary remains in a state of disarray.

No one (including the executive, parliament and judiciary) knows the meaning of the term ‘separation of powers’, ‘what the law is’ nor even what ‘Human Rights’ means.

No one obeys or respects the legal system, and the Maldives legal system is oppressive and unjust. The entire situation contravenes basic tenets of the rule of law and requires urgent change. The concepts of enforceable natural justice, procedural regularity and due process are not known in Maldivian courts.

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Police investigate leaked audio clips

The Maldives Police Services has begun investigating the leaked audio clips of suspected telephone call conversations believed to be the voices of Independent MP Mohamed ‘Kutti’ Nasheed, People’s Alliance party (PA) leader and MP Abdulla Yameen Abdul Gayoom and Jumhoory Party (JP) leader and MP Gasim ‘Buruma’ Ibrahim, confirmed Press Secretary for the President, Mohamed Zuhair.

On July 4, three recordings of discussions between MPs referring to other MPs and officials, including a plan to cease work on the tax bill in the parliament, appeared on the internet and scandalised the Maldivian media.

Zuhair said he met with police officers this morning and that police informed him the investigation was progressing.

“The audio clips also raise issues of threats against the Anti-Corruption Commission (ACC),” Zuhair added.

A corruption case presented to parliament against former Auditor General Ibrahim Naeem was instrumental in ousting the AG in vote of no-confidence, days after he publicly demanded a financial audit of all current and former ministers.

Police Sub-Inspector Ahmed Shiyam said that police received the audio clips through the media and that they would be analysed and investigated.

“Police do not record the telephone conversations of people,” he claimed, but declined to provide further information.

Aishath Azima Shukoor, former Attorney General and a member of the legal team defending the detained MPs, noted that article 24 of the constitution promised “respect to personal communications” and that recording a personal telephone call was “unlawful according to the constitution, and that any evidence collected unlawfully cannot be presented to court as an evidence.”

“The audio clips would be inadmissible,” said Shukoor. “I do not believe that media can broadcast the audio clips either.”

Groups of pro-government demonstrators have been playing the clips through loudspeakers outside the court proceedings.

Dhivehi Rayyithunge Party (DRP) MP Ahmed Nihan recently told Minivan News that there was an MNDF officer who’s duty was to operate a telephone call recording machine.

“He records our telephone calls and handles it to (former) Defence minister Ameen Faisal,” said Nihan.

Dr Hassan Saeed, who is also a former Attorney General and member of the opposition leaders legal team, said he was busy and unable to comment to Minivan News at time of press.


Supreme Court hears Gasim’s appeal

The Supreme Court of the Maldives has concluded  the hearing of Jumhoory Party (JP) leader and MP Gasim ‘Buruma’ Ibrahim’s appeal to the High Court’s ruling that his house arrest be extended.

On July 3 the High Court, in response to an appeal filed by police concerning Gasim and People’s Alliance party leader MP Yameen Abdul Gayoom, extended their house arrest to 15 days.

The Criminal Court had earlier ruled their house arrest was to be for three days.

Chief Justice Abdulla Saeed was the Chief Judge at today’s hearing at the Supreme Court. Gasim’s legal team included former Attorney General Aishath Azima Shukoor, Leader of Dhivehi Qaumy Party and former Attorney General Dr Hassan Saeed and former Justice Minister Dr Mohamed Jameel.

Senior Assistant Public Prosecutor Dheebaanaz Fahmy, Assistant Public Prosecutor, Police Inspector Ahmed Jinah were among the eight members of the police legal team.

When judge asked police who reported the case, police Inspector Ahmed Jinah replied “the president’s office.”

Shukoor said that Gasim was misled and arrested illegally in an abuse of his rights, and that therefore extension of detention would also be unlawful.

“The Criminal Court judge ruled that to keep him under house arrest for three days and that police violated many articles of the consitution,” Shukoor claimed.

“As the case has now come this far, the police have not even once denied that they abused the right on arrest given under article 48(b),” Shukoor said. “Gasim Ibrahim was taken to the police station to clarify something and then police arrested him.”

Police in their defence said that they had the power to investigate crime, conserve evidence and prepare cases for disposition by the court under article 244(C) of the constitution.

“And under circumstances police can arrest someone without a court warrant,” said the lawyer. “Police have the right to arrest someone if the arresting officer observes the offence being committed, or has reasonable and probable grounds or evidence to believe the person has committed an offence or is about to commit an offence.”

He claimed that the constitution did not preclude police from arresting a MP who is charged on a criminal offence.

“If Gasim Ibrahim was under house arrest and could attend parliament it could potentially disrupt the evidence,” he said. “We request the Chief of Justice to transfer Gasim from house arrest to police custody.”

Chief of Justice Abdulla Saeed queried the lawyer as to the seriousness of the case.

“Gasim is accused of bribery, and we need time to investigate the case in order prove it,” the police lawyer answered. “He is also accused of treason, and that affects the whole of society.”

When judge queried whether the lawyer was concerned that Gasim might flee, and he replied that it was “difficult to say.”

Meanwhile, Dr Hassan Saeed presented a list of unanswered questions by the police, and police requested the judge to give them time to research the case.

Saeed also observed that the criminal court judge had ruled that police violated many articles of the constitution in arresting Gasim.


Maldivian woman pleads not guilty to murder charges in fatal stabbing case

The Criminal Court has started the trial of Mariyam Nazaha, 21, of Henveiru Baikandige, less than 24 hours after she allegedly stabbed her ex-husband to death Tuesday afternoon.

State prosecutor Dheebaanaz Fahmy told the court that Nazaha bought a knife around two months ago and hid it in her bedroom to murder Hassan Shahid, 34, of Machangoalhi Edhuruge. She also said Nazaha had stabbed him in the back at her house while he was leaning towards a TV rack.

Shahid died while undergoing treatment for injuries sustained from the alleged attack, and murder charges should be laid against her, the prosecutor said.

When the judge asked whether she understood the charges, Nazaha replied “yes” but said she pleaded not guilty.

The prosecutor noted that the charges were based on Nazaha’s confession in the investigation and added that the police were collecting evidence. She sought a revision of the charges.

The defendant’s lawyer Ahmed Abdulla Afeef said he would respond to the charges after reviewing the documents.


JSC decision must be investigated by Parliament, urges member

The Judicial Service Commission (JSC) decided last week to reappoint all current judges, regardless of whether they hold a previous conviction for a crime or a criminal breach of trust or bribery.

After the decision was made, member of the commission Aishath Velazinee spoke out against it, writing in her blog, “it is indeed a sad state of affairs, and an insult to all those honest judges whose integrity and good name is compromised by today’s decision.”

Today, Velazinee told Minivan News it might seem like “one mad woman screaming,” but insisted “the Majlis has to attend to this and demand a public inquiry. I can only bring it to public attention.”

She said “Parliament has failed to hold the JSC accountable,” and said she still “firmly believes” the composition of the commission presents a conflict of interest, leading to a vote that ultimately contradicting the purpose of the commission.

The JSC was created to reform the judiciary and investigate all judges, “and was asked to evaluate every single sitting judge appointed prior to the 2008 Constitution,” Velazinee said.

According to the Constitution, the nine-member commission must comprise of the speaker of parliament; an MP and a member of the public both appointed by Parliament; three judges, one from the Supreme Court, High Court and the trial courts; a private lawyer elected among licensed lawyers; the Chair of the Civil Service Commission (CSC); a person appointed by the President; and the Attorney General.

“The JSC was not functioning under the law of the Constitution, and not acting in the interest of the public,” said Velazinee, who is the President’s member on the Commission.

She suggested it be made up of a “cross-section of people in this country, who are educated and have an understanding of democracy.”

Last week’s decision was won by majority, with five votes in favour.

“They have decided Article 285 is symbolic,” Velazinee said, “it is a very simplistic view of democracy.”

Article 285 stipulates that the JSC shall determine before August 7, 2010 whether or not judges on the bench posses the qualifications specified by the Constitution.

Currently, there are seven judges found guilty of a criminal breach of trust; five with allegations of a criminal breach of trust; two are being prosecuted for an alleged breach of trust; one is on trial for sexual misconduct; two have been found guilty of sexual misconduct; one was found guilty for an offence which had a prescribed punishment in Islam; and another judge who has been accused of a criminal breach of trust, and found guilty of sexual misconduct.

That is a total of nineteen judges with a criminal history, most of which have not been tried in a court of law.

Velazinee said she was not given an opportunity to discuss or issue alternative proposals, even though she had been trying to bring attention to her argument for months. “Even the Superior Court Justice decided it was not worthy,” she added.

Parliament’s power

Parliament has the power to reverse or alter the JSC’s decision, “but now they’re in recess, too,” Velazinee said, noting probably nothing much can be done until the Majlis reconvenes in mid-June.

Adding to Velazinee’s concern, the JSC has only until 7 August of this year to submit any reforms and all cases on the judges. “And probably not even until the deadline,” she added.

She said although the president “would normally have a say” in this decision, “in the current political context, the president getting involved could do more harm.”

Press Secretary for the President’s Office, Mohamed Zuhair, said “there are legalities to be considered” because “the law does stipulate a clause on limitations,” which says that a judge, or an MP or a citizen, “can be absolved of a crime after five years” of being convicted.

He added “judges should be examples” and new regulations and legislation should be considered.

Zuhair said President Mohamed Nasheed “will adhere to the Constitution,” and there is “nothing to do until Parliament comes back.”

But, he added, a parliamentary committee could look into the issue extraordinarily, just like the National Security Committee is having a sitting this Wednesday.

Judges Abdulla Mohamed and Abdulla Didi did not respond to Minivan News at time of press.

Attorney General Husnu Suood did not respond, either.


PG’s office still has not received Criminal Court report on Adam Naseer

The Prosecutor General’s office has said the Criminal Court still has not provided them with the reports on the verdict of Adam Naseer, labelled one of the country’s top six drug dealers, reports Miadhu.

Naseer was arrested in July 2009 and acquitted by the Criminal Court in February 2010 due to lack of evidence.

Following his acquittal, Naseer sued the Maldives Police Service (MPS) for holding his money and freezing his bank accounts. There were more than Rf 5 million in cash.

The PG’s office appealed to the High Court to keep his assets frozen until the appeal on his criminal charges was completed by the High Court.

The PG’s office was expecting the report from the Criminal Court to continue with the appeal, as they could not proceed without it.

In March 2010, Deputy Prosecutor General Hussein Shammem told Minivan News “we are still waiting on the full report from the Criminal Court, hopefully [we will get it] by the end of this week” he said. “We still need to get things started.”

Shameem told Miadhu his office had asked the Criminal Court twice for the reports but still had not received them.


MDP activist sentenced for contempt of court

A well-known activist of the Maldivian Democratic Party (MDP), Hussein Ilham of Happy Side in Galolhu, and his brother Abdulla Irushad, have been sentenced for contempt of court by Judge Aisha Shujoon Mohamed.

Ilham was sentenced for three months while  his brother received one month under Article 88(a) of the Penal Code for disrespecting the court.

The judge said that Hussein Ilham and Abdulla Irushad disrespected the court during an ongoing case involving real estate, and that there were people who had entered the court without being presented.

The verdict does not mention whether they both interrupted or if they were presented to the court.

Chairperson for MDP Mariya Ahmed Didi did not respond to Minivan News at time of press.

Vice president of opposition Dhivehi Rayyithunge Party (DRP) Umar Naseer said that he was not surprised to hear that an MDP activist was sentenced.

”I am surprised to hear that they have been free all this time,” Umar said.

He said the judicial system was a very independent system and claimed ”MDP is trying to hijack it.”

He also accused all MDP members of”drinking alcohol and smoking marijuana.”

Press Secretary for the President’s Office Mohamed Zuhair said he was sorry to hear the news, but said he did not believe that it would bring the party’s reputation into disrepute.

”The judiciary system needs to be reformed,” he said, ”it needs more qualified and disciplined judges.”


Police send case against DRP MP Ali Waheed to Prosecutor General

Police have sent several cases involving  Dhivehi Rayyithunge Party (DRP) Vice President and MP Ali Waheed to the Prosecutor General’s office.

Deputy Prosecutor General Ahmed Shameem confirmed the office had received several criminal cases concerning Waheed, and would decide in a week whether to take the cases to court.

“There is a process in the Constitution [that if a MP is found guilty of a criminal offence] it is punishable by 12 months in prison. He would be automatically removed from Parliament,” Shameem said.

Police Sub Inspector Ahmed Shiyam said one of the cases concerned Waheed’s claims that police helped protesters during a disturbance outside the president’s residence and MNDF headquarters in January.

He said other cases against Waheed would also be sent to the PG as soon as the police finished their investigations.

Meanwhile Waheed said he was “very confident” that he had not done anything against the law.

”It’s all President Mohamed Nasheed’s doings,” Waheed claimed. ”He is afraid of me.”

He added that he hoped the cases would be sent to the courts as soon as possible.

”They take me to police custody like a medicine they take twice daily,” he said, ”so its difficult to identify which cases they have sent to PG. Ask President Nasheed – I have no idea.”

He maintained that the police decision to detain DRP leaders in during last Thursday’s protests was “politically motivated.”

”That night when they took me Dhoonidhoo I was not doing anything,” he said. ”I was trying to protect our people from being attacked by Maldivian Democratic Party (MDP)  activists and I was standing in front of DRP office as I am a leader of the party.”