Tag: courts

Arbitration tribunal in GMR hearing agrees separate assessment of liability

The GMR-Malaysia Airports Holdings Berhad (GMR-MAHB) consortium has won an early legal skirmish in the Singapore-based arbitration hearings into its US$1.4 billion compensation claim for early termination of its contract by the Maldivian government.

GMR-MAHB won a concession agreement to manage and upgrade Ibrahim Nasir International Airport (INIA) under the Maldivian Democratic Party (MDP) administration, which was ousted from power on 7 February 2012 amid protests and a police mutiny.

The new government, comprising a coalition of former opposition parties under current President Mohamed Waheed, declared in late 2012 that GMR-MAHB’s agreement was ‘void ab initio’ (invalid from the outset) and gave the developer seven days’ notice to leave the country.

The US$511 million agreement was at the time the country’s single largest foreign investment. According to the government’s own engineering assessment, the development was 25 percent complete at the time GMR-MAHB was evicted.

The consortium has since lodged a US$1.4 billion claim with the Singapore Court of Arbitration, an amount eclipsing the Maldives’ annual state budget. The government is being represented by a Singapore National University Professor M. Sonarajam, while GMR-MAHB is being represented by former Chief Justice of the UK, Lord Nicholas Edison Phillips. The arbitrator is retired senior UK Judge, Lord Leonard Hubert Hoffman.

Latest hearings

During the second round of procedural hearings earlier this month, the tribunal acceded to GMR-MAHB’s request to split the proceedings into firstly determining liability, before quantifying the amount of compensation to be paid separately.

Minivan News understands that the tribunal agreed this would simplify examination and quantification of what was effectively three claims being made in the hearing: GMR-MAHB’s claim for compensation as per the termination clause of its concession agreement, its parallel claim for loss of profits over the lifespan of the agreement due to its termination, and the government’s counter-claim for restitution should the tribunal decide in its favour.

According to a source familiar with the matter, the government’s legal team opposed splitting the proceedings in such a fashion as they had not had access to GMR-MAHB’s documentation, and would therefore be unable to assess the scope of the claim at stake.

Minivan News understands that the tribunal rejected the government’s position on the grounds that it would be quicker, fairer and less costly to resolve the case by first determining liability for each of the claims, and then quantifying these.

Separate development paths

Local media has meanwhile reported that Maldives Airports Company Limited (MACL), which took over management of the airport following the government’s eviction of the foreign investor, has sought a US$150 million loan from Thailand’s Exim Bank for the construction of a new runway.

Sun Online reported MACL Managing Director Bandhu Saleem as stating that MACL’s three-year development project, involving reclamation of land for the runway and development of a new terminal, would cost a total of US$380 million.

“The terminal is being designed. The funding will be available in the next six months or so. We are planning to start the construction of the terminal as soon as the runway is completed,” Saleem reportedly told Sun.

Future development of the airport and fallout from the arbitration proceedings is likely to be affected by the upcoming election.

Of the four presidential candidates contesting the presidential election on September 7, both resort tycoon Gasim Ibrahim and incumbent President Mohamed Waheed have taken strongly nationalistic positions on MACL retaining full control (and responsibility for financing) the airport’s development.

Gasim’s running mate, Dr Hassan Saeed, was an early and emphatic proponent of GMR-MAHB’s eviction, previously issued a pamphlet calling for the cancellation of the agreement and likening it to “taking bitter medicine to cure a disease” or “amputating an organ to stop the spread of cancer.”

The Progressive Party of the Maldives (PPM), a major opponent of the MDP’s government’s signing of the concession agreement, has in recent months appeared to have taken a more conciliatory position, blaming the fallout of the agreement’s sudden cancellation on President Waheed.

“We told the next President Mr Waheed that he should hold discussions with the GMR Group and the Indian government to arrive at an acceptable solution, after which the government was free to act on its own,” PPM head and former Maldivian President Maumoon Abdul Gayoom told Indian media in June. “Unfortunately, this was not done and suddenly there was this unhappy ending.”

The MDP has meanwhile signalled that if elected, it intends to negotiate the return of the developer. Construction of the new terminal was originally pegged for completion by 2014.

“The coup government nullified the agreement, and we will see how best to rectify it,” former Economic Development Minister Mahmoud Razee told Minivan News.

“If need be we will go to the Majlis. Our objective is to get work restarted as quickly as possible,” he said.

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High Court upholds seven year prison sentence for throwing rocks at VTV

The High Court has upheld a Criminal Court ruling sentencing a man found guilty of throwing stones at private broadcaster VTV to seven years imprisonment.

Eight men including Mohamed Hameed were given seven year sentences for throwing stones outside the station during anti-government protests on March 19, 2012.

The demonstrators were protesting the new President Dr Mohamed Waheed from giving the opening address to the first session of parliament, following his controversial arrival to power the previous month.

In addition to Hameed, the Criminal Court also sentenced Ismail Hammaadh of Maduvvari in Raa Atoll, Ahmed Hameeed and Hussein Hameed of Alifushi in Raa Atoll, Ahmed Naeem of Henveiru Ladhumaageaage, Hussein Shifau Jameel of Maafannu Nooruzeyru, Aanim Hassan of Ferishoo in North Ali Atoll, Ahmed Muheen of Galolhu Haalam and Mohamed Hameed for vandalising the channel.

The building, as well as the soldiers guarding its entrance on Sosun Magu, came under attack as police tear gas forced the protesters south, past the building from the police barricades near to the parliament building.

Appealing the sentence, Hameed argued that it was extraordinary practice for the court to impose the maximum possible sentence on a first time offender with no criminal record.

However the High Court, noting that the sentence was three to seven years, deferred to the discretion of the Criminal Court judge.

VTV is owned by MP Gasim Ibrahim, a resort tycoon, presidential candidate and member of the Judicial Services Commission (JSC) tasked with disciplining the judiciary.

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Comment: Courts now more a source of comedy than justice

In May 2013, the report presented to the UN Human Rights Council by the Special Rapporteur on the Independence of Judges and Lawyers made critical observations on the Maldives’ state and current constitutional crisis.

Ms Gabriela Knaul observed, among other things, two issues that, in my opinion, negate any belief in the Maldives as a democratic State respecting rule of law, or even as a so-called infant democracy intent on building a democratic government and a democratic culture.

She noted; (1) The “concept of independence of the judiciary has been misconstrued and misinterpreted in the Maldives, including among judicial actors”; and (2) The “People’s Majlis should bear in mind how their actions or inaction affects the establishment of the rule of law.”

Can there possibly be a more damning observation to conclude that the Maldives State has failed? Can there be a more damning observation to declare that the Maldives State does not hold legitimacy under its’ own Constitution? Or, in fact, that the events of February 7, 2012 were the end result of a long drawn struggle, and the eventual kill of the Constitution?

The responses of the State to the UNSR report is further incriminating.

The Government, instead of being alarmed or attempting to inquire or redress as may be expected of a responsible State, pointed the finger at Ms Knaul, inferring the report “undermined the country’s sovereignty and legal jurisdiction”.

How it undermines the legal jurisdiction is not quite understood, and it appears the Government is referring to Ms Knaul’s interpretations, perhaps claiming it a sovereign right, the right to interpret its laws independently, independent of established international law, democratic principles and standards?

The Parliament saw little of concern in the report. Government aligned MPs had no initiative and opposition Maldivian Democratic Party (MDP) overlooked the fundamental questions on the legitimacy of the Courts, the breach of trust by judge, Court and the Judicial Service Commission, instead focusing on subsidiary issues: Hulhumale’ Magistrate Court and the political trial of President Nasheed.

The corruption of the judiciary, impunity of the JSC and its constitutional breaches are matters the Parliament has been unable to address, the real struggle being within the Parliament itself, as conflict of interest interferes in MP duties.

Presidential candidate, Jumhooree Party (JP) leader, MP and sitting JSC member Gasim Ibrahim, during a rally soon after the UNSR’s visit to the Maldives in February this year, went as far as to call Ms Knaul an ignorant busybody – “just like that Velezinee” – who does not understand the Maldives is a sovereign country and has the right to define and interpret its own Constitution and act free of foreign influence.

He had a lot more to say, suggesting the UNSR was either charmed or bought into repeating a tale the majority do not agree with!

The JSC itself too found the UNSR had not told the tale they had to tell. The same for the Supreme Court, which has previously expressed the opinion that they are not bound by international human rights covenants the State is a Party to.

Today, the Courts in the Maldives are more a source of comedy than justice, ridiculed rather than respected, and the subject of much discussion on the widely used social media network as “news” of judges, Courts and JSC make frequent headlines on local media.

The most recent scandal to hit the headlines, and rise to international news too, is the blackmail of a Supreme Court “Justice” using a sex tape of the judge in a compromising position.

The police caught the blackmailer red-handed. He turned out to be Ahmed Faiz, an Executive Committee member of sitting President Dr Mohamed Waheed’s Gaumee Ihthihaad Party (GIP).

Ironically, Faiz had been dismissed from Dr Waheed’s government himself following an earlier leaked audio clip in which Faiz was heard telling some friends all about how the February 7, 2012 coup that was not was really a coup had been carried by Faiz on behalf of Dr Waheed.

I myself was ambushed by the same Faiz in a café a few weeks after the tape leak and he told me a very long story where he said Dr Waheed had dismissed him only from an honorary position he held without pay, that it was “just for show” to pacify the public, and that he was not dismissed from his real paid job!

Faiz also confided that he’d been called to meet President Waheed where all was explained to Faiz and he was reassured Waheed was only taking a superficial action to end pressure from others. Faiz owned up to it being him on the recording, alleged that it was the Progressive Party of Maldives (PPM) of former President Gayoom behind the leak of his conversation, and named a PPM activist as the one responsible.

It must be said, Faiz is not a person I had met in person or spoken a word to before this chance meeting, and I only “knew” him from Facebook where he had harassed me relentlessly (2010-11) without reason or argument until I finally blocked him.

Since the leaked sex tape, another “tape” of another friendly chat has been made public. In this spy camera recording, Supreme Court Justice Ali Hameed, who is alleged to be the subject in the exposed sex tape, and Mohamed Saeed, a local businessman from Ali Hameed’s native Addu Atoll, are heard to discuss the politics of the judiciary, and a mention of a possible murder is also heard.

If Ali Hameed as heard on the tape is to be believed, the judiciary is in cohort with the politicians backing the coup, and are now at the receiving end of the political scuffles within the “unity government” as the politicians realign in a bid to take over government in the scheduled September 7, 2013 elections.

The Supreme Court remains silent. So does the Judicial Service Commission. The Parliament, instead of focusing on holding the State accountable, has taken upon them the role of attacking or defending the judge and Courts.

Considering that “the Supreme Court has been deciding on the constitutionality of laws ex-officio, without following appropriate examination procedures, under the understanding that they are the supreme authority for the interpretation of the Constitution,” as the UNSR Ms Knaul noted, and that the checks and balances do not function, it seems the scramble now is to re-conquer the Supreme Court.

The sitting “Judges” remain sitting ducks, without will or agency to stand up independently for the independence of judges, and to protect their own good names tarnished in the political struggle to control or free the judiciary.

Where the President Maumoon Abdul Gayoom had, for 30 years up to 2008, “the supreme executive and judicial authority” and the culture developed therein, it is no surprise that there is little understanding or identification of real issues by the masses.

Worrying is the continued misreading by the politicians and the miseducation of the public.

Aishath Velezinee (@Velezinee on twitter) is an independent democracy activist and writer. She was the Editor of Adduvas Weekly 2005-07 and served on the Maldives’ Judicial Service Commission (2009-11). She claims the Commission she sat on breached constitution in transition; and advocates for redress of Article 285, and a full overhaul of the judiciary as a necessary step for democracy consolidation.

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]

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Comment: The private eye?

This is the second of a series of articles as I attempt to unpack the Naaz Report, Access to Justice in the Maldives: Through the Eyes of a Colourless Lens published in May 2013.

Part one of Velezinee’s critique of the Access to Justice report is available here.

1. Naaz was a warden of Vice President Waheed Deen who taught and groomed her. He sponsored her study in Australia where she read Law, and lived and worked in Australia before returning home in late 2009.

2. I was first introduced to Naaz in 2009 by a mutual friend, a judge, who was a school friend of Naaz, and my closest friend at the time. As I understood, Naaz had been away for a long period, returned to the Maldives for a “break year,” and was excited by the changes she was seeing in the Maldives. She wanted to contribute to the nation with her knowledge and experience, and at the same time build her CV. Maldives lacks people of the knowledge, experience, exposure and grooming Naaz has, and she could help fill the gap. Naaz was living in Bandos Island Resort, courtesy of VP Deen, and was exploring opportunities. It was an exciting time.

3. She met with the then Vice President Dr Mohamed Waheed by appointment to introduce herself, and express her interest, and met others whom she knew from earlier, looking for a way to contribute.  I was aware of the issues in child protection and the lack of expertise in law or human rights in the then Department of Gender and Family Protection (DGFPS) and thought Naaz could contribute much to strengthening the child protection system, and encouraged her to take up the challenge.

4. In the end, Naaz joined the UNDP office in Male as a Project Director to lead the Access to Justice project, an ongoing UN program with the government.  With the UNDP, Naaz had privileged access to all institutions that few others had.

5. The author’s introduction in the publication, Access to Justice in the Maldives: Through the Eyes of a Colourless Lens (May, 2013) reads somewhat different.

6. In it she informs the reader she was the “Protecting Human Rights and Access to Justice Project” Program Specialist as well as the Project Manager with UNDP Maldives”, and that she is “a practicing lawyer in Australia” who has been “in the legal field for over 12 years”. All facts.

The “framing”, however, is misleading. It gives the reader the impression that the author is an Australian lawyer practicing in Australia, who happened to be in the Maldives working with the UN between 2010-12. A Maldivian would have “interests”, but what interests, as such, would an Australian have in rewriting a narrative? The framing, thus, gives a false impression of author as standing outside.

7. Second, the tag “Lead Researcher and Author: Naaz Aminath (LLB, GDLP, LLM)” implies the report is the work of a team. This too is misleading. There is no research team mentioned elsewhere in the report or credits, nor is there a reference list or bibliography included in the report.

8. Copy editing is credited to Maaeesha Saeed and Aishath Rizna, who was the Registrar at the Interim Supreme Court during the transition period, and is currently working for the Department of Judicial Administration.

10. Could the author be deliberately misleading the reader? Are these all innocent omissions and/or typos? Maybe. Or maybe not. What is the purpose of the Naaz Report?  What influence could it have on the political processes in the Maldives today? Everything, depending on the winners in the presidential elections scheduled for September 7, 2013.

11. Naaz’s long standing patron, Waheed Deen, a businessman, resort owner, and society-man of wide social contacts known for his philanthropy and gift-giving, is the current Vice President, handpicked by Dr Waheed following the February 7, 2012 coup d’état. And the fact is, with all the plotting and re-plotting, it was “on a judges’ back” that Dr Waheed rose to office.

What went on in the JSC during 2009 and 2010 is clearly linked to events of January and February 2012, as I tried explaining to the Commission of National Inquiry (CoNI) in my testimony.

So, what does Naaz say?

1. On “access to justice”, Naaz argues that the urban-rural disparity, the “deficiency in development and lack of access to justice creates inequality and injustice while giving an advantage to politicians to ‘buy’ their ideas rather than sell it.”  Access to Justice as a fundamental right, and the broader definitions of it, and the constitutional guarantees and requirements are not recognised.

2. There is no mention of the crucial role of an independent judiciary in democratic government, or necessity of independent judges and public trust in the justice system to protect human rights and provide access to justice.

3. The fact that a UNDP Study (2000) of governance found the judiciary to be “the weakest link” in transitional constitutional democracies; and that Article 285 of the Maldives’ Constitution provided exactly for this challenge, is not recognized by Naaz.

This, despite her position as the Project Director of the Access to Justice project with the UNDP in Male’ during the Maldives’ transition from a constitutional autocracy to a constitutional democracy.

4. The Maldives, I maintain, lost an independent judiciary and the independence of judges through the high treason of the Judicial Service Commission (JSC), on which I sat a member under oath.

The JSC nullified Article 285 unconstitutionally in an elaborate game of lies, deception and drama. The state refused to officially acknowledge the dispute in the JSC, or the alleged treason and constitution breach, with the Majlis majority unashamedly covering up the hijack of the judiciary in what I have since called the Silent Coup.

5. Post coup, the JSC has become exposed as it never was in 2010. The frequent public appearances of the JSC, especially the Chair, Supreme Court justice Adam Mohamed Abdulla, has revealed more about the Commission than any other intervention could.

Concurrently, renewed interest in transitional matters, and inquiries into the JSC and its functioning by independent experts have exposed the secrets of JSC: the JSC does not act to uphold the Constitution, is highly politicised, and misconstrues constitutional concepts and law for its own ends and the benefit of judges. In short, the JSC acts against the Constitution and the State.

6. The latest report on the Maldives’ judiciary and access to justice by the UN Special Rapporteur on the Independence of Lawyers and Judges, Gabriella Knaul, provides a substantive summary of the challenges Maldives faces, and highlights where a UN-led Access to Justice program must focus.

7. On the ground in 2010, Naaz was a sympathetic ear to my complaints against the JSC, and my grievances against the Parliament for their failure to hold the JSC accountable, and to ensure Article 285 was fulfilled meaningfully. I was advocating for substantive and meaningful action on Article 285 aimed at judicial reform as envisaged by the Constitution, and Naaz agreed with my interpretation and opinion.

8. Naaz always left with me a standing offer of assistance, which was much appreciated, as I do not have a background in law. In retrospect, that assistance never materialised, as Naaz was occupied when and where I did request help. My requests mainly were for assistance in reading through some of my drafts, and in translating to English and/or preparing briefs in English to share some information of the ongoing dispute, and the dozens of pages I was putting out in Dhivehi at the time.

9. With all attempts to get an inquiry into Article 285 and the JSCs’ constitution breach blocked, the judges took their infamous “symbolic” oath, en masse, on August 4, 2010. No one, neither the state institutions nor the media, questioned the oath or its legitimacy despite what was witnessed live and the questions it raised. It was the public left with unanswered questions.

10. The UN was satisfied. Naaz was on the ground, and was active in the efforts that followed to legitimise the judiciary, appointed unconstitutionally and without due process,  by the will of the majority. No one mentioned rule of law. Not until 2012.

Aishath Velezinee (@Velezinee on twitter) is an independent democracy activist and writer. She was the Editor of Adduvas Weekly 2005-07 and served on the Maldives’ Judicial Service Commission (2009-11). She claims the Commission she sat on breached constitution in transition; and advocates for redress of Article 285, and a full overhaul of the judiciary as a necessary step for democracy consolidation.

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]

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A justice system in crisis: UN Special Rapporteur’s report

UN Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, has expressed “deep concern” over the failure of the judicial system to address “serious violations of human rights” during the Maldives’ 30 year dictatorship, warning of “more instability and unrest” should this continue to be neglected.

“It is indeed difficult to understand why one former President is being tried for an act he took outside of his prerogative, while another has not had to answer for any of the alleged human rights violations documented over the years,” wrote Knaul, in her final report to the UN Human Rights Council following her Maldives mission in February 2013.

The report is a comprehensive overview of the state of the Maldivian judiciary and its watchdog body, the Judicial Services Commission (JSC). Knaul examines the judiciary’s handling of the trial of former President Nasheed, the controversial reappointment of unqualified judges in 2010, and the politicisation of the JSC.

Knaul also examines parliament’s failure to pass critical pieces of legislation needed for the proper functioning of the judiciary and “legal certainty”, as well as raises serious concerns about an impending budget catastrophe facing the judicial system.

“The immediate implications of the budget cuts on the judiciary are appalling. For instance, the Department of Judicial Administration only has funds to pay staff salaries until November 2013 and it had to cancel training this year,” Knaul notes.

“The Civil Court reported that it would not have sufficient funds to pay its staff salaries after October 2013; furthermore, existing budgetary resources would not be sufficient to pay for utilities and facilities after June 2013,” she adds.

The Nasheed trial

Former President Mohamed Nasheed is currently facing criminal charges in the Hulhumale’ Magistrate Court for his detention of the Criminal Court’s Chief Judge, Abdulla Mohamed, days prior to the controversial transfer of power in February 2012.

“Judge Abdulla had allegedly shielded a number of powerful politicians in corruption cases by refusing to issue orders to investigate, and many complaints had been made regarding his conduct and supposed lack of ethics,” Knaul outlined.

“The Judicial Service Commission had completed an investigation on him in November 2011, holding him guilty of misconduct. This decision was appealed to the Civil Court, which ordered that the Judicial Service Commission’s complaint procedure be suspended.

“Although the Commission appealed the Civil Court’s ruling, Judge Abdulla was allowed to continue in his functions,” she added.

The opposition Maldivian Democratic Party (MDP) maintain the case against Nasheed is a politically-motivated attempt to convict and bar him from the September 7 presidential elections, while the new government has emphasised the judiciary’s independence and insisted on its policy of non-interference.

Following Knaul’s visit and her departure statement, several members of the JSC have also challenged the commission’s creation of the Hulhumale’ Court, and its appointment of the bench. The commission includes several of Nasheed’s direct political rivals, including a rival presidential candidate, resort tycoon, Jumhoree Party (JP) Leader and MP Gasim Ibrahim.

“The trial of the former President raises serious concerns regarding the fairness of proceedings,” Knaul notes, questioning the constitutionality of the Hulhumale’ Court and the appointment of the three-member panel of judges, “which seems to have been set up in an arbitrary manner, without following procedures set by law.”

“According to the law, the Prosecutor General’s office should have filed the case of Mr Nasheed with the Criminal Court. While the concerns of the Prosecutor General’s office regarding the evident conflict of interests in this case are understandable, since Judge Abdulla sits in this court, it is not for the Prosecutor to decide if a judge is impartial or not,” stated Knaul.

“The Prosecutor should act according to the law when filing a case, as it is the duty of judges to recuse themselves if they cannot be impartial in a particular case,” she explained.

“All allegations of unfair trial and lack of due process in Mr Nasheed’s case need to be promptly investigated, including the claims that the trial is being sped up to prevent Mr Nasheed’s participation in the 2013 elections,” she added.

Knaul noted a decision by the Supreme Court to declare the Hulhumale’ Magistrate Court as legitimate after the Commission filed a case with it in 2012.

“The Special Rapporteur was informed that the judge of the Supreme Court who cast the deciding vote in this case also sits as a member of the Judicial Services Commission, whose decision to establish the Hulhumalé court as a magistrates court was under review,” the report noted.

Politicisation of the JSC

Knaul observed that the JSC had a “complicated” relationship with the judiciary, given that the commission “considers that it has exclusive jurisdiction over all complaints against judges, including over criminal allegations, while the Prosecutor General understands that the criminal investigation agencies have the competence to investigate criminal conducts by anyone.”

Knaul underlined that “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.”

The special rapporteur stated that there was near unanimous consensus during her visit that the composition of the JSC – which draws members from sources outside the judiciary, such as parliament, the civil service commission and others – was “inadequate and politicised”. This complaint was first highlighted in a report by the International Committee of Jurists (ICJ) in 2010.

“Because of this politicisation, the commission has allegedly been subjected to all sorts of external influence and has consequently been unable to function properly,” said Knaul.

State of the courts

Conflicts of interest and the resulting impact on judges’ impartiality was also a concern, noted Knaul.

“It seems that judges, and other actors of the State, do not want to fully acknowledge and understand this concept, leading to the dangerous perception from the public that the justice system is politicised and even corrupted,” she said.

Knaul also expressed “shock to hear that many members of the judiciary, including in the Supreme Court, hold memberships in political parties.”

The Supreme Court, she noted, has meanwhile been “deciding on the constitutionality of laws ex-officio, without following appropriate examination procedures, under the understanding that they are the supreme authority for the interpretation of the Constitution.”

The relationship between prosecutors and the judiciary was also difficult, Knaul noted, expressing “serious concern” that some courts “use the threat of contempt of court and disbarment to impose their decisions and superiority over prosecutors.”

“The lack of a centralised case-management system does not facilitate their tasks either. In some places, such as Addu City, one prosecutor covers four courts and is often called to different hearings at the same time,” she observed.

“Symbolic” reappointment of judges

Two months prior to the end of the constitution’s transitional period and the deadline for the appointment of new judges according to moral and professional criteria – article 285 – the interim Supreme Court informed President Nasheed “that all its members would permanently remain on the bench.”

This action, Knaul noted, had “no legal or constitutional basis.”

“The five judges who had been sitting on the transitional bench were appointed to the seven-member permanent bench, leaving many with the perception that the Supreme Court was appointed in a politicised manner,” she noted.

The rest of the courts followed suit several months later at the conclusion of the interim period, with the Commission “opting for interpreting article 285 of the Constitution in a rather symbolic way and [not scrutinising] judges’ qualifications thoroughly.”

“For instance,” Knaul noted, “not all criminal allegations pending against judges were investigated. This resulted in a seemingly rushed reappointment of all sitting judges but six, which in the opinion of many interlocutors corrupted the spirit of the constitutional transitional provision.”

While the 2008 Constitution had “completely overturned the structure of the judiciary”, at the conclusion of the JSC’s work on article 285, “the same people who were in place and in charge, conditioned under a system of patronage, remained in their positions.”

As a result, “many believe that some judges who are currently sitting lack the proper education and training […] A simple judicial certificate, obtained through part-time studies, is the only educational requirement to become a judge.”

Way forward

Knaul’s report contains four pages of recommendations for judicial reform, starting with a “constitutional review” of the composition of the Judicial Services Commission – the same conclusion reached by the ICJ in 2010.

“The Maldives finds itself at a difficult crossroad, where the democratic transition is being tested, while remnants of its authoritarian past are still hovering,” Knaul observed, stating that the power struggle she witnessed during her visit had “serious implications on the effective realisation of the rule of law in the Maldives.”

Among many other recommendations, Knaul called on the government to show “strong and nonpartisan leadership”, by pushing for “constructive dialogue aimed at establishing clear priorities for the country, the adoption of necessary core legislation, and policy measures to consolidate the democracy. Such leadership should be guided by the Maldives’ obligations under international human rights law, which provide for a sound and sustainable foundation for democracy.”

She also noted that “the delicate issue of accountability for past human rights violations also needs to be addressed.”

Read the full report

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Government appoints attorney general as acting human rights minister

Attorney General (AG) Azima Shukoor has been appointed as Acting Minister of Gender, Family and Human Rights, the President’s Office has announced.

Shukoor’s appointment comes at a time when the government has committed itself to review laws it has previously claimed discriminate against – and in some cases criminalise –  women and minors believed to be the victims of sexual abuse.

President’s Office Media Secretary Masood Imad declined to speculate on the reason for reappointing the role of acting gender minister, stating only that there was “not much time” and limited resources at the government’s disposal to “get its house in order”.

Masood told Minivan News last month that the Maldives had experienced a number of similar criminal cases of late where young women had been victimised and punished by authorities – a situation he said the government was looking to prevent.

“We are reviewing this right now and if we have to go to the extent of changing existing laws then we would look to do this,” he said.

The Gender Ministry and the Ministry of Islamic Affairs were among the state bodies requested to be part of any potential review, Masood has previously claimed.

Such commitments were made as authorities come under intense scrutiny from local and international civil society organisations following global media coverage of the trial and conviction of a 15 year-old girl on the island of Feydhoo in Shaviyani Atoll for fornication.

In a separate criminal case, the same 15 year-old girl has been identified as a victim of child abuse after giving birth to a baby later discovered last year buried in the outdoor shower area of her home.

Her stepfather was later charged with child sexual abuse, possession of pornographic materials and committing premeditated murder.

Azima Shukoor was not responding to calls from Minivan News at time of press.

Previous ministers

The acting gender minister position has previously been filled by Minister of Environment and Energy Dr Mariyam Shakeela.

Dr Shakeela was appointed as acting minister on November 21 last year as a replacement for Dhiyana Saeed, who was dismissed from the role for acting in a manner the President’s Office has previously said was not suited for a minister.

Dhiyana had strongly criticised President Dr Mohamed Waheed Hassan Manik and his government over the arrest of her husband, Kaashidhoo MP Abdullah Jabir, who was arrested under suspicion of drinking alcohol.

Jabir re-joined the opposition Maldivian Democratic Party (MDP) following the arrest.

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Maldives government to review laws that “victimise” sexually abused minors

The Maldivian government has today said it will review and potentially “correct” laws in the country it claims victimise young women and minors who have suffered sexual abuse.

President’s Office Media Secretary Masood Imad told Minivan News the government would be holding consultations with the Ministry of Islamic Affairs and other relevant authorities to discuss how minors who have been sexually abused were being treated in the country.

The comments were made as the Prosecutor General (PG’s) Office today confirmed it had pressed charges against a 15 year-old girl from the island of Feydhoo in Shaviyani Atoll for having “consensual sexual relations”.

A spokesperson for the PG’s Office said the charges against the minor were unrelated to a separate case against the girl’s stepfather over allegations he had sexually abused her.

“Protected, not punished”

President’s Office Spokesperson Masood Imad said that from government’s perspective, the 15 year-old girl was a victim who needed to be protected, not punished by authorities.

“We will be talking with the Ministry of Islamic Affairs over this manner and will review and correct the problem,” he said.

Masood claimed that the Maldives had experienced a number of similar cases of late where young women had been victimised and punished by authorities – a situation he said the government was looking to prevent.

“We are reviewing this right now and if we have to go to the extent of changing existing laws then we would look to do this,” he said.

While unable to comment on specific cases at time of press, Human Rights Commission of the Maldives (HRCM) Vice President Ahmed Tholal told Minivan News that he was hugely concerned about the number of reports of sexual abuse against minors in the country.

Acting Minister of Gender, Family and Human rights Dr Mariyam Shakeela and Minister of Islamic Affairs Sheikh Mohamed Shaheem Ali Saeed were not responding to calls at the time of press.

The reported handling of the case by authorities has garnered significant attention this week in both local and international media.

Charges

A PG’s Office spokesperson today confirmed that the charges against the minor were related to a separate offence of Sharia Law, which had been filed back on November 25, 2012.

The 15 year-old last year gave birth to a baby that was discovered buried in the outdoor shower area of a home on Feydhoo – her stepfather was later charged with sexual abuse, possession of pornographic materials and committing murder without intent.

The spokesperson said that another charge was filed against the girl’s mother over claims she had failed to inform authorities of the alleged sexual abuse of her own child.

Judicial authorities told Minivan News earlier this week that the charges against the 15 year-old were yet to be filed with the Juvenile Court at the time.

Director of the Department of Judicial Administration Ahmed Maajid was not responding to calls at time of press.

NGO criticism

The charges against the 15 year-old girl have been slammed as an “absolute outrage” by NGO Amnesty International.

In a statement released yesterday, Amnesty International’s Maldives Researcher Abbas Faiz stressed that suspected victims of rape and sexual abuse required counselling and support rather than facing prosecution.

“We urge the Maldivian authorities to immediately drop all charges against the girl, ensure her safety and provide her with all necessary support,” the NGO’s statement read.

Amnesty Intentional also raised concerns that should the minor be found guilty of “fornication” as reported in the media, she could potentially be flogged in line with sentencing for similar cases held in the country.

“If found guilty of ‘fornication’ the girl could be punished with flogging. She would likely be kept under house arrest until she turns 18 when, under Maldivian law, the flogging can be carried out. Flogging is a violation of the absolute prohibition on torture and other cruel, inhuman and degrading treatment or punishment,” Amnesty International stated.

“The Maldivian authorities should immediately end its use regardless of circumstances. The fact that this time a 15-year old girl who has suffered terribly is at risk makes it all the more reprehensible. Flogging is not only wrong and humiliating, but can lead to long-term psychological as well as physical scars.”

Fornication offence

Back in September 2012, a 16 year-old girl was sentenced to house arrest and 100 lashes for fornication with a 29 year-old man.

Permanent Magistrate of Raa Atoll Hulhudhuhfaaru, Magistrate Abdul Samad Abdulla, sentenced the girl to eight months under house arrest, and for public flogging once she reaches the age of 18.

Ali Rashid, an official of the Hulhudhuhfaaru Magistrate Court, said at the time that the girl had been sentenced for fornication because she had confessed to it. However, the 29 year-old male with whom she was co-accused had denied the charges.

“The man said he hadn’t committed fornication, but he admitted to having hugged and done certain other things with the girl. This amounts to sexual assault of a minor under the law. That’s why he has got the minimum sentence possible under the relevant law, 10 years in jail,” Rashid explained.

The official of the Hulhudhuhfaaru Magistrate Court referred Minivan News to Article 25 of the act detailing special actions to be taken in cases of sexual offences against children (Act number: 12/2009).

Article 25 says: “Unless proven otherwise, it cannot be considered that a child between ages 13-18 had given consent to committing a sexual act. And unless proven otherwise, it will be considered that the sexual act was committed without the child’s consent.”

In November 2011, UN High Commissioner for Human Rights, Navi Pillay, speaking in parliament, raised concerns about the issue of flogging in the Maldives.

Speaking on the issue, Pillay said at the time, “This practice constitutes one of the most inhumane and degrading forms of violence against women, and should have no place in the legal framework of a democratic country.”

Her statements and calls for discussion on the issue were met with outrage from then political opposition and religious conservative Adhaalath party, giving rise to protests and demonstrations. The Foreign Ministry, under the former government, dismissed the calls for discussion on the issue, stating: “There is nothing to debate about in a matter clearly stated in the religion of Islam. No one can argue with God.”

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Police issued with arrest warrant for Nasheed

Additional reporting by Mariyath Mohamed

The Hulhumale’ Magistrate Court has issued an order to the Maldives Police Service for the arrest of former President Mohamed Nasheed, asking them to bring him to a court hearing at 4:00PM on Tuesday.

Sub-Inspector Hassan Haneef confirmed that the new warrant gives the police powers of arrest after a previous warrant allowed them only to present the defendant in court with his consent.

The order has been issued in relation to the case of Nasheed’s arrest of Criminal Court Chief Judge Abdulla Mohamed last year.

Punishment for a person guilty of this offence is imprisonment or banishment for three years, or a fine of MVR 2,000 (US$129.70).

Nasheed was initially summoned to the court on October 1. After he failed to attend this hearing, instead heading to the southern atolls to campaign, the court ordered police to present him at the next hearing, scheduled for Sunday October 7.

Nasheed then sent a request to the Hulhumale’ Magistrate Court on Friday asking for the hearing to be rescheduled. The court rejected the appeal, saying that campaigning was not listed as a reason for absence in the legislation regarding summons.

He had planned to return to Male’ on Saturday October 13. No spokesman from the Maldivian Democratic Party (MDP) was able to respond to calls at the time of press.

Earlier today, the high court rejected former Nasheed’s appeal challenging the legitimacy of Hulhumale’ Magistrate Court, and its summoning of him in connection with this case.

Former MP and President of MDP Ibrahim ‘Ibra’ Ismail has also cast doubt on the validity of the Hulhumale court’s rulings.

“There is more than ample grounds to contend that the summons was issued by an unlawful panel of judges, sitting in an unlawful court, which had already issued an unconstitutional restraining order which was ultra vires,” said Ibra on his personal blog.

Last week, the MDP vowed to ignore all rulings made by the courts until judicial reforms were introduced.

Nasheed did not return to Male’ for today’s hearing, following which the court issued the current arrest warrant.

The high court has ruled that the order to arrest Nasheed and present him in court on Tuesday cannot be appealed.

An arrest warrant was issued for Nasheed – for unspecified charges –  shortly after his resignation in February although he was never detained by police.

Nasheed was arrested more than twenty times under the regime of 30-year president Maumoon Abdul Gayoom.

Since leaving the President’s Office, Nasheed has maintained that figures loyal to the former regime were behind his ousting, although the Commission of National Inquiry’s (CNI) final report in August found otherwise.

Nasheed is also currently facing civil court proceedings related to the defamation – labelling as traitors – the current minister of defence and police commissioner, both installed immediately following his resignation.

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Case against Nasheed for defamation of Police Commissioner postponed indefinitely

Former President Mohamed Nasheed’s legal team on Sunday stated they had not been officially informed by the civil court of the rescheduling of the defamation case filed by Commissioner of Police Abdulla Riyaz against Nasheed.

A member of Nasheed’s legal team, Hisaan Hussain, said they had seen local news reports that the hearing had been postponed on Riyaz’s request, but had not been officially informed. Hussain said they had no information as to when the hearing had been rescheduled to.

“The procedure is that the person who filed the case has to request for postponement at least one hour before the hearing. We don’t know when Riyaz sent in the request, we saw it in the news around 11:15pm,” Hassan said.

In addition to this, the legal team noted that they had so far not received details of the case and were not aware which action or words of Nasheed had prompted Riyaz to file the defamation case against him.

“We haven’t had any official word as to why the case has been filed. Again, through local media we have heard it was because Nasheed had called Riyaz a ‘baaghee’ (traitor). What we have heard through official means is only that it is a case for defamation, and that Riyaz wants compensation for a loss that this alleged defamation has caused him,” Hassan said.

Another member of the legal team, former Minister of Youth and Sports Hassan Latheef, pointed out that while Riyaz had filed the defamation case in the civil court, the police were continuously arresting people for calling them ‘baaghee’ (traitor) on the streets, and that the criminal court was continuing to provide extensions of detention periods for people arrested under the charges.

“The articles in the penal code against defamation has been removed. Defamation is now considered a civil offence, and yet police continue to arrest people for expressing their opinions on the police force under what can only be perceived as charges of defamation,” Latheef said.

A second  case regarding similar defamation allegations against Defence Minister Mohamed Nazim is also pending.

Hassan added that they believed the police were arresting people under the directives coming from the Commissioner of Police. Emphasizing the contradiction, Hassan further said, “We believe this is something Riyaz needs to answer to the people for. This is because people are continuing to be arrested, jailed and charged for the matter. The Police Commissioner needs to make up his mind whether he perceives defamation as a civil or criminal offence.”

In response to a question posed by Minivan News, Latheef said that Nasheed would respect the decisions reached by the National Executive Council (NEC) of the Maldivian Democratic Party (MDP), referring to the NEC’s decision to not abide by court orders until the changes proposed by international community are brought to the Maldivian judicial system.

“Since President Nasheed is MDP’s presidential candidate, he accepts that a decision by the NEC is one that he, too, would wish to abide by in principle. The NEC, after much consideration, came to that decision. Hence President Nasheed believes that he will act in accordance with it,” Latheef said.

The legal team stated that Nasheed would decide whether or not to attend the hearing once he is officially notified of the rescheduling by the civil court.

MDP International Spokesperson Hamid Abdul Ghafoor told Minivan News today that the MDP would go ahead with the scheduled trip to the atolls, although the Hulhumale’ Magistrate Court has placed Nasheed under island arrest with regard to a case against him for the arrest of Criminal Court Chief Judge Abdulla Mohamed.

“We will be leaving tomorrow for the southern campaign. We will not budge,” he said.

Minivan News tried contacting Commissioner of Police Abdulla Riyaz, but he was not responding to calls.

Maldives Police Services Media Official Sub Inspector Hassan Haneef was also not responding to calls.

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