Tag: gayoom

Leaked Grant Thorton report reveals beneficiaries of BML’s risky pre-2008 lending

Additional reporting by JJ Robinson

A leaked draft of a report into the Bank of Maldives’ (BML) lending practices prior to 2008 has identified those behind potentially destabilising breaches of both BML and Maldives Monetary Authority (MMA) guidelines.

The asset recovery investigation by forensic accounting company Grant Thornton, drawing on the 2008 Attorney General’s report on BML, concludes that it would have been “impossible for the [BML] board to not have been influenced” in the granting of significant exposures in the form of credit to a select coterie of Gayoom-era affiliates.

The document reveals well-connected individuals bypassing BML rules regarding the handling of non-performing assets, with a number of large companies belonging to politically-active businessmen continuing to receive credit despite failing to satisfactorily meet previous repayment obligations.

“The large exposures that BML held, were in the main, due to members of the board or their relatives,” the report found.

“Due to the fact that the largest exposures of the bank were from Board members and/or their families, it would be unrealistic for the Board to provide any clear independent review of the banking facilities provided, and would in [our] view form conflict of interest issues for those Board Members involved,” it added.

The report names a number of individuals and business groups who benefitted from the state bank’s loan and overdraft facilities towards the end of Maumoon Abdul Gayoom’s 30 year tenure as head of state.

The government was handed a US$10million (MVR 154.2 million) invoice from Grant Thornton last year in what former Foreign Minister Dr Ahmed Shaheed told Minivan News was a penalty fee for stopping the investigation initiated under Gayoom’s successor Mohamed Nasheed.

Prior to the alleged request from the current government to halt the investigation, Grant Thornton had uncovered evidence of an alleged US$800 million oil trade involving former head of the State Trading Organisation (STO) and current presidential hopeful Abdulla Yameen. Shaheed alleged that the accounting firm was contracted to receive a percentage of any assets recovered as a result of its work.

The private parties named in Grant Thorton’s BML assessment include the Sun Group, Lily Group, Sultans of the Seas, VA Group, Afeef Group, Villa Group, Thasmeen Ali, VB Group, and Rainbow.

“Many of the above parties benefited from loans that were used to assist in purchasing leases for resorts, related tourism businesses etc, of which would not have been achieved without the connections held by certain individuals,” the report said.

The report also makes particular mention of the role of Ibrahim Gasim, both Finance Minister and non-executive BML board member at the time of the majority of cases documented within the Grant Thornton report.

Gasim, who is also standing as the Jumhoree Party (JP) presidential candidate in next month’s election, would have been responsible for the appointment of the majority of the BML board at this time.

Grant Thornton’s report revealed that Gasim’s Villa Group had been loaned MVR481,299,571 (US$37,601,520) as of October 31st 2008, representing 32.4 percent of the bank’s entire capital.

This represents one of a number of examples of such exposure featured in the report, despite the Bank’s acquiescence in 2006 to an MMA request to reduce any credit guaranteed to individual or related group borrowers to 30 percent of overall capital.

After repeated lobbying, the MMA increased this amount to 40 percent. Grant Thornton suggested that this extension request was due to the fact that a number of the groups mentioned in its report were already exceeding the original lower limit.

In rejecting one of BML’s requests for an increased credit exposure limit, the MMA wrote that “such concentration of credit is far in excess of the legal lending limits of the bank and it could seriously threaten the bank’s position, and the stability of the whole financial sector,” the leaked document stated.

Even with this increase, Sun Group is reported to have exceeded this limit after January 2008, with loans and overdraft facilities reaching  MVR 607,345,442 (US$46,879,400) as of 31 October 2008.

“This amounted to 40.8 percent of the Bank’s capital as at 31 October 2008,” the report observed.

Loans and overdraft facilities provided to Afeef Group totalled MVR 245,123,414 (US$19,150,266) as of October 31, 2008 – approximately 16.5 percent of BML’s total capital at the time.

Sun Group Chairman and majority shareholder Ahmed Shiyam’s Maldivian Development Alliance (MDA) meanwhile this week announced its decision to form a coalition the Progressive Party of Maldives (PPM), headed by former President Gayoom.

Alterations to BML’s internal loan approval mechanisms for board members in May 2007 resulted in the bypassing of the bank’s Credit Committee.

“This effectively meant that those Board Members that had applied for credit facilities were approving their own loans,” stated the draft report.

BML board members complicit in self-approving their own credit lines include Mohamed Ahmed Didi (Sultans Group shareholder), Ahmed Hamza (Director of the VA Group), and Gasim (Chairman of the Villa Group).

Director Mohamed Adil also features prominently, being cited in one particular example of a board meeting in which he approved the re-financing of the Sultan Group’s debt at the same time as being the group’s major director/shareholder.

BML’s recovery

In the intervening years, BML wrote off multiple toxic non-performing assets and returned to profitability, largely by outright ceasing to pay dividends to shareholders for almost five years.

The Bank’s board approved a MVR 50 million (US$3.23 million) interim dividend to shareholders in July 2013, the first since 2008.

“This marks the end of a painful and challenging journey that began in 2009 when the bank reported record level non-performing loans. However, in recent years Bank of Maldives has reported record level earnings and operating profit and the company returned to profit in 2012,” read a statement from BML.

BML’s former CEO Peter Horton, a UK banker appointed in February 2011 with extensive experience tackling distressed portfolios and problem lending across Africa as part of Barclay’s corporate turnaround team, resigned in August 2013 to head up Bermuda Commercial Bank.

“The profitability and dividend payment will be sustainable going forward,” said Horton in the bank’s July statement. “This is an interim dividend and at MVR 9.29 [a share] for the half year places us in a strong position to pay the highest full year dividend in the Bank’s recent history at year end”.

Download the leaked GT report

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Gayoom to tour northern atolls for PPM

Former President Maumoon Abdul Gayoom is campaigning in the north of the Maldives on behalf of the Progressive Party of the Maldives (PPM)’s presidential candidate, Abdulla Yameen.

Local media reports that Gayoom will visit Kinolhas, Alifushi and Dhuvaafaru in Raa Atoll, Funadhoo in Shaviyani Atoll, Kulhudhuffushi in Haa Dhaalu Atoll and Dhidhdhoo in Haa Alifu Atoll.

PPM Spokesperson, MP Ahmed Mahlouf, told local media that Gayoom would be accompanied by Yameen and his running mate, former Home Minister and former Dhivehi Qaumee Party (DQP) deputy, Dr Mohamed Jameel.

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Letter: Appeal for right to a lawyer

Allow me to introduce myself. I am a member of the Writers’ Bureau of Manchester UK.

Even before the Maldives Democratic Party (MDP) was officially recognised by the Maldivian government I was actively involved in trying to promote democracy in the Maldives.

Once we were able to topple the 30 year dictatorship of Abdul Gayoom through the ballot box the MDP was able to rule for three years before we were deposed by the military.

Now I find I am back on top of the persecution list by the government.

About a month back I was pulled in on a drugs charge. At the hearing I told the judge that he cannot ask the police investigative officer to take an oath – with the Holy Quran as witness – as the said police officer had not attended the scene of the crime. He was parroting second hand information supplied by others.

This made the judge so mad he called me into court to begin proceedings of a case dating back almost five years. Apparently five years ago the police had found a small pen-knife with remnants of cannabis. According to a local lawyer, this could get me a 15 year sentence.

I told the judge I was prepared to answer the charges once I was given my legal rights. A Maldivian citizen is entitled to legal counsel by law. I appealed for the state to provide me with a lawyer.

The judge refused. He stated that it was only where high profile cases were concerned that the state provided lawyers. I pointed out that according to the Maldivian constitution that all citizens are equal before the law.

I have a hearing on the 18th of this month and despite what the constitution says, I doubt the state will provide me with a lawyer because at present almost 90 percent of those facing trial are deprived of legal counsel.

I would very much appreciate if Amnesty would do their best to lend me a helping hand in countering the judiciary’s autocratic methods. The judiciary in the Maldives is a remnant from the dictatorship of Abdul Gayoom’s 30 year reign.

Yours truly

Ali Rasheed

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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Gayoom meets Indian PM

Former President of 30 years, Maumoon Abdul Gayoom, met Indian Prime Minister Manmohan Singh on Tuesday.

“His visit to Delhi is part of India’s outreach to all sections of Maldivian polity. It may be recollected that former President, Nasheed, has visited India twice and President Waheed was in India in May last year,” said Indian government sources, according to the Times of India (TOI).

“He discussed issues relating to the current situation in Maldives and bilateral relations with India. He said that he looked forward to India’s continued assistance,” an official told TOI.

“As someone who was instrumental in bringing about democracy to the Maldives, former President Gayoom felt that it was his legacy and that democracy should take firm roots in Maldives and there should be understanding amongst all political parties in this regard,” the official added.

Sacked Home Minister Dr Mohamed Jameel, who was one of the main opponents of Indian infrastructure giant GMR’s development of Ibrahim Nasir International Airport (INIA), was recently announced the running mate of Gayoom’s Progressive Party of the Maldives (PPM).

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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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President Waheed meets Gayoom

President Dr Mohamed Waheed met former President Maumoon Abdul Gayoom on Monday evening, reports local media.

No details of the hour long meeting were disclosed to media but a senior Progressive Party of Maldives (PPM) official told newspaper Haveeru that the pair discussed the possibility of President Waheed working with PPM in the upcoming presidential election.

“Just one such meeting cannot lead to an understanding. However we expect a favorable outcome by strengthening relations,” the official was quoted as saying.

PPM MP Ahmed Nihan told Minivan News this week that the party was engaged in talks over the possibility of forming a power sharing agreement with other parties in the government of President Waheed.

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High Court orders DRP Leader Thasmeen to settle MVR 1.9 million debt to Deputy Speaker Nazim

The High Court today upheld a Civil Court verdict in April 2011 ordering Dhivehi Rayyithunge Party (DRP) Leader Ahmed Thasmeen Ali to settle an outstanding debt of MVR 1.92 million (US$124,513) owed to Deputy Speaker Ahmed Nazim.

MP Nazim, who recently joined the Progressive Party of Maldives (PPM), sued the DRP presidential candidate in March 2011 to recover MVR 1.92 million (US$124,513) unpaid from a loan worth MVR 2.55 million (US$200,000).

While the High Court upheld the lower court verdict, the ruling (Dhivehi) invalidated the part of the Civil Court verdict ordering Thasmeen to pay Nazim MVR1,800 (US$140) incurred as lawyer’s fees based on a rate of MVR300 per hearing.

Nazim had claimed MVR100,000 (US$6,485) as compensation for lawyer’s fees.

The three-judge panel presiding over the case included High Court Chief Judge Ahmed Shareef, Judge Abdulla Hameed and Judge Ali Sameer.

The High Court judgment coincided with the launching today of the DRP’s fourth national congress at the Dharubaaruge convention center with 700 delegates.

At the final hearing of the Civil Court case in April 2011, Thasmeen’s lawyer reportedly claimed that Nazim agreed to sell Shaviyani Kabalifaru, which was leased for development as a resort in 2005, to raise funds to cover the MVR 2.55 million loan.

Thasmeen’s lawyer denied that an agreement was made between the pair to pay back the loan in a month, claiming that Nazim failed to find a buyer for Kabalifaru as agreed upon in November 2008.

The lawyer also denied Nazim’s claim that the loan was taken to pay back Thasmeen’s debts at the Bank of Maldives.

However, Nazim’s lawyer, Mohamed Saleem, disputed both claims, demanding documentation to prove that Thasmeen gave power of attorney to Nazim to sell the resort.

At a previous hearing, Nazim’s lawyer had produced a document with Thasmeen’s signature, prompting Judge Hathif Hilmy to note that the purported loan agreement had a reference number and that it was therefore reasonable to expect Thasmeen to be aware of the details of the amount in question.

At the time the case was filed, Thasmeen’s DRP was in a formal coalition with the minority opposition People’s Alliance (PA) led by Nazim and current PPM presidential candidate Abdulla Yameen.

The DRP-PA coalition agreement was terminated in July 2011 amidst internal strife within the then-main opposition party, which saw a breakaway faction loyal to former President Maumoon Abdul Gayoom leaving the party to form PPM in October 2011.

Following an acrimonious war of words between then-DRP ‘Honorary Leader’ Gayoom and his successor Thasmeen, the former president withdrew his endorsement of the DRP presidential candidate in March 2011.

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Former Police Commissioner Adam Zahir faces corruption charges

The Anti-Corruption Commission (ACC) has asked the Prosecutor General’s Office (PGO) to press corruption charges against former Commissioner of Police Adam Zahir over the alleged embezzlement of MVR65,817 (US$4,268) from the police budget.

According to the ACC, the funds were released in 2008 to purchase return tickets for Adam Zahir’s wife from Manchester, England to Male’ to attend a function to mark the police golden jubilee.

The ACC investigators however found that Zahir’s wife was not out of the country at the time.

While a payment voucher for the trip included an Emirates Airlines ticket slip dated April 7, 2008, immigration records showed that Zahir’s wife was in the Maldives between March 26 and April 9 that year.

Immigration records also showed that Zahir’s wife did not travel on Emirates Airlines at all in 2008. The ACC discovered that she had arrived in the Maldives on a British charter flight from First Choice Airways.

The commission therefore asked the PGO to prosecute the former police chief for abuse of authority and embezzlement.

A senior officer of the now-defunct National Security Service (NSS), Zahir became the first Commissioner of Police when former President Maumoon Abdul Gayoom established the Maldives Police Service as a civilian law enforcement agency under the Ministry of Home Affairs.

During the reform movement led by the Maldivian Democratic Party (MDP), Zahir was accused of overseeing torture and custodial abuse, making his resignation a perennial opposition demand.

He resigned in November 2008 after the election of President Mohamed Nasheed.

Wikileaks cables from the American Embassy in Colombo meanwhile revealed that the former police chief was seen as part of the “old guard” opposed to political reforms under President Gayoom.

In December 2005, Sri Lankan police raided the Colombo office of the then MDP-affiliated Minivan News publication upon request from the Maldivian authorities, which alleged that Minivan staff were engaged in seditious activities and gun-running.

“In a December 29 meeting with poloff [political officer], an American contractor who works with law enforcement officials in Colombo said that his police contacts informed him the request for the investigation had been signed by Maldivian Chief of Police Adam Zahir and sent to the Interpol Liaison Desk. The contractor said the Sri Lankan police suspected  the charges were politically motivated, but were compelled to  follow up because of their serious nature,” the cable read.

In January 2006, former Foreign Minister Dr Ahmed Shaheed – part of the ‘New Maldives’ group of young ministers associated with Gayoom’s reform package – told the US Embassy political officer that the raid on the Minivan office was “utterly shameful.”

“Shaheed expressed  concern that the raid undermined the ‘New Maldives’ agenda he and several other reform-minded ministers are promoting. Describing the police chief as ‘someone we are at war with,’  Shaheed added that he had encouraged the president to shift  Zahir from his current position,” reads the cable.

In 2006, reformist magazine Adduvas exposed a number of MPs and regime officials who had taken soft loans from former President Gayoom, including Zahir, who had obtained loans totalling MVR8.7 million (US$677,000).

In August 2009, Zahir was summoned to the presidential commission set up by former President Nasheed to investigate allegations of corruption and misappropriation of state funds under the former regime.

At a ceremony on March 29 this year to commemorate the 80th anniversary of police, Zahir was awarded a special plaque by President Dr Mohamed Waheed “in remembrance of his dedicated and invaluable services rendered to MPS.”

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Comment: Seeking to put the judiciary in a spot

On specifics they may differ, but a common view seems to be slowly emerging on the imminent need for effecting reforms to the nation’s judiciary among the divided polity in Maldives.

Included in the discourse is also the role of the Judicial Services Commission (JSC), whose membership has also come under question, as should have been anticipated at the drafting of the 2008 Constitution.

To the opposition Maldivian Democratic Party (MD) of former President Mohammed Nasheed, everything that could go wrong with the judiciary and the JSC has gone wrong. The party often identifies its immediate concerns with the ongoing trail against Nasheed in the ‘Judge Abdulla abduction case’ when he was in power in January 2012. A conviction accompanied by a prison term not less than one year could cause his disqualification from contesting the presidential polls, slated for September this year.

Yet, the MDP’s larger concerns over judicial reforms pre-dates the ‘Judge Abdulla’ arrest, which contributed to the pervasive mood when the power-transfer occurred a couple of weeks later. President Nasheed went to the extent of ordering the Supreme Court shut down for a day – a rarity this in any democracy – until he had got the seven-judge bench of his choice when the mandatory two-year term ended for reconstituting the same after the commencement of the new Constitution.

The party did have to make compromises, and compromises are also what democracies are all about. It is not unknown to democracies that judges with political leanings often get elevated to the respective Supreme Courts in particular. In the US, the presidential model of which the Maldives has adopted under the 2008 Constitution, the political branding of Supreme Court Judges are so very complete that analysts would identify them either as ‘conservative’ or ‘liberal’ in their judicial approach.

Both the ideological background of the judges and their branding are inevitable, too. In a two-party system where most people choose to enroll as members of either of the two majors, namely, the Democrats and Republicans, students grow up to become lawyers, to be elected or elevated as judges. Whether they try to be non-partisan in ideological terms, starting with abortion but extending to state ownership and intervention, heir past accompanies them as an unburdened baggage.

Gayoom legatees, all

In the Maldives, everything government and everyone in government other than President Nasheed could be effortlessly branded as a ‘Gayoom legatee’. Most Nasheed aides, political and otherwise, belong there, too, but their timely cross-over may have helped the larger ‘democratic cause’ when it all unfolded. It is another thing to paint the whole judicial system and individual judges but in bulk with the same brush can cause greater trouble for democracy than can solve any of the existing problems, real and imaginary.

Not that the current scheme did not foresee the possibilities and problems. It has provided a seven-year term for ‘retraining’ of judicial officers at all levels in the country. Neither President Nasheed, nor his present-day successor President Waheed Hassan seem to have taken any serious step in this direction. The slanging-match, which contributes to the discrediting of the nation’s judiciary alone keeps cropping up time and again.

The MDP continues to claim that the three-member trial bench of the suburban Hulhumale’ court is illegal, unconstitutional and biased against President Nasheed, despite the Supreme Court dismissing its plea in the matter. The party has since sought the reconstitution of the seven-judge Supreme Court Bench itself. At an official function, Chief Justice Ahmed Faiz Hussain flatly ruled out any such reconstitution, saying that the present bench would continue as long as democracy existed in Maldives. Where a vacancy arose, it would have to be filled, he said.

President Nasheed reportedly added a new element when he publicly claimed that Chief Justice Hussain has been meeting regularly with President Waheed, and discussing the ‘Judge Abdulla case’ with him. From a public platform, he declared that he had never ever called the Chief Justice(s) of his time for any consultation whatsoever. Neither the judiciary, nor the Government, nor the President’s Office is known to have joined issue with him.

Row over JSC membership

Under the Constitution, Parliament has its nominee on the Judicial Services Commission (JSC), in turn entrusted with the appointment of judges and the overseeing of their conduct and acquittal as judges. The Jumhoree Party founder and presidential nominee is a member of the JSC, along with Parliament Speaker Abdulla Shahid, which chose the three-judge bench to try President Nasheed.

The MDP, after challenging the authority of the JSC in the matter, has since questioned the impartiality of the bench, chosen with Gasim as member. The office of the Parliament Speaker has however been kept out of what is essentially a political controversy. The two incidentally had participated in the JSC when it chose the seven-Judge Supreme Court bench, after President Nasheed and his government insisted on the executive having its say in the matter.

Attorney General Azima Shakoor opined that given the sensitivity of the issues involved, Gasim Ibrahim could have kept out the selection of the judges trying President Nasheed. She however clarified that the constitution having provided for parliament to nominate a member to the JSC, it was neither illegal, nor unconstitutional on Gasim’s part to have participated in the selection process.

One too many?

Larger questions remain. For starters, for a country of its size and population, the 2008 Constitution provides for one too many ‘Independent Institutions’ aimed at overseeing the functioning of various arms of the Government. The JSC is only one of them. The idea of having a Parliament’s nominee on the JSC was a creation of the new Constitution. So were so many committees of Parliament, tasked to oversee the functioning of the Government and its arms.

Whether intended or not, some of these committees and some of these Independent Commissions have assumed ‘sky-high powers’. Their disposition has been as much political as they could have been expected to be at birth. On occasions, their positions have changed with the changes in the political scenario and equations. These are inevitable consequences of democracy, particularly when politicians are consciously made part of the process where they are expected to be insulated from the rough and tumble of politics outside.

The problem with the Maldivian scheme, if any, owes to the political perception that underlay the thinking of various stake-holders at the time they comprised the Special Majlis to draft a new Constitution. With President Maumoon Gayoom on the defensive after 30 long years of unbroken rule, the co-sponsors of various constitutional provisions aimed at checking another ‘autocrat’ in power. This included a possible return of President Gayoom through what was being planned to be a ‘multi-party democracy’.

Given the over-arching run-up to the presidential polls, followed by Parliament elections next year, the time may not be just right or ripe for a review of the working of the constitutional scheme, that too with an open mind. Yet, with multi-party democracy taking deep and permanent roots in the country, and the emergence of an anticipated autocracy ruled out mostly, it may already be time for the new government and new parliament to set in motion an open-ended process aimed at addressing some of the present concerns, gained out of the working experience of the five years that have gone by.

Any final judicial verdict in the ‘Judge Abdulla’ case, impacting on President Nasheed’s candidacy one way or the other, has consequences for the nation and the constitutional scheme as a whole. That would just be the beginning of a new beginning – and not necessarily the end of anything gone-by.

Any process of the kind could serve its purpose if the political stake-holders look not at the immediate present alone but at the wholesome future, where they will be remembered not for what they ought to have been, but did not – but for what they actually proved to be.

The writer is a Senior Fellow at the Observer Research Foundation

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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