Mandhu College urges students to proceed as normal despite eviction notice

Mandhu College is urging its students to proceed as normal with their studies despite an eviction notice from the Ministry of Education giving the college 15 days to vacate the premises.

In a press statement, the college said that it has been contacted by concerned students believing that college operations might come to a halt after the “Ministry of Education provided not entirely accurate information to the media”.

“We urge the students to be patient, and to support the college management at this time,” read the press statement.

Yesterday, State Minister of Education Dr Abdulla Nazeer told Minivan News that the college was handed the notice as it was operating in violation of the agreement made with the government.

“The building was initially given to Malé English School (MES) in to operate a school. In 2008, the contract was renewed and MES signed a third party agreement with Mandhu College who then started using the building to run a college,” said Dr Nazeer.

Nazeer said that a separate letter was sent to Mandhu College inviting it to engage in negotiations with the government regarding the interest of students currently studying at the college.


Former President Nasheed will attend willingly if case is heard in legitimate court: MDP

The Maldivian Democratic Party (MDP) has condemned the Maldives Police Service for arresting former President Mohamed Nasheed today, terming it an ‘unlawful’ act.

MDP MP Ahmed Sameer stated that the police, who had demonstrated against being issued unconstitutional orders on the February 6, were now doing the same.

Sameer referred to Articles 155 and 245 of the Constitution of the Maldives and Article 53 of the Judicature Act, stating that the police were implementing an order which went against all three articles.

“There are slayings and murders happening continuously, but the focus is instead on politically motivated action against former President Nasheed,” Sameer said.

Sameer also echoed Nasheed’s legal team’s previous statement that there was a case to determine the legitimacy of the Hulhumale’ Court currently pending in the Supreme Court.

“We are saddened that the Supreme Court is continuing to stay silent on the matter, and is making no efforts to inhibit an unlawful order by an unconstitutional court,” Sameer said.

“Why doesn’t the Supreme Court take the initiative and transfer the case against Nasheed from the unlawful Hulhumale’ court to a legally established court? He would willingly attend then,” Sameer further stated.

The police have an ongoing investigation against Sameer which was submitted by the Department of Judicial Administration on September 12 accusing him of “creating public mistrust” towards the Supreme Court.

Former Chairman of the Constitutional Drafting Committee of the Special Majlis, Ibrahim ‘Ibra’ Ismail, has also published an article on his personal blog stating the reasons why the Hulhumale’ Magistrate Court cannot be considered a legal entity.

Ismail writes “[Hulhumale’ court] was created by the Judicial Services Commission (JSC) without authority derived from Law. Therefore the validity of any order or judgements issued by this court is questionable, and the Constitution says no one has to obey any unlawful orders, i.e, orders which are not derived from law. Therefore, President Nasheed’s decision to ignore the summons has more than reasonable legal grounds.”

Ismail further writes that no court has the power, under any law, to issue a travel ban on a person without ever summoning them to court.

He also stated that there was ample to room to believe that the courts were acting with a bias against Nasheed, owing to a number of other politicians and business tycoons who were repeatedly defying court orders and summons.

At Monday’s press conference MP Sameer and MDP Chairperson ‘Reeko’ Moosa Manik called on the Minister of Home Affairs and seniors representatives of the Maldives Police Service (MPS) to not encourage the case to be carried out in an unlawful court by having the police obey its orders to arrest Nasheed and present him to the hearing.

The MPS has sent out a press release confirming that they have taken Nasheed into custody and that officers were now heading back to the capital with him.

MDP International Spokesperson Hamid Abdul Ghafoor has also expressed concerns, stating he did not believe Nasheed would be allowed a fair trial.

“This is not about justice. This is a politically motivated trial to invalidate our candidate’s candidacy and to deliberately disrupt the MDP’s presidential campaign. We are in the largest voting centres and it is very clear who will win the elections. They can only win the elections by invalidating his candidacy. We are deeply disturbed by the developing situation. We do not believe he will have a fair trial.”

Meanwhile, President’s Office Spokesperson Abbas Adil Riza has stated on his twitter: “After Tuesday morning either you are with us or with the enemy. There is no negotiation or middle ground after Tuesday.”

Riza made the statement on Sunday evening, while the Hulhumale’ Magistrate issued the arrest warrant to the police on Monday afternoon.

Parliament rejects motion against Nasheed’s arrest

Parliament has rejected an emergency motion put forward by MDP MP and Chairperson ‘Reeko’ Moosa Manik against the arrest of Nasheed.

Speaker and DRP Member Abdulla Shahid stated that the motion was rejected on the basis that it concerned a case ongoing in the Supreme Court to validate the legitimacy of the Hulhumale’ Magistrate Court.

He referred to Article 149 of the Parliament Rules of Procedure which states that motions regarding cases ongoing in a court of law could not be accepted by the legislative.

Although Shahid stated that the Supreme Court was currently looking into the legitimacy of the Hulhumale’ Magistrate Court, Moosa Manik stated that the motion was not about the Supreme court case, but about a case lodged at an unconstitutional court.

MDP MP Eva Abdulla echoed Moosa’s statement, saying that since the Hulhumale’ Magistrate Court was established unlawfully, the arrest warrant for Nasheed issued by the court must be considered invalid.

The motion also spoke of the public outrage that Nasheed’s arrest and unfair treatment against him would cause.

Three magistrates presiding over Nasheed case summoned to Majlis Committee

The Majlis committee with the mandate to oversee work of the executive has summoned the three magistrates appointed to preside over the case against Nasheed regarding the arrest of Criminal Court Chief Justice Abdulla Mohamed.

The three magistrates, whose names have not yet been announced, have been asked to attend the meeting at 3:45pm on Tuesday. Nasheed’s hearing, meanwhile, has been scheduled for 4:00pm Tuesday.

The decision to summon the magistrates was reached in a closed-door meeting of the committee held Monday afternoon.

The committee has an MDP majority with six of their MPs sitting in it, in addition to two  members from the Progressive Party of Maldives (PPM), two members from Dhivehi Rayyithunge Party (DRP) and one member from the Jumhoree Party (JP).


PPM to protest for ‘protection’ of judiciary

Weeks after the  ruling Maldivian Democratic Party (MDP) said it would protest over the political compromising of judicial independence by members of the former government, former President Maumoon Abdul Gayoom’s Progressive Party of Maldives (PPM) has said it protest “to protect” the judiciary.

PPM Council member Ahmed Saleem today told Minivan News that the PPM’s decision came following attempts made by the current government “to influence the judiciary.”

”The government recently has clearly said that they will not allow any trial to be conducted if it is not going the way they want,” Saleem alleged. ”There are many persons who have been sued in the current government and they do not want their cases to be trialed, that is the reason why they are trying to influence the judiciary.”

Saleem said PPM had decided “to be on standby” to come out and protest, although the party had not decided any on specific time or date.

”A case concerning a Criminal Court Judge is currently in the Judicial Service Commission (JSC) and the government is attempting to influence it as well,” he claimed. ”We will not let it happen.”

Recently the JSC completed its investigation into the alleged misconduct of Chief Criminal Court Judge Abdulla Mohamed.

The case against Abdulla Mohamed was presented to the JSC in January 2010 by former President’s member of the JSC, Aishath Velezinee, after Abdulla Mohamed appeared on private TV station DhiTV and expressed “biased political views”.

In 2005, then Attorney General Dr Hassan Saeed forwarded to the President’s Office concerns about the conduct of Abdulla Mohamed after he requested that an underage victim of sexual abuse reenact her abuse for the court.

In 2009 following the election of the current government, those documents were sent to the JSC.

Last week MDP Chairperson and MP ‘Reeko’ Moosa Manik and other senior officials including former President of the party Ibrahim Ismail ‘Ibra’ held a press conference where Moosa said that no rulings made by Abdulla Mohamed should be implemented.

Speaking during the press conference, Ibra said that there were many cases pending in the JSC against Abdulla Mohamed, and that this was the first such case to be concluded.


Supreme Court to rule in defamation case against self

The Supreme Court has issued a writ of prohibition and taken over a defamation case against it filed in the Civil Court by Ibrahim ‘Ibra’ Ismail.

The Supreme Court order issued today states that it had learned that the Civil Court had accepted a defamation suit filed by Ibra. It ordered the lower court not to take “any action regarding the said case” and to send “all the documents in the case file, including all actions taken since the case was filed as well as the minutes” to the court before 3:30pm this afternoon.

The writ of prohibition was signed by Chief Justice Ahmed Faiz.

Ibra, a member of the Constitution Draft Committee of the former Special Majlis, longstanding Male’ MP and founding member of the Maldivian Democratic Party (MDP), had filed the case against the Supreme Court after it reprimanded him for calling on the public to “rise up and sort out the judges”.

In response to Ibra’s calls, the Supreme Court and the Judicial Services Commission (JSC) demanded authorities investigate the former MP, claiming that “making such statements in a free, democratic society under lawful governance goes against the principles of civilisation”.

Ibra responded by filing a defamation suit in the Civil Court against the Supreme Court.

But today, “The documents and everything have been handcuffed and taken to the Supreme Court,” Ibra told Minivan News.

“Initially [the Civil Court] was of the opinion that the case was not in their jurisdiction, because it involved the Supreme Court. But I appealed to the registrar, outlined my argument, and the second time they agreed they could and should accept the case,” Ibra said.

“I paid my fees, and was waiting for them to hold the first hearing. Then today I had a call from newspaper Haveeru asking me to comment on the Supreme Court’s taking over the case – I replied that no one had told me about it and I was not in a position to comment. Later my lawyer called and said the Supreme Court had published the writ on their website.”

As a result, Ibra said, “I now have to go before the Supreme Court and say to them ‘You have defamed me, now please decide in my favour.’”

Ibra has previously observed that the act of an appellate court taking over the jurisdiction of a trial court was unprecedented “in any democratic country, anywhere in the world.”

“Even in cases of a mistrial, the instruction is to retry the case. Appellate courts don’t sit on trials. And they are systematically doing it – at least three cases so far. What they are effectively doing is influencing the independence of the trial court. The significance of that is that if trial court judges cannot be independent of the higher court, there is no room for appeals. Because the decision is going to be the Supreme Court decision,” Ibra told Minivan News.

“I don’t see how they can sit in judgement on themselves,” Ibra said today. “Every single defamation case until now has been tried in the Civil Court. Just because the Supreme Court is involved doesn’t mean the Civil Court should not hear the case – the Supreme Court is obstructing the process of justice.”

The fact that the decision to take over the case from the Civil Court implied that a majority of the seven Supreme Court judges had elected to do so, Ibra said.

“This means the majority of the Supreme Court judges are not cognisant of the principles of natural justice, and are clearly trying to obstruct the provision of judge to a citizen claiming his fundamental right as guaranteed in black and white in the Constitution.

“This is not about Ibra. If they can do this to Ibra they are setting a precedent to do it to just about anyone.”

He suggested that the Supreme Court’s action today “establishes what I originally claimed. We as citizens – the public – have to do something. We can’t let seven idiots hijack the justice system of the entire country.”


Q&A: Ibrahim ‘Ibra’ Ismail

Ibrahim ‘Ibra’ Ismail is a Maldivian statesman and former chairman of the Special Majlis Drafting Committee responsible for the new Constitution. He remains one of the country’s key authorities on the subject.

He was recently reprimanded by both the Supreme Court and the Judicial Services Commission (JSC) for calling on the public to “rise up and sort out the judges”. He responded by attempting to file a defamation case against the Supreme Court.

JJ Robinson: This defamation case sprang from your recent comment calling on citizens to stand up and sort out the judiciary. What did you mean by that?

Ibrahim ‘Ibra’ Ismail: Basically what I meant is that the institutions that are supposed to keep the judiciary in check have been compromised too much, and they are not in a position to bring the judiciary to account. So when institutions fail in a democracy, solutions have to be found by the people.

This is what happened with [former President Maumoon Abdul] Gayoom. All the institutions that were in place failed to bring him to account. So eventually people had to come out and work really hard to bring him back into the folds of the law.

It’s a similar thing [with the judiciary] – the JSC has the prime responsibility of holding the judiciary in check, and failing them, the Majlis (parliament) has to do it. None of these institutions are acting on it.

No one wants to talk about it, and it’s very convenient for people to forget that the judiciary is making all this mischief. So the public has to remind these people that everything is not hunky dory, and they are making a lot of mischief, and the public is concerned about it.

JJ: So you’re talking about street protests?

II: Part of it involves street protests. But protests will only come when all else fails. Before street protests people have to stand up and act, lobby their MPs, write petitions, speak out, voice their concerns, have public debates. And if all these don’t get politicians moving, we’ll have to take to the streets – if necessary.

JJ: In response to your calls, the Supreme Court all but accused you of treason, stating that “making such statements in a free, democratic society under lawful governance goes against the principles of civilisation”, and demanded authorities investigate you. What did you make of the JSC’s – and the Supreme Court’s – response to your comment?

II: Very knee-jerk. I think the reaction from the Supreme Court and the JSC is an admission of guilt on their part. Because if they were doing things properly, and if they weren’t doing things they did not have to answer for, then they would not have this one person coming out and saying this. They would not have to worry about there being a bad reaction from the public. For me their response was tantamount to an admission of guilt on their part.

JJ: The JSC said it would request the authorities launch an investigation into your alleged treason. How many policemen have come to your door?

II: None. And I have begged police to take me in for investigation and conduct the investigation. I’ve even said to them that Supreme Court has ruled and passed judgement on me for treason. So why am I allowed to roam the streets? I should be behind bars. But they are not acting on it.

JJ: There seems to be quite a difference between theory and practice when it comes to the law here. Is this something you have observed?

II: Very much so. Ever since the adoption of the constitution. That is something I have been speaking out about.

JJ: When independent, outside groups such as the International Commission of Jurists (ICJ) visit the Maldives and criticise groups such as the JSC, they respond by simply pointing at the Constitution and insist “the Constitution says we are an independent institution”. Is this denial?

II: Maybe it’s a kind of denial, but what you have to remember is that adoption of a Constitution doesn’t change mentalities and culture overnight. A lot of work has to be put in to put that Constitution into practice, and I think that everyone has become very complacent about the implementation of the Constitution.

There is an assumption that “now we have the Constitution, that is how things should be”. But firstly, many people – including state officials, across different levels in all branches of government – are not really aware of what’s in the Constitution.

Most of them have not witnessed a democracy in practice. So what they are doing is interpreting the Constitution from their perspective, and what they are familiar with, unfortunately, is very undemocratic, and goes against the grain of the Constitution.

It’s a continuation of culture, with the new arrangements. This is what we are seeing, and I’m concerned that if we don’t act early too many precedents will be set and it will be difficult to turn it back again. Now is the time to act, and set it right – put it back on track.

JJ: You mentioned earlier that the judiciary had been compromised. What did you mean?

II: It’s compromised in all aspects. The first compromise was the enactment of the Courts Act and the Judges Act by parliament. Particularly the Courts Act, which was totally against what was conceived in the Constitution.

Then came the appointment of judges, particularly the Supreme Court judges.

JJ: That was hailed as a victory of compromise by all the major parties.

II: Yes, but even as it was happening I was fighting against it whatever way I could. The only avenue left to me was to speak out – which I did. I don’t believe appointments to the Supreme Court should be made through political deals.

Any appointment to the Supreme Court has to be scrutinised, both by Parliament, the executive, even the public. Judges should be beyond reproach. They can’t have baggage behind them.

Those were the compromises. Once the initial setting up of the judiciary and the key appointments were compromised, the rest would automatically follow. Their judgements are going to be compromised, their actions are going to be compromised – so that is why I said I believe the judiciary has been compromised. I blame the politicians for it – they failed the country when they did that.

The first instance of the Supreme Court’s move came while I was still in parliament in 2008, immediately after the elections were over. The Supreme Court moved a motion on itself, by itself, and ruled in their favour, to move the department of judicial administration from the purview of the JSC to the Supreme Court.

That was move number one. That very day, within hours, I was jumping up in parliament and saying “this is dangerous” – that these people have to be put in check immediately.

The entire Supreme Court was summoned to parliament – none of them turned up. We gave them the due respect that Justices of the Supreme Court deserved. We sent them a letter saying that the oversight committee would like to meet you to discuss some issues within the judiciary, so please tell us a convenient time to meet you.

They never bothered to reply. And the Speaker of Parliament took no further action on it.

For me it wasn’t just the ruling they had brought out that was a problem – it was the manner in which they were moving. I could see there would be more to come.

What we did in the 2009 budget was to put in an amendment moving the entire budget of the judicial administration to the JSC – and the Majlis passed it. So in effect, parliament was showing its displeasure, in a nice way. Saying: “You can make those rulings, but we hold the purse strings.”

But still they carried on.

JJ: And then the Supreme Court sent the President a letter ruling they were reappointing themselves for life, and no need to worry about the transition period? What did that signal?

II: The same thing. That was the next move. They were establishing that the Supreme Court was a supreme body in the country and whatever they say, goes.

That particular letter was composed saying they were going to be the Supreme Court, and neither the Majlis nor the President had any choice in the matter.

All these things signaled the same thing. First they wanted to hijack the judiciary – and through the judiciary they wanted to hijack the nation.

JJ: Who is ‘they’?

II: At that time it was the then Chief Justice – he appointed himself Chief Justice, by the way, because in the interim period there was no provision for a chief justice – and he was acting like that, leading. And then there was Mujitaz Fahmy, these were the people. Eventually when the appointments came, and the way it came, you could see, DRP had majority in parliament at the time, and by and large the People’s Alliance (PA) through their coalition was calling the shots.

JJ: Didn’t the Speaker of Parliament show up in the JSC office during the interim period to help photocopy letters of appointment?

II: Exactly. The Supreme Court and key elements within the judiciary are still controlled by Gayoom – directly or indirectly.

JJ: What does that mean for the provision of justice in the Maldives?

II: We can be guaranteed we won’t have justice. You can see these things going on – look at what the Supreme Court is doing.

Face facts – they are issuing instructions to the trial courts, saying “Case X, stop proceedings, we’ll take that over.”

Who ever heard of an appellate court taking over a trial court’s jurisdiction? I don’t know of any instance in any democratic country, anywhere in the world, where an appellate court will take over a trial court.

Even in cases of a mistrial, the instruction is to retry the case. Appellate courts don’t sit on trials. And they are systematically doing it – at least three cases so far.

What they are effectively doing is influencing the independence of the trial court. The significance of that is that if trial court judges cannot be independent of the higher court, there is no room for appeals. Because the decision is going to be the Supreme Court decision.

JJ: What has the role of the JSC been in all of this?

II: The JSC has been hijacked by these runaway judges, and they are serving their own interests in protecting the judges. This is one point where I disagree with the ICJ’s report.

JJ: The ICJ noted that it was a less-than-ideal structural oddity in the Constitution to have outside representation on the JSC?

II: They believe that the JSC should comprise of judges. I regret now putting even one judge on the JSC when writing the Constitution.

The ICJ’s caveat is very different from the ground reality here. In Britain and the US there are mature systems, and no politician in their right mind would even contemplate trying to influence court decisions – at least not publicly. Judges in the UK or the States, and most mature democracies, have come through a long history of democracy, worked as lawyers for a number of years, been scrutinised for their work and general behaviour – not just anyone can sit on the bench. But here in the Maldives we have a bunch of idiots.

What you see happening in the JSC is judges protecting their own backs.

JJ: The former President’s Member on the JSC, Aishath Velezinee, has previously stated that a majority of sitting judges have not completed primary school, while 25 percent have actual criminal records.

II: There are three judges on the JSC. And then you have a lawyer, who was elected by the lawyers – but the high court ruled at the time that a magistrate should be allowed to vote in the election of a lawyer to the JSC. So they elected this lawyer, whose wife was a magistrate.

Mujitaz Fahmy was heading the JSC at the time, he made arrangements for his wife to have her rent paid, to move to Hulhumale’ from an island court, and all this – and later even created a court in Hulhumale’ for her. So can this lawyer even hold the judges to account?

Then you have Abdulla Shahid, from the opposition Dhivehi Rayyithunge Party (DRP). Do you know the DRP leader and his cronies – MPs – have a Rf 1 billion (US$64.8 million) case suspended in the High Court, after the trial court ruled the bank could move in to take over the mortgages?

The trial court asked them to pay up, and all three or four of them would have had to declare bankruptcy and lost their parliament seats.

JJ: You are talking about Ahmed Thasmeen Ali and loans with the Bank of Maldives?

II: I have to be careful here or I could end up with a libel suit – it’s not Thasmeen now. Initially the loan was taken by companies in his name, his shareholdings. But during the Presidential election he was the running mate for Gayoom, so he transferred it to other people, and these people – the shareholders – are now MPs.

The Constitution says that if you are declared bankrupt, you will lose your seat. After the trial court ruled, they took it to the High Court, and it has been sitting there for a year and a half. The High Court has issued a court order suspending the trial court decision until the High Court sorts in out.

We all know that in an open and shut case like a bank loan there is nothing more to prove. Either you are paying it or you are not. I mean how many ordinary poor people have spent time in jail because they weren’t able to pay credit cards for personal expenses?

Under the same laws, the same court system, these people with Rf 1 billion in public money, are getting away with it. So no wonder a DRP-controlled Majlis, the Speaker, and Dr Afrashim Ali, will side with the judges. This is what I mean when I say they have been compromised.

JJ: So it all comes back to that Rf 1 billion?

II: Part of it. Look at [Deputy Speaker] Ahmed Nazim. He has a case currently against him that could put him away for a few years. Abdulla Hameed is a fugitive from justice. All these people from the old regime are fugitives from justice, so they depend on the judges to protect them.

Why was Nazim’s hearing behind closed doors? The public wasn’t allowed in, the journalists weren’t allowed in, which is against the Constitution. The Constitution spells it out that trials have to be open, unless a judge declares it a closed hearing to protect the interests of a victim in a case involving child abuse, or a rape, or a matter of national security. These are the only instances where a judge can declare a closed hearing.

I don’t think it is a coincidence that all these things involve ex-regime people.

JJ: So how right is Velezinee when she talks about the “silent coup”?

II: One hundred percent.

JJ: What do you think of Velezinee’s whistle-blowing role in this?

II: I think it was admirable what she did. But what she couldn’t do was garner the support for the cause.

JJ: Are people still intimidated by the Supreme Court to a degree that they feel they are unable to criticise it?

II: Intimidated yes, but there is also a hegemony amongst people. They think that courts can’t be criticised, that they shouldn’t be touched. Many think that if you say something against the Supreme Court they can summon you the next day and sentence you to jail. People don’t know what the limitations of power are. They see the courts as places that put people in jail – they’ve seen this happen all the time. They’ve seen wrongful convictions, and they know it’s the same judges and the same courts.

It takes someone like me to point this out. Part of my making this case against the Supreme Court is to convince the public that you can criticise the Supreme Court and remain a free man.

JJ: If this becomes a defamation case they can’t rule against you – because that supports your point – and they can’t rule in your favour, because that would place themselves in contempt of court. So what’s to stop there simply never being a hearing?

II: That’s a tricky point. I will see if the Civil Court will accept the case. I want to give the Civil Court the benefit of the doubt, until they reject it. Even if they reject it, I’ll take that to the High Court, and if they reject it, I’ll take it to the Supreme Court, and let them try themselves. (Note: the Civil Court subsequently rejected Ibra’s case).

JJ: What puts you in a position of being able to do this when many other people would not?

II: One thing is that I believe my knowledge of the Constitution tells me what they can and can’t do, which most people don’t know. Other than that, maybe because over the years and during the reform movement, I like to believe I have some standing in the public, because the majority of the public has faith in me for standing up for the truth. So that gives me courage.

But the bottom line is the same as when I stood up against Gayoom – someone has to do it. I waited for three years for someone else to do it this time, no one was forthcoming, so I figured “OK, here goes Ibra again.” Let’s give it a shot.

JJ: What kind of recourse do ordinary people have at the end of the day? You say people can go to their MP, but that engagement is not always in a democratically healthy manner given that most MPs readily admit to funding their constituents’ personal demands for money, education and overseas healthcare.

II: I think, with this recent fiasco in the Majlis regarding the committee allowances, parliament is on the back foot. They might try and please the public, if the public demands hard enough.

JJ: What is the impact on foreign investment of having a judiciary in this state? From the perspective of somebody investing in tourism if, say, I need to enforce a contract but I can’t go to the Civil Court with some guarantee of getting a fair ruling, what’s to stop somebody from just pulling my investment out from under me?

II: That’s happening already. Many potential investors are looking at the legal system here and deciding they do not want to take the risks.

JJ: Are people aware of this? Surely big businesses here are worried about this?

II: The big businesses already here are not worried, because they have the judges in their pocket. [Resort tycoon and Jumhoree Party MP] Gasim Ibrahim is now sitting on the JSC, and even as we speak he has seven cases in the courts.

JJ: The Constitution includes provisions for foreign judges, and the idea of a mercantile court has already been raised – an ‘offshore’ legal jurisdiction with authority in civil cases over a certain value?

II: I don’t think that’s a way out. It may serve a temporary purpose, but I think the real way out is to rewrite the Courts Act and appoint at least two foreign judges to the Supreme Court.

I was advocating this right from the start. I begged the President to at least nominate two foreign judges – retired or semi-retired people with experience – to come and assist us in setting up a Supreme Court and set the right precedents. But the politics got caught up.

I foresaw this even when we were writing the Constitution. On more than one occasion I said the next challenge would be the judiciary. The DRP wanted to write into the Constitution a stipulation that all judges should be Maldivian, but I fought single-handedly against it. Because that kind of nationalistic sentiment goes down very well with the public, because of the fear factor, the xenophobia and mistrust of foreigners which was actively promoted at the time.

The way is still open for foreign judges, and there is provision there for term appointments.

JJ: What is your overall prognosis? Optimistic or are you packing your suitcase?

II: I don’t know how long this will take. A short while, or longer than we think. But eventually, no society can sustain itself without justice. It is a fundamental feature a society requires to live in harmony.

The way justice manifests itself may not be readily seen or tangible, but people know when injustice is being done. And that is why people stood up against Gayoom – because of the injustices.

I’m optimistic that there will come a point – sooner or later – when people will just not tolerate it. But then it will be ugly. If we do it now it will not be ugly, with the least possible jolt to the system. I just hope the politicians – our parliamentarians – will have the wisdom to see that this is not a political issue, not something for personal gain. They should see this as serving the wider national interest and safety of all, including themselves. To get the judiciary on track.

For the bull to survive, it must ensure that the wider landscape in which it lives also survives. The judiciary is that wider landscape. You never know when you are going to end up in court, and on that day you should have confidence in the judge passing judgement over you.


Comment: Is the President serious about reforming the judiciary?

Has Anni given up the fight for an independent judiciary?

“We will reform the JSC”, President Nasheed said in May.

“When the powers were separated and the Maldivian Democratic Party (MDP) became the executive we came into a situation where the previous regime had a majority in the parliament.

“But in many minds the situation with the judiciary was far more worrying. Nothing had changed – we had exactly the same people, the same judges, the same manner of thinking and of dispensing justice.”

On Wednesday he appointed as his member at the Judicial Services Commission (JSC) Kurendhoo Hussein Ibrahim, a man who first came to public attention during the drafting of the 2008 Constitution as someone vigorously apposed to gender equality.

As a member of the Special Majlis, Hussein Ibrahim was vociferously opposed to the appointment of women as judges, and was particularly vitriolic in his comments against changing the Constitution to allow women to run for office of the President.

“He was very clear about where women should be in society – in a place where they have no say in the running of public affairs,” a senior member of the law community, who wishes to remain anonymous, told Minivan News.

“To be honest, I am very surprised that the President would appoint such an individual as Velezinee’s replacement,” he said.

Aishath Velezinee was the President’s Member at the JSC until 19 May this year, when she was unceremoniously removed from the position. Although there were unconfirmed reports, including in this newspaper, about a backroom deal that made her removal politically advantageous for MDP, neither President Nasheed nor Velezinee have so far spoken publicly about the reasons for her removal.

Hussein Ibrahim’s views are diametrically opposed not just to Velezinee’s, but also that of a President who frequently espouses his commitment to the democratic ideal of equality and non-discrimination.

The President’s Press Secretary, Mohamed Zuhair, said Hussein Ibrahim might have distanced himself from such hard-line views since he sat on the Special Majlis for redrafting the Constitution.

“It is quite possible that he has changed,” Zuhair said. Pressed on the question of whether he knew this for a fact, Zuhair said, “We believe that in accepting the position as the President’s Member, he is entering into a ‘social pact’.”

“It is our hope”, Zuhair said, “that he will work towards the realisation of the President’s goals and to further his views in his new job.”

Even if Hussein Ibrahim, seemingly appointed on a wing and prayer, does show himself capable of leaving behind his misogyny, there is still the question of his professional ability to push a reform agenda.

A misogynist with a sentencing certificate

Hussein Ibrahim has no formal qualifications and is one of the many ‘lawyers’ allowed to sit on the bench on the basis of a Sentencing Certificate – a legacy of the Gayoom era. Having served as a magistrate in two different lower courts, he later did a stint as an ‘Islam Soa’ at Aminiya School.

In other words, he is a member of the very same brigade of “exactly the same people, the same judges, the same manner of thinking and of dispensing justice” President Nasheed said he wanted removed from the judiciary.

Removing unqualified judges was a Constitutional requirement, stipulated by Article 285. Put in charge of carrying out the task, however, the JSC dismissed Article 285 as “symbolic” and allowed all but a handful of the unqualified judges to remain in the judiciary. The President has now appointed just such a man to represent him at the JSC.

Hussein Ibrahim’s presence at the JSC means that female members of the judiciary, few in number but who as a group represent the most qualified judges in the country, now have another man overseeing them who not only thinks they are biologically and intellectually inferior to him, but also knows less about the law than they do.

The International Commission of Jurists (ICJ), which in February this year published a highly critical report on the JSC, pointed to members’ lack of technical ability and knowledge as one reason for its inability to do its job of ensuring the judiciary’s ethical and professional standards.

Citing ‘administrative efficiency’, as the reason, the JSC abolished the Complaints Committee in May this year. It was the mechanism by which the JSC was to have investigated complaints against the judiciary.

The JSC’s 2010 annual report shows there are over 200 complaints – some involving judges at the country’s highest courts – that are yet to be investigated. Any attempts to force the JSC to investigate complaints using the courts system have so far been unsuccessful.

Meanwhile, any criticism of the judiciary is becoming increasingly difficult as the courts gag the media, or issue threats against those who speak against its actions – even when they are clearly unconstitutional.

Recent examples include the Criminal Court’s decision to ban the media from Deputy Speaker Ahmed Nazim’s alleged corruption hearings and the Supreme Court’s reprimanding of President’s Advisor Ibrahim Ismail (Ibra) for urging the public to fight for their right to an independent judiciary.

What is even more shocking is that the JSC convened an emergency meeting to discuss Ibra’s remarks where members agreed to ask ‘relevant authorities’ to investigate Ibra.

The JSC is constitutionally mandated to investigate complaints against the judiciary made by members of the public. It has no authority to investigate complaints against members of the public made by the judiciary.

Clearly the JSC needs someone who, at the very least, knows what its own role is.

As seen in the case of Velezinee, who was stabbed in the back in January this year, fighting for judicial reform is one of the most dangerous jobs in the country.

Hussein Ibrahim is a religious conservative who thinks women should be covered up and chained to the kitchen sink when they are not occupied with the holy task of breeding. He has no record of pushing a democratic agenda, and has no formal qualifications in any profession. It is hard to imagine him taking on the JSC let alone the judiciary.

Which begs the question: is President Nasheed serious about reforming the judiciary?

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]


JSC decision could “rob nation of an honest judiciary”, warns member

The Judicial Service Commission’s (JSC) decision yesterday to reappoint all sitting judges unless they have been convicted of either a crime with a punishment prescribed in the Qur’an, criminal breach of trust or bribery was “nothing less than treason to rob the people of an honest judiciary”,  claims Aishath Velezinee, the president’s member on the commission.

The decision was approved with five votes in favour, two against and one abstention.

Writing in her personal blog, Velezinee warns that the new standard for judges’ conduct could give tenure to 19 judges with either prior convictions or allegations of gross misconduct.

If the decision is validated, she writes, the country “stands to inherit” seven judges found guilty of criminal breach of trust by the relevant authorities but not convicted in court; five judges with allegations of criminal breach of trust; two judges who face prosecution for criminal breach of trust; one judge on trial for sexual misconduct; two judges found guilty of sexual misconduct but not tried at court; one judge guilty of a crime with a punishment prescribed in the Quran; and one judge guilty of sexual misconduct and accused of criminal breach of trust.

“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,” writes Velezinee.

Confidence in the judiciary

Velezine told Minivan News today that the JSC decision could lead to eroding public confidence in the judiciary.

Article 285 of the constitution stipulates that the JSC shall determine before 7 August 2010 whether or not the judges on the bench posses the qualifications specified by article 149.

The criteria in the constitution requires that he or she “must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, and must be of high moral character”.

The JSC’s decision went “against the purpose” of the constitutional provision, said Velezinie: “I believe this was a decision taken by four men raising their hands. It is a matter of national interest as public perception will be affected if people can’t trust the honesty of judges.”

Moreover, it was of the utmost importance to inspire public trust in the judiciary “to avoid democracy failing because of a weak judiciary”.

Velezinie said official records show that some judges “have convictions from other institutions” such as the former Anti-Corruption Board.

“As you know, in the past we did not have a culture where everything was decided by the courts,” she said, adding that the judgments were passed in accordance with the old constitution.

After delaying and “failing in its primary task” of reappointing judges until August last year, a subcommittee chaired by Civil Service Commission President Dr Mohamed Latheef was formed to draft guidelines for the standards.

But, she added, the final report of the committee comprised of “four judges and Dr Latheef” was only presented last Sunday.

Abuse of power

Both Velezinee and Attorney General Husnu Suood have accused Supreme Court Justice Mujthaz Fahmy, president of the JSC, of “abusing the authority of his position” to delay and obstruct the reappointment process.

While Velezinee said Mujthaz Fahmy was among the 19 judges with prior records, Suood accused Fahmy of holding up the promotion of rival judges for “personal reasons”.

Suood said the judges on the commission were “not cooperating” with the task of reappointing judges.

Supreme Court Justice Mujthaz Fahmy
Supreme Court Justice Mujthaz Fahmy

However, Judge Fahmy has denied the allegations: “Velezinee is lying if she really said that. That’s incorrect information.”

Fahmy stressed that the process of screening judges for reappointment had not yet begun and yesterday’s meeting was to “discuss the guidelines drafted by the subcommittee”.

The commission will go through old records and judges with prior convictions in court would be “disqualified”, he said.

Fahmy said he had “complete confidence” that the process could be completed by the August 7 deadline.

Apart from reappointment, he added, the commission has been active with hearing complaints, evaluating judges for promotion and formulating regulations and a code of ethics.

On the allegations of abuse of power, Fahmy said he doubted Suood would have accused him of it as the commission’s proceedings take place in accordance with the regulations and all members have an equal say.

“I wouldn’t say that judges have an undue influence in the commission as we don’t have a majority,” he said. “There are three judges on the ten-member commission”.

“Runaway judiciary”

Meanwhile, Ibrahim Ismail “Ibra”, former MP for Male’ and chairman of the drafting committee of the Special Majlis, the assembly that revised the constitution, said the substance of the criteria in article 149 was not limited to convictions.

“The assumption is that judges will have a higher than average standard of conduct,” he said. “Judges should be exemplary figures. So even if they have not been convicted of a crime, it does not mean they automatically have the code of conduct expected from a judge. They are expected to exhibit moral standing.”

He added that the JSC’s decision was tantamount to “the lowering of the standard expected from judges”.

Moreover, he said, the JSC was not empowered to “set standards by themselves” as the constitution grants that power to the People’s Majlis.

The parliamentary committee on independent institutions could order the commission to overturn its decision, Ibra continued, or establish standards and criteria for judges’ qualifications in the Judicature Act.

Ibra predicted that the decision will lead to escalating tension between the executive and the judiciary, which would have “very negative consequences”.

“Sadly, because of the actions of some judges who want to subvert the constitution for their own purpose, the credibility of the entire judiciary will be diminished,” he said.

While the Supreme Court was making “some headway” in reforming the judiciary, the courts did not inspire “a great deal of confidence from the public”.

Ibra speculated that judges understood “a divided Majlis cannot not hold the judiciary accountable” as the “comics in there can’t agree on anything”.

In the absence of effective oversight, he ventured, the judiciary was “having its heyday”.

Parliament exercising its authority to set minimum standards for judges would not be a solution either, Ibra argued: “Because the JSC is dominated by judges and the old guard, they will disregard it and even strike down laws.”

Judicial independence

In June last year, the Judges Association called for a constitutional review to change the composition of the JSC to allow only members of the judiciary on the commission.

The procedure for the removal of judges laid out in article 154 requires the JSC to find that the judge is grossly incompetent and submit a resolution to parliament for the removal of the judge.

A judge could only be dismissed if a two-thirds majority of MPs present and voting support the resolution.

Ibra said some judges were misinterpreting the “independence of the judiciary” to mean that “judges were above the law”.

“What I see happening is that some people are arguing that no organ of the state can influence or dictate anything to the judiciary,” he said. “That is not independence. That is putting them above the law.”

After two years of the JSC, he added, most people would agree on “the wisdom of the Special Majlis” in constituting the commission.

According to Article 158 of the constitution, the JSC shall consist of the speaker of parliament, an MP and a member of the general public appointed by parliament; three judges each elected from the Supreme Court, High Court and the trial courts and a private lawyer elected among licensed lawyers; the Chair of the Civil Service Commission, a person appointed by the president and the attorney general.

“In retrospect if I could change anything in the constitution, I would argue that the time has not yet come to keep any judges on the commission,” Ibra said.

Moreover, he said, the current judiciary faced an acute lack of qualified professionals with an “adequate” grasp of the constitution and the laws of the country.

“What I see is a runaway judiciary that will become increasingly tyrannical, that will pass judgment on people and no one can hold them accountable.”