Tag: icj

Nasheed conviction “grossly unfair,” highlights “judicial politicisation,” says ICJ

The conviction of former President Mohamed Nasheed on terrorism charges was “grossly unfair” and highlighted “judicial politicisation,” the International Commission of Jurists (ICJ) have said in a press release today.

The opposition leader was sentenced to 13 years in prison on March 13 over the “kidnapping or abduction” by the military of Criminal Court Chief Judge Abdulla Mohamed in January 2012.

“The Maldivian judiciary’s independence has been compromised for years by serious pressure from the government, and this grossly unfair conviction highlights the numerous problems with the politicization of the judiciary in the country,” said Sam Zarifi, the ICJ’s Regional Director for Asia and the Pacific.

“It is crucial for Maldivian authorities to allow Mr. Nasheed to appeal his case effectively, with transparency and monitoring by Maldivian and international observers.”

ICJ contended that trial was marred by “gross violations of international standards of fair trial, including Article 14 of the International Covenant on Civil and Political Rights, to which the Maldives acceded in 2006.”

Among the violations listed by the ICJ included two of the three judges presiding over the trial having testified in the 2012 investigation, denial of legal representation for Nasheed during the first hearing on February 23, and the denial to the defence team of both full access to evidence and state witnesses and the opportunity to consult with Nasheed.

Moreover, ICJ noted that the court denied Nasheed the opportunity to seek new representation after his lawyers quit in protest of the court’s refusal to grant sufficient time to mount a defence.

“The defence was also denied the opportunity to call its own witnesses,” the press release added.

Following Nasheed’s conviction, President’s Office Spokesperson Ibrahim Muaz Ali told Minivan News that the president could not “interfere in judicial proceedings and is not to blame for court proceedings,”

“If you study this case, from the beginning to the end, it is clear the charges are not politically motivated,” Muaz insisted.

President Abdulla Yameen meanwhile called on all parties to respect the verdict and noted that the opposition leader has “a constitutionally guaranteed right of appeal.”

“The government calls on its international partners to engage constructively, based on mutual respect and dialogue in consolidating and strengthening democratic values and institutions in the country,” read a statement issued by the President’s Office.

Appeal

ICJ contended that Nasheed’s “right to appeal has been infringed by the unprecedented amendment of the statutory period for appeal from 90 days to 10 days, via Supreme Court circular six weeks prior to the trial.”

“In addition, the court has still not released to Mr. Nasheed’s defense team the full court record required to prepare and present an effective appeal within this accelerated timeframe,” the press release added.

It noted that the organisation has previously documented both the “politicisation of the judiciary” and the “polarised political climate in the Maldives, calling attention to a justice system characterised by vested interests and political allegiances rooted in the country’s authoritarian past.”

“Recent events reflect a justice system that still remains deeply politicised along the same lines of entrenched political loyalties that pre-date the transition period,” said Zarifi.

“The Maldivian judiciary must allow a proper appeal in this case if it is to establish itself as a separate and equal branch of the government dedicated to supporting the rule of law.”

The ICJ called on the government to ensure full acess and adequate opportunity for Nasheed’s lawyers to prepare an appeal, “and to ensure that the appeal proceeding is conducted fairly and transparently, with full access to media and domestic and international observers, in compliance with fair trial and due process standards under both Maldivian and international law.”

“The Maldives must also take effective measures to ensure that such violations do not reoccur in this or future cases,” the ICJ said.

Related to this story:

Nasheed to wait on appeal until Criminal Court provides full case report

Nasheed’s terrorism trial “a mockery” of Constitution, verdict “may have been pre-determined,” says Knaul

UN human rights chief expresses strong concern over “hasty and apparently unfair” Nasheed trial

US, EU, and UK concerned over lack of due process in Nasheed trial

Respect Criminal Court verdict, says President Yameen

Former President Nasheed found guilty of terrorism, sentenced to 13 years in prison

ICJ says Majlis has “decapitated the country’s judiciary”

Runaway judiciary leaves the Maldives “at a dangerous junction,” says Velezinee

 

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PPM accuses JP of misleading public, bringing government into disrepute

The Progressive Party of Maldives (PPM) has slammed alleged attempts by the Jumhooree Party (JP) to deceive the public and bring the government into disrepute.

In a press release on Thursday (December 18), the ruling party condemned “completely unfounded and false” public remarks from the estranged coalition partner after JP Leader Gasim Ibrahim suggested the Maldives was facing international censure over the removal of Chief Justice Ahmed Faiz Hussain and Justice Muthasim Adnan from the Supreme Court bench.

International condemnation of the move was a “red light” for foreign investors, Gasim contended at a ceremony last week to mark the signing of Independent MP Muaz Mohamed Rasheed to the JP.

“We’re giving a bad signal. [We are] talking about comments made about the Maldives looking at the statements from America and the Commonwealth,” the business tycoon was quoted as saying in local media.

While the International Commission of Jurists (ICJ) described the dismissal of the justices as “astonishingly arbitrary,” the Commonwealth Legal Education Association (CLEA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) in a statement on Tuesday called it unconstitutional and a clear breach of the Commonwealth Principles.

“The superficial legislative and administrative manoeuvres used to get rid of them [the judges] were grossly unfair and in flagrant violation of the Maldivian Constitution, UN and Commonwealth standards on independence of the judiciary, and the obligations of the Maldives under international law,” read the ICJ statement.

The pair were removed following the passage of government-sponsored amendments to the Judicature Act, which proposed reducing the number of judges on the apex court from seven to five.

Following ratification of the amendments by President Abdulla Yameen, the Judicial Service Commission (JSC) promptly recommended the dismissal of Faiz and Adnan, which was approved by parliament last Sunday with 53 votes in favour and 21 against.

The PPM statement meanwhile argued that weakened international relations have been repaired through the efforts of the current administration.

A number of friendly nations offered assistance during the recent water supply crisis in the capital, the party noted, while the government has launched major development projects in collaboration with foreign partners in recent months.

Foreign investors were presently carrying out projects in the country while expressing interest in further projects, the statement added.

Meanwhile, speaking to the press last week, Gasim also denied making a deal with the PPM to allow a free whip for the JP’s 12 MPs to vote as they saw fit in the removal of the Supreme Court justices.

While five out of 12 JP MPs voted to dismiss the pair, Gasim himself voted against the move.

However, PPM Deputy Leader Ahmed Adeeb had thanked Gasim on social media for “letting JP MPs vote as agreed for free whip today.”

Related to this story

Majlis removes Chief Justice Ahmed Faiz, Justice Muthasim Adnan from Supreme Court

Judicial independence, rule of law “severely jeopardised” in the Maldives, says Commonwealth organisations

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Commonwealth to provide technical assistance to help resolve Maldives’ judicial crisis

The Commonwealth will provide technical expertise to the Maldives to help resolve the ongoing judicial crisis in the Maldives, the Ministry of Foreign Affairs has stated.

High Commissioner of the Maldives to the UK, Dr Farahanaz Faizal, met with Deputy Secretary-General of the Commonwealth Mmasekgoa Masire-Mwamba this week and raised “the urgent need to modernise the Judiciary to international standards and possible Commonwealth assistance in this regard.”

The crisis was sparked on January 16 when the government ordered the military to detain Chief Judge of the Criminal Court, Abdulla Mohamed, after he filed a High Court injunction against his police summons.

Allegations against the judge dating back to 2005 include misogyny, sexual deviancy, throwing out an assault case despite the confession of the accused, political bias, obstruction of police duty, disregarding decisions of high courts, deliberately holding up cases involving opposition figures, barring media from corruption trials, ordering the release of suspects detained for serious crimes without a single hearing, maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes, and releasing a murder suspect “in the name of holding ministers accountable” who went on to kill another victim.

In one instance Abdulla Mohamed was accused of requesting that two underage victims of sexual assault act out their attack in court, in front of the perpetrator.

The judge had previously been under investigation by the Judicial Services Commission (JSC), but had successfully sought an injunction from the Civil Court against his further investigation by the judicial watchdog.

The JSC itself has itself been accused of perjury, embezzlement and corruption – by one of its own members.

The ongoing detention of the judge has polarised public opinion in the Maldives and resulted in several weeks of opposition-led protests consisting of between 200-400 people, some of them resulting in violence and injuries to police, protesters and journalists.

Judge was “clearly demonstrating his independence”: ICJ Australia

Earlier this week ABC Radio in Australia aired an interview with John Dowd, President of the Australian branch of the International Commission of Jurists (ICJ), who stated that Judge Abdulla Mohamed had “clearly been demonstrating independence as he’s supposed to do and the government doesn’t like it.”

None of the government’s allegations against the judge warranted his arrest, Dowd argued, “and it’s clear that the must be immediately released. This will do serious damage to the Maldives internationally and their tourist industry is a big part of their income and they just can’t allow this to go on.”

The Maldivian judiciary, Dowd claimed, was “generally competent”.

“It’s not a legally focused country. They’ve had a change of government after some 30 odd years and there’s obviously a settling down period and they do need assistance in terms of bringing their legal system up to date. But nonetheless, there is nothing wrong with the way the judges carry out their duties and it’s just a classic situation of a government not liking someone’s decision.

“It’s got a funny legal system in that there are aspects of Sharia law in it and British Commonwealth law and so on. But I would have thought that the Commonwealth Secretariat could have arranged some judges or someone that could go in there to mediate, and the Commonwealth is the more likely basis for resolving the issue. It really is very difficult for outsiders to intervene and I don’t think the UN is the correct body,” Dowd told the ABC.

Maldives Foreign Minister Ahmed Naseem responded to the criticism on ABC Radio the following day.

The government, he said, did not want to keep Abdulla Mohamed under arrest, but did not want him sitting on the bench until the charges against him were cleared – “but the point here is that we are in a Catch-22 situation – which court do we go to?

“Existing judges swore themselves in unilaterally without looking into the relevant clauses of the constitution, which says that they have to be sworn in according to the new constitution.

“Now, this new constitution strictly stipulates that these judges should have qualification to act as judges. The present judges that we have don’t have these qualifications.

“There are quite a lot of people whose interests are vested with these judges. That is, there are politicians connected to the former regime, who have many court cases. Now all these court cases are being held by the judge who is under detention at the moment. No cases have been conducted on this and no sentence has been passed. So it’s in the interests of the opposition to see that this judge remains as a judge.”

The country’s “entire judiciary is at stake”, Naseem argued. “What democracy can we have, when we don’t have a proper judicial system and we can’t dispense justice properly? The democracies of the world should really help us and find ways of sorting this issue out. We have requested UN bodies to help us in this and they’ve promised to send us some people to sit down with us and work something through.”

Criminal Court letter

Meanwhile, a group of Criminal Court judges this week sent a letter to Chief Justice of the Supreme Court, Ahmed Faiz, contending that the Supreme Court had as much responsibility for the crisis as President Mohamed Nasheed.

Ensuring an independent judiciary as envisioned in the new constitution adopted in August 7, 2008 was “a legal as well as national duty” of the Supreme Court, the judges noted, adding that it was “regrettable” that the Criminal Court’s functions have not been developed in line with the changes to the criminal justice system.

Among the main points raised in the letter included the Supreme Court abolishing an article in the Judicature Act – “without any discussions with anyone” – that stipulated the formation of judicial councils, intended to represent all courts and provide advice and counsel.

The Supreme Court also took over a case filed at the Civil Court challenging the legality and validity of the JSC’s process for vetting candidates to the High Court “in the name of public interest litigation” and dismissed the case without issuing a verdict.

Moreover, the letter stated, the Chief Justice “turned a deaf ear” to numerous complaints from the public as well as judges and took no action regarding Chief Judge Abdulla Mohamed.

The judges also criticised the Supreme Court for not undertaking efforts towards dialogue with the government or President Nasheed to resolve the current crisis, calling on the Chief Justice to bring both sides to the negotiating table.

The letter took note of inconsistent standards and rulings made by different judges of the Criminal Court regarding extension of detention and evaluating evidence as well as the release of suspects detained for serious crimes, and referred to a list of “urgently needed” reforms previously recommended to the Supreme Court.

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State Minister briefs US envoy on Maldives’ extremist rhetoric

Minister of State for Foreign Affairs Aslam Shakir met with Deputy Assistant Secretary of the US Department of State, South and Central Asia Affairs Dr Alyssa Ayres to address the “ongoing extremist religious rhetoric” currently at play in the Maldives political arena.

During the meeting State Minister Shakir highlighted the need for judicial reform, claiming that the current judicial system “has not lived up to international norms and obligations”, a statement from the Ministry of Foreign Affairs read.

Shakir further stated that “powerful, rogue judges” had undermined accountability, effectiveness and independence in the judicial system.

Citing a report from the International Commission of Jurists (ICJ) released in February 2011, State Minister Shakir specified a lack of standard evaluation mechanisms and the strong lack of transparency at the Judicial Services Commission (JSC).

The Maldives government has unconditionally accepted the ICJ recommendations for reform, however the judiciary has yet to formally accept them.

Addressing the pamphlet lately circulated by minority opposition Dhivehi Quamee Party (DQP), termed “hate speech” by the government, the Minister noted that the contents incited religious hatred and violence, particularly against Jews and Christians.

The State Minister expressed concern that the “extremist rhetoric” would lead to Maldives’ alienation in the international community.

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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.

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Afrashim’s dismissal highlights JSC composition concerns: DRP deputy

A Parliamentary decision passed yesterday by 38 votes to 34 to remove Dhivehi Rayyithunge Party (DRP) MP Dr Afrashim Ali from the Judicial Service Commission (JSC) raises further questions over the watchdog’s impartiality and reliance on political appointees, Ibrahim ‘Mavota’ Shareef has claimed.

Shareef, a DRP Deputy Leader, told Minivan News that he believed the no confidence motion against Afrashim, forwarded by Maldivian Democratic Party (MDP) MP “Reeko” Moosa Manik, was an “alarming” move by the government that was passed with “no valid reason”.

“If anyone elected to a position is not doing a job properly and perhaps there are more competent people who can do better, then [the removal] wouldn’t be a problem,” he claimed. “However, the MDP reason [for the vote] is not based on this. The government wants to use the JSC as a vehicle for [its own interests].”

The composition of the JSC, which serves as a watchdog for the country’s judiciary, was criticised by one independent judicial review body for failing to ensure transparency in its workings.

The International Commission of Jurists (ICJ) has maintained that although it was not illegal to rely on mostly political appointees as opposed to judicial and legal figures to oversee a national legislative watchdog, it was perceived as “bad practice”.

Criticisms of the JSC have also come from within the body itself by a former member selected by President Mohamed Nasheed. Presidential appointee Aishath Velezinee served as a whistle-blower by forwarding allegations of what she called a “silent coup” taking place in the JSC against the government.

Shareef said that he personally held concerns about relying on political figures to serve as JSC appointees when it came to overseeing the country’s courts, despite the process being constitutionally mandated.

“The fact that political appointees are allowed onto the body is not the best for the JSC. I myself have raised the wisdom [of allowing this],” he said. “In my view the JSC should be made up of members of the judiciary. However [composition requirements] are outlined in the constitution and we have to live with that.”

With the removal by parliamentary vote of Dr Afrasheem from his JSC post, Shareef claimed it remained vital to try and ensure the government did not have the ability to potentially “threaten the judiciary” with political appointments to the JSC.

“We [the political opposition] have lost representation on the body and we need a voice,” he said.

With the president entitled under the constitution to appoint a member of his own choice to the body – a position formerly held by Aishath Velezinee before she was dismissed with presidential praise last month – Shareef said he believed the opposition should be allowed a similar appointment.

“The opposition should be given the opportunity to appoint a representative itself to allow for equilibrium in the JSC,” he claimed.

ICJ view

The ICJ said it could not be commenting on Afrashim’s dismissal without additional details.

However, a spokesperson for the ICJ said previous reports on the Maldives had raised issues regarding the composition of the JSC relating to the number of political appointments made to the body compared to legislative and judicial figures.

“[Political representation] was identified as a key issue [by the ICJ] at the time in preventing the JSC from acting in an independent way,” said the spokesperson. “We are in no doubt that this current JSC has had no success in trying to bring about independence in the judiciary. We are not blaming any individual for this, but the JSC is not acting as it should be.”

As a matter outlined under the country’s constitution, the ICJ source said that the organisation accepted that changing such a system and finding a solution was difficult.

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“Courageous and exemplary work”: President dismisses JSC Velezinee

President Mohamed Nasheed has removed the President’s member of the Judicial Service Commission (JSC), Aishath Velezinee, from her post.

“There was no reason given. All I can say is that the President is extremely grateful for the courageous and exemplary work Velezinee has done,” said Nasheed’s Press Secretary Mohamed Zuhair, adding that a new member would soon be appointed.

Minivan News understands that Velezinee’s departure from the JSC may be part of a back room deal not unrelated to impending judicial reform, opposition MPs crossing the floor and the arrest of former government officials on allegations of torture.

Velezinee herself was not commenting on the decision.

One woman army

Velezinee became an outspoken whistle-blower on the JSC last year after claiming that her many letters of concern to parliament – which provides oversight on the independent commissions – were being ignored.

In early 2010, she set about publicly exposing the independent institution she claimed was operating “like a secret society” and serving as a “shield” for a judiciary that was “independent in name only”, and had tabled only several of the hundreds of complaints submitted against judges.

Using her access to court documents, Velezinee revealed that almost a quarter of the sitting judges had criminal records – ranging from theft to terrorism – and that an even greater number had not even completed grade 7 education. The only qualification of many was a ‘Diploma in Judging’ presenting to them by the former Ministry of Justice, Velezinee contested.

For the past 30 years judges effectively worked as the employees of those “hand-picked” by the former government, Velezinee explained – to the extent that failures to extend a particular ruling as required by the Ministry of Justice resulted in a black mark on the judge’s file.

“The only qualification it appears was a willingness to submit to the will of the government at the time – to follow orders,” Velezinee told Minivan News is a previous interview.

“Not everyone has the mindset to follow orders and serve in that kind of capacity. I believe it has excluded people with independent thinking, or the necessary legal knowledge – such people would take it as an insult for someone to order them how to decide a case.”

Velezinee’s concerns – met with noticeable silence from both the JSC and the then-opposition majority parliament – sparked her ‘Article 285’ campaign.

Article 285 was the Constitutional stipulation that the JSC determine before the conclusion of the interim period – August 7, 2010 – whether or not the judges on the bench possessed the characteristics specified by article 149: “the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, [and] high moral character”.

At the eleventh hour prior to the conclusion of the interim period, the JSC reappointed the vast majority of sitting judges for life in a surrepticious ceremony conducted behind doors that would have remained closed had Velezinee not rushed the podium.

“The JSC decided – I believe with the support of parliament – that the same bench will remain for the next 40 years, retitled as an ‘independent judiciary’,” Velezinee said following the reappointments.

She further alleged that senior members of the parliamentary opposition were present in the JSC office over the weekend prior to the interim period deadline, personally assisting the JSC secretariat with photocopying the letters of appointment.

“I’m telling you: this is big. What we are seeing is all interconnected – it is one big plot to try – in any way possible – to return power to the corrupt,” she told Minivan News in July 2010, noting that her concerns had led to her being labelled “the Article 285 madwoman” by not only the opposition.

Less than a year later, many of her allegations were independently corroborated by a report produced by the International Commission of Jurists (ICJ), which attended JSC sessions and criticised its independence.

The JSC, the report stated, “was unable to carry out its functions in a sufficiently transparent, timely, and impartial manner. To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment. Also troubling is that members of the judiciary have been subject to threats and intimidation as well as improper inducements by both governing and opposition party members.”

The JSC refused to table the ICJ’s report, and disputed having ever received it.

Towards the end of 2010 Velezinee upped her campaign to incorporate parliament, naming both opposition and independent MPs as being involved in what she described as “a silent coup” to deprive the country of an independent judiciary for the sake of providing continued judicial impunity to senior power brokers of the former administration.

The reason for that failure, she suggested, was a fear among leaders of the former administration “who are continuing with criminal activities they have allegedly been carrying out for a long, long time.”

“There is widespread public perception that certain members of parliament are behind all the serious organised crime going on in this country. This includes serious drug issues, gang violence, stabbings,” she alleged, in a previous interview with Minivan News.

“These are allegations only because they have never come up before a court of law in all this time.”

“It is a much discussed issue, but it has never come up in the courts. I can see now that perhaps it may be true – otherwise why prevent the formation of an independent judiciary? I don’t think they would have confidence that they would get away free,” Velezinee said, observing that former political figures such as attorney generals were now representing these MPs in court as their lawyers, “and, by and large, they win every case.”

“This is not such a far-fetched radical thought coming from me any more because of the things we have seen over the last year to do with politicians and judicial action. The courts are a playground for politicians and are not trusted by the general public. Parliament has failed, and there is no other institutional mechanism in this constitution for the JSC to be held to account.”

In January this year Velezinee was stabbed three times in broad daylight while walking down Male’s main tourist street, on the same day that the High Court judges were due to be appointed.

“My first fear was that I would easily I bleed to death,” she told Minivan News, after she was discharged from hospital. “But I took a deep breath and realised I was alive. As soon as I realised this, the only thing I wanted to do was go and get the blood stopped and get to the Commission because this was the day of the High Court appointments, and I know they wanted me out of the way. I didn’t realise how serious the wounds were, I didn’t see them until two days later when I went for a dressing change.”

Many international organisations, including Transparency International and the ICJ, expressed “grave concern that the attack may be politically motivated.”

“There are honourable men in this country who are owned by others, and they may be put in a position where they believe they have to take my life. I knew there was a chance that I was risking murder, and I wasn’t wrong,” Velezinee told Minivan News, following her recovery. “It was only because of God’s grace that I survived.”

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JSC abolishes complaints committee in name of efficiency

The Judicial Services Commission (JSC) has abolished its Complaints Committee citing “efficiency”, with complaints against judges now being forwarded for review by the legal section and Commission head Adam Mohamed.

Last year the JSC received 143 complaints concerning the conduct of judges. By its own statistics none were tabled in the commission, and only five were ever replied to.

Chair of the former complaints commission, the President’s Member of the JSC Aishath Velezinee who was stabbed in the street in January this year, said the complaints committee had been unable to operate as the chair had persistently scheduled meetings “during the same days and hours as the committee meetings, and it came to the point where it was impossible for the committee to meet and work.”

“Several members including Dhivehi Rayyithunge Party (DRP) MP Afrashim Ali also boycotted the meetings making it difficult for the committee to function,” Velezinee said, claiming that no procedure had been followed in abolishing the committee, and intention was to stop complaints against judges from being investigated.

“The JSC recently adopted house rules, which gives extraordinary powers to the chair. The chair decides whether to table complaints, routinely withholds information from the Commission and responds [to complaints] himself,” she said.

The JSC has failed to table or even acknowledge receipt of a report on the judiciary produced by the International Commission of Jurists (ICJ), which questioned whether the JSC’s possessed the technical ability and knowledge to investigate complaints and hold the judiciary accountable, as well as its independence.

The opposition-majority parliament has meanwhile yet to back the government’s request that the Maldives join the International Criminal Court (ICC), of which half the world’s nations are members. Velezinee has previously accused certain opposition MPs of manipulating the judiciary through JSC in an attempt to retain control of the legal impunity provided them under the previous government’s Ministry of Justice.

Central to the International Criminal Court’s mandate “is the principle of complementarity, which holds that the Court will only intervene if national legal systems are unable or unwilling to investigate and prosecute perpetrators of genocide, crimes against humanity, and war crimes,” the ICC’s international NGO coalition said in a statement.

“Perpetrators of genocide, war crimes, and crimes against humanity must be held accountable. Greater support for the ICC in Asia is needed in order to increase the region’s commitment to the fight against impunity. The Coalition therefore encourages Maldives to assert its commitment to ending the culture of impunity by acceding to the Rome Statute of the ICC.”

Parliament has meanwhile been deliberating on an amendment to the Clemency Act whereby death sentences issued by judges would be acted upon when all appeals failed. The last person be judicially executed in the Maldives was Hakim Didi in 1953, who was executed by firing squad after being found guilty of conspiracy to murder using black magic.

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Judges legitimised JSC’s actions with their silence

Is the law community finally getting ready to stand up to the JSC?

On Saturday night, as Earth Hour plunged the world into darkness, the Judicial Service Commission (JSC) quietly went about swearing in its controversial five new High Court appointments.

The ceremony, held at the JSC premises in the former Presidential Palace, marks the second time in less than a year that the JSC has sworn in judges under circumstances that are legally dubious and highly challenging for democratic consolidation.

The first occasion was in August 2010 when the JSC disregarded Article 285 of the Constitution relating to the educational and other qualifications of the bench and arranged for close to 200 judges to re-take their oaths, regardless of their professional or ethical qualifications.

160 of the judges had been originally appointed by the previous regime, and over a quarter of them possessed criminal records. Many more failed to meet the required educational qualifications by a long shot, having only attended  primary school – an establishment that is yet to be known as a bastion of legal education.

Although the JSC had then decided to treat Article 285 as nothing more than ‘symbolic’, its Annual Report 2010 published this month lists a total of 191 judges as having been sworn in last year ‘under Article 285 (c)’.

The implication is clear, and clearly false – the judges were reappointed to fulfil the stipulations of Article 285.

According to the JSC – except for President’s Member Aishath Velezinee who launched an emotive appeal against the procedure as the judges prepared to re-take their oaths – such a ceremony adequately met the constitution’s ‘symbolic’ requirement for judicial reform.

None of the sitting judges, nor any other member of the law community, mounted any significant objections to JSC’s dismissal of the Constitution as ‘symbolic’ and proceeded to re-take their oaths, implicitly legitimising JSC’s approach.

JSC’s ‘winning’ streak

Until now, this initial tacit complicity of the law community in the JSC’s actions had remained largely unchanged as lawyers and judges all appeared to turn the other cheek as the number of allegations of unconstitutional policies and activities in the JSC continued to mount.

Indeed, none of the cases brought against the JSC have so far been successful. This state of affairs is even more remarkable when it is taken into account the JSC’s ‘wins’ have been due to technicalities rather than reasoned argument or skilled interpretations of the law.

In January last, for instance, the Civil Court threw out a lawsuit brought against the JSC by Treasure Island Limited, which alleged that the Commission had been deliberately negligent in its constitutional duty to investigate all complaints of judicial misconduct.

Despite an admission by the JSC during the hearings that it did not have a standardised procedure for dealing with complaints – or anything else for that matter – the Civil Court threw out the case when the plaintiff was late for what was to be the penultimate hearing.

The dismissal meant that the JSC’s complaints procedure – or lack thereof – eluded legal and public scrutiny despite clear indications that such an examination was necessary in light of JSC’s methods for dealing with complaints, which were at best ad hoc by its own admission.

Last Thursday, it was on almost exactly the same grounds that the Supreme Court dismissed Criminal Court Judge Abdul Bari Yousuf’s lawsuit against the JSC alleging that the policy adopted by the JSC to select candidates for the high Court bench was discriminatory and therefore unconstitutional.

Judge Abdul Bari, the Supreme Court ruled on Thursday, had violated court regulations by taking leave without giving prior notice to the court as is required of all claimants in an ongoing case. On these grounds the case was thrown out.

The Supreme Court’s decision to dismiss the case becomes all the more confounding when seen in light of the force and speed with which it moved to acquire the files from the Civil Court where Judge Bari first lodged it.

Citing ‘public interest’, and the magnitude of its importance to the Constitution, the Supreme Court on 21 January used an unprecedented Writ of Prohibition to force the Civil Court to hand over the case files.

Shortly after, the Supreme Court ruled that given the gravity of the matter, only the Supreme Court had jurisdiction over the case. The Civil Court, it said, did not have the authority to decide constitutional matters or matters relating to a higher court.

No need for a lawyer

After two sittings, in which JSC member Dr Afraasheem Ali – appointed as JSC’s representative to the Supreme Court after some frantic self-lobbying over the ‘big telephone in the JSC’ – denied all wrongdoing, the Supreme Court threw out the case.

Despite having been officially made aware of a leaked audio which provides evidence of the unorthodox – if not illegal – methods by which Dr Afraasheem managed to confirm himself as the JSC’s legal representative, the Supreme Court did not raise any objections to his new role as ‘defence counsel’.

Although the JSC is composed overwhelmingly of judges or other legal professionals Dr Afraasheem is not one of them. In fact, despite the growing number of lawsuits against it, the JSC is yet to hire a professional lawyer – hence the need for members to moonlight as defence counsel, qualified or not.

As it turned out, not much training or skills were called for as the Supreme Court threw out the case on 24 March without addressing the issues that the Court itself had deemed as highly important.

The Supreme Court decision, delivered after 4:00pm on Thursday, freed the JSC to swear in its new appointees. It did not waste any time, quickly arranging for the ceremony to take place not much more than 24 hours later.

Although Supreme Court regulations provide a seven-day period in which a claimant can appeal a ruling, JSC’s expedited oath-taking ceremony effectively pre-empted any such action by Judge Bari.

The Supreme Court’s decision to dismiss the case also means that the concerns raised by Family Court Chief Judge Hassan Saeed alleging similar violations of the Constitution by the JSC in its High Court appointments were not addressed either.

By the time he lodged his case, also at the Civil Court, the Supreme Court had ruled that only it had jurisdiction over the matter. His case, too, was then transferred to the higher court to be heard with Judge Abdul Bari’s case.

Personal interest versus public interest

Unlike the oath-taking ceremony in August last year, there appears to be less appetite among members of the judiciary to swallow whole the JSC’s interpretation of the Constitution this time around.

Back then none of the judges stood to make a personal loss in re-taking the oath. The negative impact of such an action would have been, and has been, on the public’s faith in the independence of the judiciary.

In the current dispute, however, the JSC’s appointment criteria as well as the Supreme Court’s dismissal of any alleged wrongdoing on the part of the JSC have cost the appellants – and other unsuccessful candidates – a seat on the High Court bench.

The personal cost appears to have galvanised the law community into action in ways that the JSC’s dismissal of the Constitution in August 2010 did not.

Judge Hassan Saeed, for instance, wrote to President Nasheed on Saturday, asking him to apply the powers vested in the executive by Article 115 of the Constitution, which accords the president both the right and the duty to intervene in furtherance of the rule of law.

Judge Hassan Saeed’s appeal to President Nasheed to use his executive powers to bring the JSC in line marks not only a potential turning point in the law community’s attitude towards the JSC and the role of the courts in supporting it; it also signals a u-turn in the judiciary’s perception of the executive’s relationship with the judiciary.

When President Nasheed criticised the JSC in June 2010, when it first decided to disregard Article 285 of the constitution, the Judges Association of Maldives (JAM) was scathing in its response.

In a press release, JAM described President Nasheed’s condemnations of the JSC’s actions at the time as ‘disrespectful towards the honour and dignity of judges’, and said his criticisms were indicative of the ‘negative view he holds of the judiciary’.

The Judges Association also accused the president of attempting to unduly influence the JSC, which it said, would ‘render separation of powers obsolete’.

It is not known yet whether President Nasheed has responded to Judge Hassan Saeed’s letter, a copy of which Minivan News has obtained.

If the president does heed the call to intervene in the matter, the law community’s reaction would tell whether or not it has arrived at a point where it is willing to stand up to threats to judicial independence – perceived or real.

As Pakistan’s law community demonstrated in 2007, the strongest ability to establish and protect the independence of the judiciary lies within itself and not outside of it.

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