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

The Maldives is at “a dangerous junction” following the publication of an in-depth report into the state of the country’s judiciary by the International Commission of Jurists (ICJ), says President’s Member of the Judicial Services Commission (JSC) Aishath Velezinee.

The report was released this week following a visit by an ICJ delegation that included former UN Special Rapporteur on the Independence of Judges and Lawyers, Dr Leandro Despouy. It urged the provision of institutional and individual support for judges and magistrates in the Maldives, foreign oversight and assistance, and highlighted judicial accountability as “the key to cultivating public confidence [in the judiciary]”.

The report was especially critical of the JSC, “constitutionally established as an independent and impartial body tasked with vetting non-Supreme Court judges and magistrates.”

The JSC, the report said, “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 has refused to even table the report, Velezinee said on Thursday.

“We have not been given the opportunity to discuss the report in the JSC,” she said.

“The first thing is for those members exposed as not up to the conduct required by JSC to seriously think about resigning. Number two – we need to table the ICJ report and discuss it. But they have shown no interest in doing so.”

The ramifications of not doing this meant that the Maldives  had “a runaway judiciary”, Velezinee said.

“There has been very public resistance from JSC to any sort of democratisation of the JSC. I’m afraid the people are fooled – the constitution promises an independent judiciary and JSC, which would ensure judges are impartial and independent. But the JSC never institutionalised itself as an independent institution.”

The ICJ had managed, Velezinee said, “to put together a clear picture drawing from the little documentation that was available to them.”

“A lot of very political opinions were shared with them by stakeholders, and they would have had to be really vigilant to not be taken in by the politics of it,” Velezinee said.

“I think the challenge for them was that almost all the documentation is in Dhivehi and not available publicly. Considering the difficulties they had getting information and the very political situation we are currently in, I think they have done an excellent job.”

Situation at hand

Under the constitution the next step forward would be for the Majlis (parliament) to act as the independent oversight body and “put the JSC on trial”, Velezinee said.

“But every time controversy in the JSC becomes public the Majlis intervenes – not in a way that holds JSC accountable, but with the sole objective of covering JSC’s misdeeds. Right now the parliament has a three-member subcommittee conducting a secret investigation of JSC – these are meetings that are closed door [and not public knowledge].”

Parliament, Velezinee contended, had failed to hold the JSC to account and had resisted reforming the watchdog body.

“The parliament is together with the judiciary on this – certain influential members of parliament would like to maintain the status quo so they can control the judiciary,” Velezinee said.

“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.”

It was, Velezinee said, in the interests of everyone, including the international community and the state, “to ensure that the constitutional provisions to establish independent judiciary are followed to the letter and in spirit. We have failed to do that.”

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

“I would find it an insult if had to go and argue my case before someone who does not understand the law. Why are these people doing it? On some islands the parents are locking up the primary schools if the teacher is not qualified. Why are we content with people who have not completed primary school sitting on the bench and judging us?”

Deep-rooted cultural issue

Many of the problems now embedded in the Maldives and its institutions can be traced to the fact that the country never had the opportunity to acclimatise to the concept of democracy before it was introduced, Velezinee suggested.

“For the last two years I have done nothing but think about this and try to change the JSC. I have spent hours and hours by myself thinking this through.

“What I think is this: when a student from a developing country goes to a university in a developed country, you go through an orientation process. If you live in the developing world and you go to work in the third world as a volunteer you also go through orientation – it’s to prevent culture shock.

“We just woke up one day to a new culture. We have always had this culture of subservience, of submissiveness where you are taught to respect your elders – certain people who have been shown to you as the leaders. Then suddenly we adopted this constitution that says everyone is equal.

“I think what people have found as my brazenness is that I have dared to publicly criticise the Speaker of Parliament and senior judges. They do not understand that I am equal to them as a member of JSC – the concept is completely lost on them.”

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 then 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 said.

“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.

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

Download the ICJ’s report, ‘Maldives: Securing an Independent Judiciary in a Time of Transition’ (English)

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Judiciary has failed to keep up with parliament and the executive, says Attorney General

The Judicial Services Commission (JSC), the body entrusted to vet and regulate the conduct of judges in the Maldives, has failed to match the government and parliament over the last two years in operating within a constitutionally defined role, Attorney General Dr Ahmed Ali Sawad has claimed.

The claims follow the publication this week of a report by the International Commission of Jurists (ICJ) that was critical of both political interference in the judiciary by government and opposition groups, and critical of the JSC’s ability to “carry out its functions” in ensuring judges were both impartial and capable of performing their duties.

Along with outlining recommendations for the executive, the Majlis and legal bodies like the JSC to follow in order to better ensure a judiciary independent from government and opposition influence, the ICJ’s Director of Asia Pacific Operations, Roger Normand, suggested a lot of work lay ahead.

Accepting that positive developments had been made within its courts since the Maldives became a democracy, concerns remained over a number of issues, Normand said. Having spoken to stakeholders across the country’s legal system, “ordinary” Maldivians did not look to their courts for justice or to solve problems, he suggested.

The report criticised the conduct of the government during a period of crisis last year; where the government locked shut the Supreme Court questioning its legitimacy on conclusion of the interim period. The report was also critical of the JSC’s decision-making, which was perceived as being inappropriately politically influenced.

Sawad said that he welcomed the observations by the ICJ in regards to recommendations for improving efficiency in the JSC and judicial administration, but added that ultimately, all stakeholders working within the Maldivian court system were under pressure to step up accountability.

“I think there is a lot to be done by the JSC in terms of enhancing the standard of the judiciary,” the attorney general told Minivan News.  “I think there is a need to inwardly look into the judiciary and all agencies related to it. That is the judicial administration, the judicial council, the JSC, the Attorney General’s Office, the Supreme Court and the High Court – it’s time they work together in bringing about perceived standards required of the judiciary in the constitution.”

Sawad said that he believed that as a judicial watchdog, the JSC had at times tended to act defensively instead of self-critically, particularly when reviewing the constitutional role it was assigned within the constitution to appoint judges and protect independence in the judiciary.

In order to try and ensure it was able to meet these roles efficiently, the attorney general suggested that it may be appropriate to have the Majlis consider reviewing the role of the JSC during the last year and a half to determine if it was functional.

However, Sawad claimed that no single entity alone should shoulder the blame in terms of perceived issues with independence in the judiciary.  He added that during a seven year period allotted for education and improvement under the Judges Act, education was a key to ensuring effective changes and developments in ensuring confidence within the legal system.

“When I look at the crucial actors in this, I feel the JSC has a crucial role to play.  I feel the judicial administration have a crucial role to play and I feel there is a missing link in the form of a judicial training academy,” he said.  “We cannot burden the Supreme Court or the High Court of with continuously setting the standards of measure for the rest of the judiciary day-on-day.”

Ultimately, Sawad said that as one of three distinct branches of the state along with the government and the Majlis, the judiciary was required to meet the same levels of accountability as part of its independence – making the role of the JSC essential.

“What we have [under the constitution] is an accountable government and an independent judiciary,” he said. “But independence is a perception made by the people who are the beneficiaries – in this case the public.  If the people do not perceive that level of independence then there is a problem.”

Sawad stressed that the perception of independent courts within the country were especially important in defining the difference between the judiciary before and after 2008, when the Maldivian Democratic Party (MDP) came to power on the promise of trying to bring more political accountability.

“Pre-2008, people knew that the judiciary was part of the executive,” he said.  “Post-2008, the people need to know the judiciary is independent.”

Government criticism

Along with concerns over the impartiality of the judicial system in the Maldives, the ICJ was also critical of the handling by the government of what it called a “constitutional crisis” last year over the legitimacy of the courts and the arrest of some prominent opposition figures.

In addressing these concerns and whether the actions of the government were a setback to the democratic mandate it promised, Dr Sawad said it was unacceptable under the constitution for any branch of the state to have jurisdiction over another, whether in the case of the executive over the judiciary, or the Majlis over the executive.

The attorney general claimed that ultimately, a “culture of respect” needed to be created by different branches of the state and government that would allow these different groups to work under the mandates they were assigned.

“That is a constitutional convention that needs to be dealt with. We haven’t had that in the past,” he said.  “It’s just over two years since 2008.  Now a convention takes a little more than two years, but it must nevertheless be started.  The commencement of that respect agenda, that’s what needs to happen.”

Sawad said that he was generally encouraged by findings in the report, which he suggested were “timely” in light of political tensions across the nation, though may have been better served if it had been released a year earlier to grant more room for maneuver (prior to the end of the interim period).

However, the attorney general claimed to be cautiously optimistic that the report would provide guidance to “tweak” the problems that had been experienced in trying to establish courts independent of political and commercial manipulation.

“When you look back at what has happened, it has been a tumultuous two years where the three branches of the state have been morphing into their own jurisdiction perimeters – there have been teething issues, but I think two years is long enough to learn respect,” he said.  “I am more optimistic about the future, I think we have a permanent judiciary now and the role of the judiciary is very clear.”

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Maldivian courts failing to serve the public impartially: ICJ report

The Maldives legal system is failing to serve its citizens despite many “positive developments” that have been made in an effort to depoliticise the courts; with many of judges found lacking in qualifications and independent attitude, according to the International Commission of Jurists (ICJ).

“How often do ordinary Maldivians look to the courts for justice? Is there a sense that ‘We [Maldivians] have an independent judiciary that is capable of resolving problems?’ I think the answer is no,” surmised Roger Normand, Director of the ICJ’s Asia Pacific operations.

“Historically, [independent resolution] has not been the role of judges. Judges were an outcome or a product of the executive power. This is not a controversial statement, this is an outline of what their legal role was in the previous [government],” Normand stated.

Normand’s claims were made as the ICJ published a report on the Maldives legal system that outlining a huge number of challenges to ensure the country’s courts are in the long-term transparent in their decision making. It is hoped that the developments can remove the opportunities for abuse from government and opposition politicians alike, the ICJ stated.

The report itself is highly critical of both the role of some members of government in calling for protests and gatherings outside judges’ homes, as well as the Judicial Services Commission (JSC) that it said was “unable to carry out its functions” to impartially vet and reappoint judges on the basis of qualification and background.

“To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment,” the report stated. “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 ICJ said the report, entitled ‘Securing an Independent Judiciary in a Time of Transition’, had raised particular concerns over the “constitutional crisis” that occurred last year concerning the legitimacy of the courts and judges and the conduct of the government of President Mohamed Nasheed in addressing this.

Despite these concerns, Normand claimed that while there were “significant” problems with judiciary in the Maldives, and that the structure of a watchdog body such as the JSC needed much work needed to resolve, he was encouraged that there appeared to be a political mandate to bring changes to the legal system. However, the ICJ Asia Pacific director stressed that a non-independent judiciary could not simply change directly to an independent body.

“To have a sudden change, where suddenly judges are independent – this can’t just be signed on a piece of paper or constitution, it’s an attitude and a practice,” he said. “I think it’s safe to say we don’t have those attitudes and practices in the Maldives, but I also think the size of the developments are very positive.”

According to Normand and the ICJ, part of the challenge in trying to provide an independent judiciary is to ensure public support and acceptance of the country’s legal institutions and their verdicts, which in itself was linked to transparency within the decisions of bodies like the JSC.

“Judicial accountability is key to cultivating such public confidence and is an integral aspect of judicial independence,” the report stated. “Accountability must be manifest both at institutional level, in terms of court administration and access to justice, and at the individual level. This enables judges to decide cases without fear or favour and that they strictly apply the law to the facts before them.”

Recommendations

The report recommends a number of areas, such as education and training programmes for court appointees, bringing foreign experts to assist long-term, and advise on developments that it believes the Supreme Court could adopt to boost its own accountability.

In areas such as education, the ICJ said that seven-year periods outlined under the national Judges Act was used more effectively to enhance the qualifications of judges as well as ensure that a code of ethics was introduced in line with international agreements such as the Bangalore Principles on Judicial Conduct.

In addition, the ICJ claimed that steps could also be taken to ensure the Department of Judicial Administration was used to try to provide smoother administration of justice,such as requiring all levels of court to issue written reasons for its actions and establishing a judicial database so the court and public could refer to similar case law and precedents.

Normand stressed that the Maldives was relatively unique in that its courts would turn to Sharia law where Maldivian legislation didn’t apply, but that it was not alone in such experiences.

“We would recommend [collaboration with] countries that have experience of working both with common law – using previous legal cases to set precedent – and Sharia law, Pakistan is one example, Malaysia is another,” said Normand. “There are other countries where the issues the Maldives faces have been looked at before. It’s not the first time so you need to take advantage of this.”

The ICJ also recommended steps it hoped the JSC would take to act with greater transparency after coming under criticism and allegations of possible corruption.

Beyond adopting regulations and procedures to create greater accountability into the JSC’s decision making by recording detailed minutes of its meetings, a technical secretariat could also be established by a neutral party that could limit the workload to allow the organisation to work to its constitutional requirements.

The ICJ added that these developments needed to be backed by using international experts to help oversee work, and also ensure the high “moral integrity” of judges in relation to their criminal records that is also outlined under various international treaties and agreements.

The report also outlined recommendations for the country’s parliament and government to adhere to in their conduct in relation to the courts such as launching public awareness campaigns in relations to the requirements under the constitution of various legal institutions. The government was also called on to provide funding and strengthen the faculty of law and Sharia in the country, and the Majlis were called upon to pass vital laws such as the Penal Code and Criminal Procedure Code to allow swifter and more impartial delivery of justice.

The organisation also called for reform of the JSC in relation to concerns the report and others have raised over issues of transparency.

“As a principle, the JSC must become more transparent and effective in processing the complaints by the public about judges,” added Normand.  “In fact, it is important for the judges themselves that the institution of the judiciary has the confidence of the public – that you’re qualified, that you’re not a criminal – it’s important for everyone.”

Taking the example of other nations such as Indonesia that are claimed to witnessed huge problems with trying to establish an independent and efficient judicial service, Normand claimed there were positive examples of countries like the Maldives that had seen vast improvements in the impartiality of its courts.

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ICJ and former UN Special Rapporteurs to help Maldives strengthen judiciary

A delegation from the International Committee of Jurists (ICJ), led by two former UN Special Rapporteurs, will visit the Maldives September 13-18 to discuss a long-term engagement aimed at strengthening the country’s judiciary.

A statement from the Ministry of Foreign Affairs said the ICJ had agreed to work with the government on “a sustainable basis” to strengthen the judiciary and incorporate international standards into national law and practice, and build public trust in the legal institution.

The ICJ mission will be led by Dr Param Cumaraswamy and Dr Leandro Despouy. Dr Cumaraswamy was UN Special Rapporteur from 1994 to 2003 and has held roles including President of the Law Association of Asia and Chairman of the Human Rights Committee of the International Bar Association.

Dr Despouy was the UN Special Rapporteur from 2003-2009 and was previously the President of the UN Human Rights Commission.

The Foreign Ministry described the pair “as two of the world’s foremost experts on matters pertaining to the judicial sector and the separation and balance of powers between the judiciary and the other branches of government.”

During their visit in September the pair will decide the terms of reference for the ICJ’s engagement, and “gather information about the challenges to judicial independence and integrity, and report back with findings and recommendations.”

Minister of Foreign Affairs Dr Ahmed Shaheed said that while the country had taken “important steps” to increase independence and trust in the judiciary through parliament’s appointment of a Supreme Court last week, “Rome wasn’t built in a day and it is important that we, as a country and as a government, think long-term.”

Speaking to Minivan News earlier this month, the President’s member on the Judicial Services Commission (JSC), Aishath Velezinee, called for international arbitration of the judiciary, particularly disputes regarding the reappointment of judges under standards she argued were unconstitutional “and would deprive the nation of an honest judiciary.”

“We need an impartial investigation of what is going on. And I believe the Maldives does not have anyone able to conduct an impartial investigation. We need assistance,” she said.

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