Tag: judges

UN Special Rapporteur on Independence of Judges and Lawyers arrives in the Maldives

The UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, arrived in the Maldives on Saturday (February 16) for a visit scheduled to last until February 24.

During her visit, Knaul will “examine measures taken to ensure the independence of the judiciary, prosecutors and lawyers, as well as their protection, and the obstacles encountered for an adequate, impartial and independent administration of justice”, the UN said in a statement.

Knaul, a judge from Brazil, will then submit her report and recommendations to the government and the UN Human Rights Council.

In its concluding statement following the Maldives’ Universal Periodic Review in 2012, the UN Human Rights Committee expressed concern that the composition and functioning of the Judicial Service Commission (JSC) “seriously compromises the realisation of measures to ensure the independence of the Judiciary as well as its impartiality and integrity.”

“The Committee is also concerned that such a situation undermines the judicial protection of human rights and fundamental freedoms in the [Maldives]. The [Maldives] should take effective measures to reform the composition and the functioning of the Judicial Service Commission (JSC),” the UN report stated.

“It should also guarantee its independence and facilitate the impartiality and integrity of the Judiciary, so as to effectively protect human rights through the judicial process,” it added.

Although unrelated, Knaul’s visit comes days after former President Mohamed Nasheed sought refuge from a court summons inside the Indian High Commission in Male’.

The Hulhumale’ Magistrate Court, which is trying Nasheed for his detention of Chief Criminal Court Judge Abdulla Mohamed during his final days in office, was created by the Judicial Services Commission (JSC).

The JSC, which includes several of Nasheed’s direct political opponents including rival presidential candidate Gasim Ibrahim, also appointed the three-member panel of judges overhearing Nasheed’s trial.

Parliament’s Independent Institutions Oversight Committee had declared that the JSC’s creation of the Hulhumale’ Magistrate Court was unconstitutional.

However, the Supreme Court declared parliament overruled, issuing a statement that “no institution should meddle with the business of the courts”, and claiming that as it held authority over “constitutional and legal affairs” it would “not allow such interference to take place.”

“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” the Supreme Court stated.

A subsequent request by the JSC that the Supreme Court bench rule on the court’s legitimacy resulted in a four to three vote in favour. The casting vote was made by Supreme Court Judge Adam Mohamed, also President of the JSC.

A troubled judiciary

Besides the UN Human Rights Committee, numerous international organisations and reports have challenged the political independence of the JSC and the judiciary.

A report by independent observers of the Nasheed trial from the UK Bar Human Rights Committee concluded that “a primary motivation behind the present trial is a desire by those in power to exclude Mr Nasheed from standing in the 2013 elections, and notes international opinion that this would not be a positive outcome for the Maldives.”

A report by the International Committee of Jurists (ICJ) in February 2011 found that many judges were lacking in qualifications and independent attitude.

“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, former Director of the ICJ’s Asia Pacific operations at the time.

“Historically, [independent resolution] has not been the role of judges [in the Maldives]. 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 said.

The ICJ was highly critical of the the JSC, which 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,” Normand said.

Former JSC member and whistleblower Aishath Velezinee first raised problems in the judiciary and JSC in August 2010.

“My experience, from being part of the complaints committee in the JSC, is that whenever a complaint is received, we have two judges on the complaints committee who will defend the [accused] judge, trashing the complainant, and talk about ‘taking action’ against these people ‘who are picking on judges’,” said Velezinee, in a 2010 interview.

“Then they will put out a press release: ‘Nobody should interfere with work of judges.’ Their interpretation is that ‘nobody should criticise us. We are above and beyond the law.’”

She was subsequently stabbed three times in the back in broad daylight on Male’s main tourist street in January 2011.

A more recent report produced by local NGO the Raajje Foundation and supported by the UNDP and the US State Department, noted that the JSC’s mission under the 2008 constitution to ensure the new judiciary was was clean, competent, and protected from political influence, “has sadly gone unfulfilled.”

“The courts have essentially been able to capture the JSC so as to ensure that the old judiciary remained in place under the new constitutional order,” the report noted, predicting the most likely national outcome a cycle of failed states.

President Dr Mohamed Waheed Hassan Manik has insisted on the government’s independence of the judiciary, stating that the court case “”has nothing to do with my government. Upholding the rule of law means nobody is above the law. I would like to assure the people of Maldives that the law and order will be maintained,” he said, in a statement on Sunday.

“My government has upheld the rule of law and respected all independent institutions. I am pleased to note that unlike in the past, within the last year, the President has not interfered in the work of the judiciary, the police, or the independent commissions,” Waheed’s statement read.

Meanwhile, Home Minister Mohamed Jameel – formerly Justice Minister under the 30 year autocracy of Maumoon Abdul Gayoom – told local media that it was “crucial [the judiciary] conclude the case against Nasheed before the approaching presidential elections, in the interests of the nation and to maintain peace in it.”

“Every single day that goes by without the case being concluded contributes to creating doubt in the Maldivian people’s minds about the judiciary,” Jameel said.

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JSC discusses probing bribery allegations against two judges by former Adhaalath Party President

Members of the state’s judiciary watchdog the Judicial Service Commission (JSC) have discussed probing allegations of bribery levied against two sitting judges by former President of the Adhaalath Party, Sheikh Hussain Rasheed.

During an opposition Maldivian Democratic Party (MDP) rally held last Thursday, Sheikh Rasheed said that last year he had met a Maldivian businessman in Saudi Arabia who had alleged to him that two Maldivian judges had accepted a sum of MVR 12.3 million (US$ 797,148.41).

A JSC spokesperson told Minivan News that after the allegations were made public, members of the commission had discussed an investigation.

“The matter was discussed during the last JSC meeting,” the spokesperson said. Asked whether a decision was reached, he replied “there were many items on the agenda.”

Rasheed alleged the businessman had paid one judge a sum of US$700,000 while other was paid US$50,000 on two different occasions.

The businessman gave the money to prevent his rights being harmed by the other party in the case, whom he alleged had also bribed the judges, Rasheed said.

Rasheed was not available for a comment when contacted.

President of the Anti Corruption Commission (ACC) Hassan Luthfee said he had also heard of Rasheed’s allegations and would giving the matter a high priority.

“The ACC will for sure look into any cases of corruption, regardless of whom it involves. We too have heard of the allegations through the media. We will in the coming days look into this,” he said.

Luthfee said there were no legal barriers to the ACC’s investigation of judicial misconduct, and that the ACC had the jurisdiction to look into any corruption matter even if it involved judges.

“The case will officially be investigated by the ACC,” he said.

Former President’s Member on the JSC, Aishath Velezinee in her book The Failed Silent Coup: in Defeat They Reached for the Gun extensively highlighted the watchdog body’s undermining of judicial independence, and complicity in sabotaging the separation of powers.

In her book, she recounted her experience as the outspoken whistleblower as she attempted to stop the commission from re-appointing unqualified and ethically-suspect judges loyal to former President Maumoon Abdul Gayoom, after it dismissed the professional and ethical standards demanded by Article 285 of the constitution as “symbolic”.

That moment at the conclusion of the constitutional interim period marked the collapse of the new constitution and resulted in the appointment of a illegitimate judiciary, Velezinee contended, and set in motion a chain of events that ultimately led to President Mohamed Nasheed’s arrest of Chief Criminal Court Judge Abdulla Mohamed two years later.

Current Home Minister Dr Mohamed Jameel Ahmed – himself a former judge and Justice Minister – has admitted the quality of services delivered by the judiciary remains disappointingly gloomy while writing in an op-ed article in Haveeru.

“Our judiciary has some bright minds, but that does not exempt it from scrutiny; the judiciary in the Maldives, with the exception of few courts and judges, the judiciary as a whole has earned a deservedly bad reputation for its inconsistent judgments, lack of leadership, lack of competency and being out of touch with modern laws and views of the society,” he wrote.

In 2004, a report by judicial expert Professor Paul Robinson assessed the country’s criminal justice system, and found in his report that “serious efforts” were required to increase the quality of judges.

“Serious efforts must be made to provide substantial training to current judges in order to ensure that all have the background they need in both law and Shari’a. Perhaps more importantly, no judge should be hired who does not already have the needed training,” he wrote.

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ACC investigates awarding of state-owned apartments to judges

Judges occupying state-owned apartments while simultaneously receiving living allowances are currently under investigation following accusations that they are receiving unfair privileges, the Anti Corruption Commission (ACC) has confirmed.

“We have received complaints that some judges are living in government flats and taking living allowances. The complaint states that giving flats to only certain judges is giving them unjust privileges,” ACC Deputy Chair Muaviz Rasheed said.

Three judges are living in flats leased to the former Justice Ministry, including Supreme Court Judge Ali Hameed, High Court Judge Ahmed Shareef and Civil Court Judge Abdullah Adheeb, according to local newspaper Haveeru.

Meanwhile, Haveeru also reported that the parliament’s Finance Committee has decided to grant the ownership of those flats to the judges and has forwarded the matter to the floor for a vote.

A Maldivian Democratic Party (MDP) MP belonging to the finance committee confirmed the decision was taken in his absence during a committee meeting last month.

Minivan News could not get details of the decision at the time of press.

The finance committee is headed by MP Ahmed Nazim from the People’s Alliance (PA). the party headed by former President Gayoom’s half brother, Abdulla Yameen.  Multiple counts of fraud against Nazim were recently dismissed by the Criminal Court.

Asked whether the parliament committee can grant ownership of state property to judges, Muaviz responded that “I cannot comment on as it may affect the ongoing investigation.”

However, he added that parliament must follow the laws while deciding the salaries and privileges of independent institutions.

According to the Judges Act article 39(a) judges belonging to the same court shall be granted equal salaries and living allowances. Any discrimination in giving living allowances or benefits to judges is restricted under the same clause.

Under the state’s revised pay structure, judges of Superior courts receive Rf45,000, including a Rf30,000 basic salary and a Rf15,000 living allowance while island courts magistrates are paid Rf20,000, including a Rf16,000 basic salary and a Rf4,000 living allowance.

The Supreme Court Judges meanwhile receive a basic salary of Rf51,000 and a living allowance of Rf20 ,000 and the High Court Judges are paid Rf38,000 as basic salary and Rf15,000 as living allowance.

The revised pay structure endorsed by the parliament in 2010, raised the judiciary’s wages and allowances by 87 percent. According to the wage structure, Rf89 million (US$5.7 million) was included in the budget to cover the salaries and benefits for 244 judges in 2011, compared to the Rf 41 million (US$2.7 million) spent in the previous year.

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Q&A: “Silent coup has become the armed coup” – Aishath Velezinee

Aishath Velezinee was formerly the President’s Member on the Judicial Services Commission (JSC), the watchdog body assigned to appoint and investigate complaints against judges. Two years ago she turned whistleblower and alleged the JSC was complicit in protecting judges appointed under the Gayoom’s government, and was colluding with parliament to ensure legal impunity for senior opposition supporters. In January 2011 she was stabbed twice in the back in broad daylight.

JJ Robinson: What do you think of the international community’s initial reaction to the events of February 7?

Aishath Velezinee: I think they fail to see the dynamics behind this country – it is all very personal and based on individuals.

[Maldivians] have a very deep understanding of this – the actors involved. The international community does not. So the international community is taking much at face value, and they are measuring what they see against the standards they hold.

These are not our standards – what I’ve seen in the Judicial Services Commission (JSC) is far below the standards of what you would expect from ordinary people in any democracy. An ordinary person would not act like the duty bearers here have done. It is absolutely unbelievable.

JJ: You have often spoken about a ‘silent coup’ – a collusion between the judiciary, the JSC and opposition-aligned members of parliament to preserve the pliability of the judiciary as it was under former Justice Ministry and President Maumoon Abdul Gayoom. What do you mean when you said ‘the silent coup has become the armed coup’?

AV: The heart of the silent coup was the Criminal Court. The former regime wanted to maintain their influence on the criminal court.

You can see that a number of powerful and influential politicians and businessmen – and businessmen who are politicians – have cases pending against them. This gives reason as to why they would want to keep a hold on the criminal court.

Chief Judge of the Criminal Court Abdulla Mohamed was the man facilitating them to carry on with that, giving cover to the very serious corruption that has been continuing for a number of years in this country. This is highly entrenched corruption – state corruption.

When Abdulla Mohamed went missing – as they say – I believe the opposition feared they were losing control over the judiciary, and that is why they came out on the streets. If you look at the so called public protests, it was opposition leaders and gang members. We did not see the so-called public joining them – they were a public nuisance really.

For nearly three weeks they were going around destroying public property and creating disturbances. It wasn’t a people thing – we can say that. We locals – we know who was there on the streets. There is footage and evidence available of it. We’ve seen the destruction they were causing in Male’ every day.

To the international community it’s a crowd of people – and to them that’s the public. It’s a public protest to them. But it was not.

Then we need to consider who was involved in the free Abdulla Mohamed campaign. These are the same people I have previously accused of covering up and being conspirators in the silent coup. Amongst them was Independent MP Mohamed Nasheed – currently the chair of the parliamentary oversight committee on independent commissions – who has a duty to investigate the JSC.

On 6 February 2012, I finally got in writing from the Anti-Corruption Commission (ACC) their response to my complaints about the JSC in May 2010.

They said that the matter of Article 285 and the JSC’s high treason was forwarded to Parliament for further investigation on 9 September, 2010.

Where is it? We haven’t heard anything of it. So why was MP Nasheed not doing his duty and investigating this? Why was he out on the street campaigning to free Abdulla Mohamed when this question is before him and he needs to look into it? Why was MP Abdul Raheem bragging on VTV – immediately after the national security committee meeting – that he had deliberately disrupted the meeting to prevent me from speaking? It’s a huge cover up.

JJ: Why do you think the international community is unaware of this?

AV: The international community is not fluent in the Dhivehi language. And all of the evidence I have – on tape – is in Dhivehi. I cannot get them to listen to that. All they hear is me talking, and as you know, nobody else has dared to come out publicly and take this up.

JJ: Where does this place you now? Considering you have all this evidence you must have some concern for your safety?

AV: All I have is with the police, the Maldives National Defence Force (MNDF), the ACC, and with parliament. So I don’t know. They could easily destroy it. It’s not being shared with the parliament. I have asked MPs in the independent commissions committee if they are aware of this letter from the ACC – they are not. Since 2010 we have been working with the judiciary whose legitimacy is actually in question.

The issue was not taken up by anybody. The issue of Article 285 and JSC’s high treason was taken up by myself, as a sitting member under oath, and I think that should be enough reason for them to investigate. But the only response I get from people is: “There were 10 people in there. Why just you?”

In a conspiracy where a majority of the people join together to commit a crime, why would they come out and speak about it? High treason was committed in the JSC with the confidence that there would be no investigation.

I believe the Speaker sitting there has been the cover for the JSC to cater to their old masters. They are very confident that the silent coup will remain uninvestigated.

JJ: On paper, the reappointment of the judges in 2010 occurred before parliament had passed the requisite legislation determining the educational, moral and ethical criteria for a judge? Does that not undermine the legitimacy of all verdicts issued after that period?

AV: Article 285 is not tied to any law. It is to prevent politicisation of the judiciary. The JSC is supposed to be working independently as an institution, and although it includes people from various parties – MPs and the Attorney General – each of us had a conduct of conduct under which we were supposed to be impartial. But that’s not how the JSC was functioning.

Everyone assumes because I was appointed by the President that I was colluding with the President. But if anyone bothered to look at the evidence – the recordings of the meetings – they would find the reality is different.

JJ: This evidence you have – are people just not bothering to look at it, or are they unable to do so because of the language barrier?

AV: Nobody has looked at the evidence. It has all been based on weight – nine to one. Woman to nine men. I feel very insulted.

JJ: Some of the visiting media expressed an interest in the situation with the judge and the lead up to the judicial crisis which precipitated these events. But how can you explain that in a two minute soundbite?

AV: You can’t. It is too complex. All of this is very complex and we can’t take anything at face value. We need to access available documentation, and we need people to access the other evidence available. But all the fact finding missions and investigation teams are based on just talking to people.

If you just talk to people, the story you get depends on who you talk to. The facts are the evidence.

People have asked me why I did not take it up with groups like HRCM. There is no place I have not taken it to – and I could not access the international community when I did not even have an office. I was under oath as a JSC member, but the commission put me out on the street to work. I was working like an activist – and alone.

JJ: On the bright side many people must be feeling they should have listened to you a long time ago?

AV: Yes. But it seems we missed the chance to fix it – to fix Article 285.

Now it’s politics that will solve this. In 1957 we had a constitution for seven months. Now we have had one for three years and failed again. We have to do what we failed to do and focus on strengthening judiciary. But when a serious national security issue being examined in parliamentary committee is disrupted and it ceases to continue with investigation, what does it say?

The Maldivian Democratic Party needs to focus on 285. They need to start talking constitution, about how they got into this. They need to back me – I submitted these cases and President Nasheed was still waiting for a response. You can’t run a state without a judiciary – and the judiciary is still under the control of the former regime

JJ: Even if early elections are called, that would not help the judicary?

AV: There is no judiciary as guaranteed to the people under this constitution.

JJ: What do you make of the new Attorney General, Azima Shukoor?

AV: I know her from primary school. We were in the same class until grade 10. I know her quite well – and I also know what she’s been doing in recent years.

I also know Gayoom’s government because I worked in that government for 19 years and six months. I know all of the individual players in this game, very, very well.

Gayoom had this practice of moving around people he found difficult, so I had the opportunity to work in a number of government departments and ministries, and to get to know quite a lot of powerful players in the opposition today. I know how they operate – their modus operandi. I know how they function.

My mistake was to trust. I trusted members of the JSC to uphold the constitution. I trusted the Speaker to uphold the constitution. And where I saw they were acting against the constitution I found it really hard to comprehend. It was happening every day. But I couldn’t believe it until the last moment.

JJ: Where to from here? What do you think happens now?

AV: Article 285 is going to be buried in history. I do not think we have the willingness or capacity in any of the state institutions to fully investigate exactly what happened in the JSC.

But what happened in the JSC must be haunting some of its members, if, months after I was stabbed, they are still discussing in a recorded sitting about how to silence me. On 17 Janurary 2011, two weeks after I was stabbed, MP Dr Afrashim Ali said I was “dangerous”, and the high court appointee was saying “We have to think about our future, our security. We have to silence her.” I have audios clips of that meeting on the 17th. I have the whole 1.5 hour recording – it’s there, you can hear it. A friend helped me do cuts and I have circulated it on Facebook. I put it on YouTube (Part one, two, three).

They fear an investigation because if there is an investigation, what I have said will be proven. All they are betting on is using their political weight to prevent an investigation.

JJ: You are making copies of the evidence?

AV: When Nasheed resigned I put everything away – I have nothing in my home any more. These are probably the only copies we have now.

Considering that the JSC actually tampered with and edited the audio recordings when they submitted them to parliament in 2010, they have shown they will destroy the evidence.

I have copies of audio tapes of proceedings in the JSC during Article 285 – and after. As well as from when their focus was on covering it up.

JJ: It is interesting that they continued to record the meetings, given all the other procedures not followed.

AV: They were not recording meetings when I initially joined the commission. They were working completely unconstitutionally.

The JSC refused technical assistance from the International Committee of Jurists (ICJ) and others. Instead they were themselves talking about strengthening the judiciary. What judiciary was there to strengthen when it was unconstitutionally appointed? It’s actually the people who have lost, not President Nasheed or the so-called President Waheed. The people have lost.

JJ: What do you make of Dr Waheed? Given his UN background and benign demeanour, he seems an unlikely leader of a coup d’état.

AV: He might have thought it was a power grab and that he was the man who was going to lead this. But he may be realising that he too is being played, is a tool of the opposition – of Gayoom’s family. I think he found out too late. He’s either an idiot or a tyrant. Right now it looks like both.

Let’s say President Nasheed did resign under duress. Is it the man who resigns, or is it the government who resigns? If it is the government, then Dr Waheed should be walking out with the President. Then it is the Speaker who takes over for the interim period.

This national unity government should be formed with the Speaker leading it. You can’t have a politician from a party that does not have a single seat in parliament or in a Council, heading a national unity government.

If he would step aside and permit the Speaker to form a national unity government, that would have more credibility. That would also bring this whole situation back into alignment with the constitution.

Right now we seem to be in a gap. We have a man who was put there by the police and military to lead a national unity government. We haven’t seen the public supporters – the so-called people behind him – anywhere. So what national unity government are we talking of here? Just because the cabinet seats a shared across a number of parties, is it a national unity government? No.

I think it is time the Speaker took charge and led a national unity government, and organised elections, and let the people speak again. Just because the international community is upset with Nasheed’s behaviour, doesn’t mean that they should legitimise a government that the people do not support.

We are talking about the government of the Maldives. And that government should be one that the people of the Maldives want and trust.

JJ: There is a lot of public baiting of police officers at the moment. How helpful is this?

AV: Waheed’s first public statement was to praise the police mutineers. How could he?

What happened on February 8 – that peaceful walk – that was absolutely uncalled for. And we haven’t seen anybody talking about it. Not Waheed, nobody. Why was that? What was the reason for such a violent and brutal attack by the police? Why were they picking on certain people? Why did they chase me saying they would kill me? Why?

JJ: The police chased you?

AV: The police, yes. Why did they spray me at close range?

JJ: They pepper sprayed you?

AV: My eyes – I could not open them – it took me 24 hours to clean myself of it. There was a police commander – I was walking in the middle of the crowd. When they chased us I ran with the people. There was this lane – I went in and I think President Nasheed was there. I pulled him by the shirt, then I ran in front and his men came and surrounded him. I passed the shop where he had gone in for cover. Then I came face to face with the police. There was a commander – he screamed out: “That’s the bitch, kill her!”.

Someone stepped in front of me and pepper sprayed me. I grabbed someone running away and said “I’m blinded, they’re going to kill me. Take me, take me.”

Somebody helped me across the street and took me to a safe place.

JJ: Are you concerned for your safety now?

AV: I’m very scared. You have seen their whole approach to my allegations. To deny it – not by arguing over the substance, but by slandering me, and ignoring it. They either slander or ignore.

I’m afraid that considering their approach, they are not going to make a big deal of taking me to court and trying me. They will find other ways of silencing me. It was scary.

This is not about Nasheed or Waheed. It is about the constitution. I really wish the international community would see beyond the obvious. What the opposition is afraid of is separation of powers, and the institutuion of a democracy. It is not Nasheed – Nasheed they can defeat in an election, if they have the people power. But they are afraid of a democratic system where they cannot carry on high level corruption, where they cannot control the judiciary or the independent commissions – and the media. That they fear.

A lot of the younger politicians who have played different roles in covering this up I don’t think are aware of the depth and dirtiness of this coup. It sounds like a conspiracy novel – but it is reality. And people are finding it hard to believe becasue of that.

JJ: To what extent is this about people power? What happens if police or the army are given an order they don’t want to comply with?

AV: I don’t think Waheed is controlling them. We’re seeing [Defence Minister Mohamed] Nazim – Nazim is from the National Security Service (NSS) of before [under Gayoom]. The police and the military were separated in 2005. Nazim is pre-2005. Nazim probably controls the police though [Police Commissioner] Abdulla Riyaz, while he controls the MNDF. Jameel’s role, as Home Minister, is the judiciary. He is the former justice minister. He knows individually all the sitting judges – he wrote the handouts they learned from.

JJ: Do you think people played politics too long with the judiciary – including the MDP side? People are asking why, if this was the issue, Nasheed did not act earlier?

AV: He would know. For one thing I think it was very difficult for him when his own Attorney General [Husnu Suood] was not taking up the matter. Suood was sitting in the JSC with me. But it was only me and Sheikh Shuaib Rahman – the member appointed from among the general public – who went to the ACC.

The Attorney General removed himself from the JSC at the time. I think he realised the politics of it, and took the safe road.

I put myself in danger, taking this up, knowing quite well the politics behind this. But I didn’t feel I had a choice. I was required as an office bearer under oath to work in the interest of the people and the constitution. And my interest in bringing it out to the public was to give them a chance to get their judiciary.

JJ: Will things get worse when the international media and the diplomatic community move on?

AV: Everyone is going about their daily business and to the outside world it looks normal. But the moment they leave, I believe we are in danger.

It is scary – the hatred. These men – the men in action on the 8th – it was their emotions that came out. This was something they carry inside. The hatred. What I fear is that it seems like the police, since their mutiny, can act with impunity. Individual police officers can take up their own greviances against individuals with impunity.

JJ: Do you think the military is in a similar situation?

AV: No, I think the military have largely managed to keep themselves outside the politics. But the leadership of today – which we see has not gone according to rank – is politicised, and part of the conspiracy.

JJ: Have you considered moving somewhere safer?

AV: I don’t see a real solution to this. I think I owe it to people to write this down. I should seriously sit down and write. But it is too heavy at the moment; being amongst events here and the people, fearing for my own safety, I cannot comfortably sit down. But I need to write the story of the silent coup – of how the constitution has been killed without changing a single letter. They have managed to commit high treason under the cover of the constitution.

Today we are in a far more dangerous situation than we were pre-constitution 2008. Then everyone knew it was autocracy, and that all the powers of the state were constitutionally given to one man. Today it is taken at face value that there are separation of powers.

I have policemen bragging on my Facebook page: “We brought down this government. Next time we see you in a rally we are going to kill you.”

Policemen on Facebook. They don’t seem to mind doing it publicly. Before they might have been more subtle – now there seems to be no order at all.

JJ: While the new government is seeking to establish its legitimacy – and the resorts are losing money – do you think there is risk of further crackdowns?

AV: There is no public support for government. And the international community wants to legitimise it. I would like to see Dr Waheed hold a rally, with his 12 parties. Let’s count numbers.

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Resolving judicial crisis “a huge challenge” for the Maldives: President Nasheed

Judges in the Maldives were reappointed by the Judicial Services Commission (JSC) at the conclusion of the interim period “in conflict with the constitution”, President Mohamed Nasheed has said during his weekly radio address.

The JSC reappointed the vast majority of sitting judges prior to parliament approving a statute establishing the criteria for serving on the bench, Nasheed said.

The consequence – a judiciary almost identical as the one appointed by the former Ministry of Justice under the previous government, but badged as independent – was “a huge challenge” for the Maldives, he added.

Prior to the reappointments, the President’s Office in May 2010 sent a letter to the JSC expressing concern that a large number of judges lacked both the educational qualifications and ethical conduct required of judges in a democracy.

“While the Act relating to Judges was passed in August 2010, and while the Constitution is very clear that Judges cannot be appointed without this Act, to date the JSC has failed to reappoint Judges,” Nasheed said.

“The Supreme Court Judges were appointed in accordance with the Constitution and law. The High Court bench was appointed in accordance with the Constitution and law. However, it is hard to say that the lower court Judges were appointed as per the Constitution and law,” he contended.

The government has faced critcism from the opposition and weeks of opposition-led protests, some of them violent, after the Maldives National Defence Force (MNDF) took Chief Judge of the Criminal Court, Abdulla Mohamed, into custody on January 16.

The government had accused the chief judge of endemic corruption, obstructing police investigations and of links with both the opposition and organised crime. Abdulla Mohamed sought a High Court ruling to prevent his arrest – which was granted – leading police to request the MNDF to take the judge into custody.

The judge was previously under investigation by the JSC – the judicial watchdog body – however he was granted an injunction by the Civil Court which ordere the JSC to halt the investigation.

In his radio address, Nasheed identified four areas of reform under the 2008 constitution: change of regime through multiparty elections, election of a new parliament, introduction of decentralised administration, and election of local councils.

“The major remaining reform envisioned by the Constitution is the establishment of an independent and competent judiciary,” Nasheed said.

The Foreign Ministry has requested a senior international legal delegation from the United Nations Human Rights Commission (OHCHR) to help resolve the current judicial crisis.

Last week, former President’s member on the JSC, Aishath Velezinee, told Minivan News that outside help from an independent and authoritative body such as the International Commission of Jurists (ICJ) was desperately needed.

“We need the ICJ to be involved – someone like [former] UN Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy. He was here for a fact-finding mission and had a thorough understanding of it, and gives authoritative advice,” she said.

“We need to look for people who understand not only the law in the constitution, but what we are transiting from. Because that is really important. The UN had brought in a former Australian Supreme Court Judge, but he didn’t get any support. There was a lady [from Harvard] but she left in tears as well. There was no support – the JSC voted not to even give her a living allowance. They are unwelcoming to knowledge – to everyone. It is a closed place,” she warned, adding the difficulty was enhanced further because all the documentation was in Dhivehi.

UK MP for Salisbury, John Glen, has meanwhile urged UK Parliament to “urgently make time for a debate on judicial reform in the Republic of the Maldives.”

“Although the judiciary is constitutionally independent, sitting judges are underqualified, often corrupt and hostile to the democratically elected regime,” Glen stated.

Leader of the House of Commons, George Young, responded that Under-Secretary of State for Foreign and Commonwealth Affairs, Alistair Burt, was “in touch with the Maldives President to see whether we can resolve the impasse. The high commission in Colombo is also engaged. We want to help the Maldives to make progress towards democratic reform in the direction that John Glen outlines.”

Several hundred opposition protesters meanwhile gathered last night for the second week running, with police arresting several dozen people and deploying pepper spray after the crowd reportedly began hurling paving stones at officers outside the Maldives Monetary Authority (MMA) building.

MP Ahmed Nihan of former President Gayoom’s Progressive Party of the Maldives (PPM) and recently-resigned SAARC Secretary General Dhiyana Saeed were among those detained by police. Haveeru reported that 17 of the 22 arrested were detained in Dhoonidhoo custodial overnight.

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Comment: One captain, one course

These past weeks’ demonstrations, protests, and proclamations continually evoke the principle that constitutional powers must be separated, but conveniently ignore the checks and balances which are meant to be inherent to any functional democracy.

We have had one constitutional crisis after another precisely because our system is broken. The checks don’t work and our system is anything but balanced. The opposition claims the executive is all powerful, while the ruling party claims that both the legislature and the judiciary are trying to hijack the government. The only way forward is through leveling the playing field. I propose we do this in two ways; implementing a real power of veto and meeting our constitutional obligations regarding the judiciary.

At Democracy’s Doorstep

It is self-evident that the democracy we fought for against 30 years of tyranny has not come to pass. In November of 2008, we merely started the next leg of a voyage that pioneers like the President and Vice President started two decades earlier.

In that moment, it was fitting that they embarked on this next leg together. And though much hailed as the fruition of hopes and dreams for democracy, what we failed to grasp is that the journey was not yet complete. The legislature, when controlled by a hostile opposition can bring the state to a standstill, while the judiciary remains with strong political bias and an ethos that should have ended when the middle ages did.

Democracy is meant to function with representation from the people. The people choose a president and a plan for five years, and while the implementation of that plan should be vetted through the legislature and the rule of law safeguarded by the judicature, neither of the two subsidiary bodies are supposed to take the helm of the country. A ship is supposed to have one captain, who is advised and guided, but whose direction and vision guides the course that the ship takes.

The reason why we have a presidential system is because we have the right to choose the vision to guide our nation. We choose our President and Vice President as they are directly elected by us. We choose our path for five years.

But say they both, God forbid, die tomorrow. Our Speaker becomes interim President till elections are held. In parliamentary systems, those who control parliament head government as well, and they do fine – right?

Wrong. If the Speaker led government, we would have a man who represents only 0.2 percent of the voting population (having won his seat with a total of 305 votes). A delightfully clearheaded and capable man though he is, he would not represent the people. We would not have a say in how our country should progress.

In 2008, when we voted, we had our say. Fine, a bunch of people voted against the former President, rather than for this one – but that is one of the growing pains of overcoming dictatorship. We chose this path, so it is time we stopped institutional mechanisms from hindering it.

We stand here at democracy’s doorstep, afraid to cross the threshold because of our authoritarian past. But the point of government is not to constantly bicker and make governing impossible, but rather to provide for those who elected you to power – not through handouts but rather through policy that changes things rather than causes stagnation.

The Point of Majlis

All the Majlis has done for the last three years is to find ways to cause stagnation rather than governance. The opposition believes that every government policy is wrong and that instead of dialogue, the only avenue available is to block policy. It is not about helping the people – it is about making sure the government fails.

That is not the way a government is supposed to function. Apart from the fact that our newly elected Majlis members have no resources, guidance, or staff to assist them – we are also encumbered by a significant institutional failing: the President has no veto.

When the President sends a bill back to Parliament because it is either inconsistent with his vision, or because it may be damaging to the people, it is but a symbolic gesture in our country. In other nations, such an action can only be overturned by a stronger majority (such as two-thirds).

Yet in the Maldives, a simple majority can force a bill through. A simple majority can hijack government and change the course of our ship. This is not the way it was meant to be. Because of the electoral system by which our parliamentarians are chosen, and because of the other factors that influence parliamentary functions, that simple majority can never equal the weight of the office of the President. To change our course and to change the direction which our country follows, we must empower our president with the authority to stand against the tyranny of a minority, and only ever let the will of the majority override the vision we chose.

An Independent Judiciary

Yet a nation cannot function, unless the rule of law is safeguarded. We worked long and hard to ensure that the judiciary would be one that was independent and free from political and social bias. There is but one mechanism to keep the judiciary accountable; the Judicial Services Commission. Alas, this mechanism has failed. It was tasked with thinning the herd, with vetting our judges, and with maintaining some level of dignity on the Maldivian bench. As described by Dr Azra Naseem, we had our moment to hold the judiciary to some standard, and we collectively dropped the ball.

The constitution clearly empowers this commission to take disciplinary action, including dismissal proceedings, against judges for incompetence or gross misconduct. And yet, when they finally get around to finding that Abdulla Mohamed failed to comply with the required standard of conduct, on the 26th of November 2011, the same judge managed to have a court order issued preventing further proceedings. The one body charged with keeping our courts in check has proven itself powerless to fulfill its constitutional mandate.

Here, we have a judge whom most agree is corrupt – or at the very least unfit to sit in so high an office; we have a judge who is blatantly politically biased and admits as much on national television; we have a judge who has released criminals including rapists and drug dealers and who has been seen cavorting with defendants after his rulings; and yet we as a nation and a people are powerless to remove him from the office which he so flagrantly disgraces. Can there be a constitutional failing that is more evident than the one embodied in this man?

A Constitutional Amendment

Our path and our national progression are being hindered by mechanisms that do not function. We have a President determined to follow through on the promises he made when elected; to provide housing, healthcare, transportation, less drug abuse and a better standard of living. Yet even basic policies are refuted, not by the merit of the program, but rather by the party which proposed it. And now there are few avenues that are open to move forward. We need to move beyond stagnation as a policy for politics. We need to change the game. There is but one captain of this ship. For five years, we choose one captain, one direction and one path. In 2013 the path might change, but before that happens – let fix these mechanisms. Let’s become the democracy we were always meant to be.

www.jswaheed.com

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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Lawyers question reappointment of judges convicted of sexual misconduct

A group of lawyers have questioned the Judicial Service Commission (JSC)’s decision to reappoint two judges, previously removed from the bench for sexual misconduct, as magistrate court judges.

The lawyers, including Former Attorney General Husnu Suood, said on Thursday that  Gaafu Dhaalu Thinadhoo, Meeraaz Ahmed Shareef and Dhaalu Meedhoo Biloori Villa, Ali Shafeeg who were appointed as magistrate court judges had previously been convicted for sexual misconduct.

Speaking to Minivan News, Suood said the two judges were removed from bench in 2010 because they did not possess the “high moral character” required to be a judge according to the article 149 (a) of the amended constitution.

According to the records, Shareef – appointed to Gaafu Alifu Dhevadhoo Court – was sentenced to two months under house arrest on July 30 2001, for having an affair. He was former Chief Magistrate of Thinadhoo in Gaafu Dhaalu Atoll.

Ali Shafeeg, appointed to Kaafu Gaafaru Magistrate Court, was sentenced to four months banishment and subjected to seven lashes in 1989, for having an affair with a married woman.

Suood noted that, article 149 (a) of the amended constitution states “a person appointed as a Judge in accordance with law, 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”.

Referring to the previous convictions of the Judges, Suood said that the “two judges were not up to the moral standards required and that’s why they were disqualified in 2010”.

“We are preparing the documents to submit to JSC requesting them to investigate the case. It’s up to the JSC to hold the integrity of the judiciary,” he said.

JSC spokesperson Hassan Zaheen noted that Shareef and Shafeeg were also removed in 2010, under the article 285, which allowed  JSC to dismiss judge failing to meet the requirements in article 149.

However, he added, that Shareef and Shafeeg were reappointed “because the Judges Act now allows it.”

According to the article 15 of the Judges Act – which came into effect five days after the reappointment of judges with life time tenure – a judge will be considered as failing to meet the required ethical and moral standards if they had served a sentence for a criminal offence in the seven years prior to the appointment.

“Shareef and Shafeeg were sentenced before the seven year period,” Zaheen added.

In 2010 when Shareef was dismissed from the bench, he also protested against the JSC in court, claiming his conviction was 11 years old when he was removed from the bench on August 5, 2010, and his sentence had been suspended. The Judges Act was being debated in the parliament at the time of Shareef’s removal.

Therefore, JSC pointed out at the time, the Judges Act post-dated its decision to remove Shareef from the bench, and argued that it could not be expected to rely on legislation that did not exist.

The JSC reiterated that he was removed from bench under the article 285, that allowed JSC to dismiss the judges failing to meet the moral and ethical requirements of article 149.

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Supreme Court celebrates third anniversary

The Supreme Court held a function at Dharubaaruge last night to celebrate its third anniversary.

According to local media reports, Chief Justice Ahmed Faiz said that citizens would accept judgments and rulings by the courts “if the person making the decision is someone who lives in a way that is acceptable to them.”

The Chief Justice vowed that he would not allow judicial independence to be compromised: “I accept that there will be challenges. I accept that there will be criticism. Nonetheless our direction will be forward with the independence assured by the constitution,” he said.

Justice Faiz also launched a book containing the rulings and judgments of the Supreme Court.

Newspaper Haveeru meanwhile reported that a number of judges from the Civil Court, Family Court and Criminal Court as well as some judges from the High Court did not attend last night’s ceremony.

An unnamed judge from a superior court told Haveeru that a lot of judges were unhappy with the decisions of the Supreme Court.

“I’m not at all satisfied with the way the Supreme Court has been acting so far,” another judge told the local daily. “There is dissatisfaction among judges about the rulings of the Supreme Court. That is why I didn’t attend last night. But I can’t say why some other judges did go.”

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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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