Q&A: Kirsty Brimelow, QC

Kirsty Brimelow QC is one of three UK legal experts on former President Mohamed Nasheed’s legal team. The new government has pursued criminal charges against Nasheed for his decision to detain Chief Judge of the Criminal Court, Abdulla Mohamed, charges Nasheed contends are a politically-motivated attempt to prevent him from contesting the 2013 Presidential elections.

Brimelow is an experienced criminal law specialist with expertise in international human rights, and has worked in a number of small island states including Jamaica, Trinidad and Tobago.

JJ Robinson: How much background knowledge did you have on the political situation in the Maldives prior to deciding to join Nasheed’s defence team?

Kirsty Brimelow: Very little other than the usual views of the Maldives as beautiful islands for romantic holidays – I had never been here before. I had heard about the climate change aspect of Maldives at the time of the Copenhagen summit – it was something I remember reading about. I thought that it would be terrible if Male’ was under water in 20 years.

JJ: How much had you followed the February 2012 transfer of power?

KB: No I hadn’t followed it. When I was contacted [to join Nasheed’s legal team] I looked it all up. I don’t know if it was reported in English newspapers. I don’t remember reading anything about it. At the time the news was dominated by news of Syria and starvation in the world’s youngest democracy, Sudan. I think they dominated the headlines, and the London Olympics more than anything else that was going on.

JJ: What was behind your decision to join Nasheed’s legal team?

KB: As an international lawyer there is a real interest in how rule of law operates in different jurisdictions. In recent years I’ve done a lot of work in small island states – I am Legal Advisor to the Constitution Commission of Fiji, I worked in Trinidad and Tobago as part of the team defending the chief justice, and was appointed Counsel to a Commmision of Inquiry into a massive international fraud inquiry in Antigua. I have also worked in Jamaica.

I suppose I am interested in the Maldives as a new democracy, and how that struggle is being played out. I am also really interested in the Maldives both as international and human rights lawyer. I have real interest in fairness of procedures and that there are independent and impartial judges. No court system can operate if you have biased judges, or judges who are of a standard such that justice cannot be carried out.

JJ: How much do you know about the Maldivian judiciary and its condition?

KB: I’ve read a couple of reports which have the same conclusion – that the judiciary is not functioning at a level that can deliver justice. But I read these reports as background – I have really been concentrating on this specific case.

JJ: The Maldivian Democratic Party (MDP) have made a case on the basis of challenging the legitimacy of the Hulhumale Magistrate Court where Nasheed is being tried, rather than defending the specific charges against him. Do you think this is a good approach, and can you argue that in court: “I don’t respect your legitimacy, your honour”?

KB: There are different arguments going on at the moment. The high court application [regarding the legitimacy of the Hulhumale Court] is a legitimate argument accepted as such by the Attorney General. It is a jurisdictional public law matter now removed from criminal law.

The validity of the jurisdiction of courts is fundamental – people can’t just set up their own courts because they feel like it, and they can’t just put in who they like as judges of that court. It has to be done in a transparent and independent way in order for the courts to have any respect.

JJ: Why should courts care about the respect of the public?

KB: The general public in any democratic society cares about its justice system because that underpins its democratic society. If you think your justice system is corrupt – that whatever evidence you have when you’re in court will be ignored because you have a corrupt system – then that is bad for democracy.

Democracy can’t survive with a corrupt justice system. I think people do care about that. But obviously the select people who want to keep it corrupt, don’t.

JJ: This is the first time there has been foreign legal representation applying to appear in the Criminal Court, as far as I’m aware. Are you allowed in?

KB: At the moment there is apparently a policy that says you have to be Maldivian and/or married to a Maldivian to appear in court. It is very restrictive. It is going to be a matter we are going to challenge.

It obviously depends on the particular country, but most small island states have developed a system where foreign lawyers are able to practice within that system on a case by case basis. For example I have appeared [in court] in the Caribbean. The reason is that the smaller the place the smaller the pool of lawyers, and the bigger the case, the more political difficulties and influences that could be brought to bear on people from that society. So if you bring someone in from outside it can bring the balance back.

It is also a good way to increase knowledge and expertise. For example my knowledge is based on international human rights law, whereas if you are practicing in a small state you don’t have that comfort of being able to specialise. International law is not foreign law – it is part of the law of the Maldives, and to develop it you need that knowledge running through [the system]. The way you do that is allow international lawyers.

The Maldivian lawyers I’m working with are keen to make the application so that I could represent President Nasheed in court together with them. It would be their application on my behalf.

JJ: Dhivehi can make the country quite inaccessible to outsiders – to what extent is that a challenge in this case?

KB: Of course it’s a challenge and as to how it would operate [in court], nobody’s ever tried it before. As far as I understand English is widely spoken fluently, and i’m told many Maldivians prefer to speak English. Obviously it would have to be translated in court – but that happens in many jurisdictions with no difficulty. I don’t see it as meaning that the position would be impossible – there would have to be systems in place.

JJ: The judges on the panel hearing Nasheed’s trial were appointed by the Judicial Services Commission (JSC), and include two of Nasheed’s direct political opponents – Jumhoree Party Leader Gasim Ibrahim and Speaker of Parliament, Dhivehi Rayithunge Party (DRP) MP Abdulla Shahid. In this environment, and given the politicisation of the case, is it reasonable to expect that Nasheed can have a fair trial at all in the Maldives?

KB: I think at present if the trial were to go ahead in the Hulhumale Court, as presently constituted, there are real issues as to whether there is any chance at all as to whether Nasheed will have a fair trial. There are real issues and real concerns.

JJ: What is the approach then? The MDP has challenged the court’s legitimacy, but what about defending Nasheed’s decision to detain the Chief Judge of the Crimnial Court? Would you advise defending these charges or lean towards challenging the court’s legitimacy?

KB: Nasheed at his recent rally said that based on the evidence served against him, he should be acquitted.

The trial has two aspects: there are real issues as to fairness and those aspects fall into two categories, which relate to the court itself, which will be argued further, and the second aspect relates to the ability of President Nasheed to properly defend himself. I can’t go into details because those submissions have not been made to the trial court.

JJ: How similar are the challenges in the Maldives compared to other small island states?

KB: Each place is very different – but a common thread is the real difficulty getting a neutral tribunal to consider the evidence. Most countries have a problem where so much is in the newspapers already that people have formed opinions by the time the matter comes to court. In fact the trial is run in the newspaper, usually against the defendant, who isn’t in a position to present his defence in the newspaper as well, so it becomes one-sided and by the time the case comes to court people have the view that the person is guilty.

That would not happen in a larger jurisdiction where there are all sorts of laws to prevent people coming to court with a closed mind. That’s a problem here.

The Maldives has specific problems, such as those documented issues in relation to the judiciary, and those issues are quite extreme and are not found in many other small island states I’ve worked in. Many of those states such as Jamaica have a strong judiciary.

JJ: What would be some of those concerning issues?

KB: I don’t want to be upsetting the trial. I can quote from the reports though. Things like the statistics of those serving in the judiciary with criminal convictions and so on. It must be a concern to a fair minded observer as to what sort of justice is being dispensed if you are appearing before someone with criminal convictions, for example. That kind of thing is what I mean.

JJ: To what extent do you think the trial of Nasheed could be a catalyst for judicial reform in the Maldives?

KB: I think it is an important trial for the Maldives, and it could be a catalyst for reform in that the issues which are being raised are fundamental to a functioning justice system, and they are serious, so it should at the very least trigger debate in parliament in a democratic country.

There has to be a robust system which will regulate judges objectively, so someone coming to court can have faith in the system. If there is no check on judges in terms of their independence and honesty, as well as ability, then the courts just simply become a means of reaching a preordained result that everyone has already predicted.

Then quite simply it is not a justice system – it is a figleaf. Everything else flows from that – stability, fairness in terms of elections, parliament; if you’ve got a vacuum in your justice system you quite simply don’t have democracy.

You have to have a robust system to deal with complaints [against the judiciary]. In international law and particularly the Convention of Civil and Political Rights it sets out that privileges and immunities for judges can only go so far, and that they are not meant to stretch to afford protection ‘no matter what’.

My interest is in fair trial procedures, and that fair trial rights are upheld. There are real issues in this case, which is why I’m part of the legal team.


MDP calls for nationwide protest against judiciary

The ruling Maldivian Democratic Party (MDP) has held an emergency meeting and called for a nationwide protest against the country’s judiciary, starting at 3:30pm.

The party contends that the courts have been  prioritising cases filed against MDP members and delaying cases involving opposition figures. The protest coincides with the Supreme Court’s scheduled delivery of a verdict in a case filed against MDP MP Mohamed Musthafa, requesting his candidacy as an MP be invalidated.

The case against him was filed in July 2009 by then leader of the Islamic Democratic Party (IDP) Umar Naseer, shortly after Musthafa won the election for Thimarafushi constituency against former President Maumoon Abdul Gayoom’s son, Gassan Maumoon. Umar Naseer contended that Musthafa had a decreed debt dating back to 1997 that was not paid in accordance with a court ruling.

Today’s protest was proposed to the party’s National Council by MDP MP Mariya Ahmed, the party’s former chairperson.

MP and spokesperson for the party’s Parliamentary Group, Mohamed Shifaz, told Minivan News that the protest would start at the MDP’s Head Office and assemble near properties belonging to the judicial system.

Shifaz said there had been cases filed against opposition figures “held up in the courts for years.”

”Hearings in the corruption case against People’s Alliance MP and Deputy Speaker of parliament Ahmed Nazim were closed to journalists and the public, and the court has delaying the trial,” he claimed. ”But if this was a case against an MDP member they would hasten their work to conclude the case and sentence him.”

Shifaz said one of the most important thing MDP members “have always wanted was justice.”

”The judges are still trapped under the influence of [former President] Maumoon Abdul Gayoom, his half-brother Abdulla Yameen and the like,” Shifaz said, adding that there were cases against Gayoom and Yameen filed in the court by the Presidential Commission that had never come to trial.

The Judicial Services Commission (JSC), the watchdog body charged with overseeing the judiciary, in May this year abolished its Complaints Committee citing “efficiency”, with complaints against judges subsequently forwarded for review by the legal section and Commission head Adam Mohamed, a Supreme Court Judge.

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, Aishath Velezinee, was meanwhile stabbed in the street in January this year.

The JSC also 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.

Shifaz today alleged that judges had been “blackmailed by the opposition”, and said that all the MDP MPs and senior officials, along with many supporters and citizens, would join the protest today.

”We have not really decided when to stop the protest. Members of the council have suggested continuing it until we achieve justice,” he said.

Former member of the Special Majlis Drafting Committee for the new Constitution, Ibrahim ‘Ibra’ Ismail, recently filed a defamation case against the Supreme Court after it reprimanded him for calling on the public to “rise up and sort out the judges”.

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

The Supreme Court subsequently issued a writ of prohibition and took over the case against it over from the Civil Court, and as a result, Ibra said, “I now have to go before the Supreme Court and say to them ‘You have defamed me, now please decide in my favour.’”

Speaking to Minivan News today, Ibra speculated that one possible reason for the Supreme Court’s decision to suddenly pursue the case against MP Mustafa “is because Gayoom’s new Progressive Party of the Maldives (PPM) wants to win the seat in a by-election.”

“Mustafa contested the seat against Gassan Maumoon, Gayoom’s son, and won by just a few votes,” Ibra noted. “They have high hopes for the seat.”

He also speculated that the Supreme Court’s actions could be an effort to divert attention from the public forum on judicial issues being held at the Social Centre in Male’ tonight at 8:30pm, “a red herring to divert public focus. [The forum] is where things will really happen.”

Regardless of its motivation, Ibra said, the Supreme Court’s behaviour “is all but an admission that they are operating on a political platform.”

Asked whether he was participating in the protest planned by the MDP against the judiciary, Ibra said he had “no idea what they’re up to. I surmise they are showing support for MP Mustafa. I am deliberately staying away from the political players on this issue. I want the civil community to come out on this, but I suspect senior political figures will now want to start making an appearance on the judicial issue.”

DRP Deputy Leader Ahmed Mohamed today told Minivan News that protesting against the courts and the judicial system was “unacceptable”.

”It should not be done. In the past MDP has done similiar things – once they locked the Supreme Court and Judicial Service Commission (JSC), and established a court of their own,” Mohamed contended. ”These kind of actions are clearly against the constitution.”


Discrepancies in rape statistics highlighted in NGOs report

A coalition of NGOs have condemned the performance of the judiciary and the State for its treatment of criminal cases, especially those concerning rape.

Maldivian Detainee Network, Trasparency Maldives, Rights for All, Maldives Aid, Madulu, Democracy House, Maldives NGO Federation and Strength of Society issued a statement “condemning the increase in serious crime and the failure of the state and responsible authorities to convict those responsible for these crimes.”

The statement referred to statistics on crimes such as murder, child abuse, assault with sharp weapons, and threats to journalists and others in the media, comparing these with the number of crimes investigated by police, the number sent to the Prosecutor General’s office and the number tried in the Criminal Court.

The NGOs said the blame for the “failure to deliver justice” should not be placed on the new democratic system or human rights safeguards, “but rather [on] the unsatisfactory implementation of these systems and safeguards.”

They “note with great concern that there is not a single case of ‘rape’ in the statistics maintained by either the PG or the Criminal Court.”

Technical misunderstanding

Information provided by the Maldives Police Service (MPS) to Transparency Maldives states that in 2009 ten cases of rape were reported to police, eight of which were investigated and five sent to the Prosecutor General (PG)’s office.

Police Sub-Inspector Ahmed Shiyam said in the instance of these rape cases, the three that had been labelled as ‘finished’ by police but were not sent to the PG were still “being checked” by police before being sent to the PG’s office.

“Sometimes we check and update information,” Shiyam said, “and there could be other documents being collected.”

Information gathered by the coalition of NGOs from the Criminal Court show zero cases under ‘rape’ were prosecuted in 2008 and 2009.

But Senior Judge at the Criminal Court Abdulla Mohamed said the Criminal Court had processed six cases of rape during the year.

Deputy Prosecutor General Hussein Shameem said the discrepancy was “a misunderstanding of technical terms.”

“If consent is lacking, regardless of whether or not there was intercourse, the case would fall under sexual misconduct,” he said.

Shameem said when the PG’s office received cases from the police, they decided whether or not to prosecute it depending on the evidence.

He added that the statistics from the police might “not give a clear idea” of the number of cases, as the PG’s office might prosecute for a different offence.

“For example, if police investigate a case for rape, and within the document we find evidence for battery and assault, we would prosecute both charges.”

In the document provided by the Criminal Court, 37 cases falling under the category of “sexual misconduct” are shown as being received by the court.

Of those, nine were dismissed due to lack of evidence while fourteen were tried.

Aishath Velazinee from the Judicial Service Commission said the remaining fourteen cases did not appear asdismissed or tried because they were still being processed by the court.

She said that “because rape is not a crime under the current Penal Code” cases of rape would fall under the category of “sexual misconduct”.

“The existing Penal Code is not adequate,” she noted, adding that under the new Penal Code (which is still tabled in the Parliament) rape, including spousal rape, would be considered a crime under its own category.

Rising concerns, rising crime

The coalition of NGOs said “lack of communication between the [State] authorities” was one of the “main reasons behind the recent failure to convict criminals.”

They called upon the State to “comprehensively study and identify the causes for the recent rise in crime, in particular, identify why convicted criminals are able to offend repeatedly.”

The Human Rights Commission Maldives (HRCM) has also recently condemned the rise in crime.

In their 2009 annual report released on 9 March 2010, they claimed the crime rates in the country had risen, and communities in the Maldives have reached a state of fear, mainly because of “failure to enforce sentences for convicts.”

The United States 2009 annual country reports on human rights, published on 11 March 2010, also expressed concern for increased violence against women in the Maldives and lack of convictions by the judiciary.

The report cited that “In 2008 the Ministry of Gender and Family released data showing an increase in the reported cases of violence against women, although NGOs believed that most cases remained unreported.”