judiciary – Page 13 – Minivan News

Comment: Maldives goes from one crisis to another

Stone-walling and deflecting one issue with another have been tested methods of political strategy and administrative tactic in ‘matured’ democracies elsewhere. The young Maldivian democracy seems to have fast-tracked the processes and fine-tuned the methodology, and as a result these two aspects alone have remained three years after the nation heralded multi-party democracy and a directly-elected President in a hotly-contested campaign.

The latest in the series is the arrest of Chief Justice of the Criminal Court, Abdullah Mohammed, and the involvement of the Maldivian National Defence Force (MNDF) in executing the request of the police in this regard. Allegations have remained against the judge since the days of the predecessor Government of President Maumoon Gayoom, but his arrest, the involvement of the nation’s armed forces and the subsequent non-compliance of the orders of the civil court and the High Court in the matter, have all raised serious questions about the future of democracy in the country.

The last time, the Government of President Mohammed Nasheed employed the MNDF likewise was in mid-2010. At the time, the MNDF shut down the nation’s Supreme Court, under his orders, following a constitutional deadlock over the inability of the Executive and Oppositions-majority Parliament to pass required legislation on a variety of subjects, under the new Constitution, before the deadline had passed. Saner counsel (particularly low-profile Indian efforts) prevailed and the deadlock was resolved at the time.

Now, as then, ruling Maldivian Democratic Party (MDP) leaders, starting with President Nasheed, have called for ‘judicial reforms’. They have also reiterated the request from 2010, for the UN to help the nation introduce new canons of law and judicial practices. There is truth in the Government claims that most of the 170-odd judicial officers across the country were not qualified in law. As was known at the time of the 2010 crisis, only around 30 of all judicial officers in the country had a university degree in law.

As was again explained at the time, in a country where education stopped at A-Level (Cambridge, to be precise) for most, lawyers, and law and judicial officers with university degrees are hard to come by. Qualified lawyers in Maldives, as has been the wont in most other democracies and for historic reasons, either prefer private practice with a corporate clientele, or politics, or both. Yet, it is often argued, that the rest of the 170-plus were qualified in the Islamic Sharia. It is this that the present regime wanted to rewrite. Inherent to the effort is also the belief that most judges, having been appointed by the previous regime and without formal qualifications, tended to be loyal more to the erstwhile rulers than to the present Government and/or the Constitution.

Rallying cause for the Opposition

Independent of the merits involved in Judge Abdullah’s arrest, it has provided a rallying cause for the Opposition, after the hugely-successful December 23 protest to ‘protect Islam’. In between came the arrest of an Opposition leader, Dr Mohammed Jameel, Vice-President of the Dhivehi Qaumee Party (DQP) of Dr Hassan Saeed, one-time Presidential Advisor to incumbent Nasheed and Attorney-General to predecessor Gayoom. The arrest of the otherwise controversial judge, against whom the first charges were laid by Hassan Saeed as Attorney-General as far back as 2005, has seen that the ‘December 23 movement’, launched by non-political NGOs, now consolidating itself into a political front.

With Judge Abdulla’s arrest, the divided opposition that had joined the ‘protect Islam’ rally under the care of religion-based NGOs, have taken over the leadership of the movement, if the latter still claims to be apolitical with a single-point agenda. This may also lend credence to the Government’s argument that the ‘protect Islam’ movement, based on the installation of individual monuments by SAARC member-countries after the Addu Summit in November, was more political and less religious in form and content. In popular perception, that may not be saying a lot, as one after the other, the issues that the Government seems wanting to offer the Opposition, has only helped the latter to sink their differences even more and consolidate their unity, which prior to December 23 protest was not seen as being possible, particularly during the run-up to the 2013 presidential polls.

The controversy surrounding the SAARC monuments, starting with that of ‘Islamic Pakistan’, being idolatrous in nature, may have robbed much of the credit that the Maldivian Government and President Nasheed richly deserved. MDP leaders are not tired of claiming that it was all part of a larger political conspiracy, aimed at upsetting President Nasheed’s growing popularity during the long run-up to the 2013 polls. Conversely, the divided Opposition of the time was arguing that the Government was deliberately flagging religious issues that went beyond the SAARC monuments, if only to ensure that President Nasheed got a party and challenger of his choice in the polls which they were convinced would go into the second, run-off round.

The issues included clearance for liquor sale in a newly-built star-hotel in the national capital of Male, proposals for allowing liquor sale in uninhabited parts of otherwise inhabited islands, both going against existing laws, and the demolition of an Islamic school, again in Male. Neither the pro-Islam NGOs, nor the opposition could have divined the ‘SAARC monuments’ controversy, but when it presented itself, they were not the ones to lag behind. Today, the December 23 rally is being projected as the largest gathering of the type in the country – with most partnering outfits in the erstwhile ‘pro-democratic’ movement of the earlier years having switched sides, since.

Role of the Vice-President

A new dimension has been added to the current crisis with the Opposition leaders and other partners in the December 23 movement calling on Vice-President Mohammed Waheed Hassan. Though it has been a practice for Maldivian political class to hold their public rallies and have their consultations post-dinner time and possibly going beyond 2 am, the urgency with which they called on the Vice-President at 1 am did not go unnoticed. The country’s first PhD-holder (from Stanford University), Waheed has resisted the MDP’s persuasive efforts to merge his GaumeeIththihad Party (GIP, or National Unity Party) with the major electoral partner, for him to be considered for the running-mate of President Nasheed again in 2013. Quiet in temperament, this former UN/UNICEF executive did not take kindly to the MDP later wooing away his senior Cabinet colleagues to its side.

At the end of the meeting with the Vice-President, the interim leader of Gayoom’s newly-floated Progressive Party of Maldives (PPM), the controversial Ummer Naseer, told the local media that they had decided to “pledge support to the Vice-President.” Quoting Naseer, local media reports said, “Dr Waheed assured the party leaders that he would “take any legal responsibility he had to within the bounds of the law and was “ready to take over the duties specified in the Constitution.” In an even more significant observation, Naseer was quoted thus: “After these discussions we are now calling upon the nation’s security forces, on behalf of our ‘December 23 Alliance’ of all the Opposition parties in the country as well as the NGO coalition, to immediately pledge their allegiance to the Vice-President.”The stand of the ‘December 23 alliance’ was that President Mohamed Nasheed has “lost his legal status”, the media quoted Naseer as saying further.

The President’s camp did not seem overly or overtly perturbed by the development. President Nasheed’s Press Secretary Mohamed Zuhair was quoted by the media that the Vice-President “has not said anything to cause a loss of confidence in him by the Government. “He was very careful in his statement, which was that he would undertake his duties as stipulated in the Constitution. Had the protesters gone to meet with (Fisheries Minister and MDP president) Dr Ibrahim Didi or (MDP parliamentary party leader) Reeko Moosa they would have said the same thing,” Zubair said.

The protesters claimed to represent 13 political parties and 21 NGOs, Zuhair said, “but all the rallies have seen the involvement of no more than 300-400 people. It is very disproportionate”. According to him, “The protests are slowing down and now they are trying to save face – pledging allegiance to the Vice-President is the same as pledging allegiance to the government. The VP is working in Cabinet today – there is no rift. This is a non-story,” Zubair maintained. The government was not concerned about Dr Waheed’s late night meeting with Opposition leaders, as letting the protesters into his house “was the polite thing to do,” Zuhair said. He also dismissed Opposition claims that there was anti-Government sentiment brewing in the security forces.

As in most democracies, the President – and by extension, the Vice-President, can be removed from office only through an impeachment motion in Parliament, with two-thirds of the members voting in favour. In a People’s Majlis with 77 members, the figure comes to 51. Neither the ruling party, nor the opposition (combine) has the number, and both have been falling back on the Independents to add up the numbers for obtaining a simple majority for their legislative initiatives, from time to time. Like the US pattern, the Maldivian scheme does not provide for fresh elections in case the presidency fell vacant mid-term. The Vice-President steps in, instead, to complete the unfinished term.

At the height of the ‘constitutional crisis’ triggered by the Government, entailing the en masse resignation of the entire Cabinet in mid-2010, Vice-President Waheed, would not comply with the MDP initiative, for him to quit, too. Owing to Vice-President Waheed’s considered stand, the Executive could not proceed with a politico-electoral showdown with the Opposition-majority Parliament, particularly over their criticism of the GMR contract for the modernisation of the Male International Airport, involving the Indian infrastructure major.

The Opposition, going by sections of the local media, has twisted President Nasheed’s alleged statement that he would not go in for fresh elections until he had ‘reformed’ the judiciary. The observation was contained in a leaked tape, which was broadcast by sections of the local media, and is purported to be contained in a conversation with the MNDF. The Opposition has interpreted this to argue that President Nasheed had no intention of holding elections, when due, by arguing that the promised judicial reforms were not yet over. It was also the reason for their mid-night meeting with Vice-President Waheed.

A surprising element in the current controversy is the unexpected criticism of the Government’s action by Dhiyana Sayeed, the Maldivian Secretary-General of SAARC since the Addu Summit in November. A nominee of the Nasheed leadership for the top job in the SAARC, which is as rotational as the SAARC Chair, the first woman Secretary-General of SAARC promptly put in her papers, as the SAARC Charter specifically prohibits the organisation from interfering in the internal affairs of member-countries. In between, she had also courted arrest for a brief while along with the ‘December 23 movement’ leaders, protesting Judge Abdullah’s arrest. Though not very well known nearer home or overseas, given in particular, her short stint at SAARC, the former Attorney-General has still stirred the net, nonetheless.

The writer is a Senior Fellow at the Observer Research Foundation.

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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Nasheed vows “independent and fair judiciary” before end of first term, in leaked audio

An audio clip of President Mohamed Nasheed vowing to ensure a fair judiciary before the 2013 presidential election has been leaked to local media.

The audio was reportedly one of several recorded during a meeting with the Maldives National Defence Force (MNDF).

“Freedom of expression and an independent and fair judiciary in this country – I will not go for the election after these five years without doing these two things,” Nasheed is heard to say.

He added that according to Home Minister Hassan Afeef, “the entire criminal justice system of this country is being destroyed because of a single judge.”

Chief Judge of the Criminal Court Abdulla Mohamed, who was detained on January 16 by the MNDF after he sought a High Court injunction to prevent a police summons, “will not retain his place on the bench under this government even if he is released [from Girifushi].”

“I will tell the army very clearly that [Abdulla Mohamed] will not get closer than 100 meters to the courthouse,” Nasheed said.

In another leaked clip, Nasheed argues that judges were not appointed lawfully and their verdicts and judgments were therefore suspect.

Several local media outlets reported Nasheed’s comments as a threat from the President not to hold elections unless the judiciary was reformed.

President Nasheed’s Press Secretary Mohamed Zuhair was not responding to calls at time of press.

“The opposition is twisting what the President said,” responded a source in the President’s Office. “He was promising to reform the judiciary before the conclusion of his first term in office – he has no intention of calling off any elections.”

The Maldives is currently in the throes of a judicial crisis, after Chief Judge Abdulla Mohamed scuttled an investigation by the judicial watchdog into his alleged misconduct by applying for a Civil Court injunction to halt the process. The Judicial Services Commission (JSC) yesterday argued in parliament that it had no option but to obey the ruling of a body it was tasked with overseeing.

That investigation concerned politically bias comments made on DhiTV, which an unreleased JSC report states violated the judge’s Code of Conduct.

The government has presented a bevy of allegations against the judge, listing 14 cases of obstruction of police duty including withholding warrants for up to four days, ordering police to conduct unlawful investigations and disregarding decisions by higher courts, “deliberately” holding up cases involving opposition figures, barring media from corruption trials, ordering the release of suspects detained for serious crimes “without a single hearing”, and maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes.

The judge also released a murder suspect “in the name of holding ministers accountable”, who went on to kill another victim.

Earlier allegations, forwarded to former President Maumoon Abdul Gayoom in 2005 by then Attorney General Dr Hassan Saeed, included allegations of misogyny, sexual deviancy, and throwing out an assault case despite the confession of the accused.

In one instance, Dr Saeed told Gayoom, the Chief Judge made two underage victims of sexual assault act out the assault “in the presence of the perpetrator and the rest of the court.”

The judge remains in detention and the government is appealing to the international community for independent and authoritative legal assistance to resolve the impasse and reform the judiciary. Meanwhile, opposition supporters have held two weeks of nightly protests calling for the judge’s release.

No organisation has yet stepped forward, however a UN spokesperson from the Office of the High Commissioner for Human Rights over the weekend encouraged the government to “release the judge from custody or charge him with a crime.”

The matter has also been raised in the UK Parliament’s House of Commons by Conservative Party MP for Salisbury, John Glen.

“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.”

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MDP votes to hold “massive gathering” to show support for judicial reform

The Maldivian Democratic Party (MDP)’s National Council has decided to hold a massive gathering in Male’ calling for an independent judiciary and to show support for the actions taken by President Mohamed Nasheed in the detention of Chief Judge of the Criminal Court, Abdulla Mohamed.

A resolution was passed to the National Council by a council member which was then supported by ‘Sarangu’ Adam Manik, former Mayor of Male’ City.

The resolution also calls MDP to “stand up” against the protests held by the opposition parties, which have occurred every night for the past two weeks near the Maldives Monetary Authority (MMA) building.

MDP Secretary General Ahmed Shah today told Minivan News that the resolution was passed yesterday but that the date had not yet been fixed.

He said opposition political parties were “creating unrest in the country to obstruct government projects that are being conducted.”

‘’Only a few are turning up to those protests now,’’ he claimed.

Opposition political parties have been protesting every night following the detention of Abdulla Mohamed by the Maldives National Defence Force (MNDF), on the evening of January 16 in compliance with a police request. The judge had earlier sought a high court ruling to overturn his police summons.

The judge’s whereabouts were not revealed until January 18, and the MNDF has acknowledged receipt but not complied with Supreme Court orders to release the judge.

Meanwhile, a group of lawyers campaigning for the release of Abdulla Mohamed have requested the Supreme Court not hear any case related to Judge Abdulla before the court decided on the request made by the lawyers to issue a writ to free the judge.

Today the High Court issued a warrant for the third time to produce Judge Abdulla, in an appeal against the Civil Court injunction he sought to halt his investigation by the Judicial Service Commission (JSC).

The MNDF has not responded to any of the warrants issued.

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Civil Court injunction stops us taking action against Abdulla Mohamed: JSC

Judicial Service Commission (JSC) President Adam Mohamed has claimed the body is “impatient” to take action against the Criminal Court Chief Judge Abdullah Mohamed, and claimed that the only thing preventing the move is the Civil Court injunction filed by Abdulla Mohamed ordering the judicial watchdog not to take any action, until the court decided otherwise.

Adam Mohamed made the statements in response to questions asked at the Saturday’s meeting of parliament’s independent institutions committee where the JSC members, including opposition MP Gasim Ibrahim and Speaker of Parliament Abullah Shahid, were summoned to clarify the reason for delay in taking action against the judge.

In the committee meeting, broadcasted live, Mohamed restated that it would be a “violation of law” to take any action against Chief Judge before the Civil Court injunction was overruled, stating that and the commission has to proceed within the legal bounds.

“If we take action against Judge Abdullah, we will be in violation of law. [Because] violating a ruling is violating the law. We are very cautious,” said Mohamed, the Supreme Court’s representative on the judicial watchdog.

“We are impatient to take action [against chief judge] within the legal bounds” he claimed, adding that the case had now been appealed in High court.

The civil court granted the injunction in November 2011 – on the judge’s request – during the 30 day period he was given to respond to the report completed by JSC in which was found guilty of violating the Judge’s Code of Conduct for making politically contentious statements on a local TV channel.

According to the JSC, a total of 11 complaints have been submitted against the judge.

While the JSC’s decision remains stalled due to the injunction, questions have been raised as to whether the civil court has the jurisdiction to rule against its own watchdog body.

Aishath Velezinee, former president’s member at the JSC, argues that “if the judicial watchdog can be overruled by a judge sitting in some court somewhere, then the JSC is dysfunctional. But that’s what has been happening,” she asserted.

While the injunction issued last November was appealed at the higher courts, JSC also cited that the commission does not consider that the civil court has authority to hear the case.

The JSC first appealed the case at Supreme Court, which instructed it to forward the matter to the high court.

The high court scheduled its first hearing on the case last Thursday, but was cancelled by the judge who decided the case cannot be heard in absence Judge Abdulla Mohamed, after the Maldives National Defence Force (MNDF) refused to produce him. He remains under MNDF custody on the training island of Girifushi.

The military arrested the judge on January 16 after he attempted to block his own police summons – subsequently all the courts , JSC, Prosecutor General Ahmed Muiz, and later Vice President Dr Mohamed Waheed called for his immediate release citing the arrest as unlawful.

President Mohamed Nasheed met with some of the JSC members at a meeting held at the president’s office on Sunday to discuss his concerns related to the judiciary, local media reported.

UN calls for judge’s release

Associated Press (AP) has meanwhile reported that the United Nations (UN) has called for the Maldives to release the judge from custody or charge him with a crime, as the body considers a government request for help resolving a dispute with the country’s judiciary.

“While acknowledging the challenges Maldives faces in reforming and strengthening its judiciary, we believe that Judge Abdulla should either be treated with due process, meaning he should be properly charged moved from military detention, and brought before a court, or released,” Ravina Shamdasani, a spokeswoman at the UN human rights office told AP on Saturday.

She also observed that the officials are still discussing how to respond to the request made by the Foreign Ministry last week, requesting international legal assistance.

The government has meanwhile listed 14 cases of obstruction of police duty by Judge Abdulla, including withholding warrants for up to four days, ordering police to conduct unlawful investigations and disregarding decisions by higher courts.

Afeef accused the judge of “deliberately” holding up cases involving opposition figures, and barring media from corruption trials.

Afeef said the judge also ordered the release of suspects detained for serious crimes “without a single hearing”, and maintained “suspicious ties” with family members of convicts sentenced for dangerous crimes.

The judge also released a murder suspect “in the name of holding ministers accountable”, who went on to kill another victim.

“We have been working to improve the judiciary since we came to power, but we have not succeeded,” said Foreign Minister Ahmed Naseem last week, calling for a delegation from the United Nations Human Rights Commission (OHCHR) to help resolve “an issue of national security.”

The first complaints were meanwhile filed against Mohamed in July 2005 by the Attorney General at the time time Dr. Hassan Saeed, president of the minority opposition party, which is leading the call for judge’s release.

The allegations included, misogyny, sexual deviancy, and throwing out an assault case despite the confession of the accused.

Meanwhile, group of lawyers have sent a case to the International Criminal Court (ICC), appealing that the judge’s detention is an “enforced disappearance” under the ICC’s Rome Statute – while opposition activists have taken the fight to free the judge to the streets, as protests continue for a second week.

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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.

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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Allegations against Chief Judge first sent to Gayoom in 2005

The first complaints filed against Chief Judge of the Criminal Court Abdulla Mohamed in July 2005 included allegations of misogyny, sexual deviancy, and throwing out an assault case despite the confession of the accused, Minivan News has learned.

A letter sent to President Maumoon Abdul Gayoom by then Attorney General Hassan Saeed, obtained by Minivan News (page 1, 2), outlined three specific allegations against Abdulla Mohamed.

While presiding over a sexual offence case against Azeem Abdullah of Chaandhaneege, G.A.Kanduhulhudhoo, on May 19, 2005, Saeed told Gayoom that Abdulla Mohamed “made the two children who were summoned as witnesses against the accused stand in front [of the court] and asked them to look at the people present.

“He then made the children identify the individuals they were looking at. Although the children said in court that the accused performed the indecent act he was accused of, the Judge made the children act out the indecent act in the presence of the perpetrator and the rest of the court.”

Saeed’s second allegation concerned the hearing of physical assault case on June 6, 2005, against Ibrahim Ali of H. Saaroakaage.

“The case was submitted based on the admission of the accused that he had committed the assault, but Judge Abdulla Mohamed of the Criminal Court dismissed the case, stating that there was no case against the accused,” Saeed wrote.

In Saeed’s third allegation, concerning a criminal case on June 6, 2005, against Ahmed Naeem of Male’ Municipality Special Register, “after completing the sentencing of the defendant, Abdulla Mohamed said, ‘…very few men ever meet women who love them. You may meet a woman who loves and cares for you. You should not run after a woman who does not love you. It is also stated in Holy Quran that women are very deceptive.’”

The Judicial Services Commission (JSC), the judicial watchdog, eventually formed a complaints committee to investigate the cases against Judge Abdulla in December 2009, which met 44 times but had failed to present a single report as of March 2011.

Speaking at an opposition rally on January 24 against the detention of Abdulla Mohamed, Saeed acknowledged that he was “not satisfied with Judge Abdulla’s actions either.”

“[But] he did not have to do things to my satisfaction. I submitted the legal points I noticed [related to the judge’s conduct] to the head of the judiciary at the time, President Maumoon Abdul Gayoom. I could have removed Judge Abdulla from the post through pressure. But I did not do it because it was not my responsibility,” Dr Saeed said.

“The constitution today forbids influencing judges. So, looking at the current scenario, the country has gone ten years backward.”

The current judicial crisis was sparked after Abdulla Mohamed filed a case in the Civil Court which granted him an injunction halting his further investigation by the JSC. This was following by a High Court ruling against a police summons on January 16, which prompted police to request the Maldives National Defence Force (MNDF) take the judge into custody.

Home Minister Hassan Afeef subsequently accused the judge of “taking the entire criminal justice system in his fist”, listing 14 cases of obstruction of police duty including withholding warrants for up to four days, ordering police to conduct unlawful investigations and disregarding decisions by higher courts.

Afeef accused the judge of “deliberately” holding up cases involving opposition figures, barring media from corruption trials, ordering the release of suspects detained for serious crimes “without a single hearing”, and maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes.

The judge also released a murder suspect “in the name of holding ministers accountable”, who went on to kill another victim.

Vice President of the Maldives Dr Mohamed Waheed Hassan opposed the judge’s detention, stating on his blog that “I am ashamed and totally devastated by the fact that this is happening in a government in which I am the elected Vice President.”

The government then requested assistance from the international community to reform the judiciary. Observing that judicial reform “really should come from the Judicial Services Commission (JSC)”, Foreign Minister Ahmed Naseem said the commission’s shortcoming are “now an issue of national security.”

“We have been working to improve the judiciary since we came to power, but we have not succeeded,” said Naseem. “We have asked the international community to assist us in this effort several times, and we find that they are willing to help at this point,” he explained.

A group of lawyers have meanwhile sent a case to the International Criminal Court (ICC), appealing that the judge’s detention is an “enforced disappearance” under the ICC’s Rome Statute.

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JSC appeals Civil Court injunction against investigation of Abdulla Mohamed

The Judicial Service Commission (JSC) has said that all complaints filed against judges are now being investigated, after it appealed the Civil Court’s injunction preventing the commission from taking action against Criminal Court Chief Judge Abdulla Mohamed at the High Court on Tuesday.

Former President’s Member on the JSC, Aishath Velezinee, on Tuesday told Minivan News that if the judicial watchdog “can be overruled by a judge sitting in some court somewhere, then it’s dysfunctional. But that’s what has been happening.”

In a press statement issued this week, JSC – which is mandated to appoint and investigate complaints against judges – refuted allegations that it was defunct, claiming it has been “working hard” to finish investigating complaints submitted to the commission.

Out of the 336 complaints submitted so far, 208 have been completed and 38 cases under investigation, the JSC claimed, while commission is working to finish the 128 complaints remaining. Investigation committees had been set up within the commission to “expedite the process”, JSC claims, adding that complaints concerned different judges, not only Chief Judge Abdulla Mohamed.

The statement comes despite the JSC’s abolishing its complaints committee in May 2011. It did not clarify the outcome of any of the complaints it said it had investigated.

The JSC explained in the statement that the commission has been unable to pursue the case against Chief Judge as the Civil Court had ordered the JSC on November 17 to take no action against the judge until the court reached a verdict in the case filed against him.

The JSC requested the High Court to terminate the injunction citing that the commission’s decision cannot be overruled by the civil court.

Abdulla Mohamed filed the suit against the JSC after it completed a report into misconduct allegations against the cheif judge. According to the report, which the JSC has not yet publicly released, the judge violated the Judge’s Code of Conduct by making a politically biased statement in an interview he gave to private broadcaster DhiTV.

The injunction was first appealed by the JSC at the Supreme Court, which ordered it to be submitted to the High court on January 19 – three days after chief judge was detained by the military, after he had opened the court outside normal hours a night ago, to order the immmmediate release of Dr Mohamed Jameel Ahmed, deputy leader of the minority opposition Dhivehi Qaumee Party (DQP) who was arrested after President’s Office requested an investigation into “slanderous” allegations he made that the government was working under the influence of “Jews and Christian priests” to weaken Islam in the Maldives.

In this week’s statement JSC reiterates its stance that neither police or Maldives National Defence Force (MNDF) have the “constitutional authority” to detain a judge, citing that the commission reserves the right to investigate complaints about judges and submit to the parliament in case a judge has to be removed from the bench under the section 159 of the constitution and Judicial Service Commission Act.

However, the government continues to legally justify the military detention of the judge amid spiralling political tensions.

In a televised statement on MNBC One on Junary 17, Home Minister Hassan Afeef said military assistance was sought for “fear of loss of public order and safety and national security” on account of Judge Abdulla, who has “taken the entire criminal justice system in his fist”.

Afeef listed 14 cases of obstruction of police duty by Judge Abdulla, including withholding warrants for up to four days, ordering police to conduct unlawful investigations and disregarding decisions by higher courts.

Afeef accused the judge of “deliberately” holding up cases involving opposition figures, and barring media from corruption trials.

The judge also released a murder suspect “in the name of holding ministers accountable”, who went on to kill another victim.

Afeef also alleged that the judge actively undermined cases against drug trafficking suspects and had allowed them opportunity to “fabricate false evidence after hearings had concluded”.

Judge Abdulla “hijacked the whole court” by deciding that he alone could issue search warrants, Afeef continued, and has arbitrarily suspended court officers.

The chief judge “twisted and interpreted laws so they could not be enforced against certain politicians” and stood accused of “accepting bribes to release convicts.”

However, opposition continues to contend that the judge’s “abduction” by the military and its refusal to release him or present him in court, despite being ordered to do so by the Supreme Court, represents a constitutional violation by the government.

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Q&A: Silent coup has cost Maldives a judiciary, says 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.

She has consistently maintained that the JSC is complicit in protecting judges appointed under the former government, colluding with parliament to ensure legal impunity for senior opposition supporters. During her tenure at the JSC she was never given a desk or so much as a chair to sit down on. In January 2011 she was stabbed twice in the back in broad daylight.

The JSC is now at the centre of a judicial crisis that has led to the military’s detention of Chief Judge of the Criminal Court, Abdulla Mohamed.

JJ Robinson: To what extent does the current judicial crisis represent the failure of Article 285 in 2010, the constitutional provision guaranteeing an independent and qualified judiciary at the conclusion of the two year interim period?

Aishath Velezinee: 100 percent. This was what I was trying to bring out at the time – but I could only allege that Abdulla Mohamed was at the heart of the matter. But it was very obvious to me that this was not just the action of one man, but a hijacking of the judiciary [by the opposition] – the ‘silent coup’.

In the highly politicised environment at time it was very difficult to get people to look into this, because parliament was out to cover it up – nobody was willing to take it up, and everyone wanted distance because it was too sensitive and so highly politicised. So really no one wanted to try and see if there was any truth to what I was saying.

Time passed. I didn’t imagine all this would come up so soon – it has been an amazing experience to see all of this suddenly happening so quickly.

It was inevitable – with everything Abdulla Mohamed has done inside and outside the courts, it was very obvious that he was not a man to be a judge.

With all the highly political rulings coming from the Criminal Court, it was clearly not right. The JSC’s cover up of Abdulla Mohamed was also apparent.

He had spoken on TV [against the government] – and it was not just his voice. There was no need to spend two years investigating whether he had said what he said.

Finally they decided yes, he is highly politicised, and had lost the capacity to judge independently and impartially. His views and verdicts were expressing not just partiality towards the opposition, but apparently a very deep anger against the government. It is very obvious when you speak to him or see him on the media. We had to look at what was behind all this.

JJ: Abdulla Mohamed filed a case in the Civil Court which ordered the JSC investigation be halted. Does the JSC have any jurisdiction to rule against its own watchdog body?

AV: Absolutely not. If the judicial watchdog can be overruled by a judge sitting in some court somewhere, then it’s dysfunctional. But that’s what has been happening. And [Supreme Court Judge] Adam Mohamed, Chair of the JSC, has probably been encouraging Abdulla Mohamed to do this.

The whole approach of the JSC is to cover up the judge’s misconduct. When it comes to Abdulla Mohamed it’s not just issues of misconduct – it’s possible links with serious criminal activities. There is every reason to believe he is influenced by serious criminals in this country.

JJ: The international community has expressed concern over the government’s ongoing detention of the judge by the military. Is the government acting within the constitution?

AV: It is impossible to work within the constitution when you have lost one arm of the state: we are talking about the country not having a judiciary. When one man becomes a threat to national security – and the personal security of everyone – the head of state must act.

He can’t stand and watch while this man is releasing people accused of murder, who then go out and kill again the same day. We are seeing these reports in the media all along, and everyone is helpless.

If the JSC was functioning properly – and if the Majlis was up to its oversight duties – we would not have got to this stage. But when all state institutions fail, then it is necessary to act rather than watch while the country falls down.

JJ: What next? The government surely can’t keep the judge detained indefinitely.

AV: We have to find a solution. It is not right to keep someone detained without any action – there must be an investigation and something must happen. I’m sure the government is looking into Abdulla Mohamed.

But releasing him is a threat to security. I have heard Vice President Mohamed Waheed Hassan calling for him to be released. Abdulla Mohamed is not under arrest – but his freedom of movement and communication would be a danger at this moment. We are at the point where we really and truly need to get to the bottom of this and act upon the constitution.

We talking about cleaning up the judiciary, and this is not talking outside the constitution – this is the foundation of the constitution. The constitution is build upon having three separate powers.

The judiciary is perhaps the most important power. The other powers come and go, politics change, but the judiciary is the balancing act. When that is out of balance, action is necessary.

With regards to attention from the international community – I tried really hard in 2010 to get the international community involved, to come and carry out a public inquiry, because we do not have any institution or eminent person with the authority to look into the matter. We needed outside help.

The International Commission of Jurists (ICJ) did come and their report highlighted some things, but they did not have access to all the material because it’s all in Dhivehi. We need a proper inquiry into this, and a solution.

JJ: The Foreign Minister has asked the UN Office of Human Rights to send a legal team able to look into the situation and advise. To what extent will this draw on the constitution’s provision to appoint foreign judges?

AV: That has been something we were interested in doing, but the former interim Supreme Court Judge Abdulla Saeed was absolutely against it – not only bringing in foreign judges, but even judicial expertise. He was also against putting experts in the JSC so it could be properly institutionalised. The ICJ tried very hard to place a judge in there but didn’t get a positive response.

The UN brought in a former Australian Supreme Court Judge, but he didn’t get any support either. There was a lady [from Harvard] but she left in tears as well. There was no support – the Commission voted not to even give her a living allowance. They are unwelcoming to knowledge – to everyone. It is a closed place.

JJ: Is there a risk the UN will send a token advisor and things will quickly return to business as usual?

AV: 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.

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.

JJ: There was talk of foreign judges and the establishment of a mercantile court for cases involving more than Rf 100,000 (US$6500). Based on the current state of the judiciary are people now more open to idea of foreign judges, where once they may have opposed it on nationalistic grounds?

AV: It is not a new thing. We have always used foreign knowledge since the time of the Sultans. We used Arabs who came here as our judges, they were respected people. Ibn Battuta practiced here as a judge during his voyages.

So it is not a new concept. This is the way we are – we do not have the knowledge. Now we are transitioning to a modern, independent judiciary, so of course we need new knowledge, practices and skills. The only way to get our judges up to standard is [for foreign judges] to be working in there, hands on.

Of course before that we have to make sure that the people on the bench are people who qualify under the constitution. With the bench we have right now it wouldn’t do much good bringing in expertise, because many of the people sitting there do not even have the basics to understand or move forward, they are limited in not having even basic education.

JJ: What percentage of the judiciary has more than primary school education?

AV: As a foundation, at least 50 percent have less that Grade 7. But they all say they have a certificate in justice studies – a tailor-made program written by the most prominent protester at the moment, former Justice Minister Mohamed Jameel of the Dhivehi Qaumee Party (DQP). There were no textbooks on the course – they were given handouts.

Now we do have access to resources through the internet. But do the judges and magistrates have the skills or language abilities necessary to research on the internet? No they don’t.

JJ: Based on your access to privileged JSC information, you have also previously expressed concern at the high number of judges with actual criminal records. What about Abdulla Mohamed?

AV: Abdulla Mohamed was already a criminal convict before he was appointed to the bench. This man was found guilty of creating public disorder, hate speech and had publicly shown himself to be a woman hater or fearer- I don’t know which. But he has this bias against women and has been quoted as such in the courtroom. He’s got issues.

There are unchecked complaints against him in the JSC. The JSC has this practice of taking every complaint and giving it to committee one at a time. But if you look at everything, there is a pattern suggesting links to criminals. The Criminal Court has been given power as the only court able to rule on police custody during police investigations – why does Abdulla Mohamed have a monopoly on this? He personally locks up the seal. Why does he control it?

JJ: What do you mean when you claim he has links to organised crime?

AV: It’s a pattern. He tries to prevent investigation of all the heavy drug cases, and when the case does make it before the court his decisions are questionable. In one instance newspaper Haveeru sent a complaint saying the Criminal Court had tried a case and changed the verdict behind closed doors.

Haveeru later called for the complaint to be withdrawn. But my approach is to say, once we have a complaint we must check it. The complainant can’t withdraw a complaint, because there must have been a reason to come forward in the first place. That verdict referred to something decided two years before – Abdulla Mohamed changed the name of the convict. A mistake in the name, he said. How can you change a name? A name is an identity. The JSC never investigated it.

JJ: Prior to the JSC’s decision to dissolve the complaints committee, it was receiving hundreds of complaints a year. How many were heard?

AV: Five were tabled, four were investigated. Their approach was that if nobody was talking about the judge, then the judge was above question. So they would cover up and hide all the complaints.

Approach of this constitution is transparency – and the investigation is itself proof of the judge’s independence. An accusation doesn’t mean he is not up to being a judge. But if it is not investigated, those accusations stand. Instead, the JSC says: “We don’t have any complaints, so nobody is under investigation.”

We are struggling between the former approach and the new approach of the constitution. We have seen judges with serious criminal issues kept on bench and their records kept secret. They have a problem adapting themselves to the new constitution and democratic principles that require them to gain trust.

The JSC has many other issues- taking money they are not entitled to, perjury; none of this was looked into. All sorts of things happened in there.

JJ: Is it possible to revive Article 285, or did that expire at the conclusion of the interim period?

AV: Article 285 is the foundation of our judiciary, the institutionalisation of the one power that is going to protect our democracy. How can we measure it against a time period set by us? Two years? We did everything we could to try and enact it. It was a failure of the state that the people did not get the judiciary.

We cannot excuse ourselves by saying that the two years have passed. Parliament elections were delayed – much in the constitution was delayed. 80 percent of the laws required to be passed under this constitution have yet to be adopted. Are we going to say ‘no’ to them because time has passed?

We can’t do that, so we have to act.

JJ: Parliament has oversight of the JSC – what ability does parliament have to reform it?

AV: Parliament has shown itself to be incapable of doing it. We are seeing parliamentarians out trying to free Judge Abdulla Mohamed – including Jumhoree Party (JP) MP Gasim Ibrahim, a member of the JSC.

So I don’t think we even need to enter into this. it is apparent they are playing politics and do not have the interest of the people or the state at heart. They never believed in this constitution, they were pushed into adopting a democratic constitution, they failed in the elections, and now they are out to kill the constitution.

I am wondering even what they are protesting about. Last night it was Judge Abdulla, and the religious card. It is fear driven.

What we are seeing is [former President Maumoon Abdul] Gayoom and [his half brother, Abdulla] Yameen trying to turn their own personal fears into mass hysteria. Nobody else is under threat – but they are if we have an independent judiciary. If their cases are heard they know they are in for life.

JJ: So this is a struggle for survival?

AV: Exactly. The final battle – this is the last pillar of democracy. If we manage to do this properly, as stated in the constitution, we can be a model democracy. But not without a judiciary.

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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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