justice – Minivan News

Chief Judge Abdulla Mohamed takes over ‘Sun’ Shiyam’s case

Criminal Court Chief Judge Abdulla Mohamed has taken over the alcohol smuggling and possession trial of Maldives Development Alliance (MDA) leader MP Ahmed ‘Sun’ Shiyam.

Citing a letter sent from the criminal court secretariat to Judge Ahmed Sameer Abdul Aziz, who was previously overseeing proceedings, Haveeru has reported that the action was taken in response to a letter from the Supreme Court.

The decision has come amid media reports that Judge Aziz was to be replaced with Judge Shujau Usman after a request from government coalition leader Shiyam

According to the court spokesperson, the action was taken following complaints regarding the case, and was done under Article 55 (e) of the Judicature Act.

The article specifies that it is the responsibility of the senior judge in superior courts to “take action in relation to delays and other complaints related to cases submitted to the court”.

Shiyam request allegedly stated that Judge Aziz’s “hand gestures and facial expressions” indicated a personal grudge against him which could lead to an unfair trial.

According to reports, in addition to making the request for the removal of Judge Aziz from the Criminal Court and Supreme Court, Shiyam wrote a letter to Chief Justice Ahmed Faiz stating his belief that his complaints regarding the judge had further increased the risk of receiving an unfair trial.

In a letter addressed to the chief justice, which was acquired by the media, Shiyam was reported to have said he had received reports that the judge may be “considering a hastened and strict verdict” against him.

Denying reports that the case had already been handed over to a new judge, the court today said it still remains with Chief Judge Abdulla.

Shiyam was charged with smuggling and possession of alcohol in March 2012 after customs officers at Ibrahim Nasir International Airport (INIA) discovered a bottle of alcohol in his luggage.

The case remained in the investigation stage for a year after the Prosecutor General’s Office sent it back to the police in August 2012 citing a lack of necessary information.

Since the trial began in November 2013, the Criminal Court has cancelled four scheduled hearings after being unable to deliver the summons chit to Shiyam.

He appeared before the court for the first and the only hearing held in the case on March 13 this year after a court order was issued to bring him before the court under police custody. Shiyam denied the charges and requested more time to research the case.

The second hearing in the trial has been rescheduled three times, the most recent instance occurring earlier this week.

In late March, CNM reported that Judge Abdulla – prior to the official schedule date for the second hearing – had attempted to hold an unofficial hearing while judge Aziz was on leave.

If found guilty Shiyam could lose his seat in parliament as per Article 73(c)(2) of the constitution which states that members of the parliament will be disqualified upon receiving a criminal sentence of more than twelve months.

Meanwhile, a hearing in the trial of Shiyam’s brother, Ahmed Salim Mohamed, for disobedience to order have also been cancelled this week, on the same date Shiyam’s latest delay.

Haveeru reports that Chief Judge Abdulla has on several occasions asked presiding Judge Muhtaz Hussein to hand the case over to him, though the court informed Minivan News today that this has not yet happened.

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Justice Ali Hameed’s ‘corruption’ documents destroyed in coffee spill

The Criminal Court has asked the Prosecutor General’s Office (PG) to resend all files concerning Supreme Court Justice Ali Hameed’s alleged misuse of state funds after case documents were destroyed in a coffee spill.

The PG has asked the Criminal Court to present the damaged documents three weeks ago, but the court has not done so yet, an official from the PGO told Minivan News.

The state is raising corruption charges against Ali Hameed over the illegal transfer of credit from his state-funded mobile phone in 2010.

An official from the Criminal Court told Minivan News on April 13 that the court had not decided to accept the case or not.

Cases filed by the PG office are scrutinised in the order of submission “to make sure all the paperwork is complete and that there are no missing documents,” he said. The process normally takes “two to three days,” he added.

The case against Justice Hameed – accused of abuse of authority to benefit a third party – was sent to the PG office in July 2013 by the Anti-Corruption Commission (ACC) after investigating allegations in the 2010 audit report of the Department of Judicial Administration.

Auditors found that a Supreme Court Justice transferred MVR2,223 (US$144) from his state-funded mobile phone on different occasions during 2010.

According to the audit report, the interim Supreme Court bench on October 23, 2008 decided to provide for each justice “a post-paid line, a phone and to pay the phone bill without a set limit out of the court’s budget”.

The report also noted that between October 2008 and December 2011, Supreme Court judges paid their phone bills amounting to MVR 281,519 (US$18,257) from the state budget, despite the fact that parliament had not allocated any phone allowances to the judges. Additionally, MVR 117, 832 (US$7640) was found to have been overspent on wages and allowances to the driver of a judge’s car.

The judge is also currently subject to investigation over his alleged appearance in multiple leaked sex videos depicting him fornicating with foreign women in what appears to be a Colombo hotel room.

A further video also appears to show Hameed and a local businessman, Mohamed Saeed, discussing political influence in the judiciary.

Justice Hameed in the video reveals his political ‘hook-up’ with President Abdulla Yameen, claiming that he was one of Yameen’s “back-ups” and that his stand was “to do things the way Yameen wants”, promising to “kill off” Dhivehi Rayithunge Party (DRP) leader Ahmed Thasmeen Ali “if it comes into my hands.”

Even [Speaker of Parliament] Abdulla Shahid will know very well that my stand is to do things the way Yameen wants. That the fall of this government was brought with our participation,” he adds.

However, he also claims that he was a person who “even Yameen cannot play with” and that over time he had “shown Yameen” who he is.

After the sex tapes of Hameed surfaced in May 2013, the judicial oversight body, Judicial Services Commission (JSC), set up committees to investigate the case twice – in May and December 2013.

Both subcommittees unanimously recommended the JSC suspend Hameed pending an investigation.

However, in July 2013, the JSC disregarded the recommendation citing lack of evidence, while a JSC decision on the December subcommittee’s recommendation is still pending.

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Alhan alleges involvement of senior government officials in stabbing

Maldivian Democratic Party (MDP) MP Alhan Fahmy has said that he believes senior officials of the current government was behind a knife attack on February 1 that left the opposition MP’s left leg paralysed.

Speaking at the last sitting of the 17th People’s Majlis today, the outgoing MP for Feydhoo noted the violent attacks on MPs during the past five years of multi-party politics and fledgling democracy, including the brutal murder of Progressive Party of Maldives (PPM) MP Dr Afrasheem Ali.

Both MPs and the public were left in a state fear by the attacks on parliamentarians, Alhan said.

Alhan was stabbed in Malé on the evening of February 1, 2014, while at the Breakwater cafe in the artificial beach area of the capital.

The results of the final MDP parliamentary primaries were officially revealed the same day, with Alhan losing the Feydhoo constituency seat to Mohamed Nihad, who received 316 votes to the incumbent’s 154.

After the results of the primary contest emerged, Alhan alleged irregularities in the vote via social media, declaring his intention to challenge the outcome.

Two suspects – Mohamed Sameeh of Shiny, Fuvahmulah, and Mohamed Naseem, of Ulfamanzil, Hithadhoo – were arrested by the police in connection with the case.

The case against the two suspects have since been forwarded to the Prosecutor General’s Office for prosecution.

Alhan has had a chequered recent past with the MDP, rejoining the party in June last year after an apparently acrimonious departure in April of the previous year. Then party vice president, Alhan was ejected – alongside then party President Dr Ibrahim Didi – after the pair publicly questioned the party’s official interpretation of the February 7 ousting of President Mohamed Nasheed.

The Feydhoo MP subsequently organised a rally – sparsely attended – calling for the freeing of the MDP from its talismanic leader Nasheed. Alhan’s soon joined the government-aligned Jumhooree Party,

Alhan was initially elected to parliament on a Dhivehi Rayithunge Party (DRP) ticket, making him one of the few MPs to have been a member of almost every major political party represented in parliament, barring the DRP’s splinter party, the Progressive Party of the Maldives (PPM).

He was dismissed from the DRP in 2010 for breaking the party’s whip line in a no-confidence vote against then Foreign Minister, Dr Ahmed Shaheed

Last August, Alhan was summoned by police in connection with the alleged blackmailing of Supreme Court Justice Ali Hameed, using footage of the judge having sex with two foreign women said to be prostitutes.

The MP tweeted a screenshot of a text message he claimed had been sent to his mobile phone by Superintendent of Police Mohamed Riyaz. The text read: “Alhan, will make sure you are fully famed (sic) for blackmailing Justice Ali Hameed. You don’t know who we are.’’

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Supreme Court imposes travel ban on Elections Commission members

The Supreme Court has today ordered Elections Commission (EC) members not to leave Male’ until a verdict is reached in the ongoing contempt of court case.

EC Director General Mohamed Shakeel has said the order was addressed to all four members separately.

EC President Fuwad Thowfeek has revealed that he yesterday asked the court for a two day medical trip to Sri Lanka.

“I requested to leave from Thursday to Tuesday, but I have now postponed the trip till the case is over,” said Fuwad.

The order came just hours after the court concluded a hearing in the ongoing contempt of court case against the commission today.

Today’s hearing had focused mainly on Thowfeek’s comments about the court’s guidelines, made in the Majlis government oversight committee on Monday.

The judges questioned Thowfeek over his statements, asking if he would follow the guidelines in the coming elections.

Similar comments made by EC members in the same committee were also used by the court in the previous hearing of the trial.

While Article 90 of the constitution provides parliamentary immunity for anything said in the People’s Majlis or it’s committees with the exception of statements “contrary to a tenet of Islam”, Justice Abdulla Didi today repeated his argument that contempt of court is against a tenet of Islam.

Chief Justice Faiz said that, even within the parliament, an ongoing case should not be discussed and when asked about such a case one could object to answering.

Judge and plaintiff in the same case

When Justice Dr Ahmed Abdulla asked if Thowfeek had made any comments stating that the court had acted against the constitution, he responded by saying that the judge, plaintiff, and defendant should be three separate people.

He said going against it would be against the spirit of the Constitution and Islamic Shariah.

Justice Abdulla Didi responded by saying that initiating a case on a court’s own accord is practiced in civilised societies and said that the constitution allows referring to practices used in democratic and civilised societies.

When Thowfeek reiterated that the court could not be a plaintiff in their own case, he was interrupted and asked not to create ‘fitna’ (mischief) without proper legal knowledge and warned that such comments could be considered as contempt of court.

The EC Chief later said the court’s Suo Motu regulation is against the spirit of the constitution and that it has created legal some conflicts.

Justice Abdulla Saeed explained that in Islamic Shariah and historical practice in Maldives it was the court or the judge that summoned people, and that prosecution by the state was recent innovation.

When Thowfeek asked if the case against EC was a criminal or a civil case, Justice Abdulla Didi said it was a Suo Motu case.

Following SC guidelines

The second major issue raised at the hearing was the obligation to follow all requirements SC guideline that came with the verdict which annulled the September 7 presidential poll.

Fuwad told the court that it was impossible to gain the signatures of all election candidates as required by the guidelines.

Justice Abdullah Saeed said that “the court verdict is the law and what is meant in the constitution” and warned that EC’s refusal to follow verdicts could prompt members of the public to do the same, leading to lawlessness in the country.

Though he insisted that the EC was willing to follow the verdict, Fuwad said that candidates could not be forced to sign the voters list.

Justice Adam Mohamed Abdulla explained the independence and powers of the judiciary, referring to Article 141 (d) and (c) of the constitution and other regulations.

He questioned the rest of the EC members separately about their views on Thowfeek’s comments on the case and the the Supreme Court guidelines.

All members agreed that the guidelines should be followed, but expressed there were difficulties in following these guidelines. Like Thowfeek, the statements of other EC members who tried to detail the difficulties were interrupted by the judges.

Justice Abdulla Didi said that the guidelines were not impossible, and criticised the commission’s spending on ballot boxes in foreign countries such as the UK.

The EC was accused of spending a lot of money on that included “staying in five star hotels”.

Stating that it was against international best practices, he said that if the EC wanted they could send the list to the candidates who refuse to come to Male’ and sign the lists.

EC members were first summoned to the court on February 12 when the court launched the trial on charges of contempt of court under newly introduced ‘Suo Motu’ regulations which allows it to initiate hearings on it’s own accord.

The next hearing of the trial have been scheduled for Sunday at 1400 hours.

The court proceedings have been criticised by the civil society and the European Union.

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“Murder has to be punished with murder”: Yameen calls for death penalty to be put into practice

Progressive Party of the Maldives (PPM) Presidential Candidate Abdulla Yameen has called for the death penalty to be put into practice in the Maldives, a day after vowing to reform the judiciary.

The MP, half brother of former autocratic ruler Maumoon Abdul Gayoom, made the comments while speaking on the program Voice of Maldives on Monday night (July 22).

Yameen explained that although he was not previously an advocate of the death penalty, he now believed it must be implemented to save Maldivian society from murders that have become too commonplace, according to local media reports.

Yameen noted that as a result of the “recent spate of killings” in the Maldives he has had a “change of heart” and now believes “murder has to be punished with murder.”

“It is something that has to be done. We cannot move forward without making our streets safe,” Yameen said.

Yameen explained that a death penalty sentence should only be implemented if upheld by the Supreme Court.

“I now believe, if it can be proven in trial so that the country accepts, if it is proven to a degree accepted by judicial principles, if all the steps are followed, and if the Maldivian people believe, I believe that the death penalty is necessary to save society,” he said.

He also noted that because detailed legislation is necessary to implement the death penalty, the current government recently proposed a death penalty bill in parliament.

Regarding whether he would implement Islamic Sharia law, Yameen’s response to a caller was that “justice is currently delivered in the Maldives through Islamic principles” and that he would act “in accordance with what is laid out by the constitution.”

He pledged that under a PPM government he would “do whatever has to be done” to make the Maldives a peaceful place.

Yameen also denied financing or having links with gangs, claiming these allegations “do not have any basis” and politicians perpetuating such rumors “lack sincerity”.

Such rumors that Yameen has gang ties have “been around a long time”, according to CNM.

During the PPM presidential primary, former candidate and PPM Vice President Umar Naseer publicly accused Yameen of involvement with gangs and the illegal drug trade. However, Yameen denied the “defamatory accusations” calling them “baseless and untrue”.

Yameen further noted during the Voice of Maldives program that a “major part” of the government budget would be spent on youth, including a special rehabilitation program for drug addicts, with more than 900 placements available, if he is elected president.

Last month, Yameen also announced that PPM intended to transform Hulhumale’ into a “Youth City” where enough apartments to accommodate young people would be constructed.

Judicial reform pledge

Meanwhile, a day prior to Yameen’s comments in favor of implementing the death penalty to quell violent crime in the Maldives, the PPM presidential candidate pledged to reform the judiciary, even if it required amending the constitution.

To gain investors’ confidence and bring foreign investments to the Maldives, reforming the judiciary to ensure swift justice and confidence in the institution is necessary, Yameen explained.

“We see the many challenges ahead from every direction. So we are not only competing with other candidates. We are competing against the flailing economy and fading culture and values,” he said.

Yameen told local media that Chief Justice Ahmed Faiz Hussain had also noted the judiciary has “problems”.

Faiz has meanwhile urged the public and media to refrain from making statements that would give a negative image of the judiciary, and called for constitutional amendments.

His comment’s follow the Maldives Bar Association (MBA) calling for the suspension of Supreme Court Justice Ali Hameed pending an investigation into his alleged sexual misconduct. Hameed is under investigation by both the police and Judicial Service Commission (JSC) over the circulation of at least three sex videos apparently depicting him fornicating with unidentified foreign women.

Earlier this year, Faiz said that the current seven-member bench of the Supreme Court cannot be abolished and will continue to remain as the highest court of the country as long as the Maldives remains a democracy. In July 2012, the Chief Justice also said the death penalty can be executed within the existing justice system of the Maldives.

Death penalty controversy

While the Maldives still issues death sentences, these have traditionally been commuted to life sentences by presidential decree since the execution of Hakim Didi in 1954, for the crime of practicing black magic.

Death penalty legislation was presented to parliament in June by government-aligned Dhivehi Qaumee Party (DQP) MP Riyaz Rasheed to implement the death penalty by hanging if the Supreme Court upheld a death sentence passed by a lower court. The legislation was put to a vote to decide whether or not to proceed with the bill at committee stage and was ultimately rejected 26-18 with no abstentions.

The Maldivian Democratic Party (MDP) MP said at the time that the party’s parliamentary group had opted to throw out the bill on the grounds that it would be “irresponsible” to approve such measures with ongoing concerns held by itself and international experts over the functioning of the country’s judiciary.

The party additionally criticised the proposed bill as being irrelevant, arguing that the country’s draft penal code – a recent issue of contention between MPs and certain political parties – already included provisions for the death sentence as outlined under Islamic Sharia.

Recent calls for presidential clemency to be blocked led Attorney General (AG) Azima Shukoor to draft a bill favouring the implementation of the penalty via lethal injection. It was met with opposition by several religious groups such as the NGO Jamiyyathul Salaf, which called for the draft to be amended in favour of beheadings or firing squads.

Minivan News understands that the bill submitted by the AG remains open for comments on potential amendments.

More recently, the state called for a High Court verdict on whether the practice of presidential clemency can be annulled.

Eariler this year, the UN country team in the Maldives issued a statement calling for the abolition of both corporal punishment and the death penalty in the Maldives.

Additionally, the state’s stance to review implementation of death sentences has led to strong criticism from certain human rights-focused NGOs this year.

Speaking to Minivan News immediately following a visit to the Maldives in April 2013, Amnesty International’s South Asia Director Polly Truscott raised concerns about the recent drafting of new bills outlining implementation for executions.

She argued that even in practice, such bills would be deemed as a human rights violation, with the NGO maintaining that there remained no research to support the assertion that executing criminals served as an effective deterrent for serious crimes.

She noted this was a particular concern considering the recent findings of various international experts such as UN Special Rapporteur on the Independence of Judges and Judiciary, Gabriela Knaul, regarding the politicised nature of the country’s judicial system.

“To leave Sharia law to the discretion of individual judges is something we believe would be a bad idea,” she said at the time.

In May this year, Amnesty International condemned the sentencing of two 18 year-olds to death for a murder committed while they were minors, and called on Maldivian government authorities to commute the sentence.

Meanwhile, a survey of the leading criminologists in the United States conducted in 2009 found that 88 percent of the country’s top criminologists “did not believe” that the death penalty is a “proven deterrent to homicide”.

The study, Do Executions Lower Homicide Rates? The Views of Leading Criminologists published in the Journal of Criminal Law and Criminology, also found that 87 percent of the expert criminologists believe that abolition of the death penalty would not have any significant effect on murder rates.

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Comment: Courts now more a source of comedy than justice

In May 2013, the report presented to the UN Human Rights Council by the Special Rapporteur on the Independence of Judges and Lawyers made critical observations on the Maldives’ state and current constitutional crisis.

Ms Gabriela Knaul observed, among other things, two issues that, in my opinion, negate any belief in the Maldives as a democratic State respecting rule of law, or even as a so-called infant democracy intent on building a democratic government and a democratic culture.

She noted; (1) The “concept of independence of the judiciary has been misconstrued and misinterpreted in the Maldives, including among judicial actors”; and (2) The “People’s Majlis should bear in mind how their actions or inaction affects the establishment of the rule of law.”

Can there possibly be a more damning observation to conclude that the Maldives State has failed? Can there be a more damning observation to declare that the Maldives State does not hold legitimacy under its’ own Constitution? Or, in fact, that the events of February 7, 2012 were the end result of a long drawn struggle, and the eventual kill of the Constitution?

The responses of the State to the UNSR report is further incriminating.

The Government, instead of being alarmed or attempting to inquire or redress as may be expected of a responsible State, pointed the finger at Ms Knaul, inferring the report “undermined the country’s sovereignty and legal jurisdiction”.

How it undermines the legal jurisdiction is not quite understood, and it appears the Government is referring to Ms Knaul’s interpretations, perhaps claiming it a sovereign right, the right to interpret its laws independently, independent of established international law, democratic principles and standards?

The Parliament saw little of concern in the report. Government aligned MPs had no initiative and opposition Maldivian Democratic Party (MDP) overlooked the fundamental questions on the legitimacy of the Courts, the breach of trust by judge, Court and the Judicial Service Commission, instead focusing on subsidiary issues: Hulhumale’ Magistrate Court and the political trial of President Nasheed.

The corruption of the judiciary, impunity of the JSC and its constitutional breaches are matters the Parliament has been unable to address, the real struggle being within the Parliament itself, as conflict of interest interferes in MP duties.

Presidential candidate, Jumhooree Party (JP) leader, MP and sitting JSC member Gasim Ibrahim, during a rally soon after the UNSR’s visit to the Maldives in February this year, went as far as to call Ms Knaul an ignorant busybody – “just like that Velezinee” – who does not understand the Maldives is a sovereign country and has the right to define and interpret its own Constitution and act free of foreign influence.

He had a lot more to say, suggesting the UNSR was either charmed or bought into repeating a tale the majority do not agree with!

The JSC itself too found the UNSR had not told the tale they had to tell. The same for the Supreme Court, which has previously expressed the opinion that they are not bound by international human rights covenants the State is a Party to.

Today, the Courts in the Maldives are more a source of comedy than justice, ridiculed rather than respected, and the subject of much discussion on the widely used social media network as “news” of judges, Courts and JSC make frequent headlines on local media.

The most recent scandal to hit the headlines, and rise to international news too, is the blackmail of a Supreme Court “Justice” using a sex tape of the judge in a compromising position.

The police caught the blackmailer red-handed. He turned out to be Ahmed Faiz, an Executive Committee member of sitting President Dr Mohamed Waheed’s Gaumee Ihthihaad Party (GIP).

Ironically, Faiz had been dismissed from Dr Waheed’s government himself following an earlier leaked audio clip in which Faiz was heard telling some friends all about how the February 7, 2012 coup that was not was really a coup had been carried by Faiz on behalf of Dr Waheed.

I myself was ambushed by the same Faiz in a café a few weeks after the tape leak and he told me a very long story where he said Dr Waheed had dismissed him only from an honorary position he held without pay, that it was “just for show” to pacify the public, and that he was not dismissed from his real paid job!

Faiz also confided that he’d been called to meet President Waheed where all was explained to Faiz and he was reassured Waheed was only taking a superficial action to end pressure from others. Faiz owned up to it being him on the recording, alleged that it was the Progressive Party of Maldives (PPM) of former President Gayoom behind the leak of his conversation, and named a PPM activist as the one responsible.

It must be said, Faiz is not a person I had met in person or spoken a word to before this chance meeting, and I only “knew” him from Facebook where he had harassed me relentlessly (2010-11) without reason or argument until I finally blocked him.

Since the leaked sex tape, another “tape” of another friendly chat has been made public. In this spy camera recording, Supreme Court Justice Ali Hameed, who is alleged to be the subject in the exposed sex tape, and Mohamed Saeed, a local businessman from Ali Hameed’s native Addu Atoll, are heard to discuss the politics of the judiciary, and a mention of a possible murder is also heard.

If Ali Hameed as heard on the tape is to be believed, the judiciary is in cohort with the politicians backing the coup, and are now at the receiving end of the political scuffles within the “unity government” as the politicians realign in a bid to take over government in the scheduled September 7, 2013 elections.

The Supreme Court remains silent. So does the Judicial Service Commission. The Parliament, instead of focusing on holding the State accountable, has taken upon them the role of attacking or defending the judge and Courts.

Considering that “the Supreme Court has been deciding on the constitutionality of laws ex-officio, without following appropriate examination procedures, under the understanding that they are the supreme authority for the interpretation of the Constitution,” as the UNSR Ms Knaul noted, and that the checks and balances do not function, it seems the scramble now is to re-conquer the Supreme Court.

The sitting “Judges” remain sitting ducks, without will or agency to stand up independently for the independence of judges, and to protect their own good names tarnished in the political struggle to control or free the judiciary.

Where the President Maumoon Abdul Gayoom had, for 30 years up to 2008, “the supreme executive and judicial authority” and the culture developed therein, it is no surprise that there is little understanding or identification of real issues by the masses.

Worrying is the continued misreading by the politicians and the miseducation of the public.

Aishath Velezinee (@Velezinee on twitter) is an independent democracy activist and writer. She was the Editor of Adduvas Weekly 2005-07 and served on the Maldives’ Judicial Service Commission (2009-11). She claims the Commission she sat on breached constitution in transition; and advocates for redress of Article 285, and a full overhaul of the judiciary as a necessary step for democracy consolidation.

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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Comment: The private eye?

This is the second of a series of articles as I attempt to unpack the Naaz Report, Access to Justice in the Maldives: Through the Eyes of a Colourless Lens published in May 2013.

Part one of Velezinee’s critique of the Access to Justice report is available here.

1. Naaz was a warden of Vice President Waheed Deen who taught and groomed her. He sponsored her study in Australia where she read Law, and lived and worked in Australia before returning home in late 2009.

2. I was first introduced to Naaz in 2009 by a mutual friend, a judge, who was a school friend of Naaz, and my closest friend at the time. As I understood, Naaz had been away for a long period, returned to the Maldives for a “break year,” and was excited by the changes she was seeing in the Maldives. She wanted to contribute to the nation with her knowledge and experience, and at the same time build her CV. Maldives lacks people of the knowledge, experience, exposure and grooming Naaz has, and she could help fill the gap. Naaz was living in Bandos Island Resort, courtesy of VP Deen, and was exploring opportunities. It was an exciting time.

3. She met with the then Vice President Dr Mohamed Waheed by appointment to introduce herself, and express her interest, and met others whom she knew from earlier, looking for a way to contribute. I was aware of the issues in child protection and the lack of expertise in law or human rights in the then Department of Gender and Family Protection (DGFPS) and thought Naaz could contribute much to strengthening the child protection system, and encouraged her to take up the challenge.

4. In the end, Naaz joined the UNDP office in Male as a Project Director to lead the Access to Justice project, an ongoing UN program with the government. With the UNDP, Naaz had privileged access to all institutions that few others had.

5. The author’s introduction in the publication, Access to Justice in the Maldives: Through the Eyes of a Colourless Lens (May, 2013) reads somewhat different.

6. In it she informs the reader she was the “Protecting Human Rights and Access to Justice Project” Program Specialist as well as the Project Manager with UNDP Maldives”, and that she is “a practicing lawyer in Australia” who has been “in the legal field for over 12 years”. All facts.

The “framing”, however, is misleading. It gives the reader the impression that the author is an Australian lawyer practicing in Australia, who happened to be in the Maldives working with the UN between 2010-12. A Maldivian would have “interests”, but what interests, as such, would an Australian have in rewriting a narrative? The framing, thus, gives a false impression of author as standing outside.

7. Second, the tag “Lead Researcher and Author: Naaz Aminath (LLB, GDLP, LLM)” implies the report is the work of a team. This too is misleading. There is no research team mentioned elsewhere in the report or credits, nor is there a reference list or bibliography included in the report.

8. Copy editing is credited to Maaeesha Saeed and Aishath Rizna, who was the Registrar at the Interim Supreme Court during the transition period, and is currently working for the Department of Judicial Administration.

10. Could the author be deliberately misleading the reader? Are these all innocent omissions and/or typos? Maybe. Or maybe not. What is the purpose of the Naaz Report? What influence could it have on the political processes in the Maldives today? Everything, depending on the winners in the presidential elections scheduled for September 7, 2013.

11. Naaz’s long standing patron, Waheed Deen, a businessman, resort owner, and society-man of wide social contacts known for his philanthropy and gift-giving, is the current Vice President, handpicked by Dr Waheed following the February 7, 2012 coup d’état. And the fact is, with all the plotting and re-plotting, it was “on a judges’ back” that Dr Waheed rose to office.

What went on in the JSC during 2009 and 2010 is clearly linked to events of January and February 2012, as I tried explaining to the Commission of National Inquiry (CoNI) in my testimony.

So, what does Naaz say?

1. On “access to justice”, Naaz argues that the urban-rural disparity, the “deficiency in development and lack of access to justice creates inequality and injustice while giving an advantage to politicians to ‘buy’ their ideas rather than sell it.” Access to Justice as a fundamental right, and the broader definitions of it, and the constitutional guarantees and requirements are not recognised.

2. There is no mention of the crucial role of an independent judiciary in democratic government, or necessity of independent judges and public trust in the justice system to protect human rights and provide access to justice.

3. The fact that a UNDP Study (2000) of governance found the judiciary to be “the weakest link” in transitional constitutional democracies; and that Article 285 of the Maldives’ Constitution provided exactly for this challenge, is not recognized by Naaz.

This, despite her position as the Project Director of the Access to Justice project with the UNDP in Male’ during the Maldives’ transition from a constitutional autocracy to a constitutional democracy.

4. The Maldives, I maintain, lost an independent judiciary and the independence of judges through the high treason of the Judicial Service Commission (JSC), on which I sat a member under oath.

The JSC nullified Article 285 unconstitutionally in an elaborate game of lies, deception and drama. The state refused to officially acknowledge the dispute in the JSC, or the alleged treason and constitution breach, with the Majlis majority unashamedly covering up the hijack of the judiciary in what I have since called the Silent Coup.

5. Post coup, the JSC has become exposed as it never was in 2010. The frequent public appearances of the JSC, especially the Chair, Supreme Court justice Adam Mohamed Abdulla, has revealed more about the Commission than any other intervention could.

Concurrently, renewed interest in transitional matters, and inquiries into the JSC and its functioning by independent experts have exposed the secrets of JSC: the JSC does not act to uphold the Constitution, is highly politicised, and misconstrues constitutional concepts and law for its own ends and the benefit of judges. In short, the JSC acts against the Constitution and the State.

6. The latest report on the Maldives’ judiciary and access to justice by the UN Special Rapporteur on the Independence of Lawyers and Judges, Gabriella Knaul, provides a substantive summary of the challenges Maldives faces, and highlights where a UN-led Access to Justice program must focus.

7. On the ground in 2010, Naaz was a sympathetic ear to my complaints against the JSC, and my grievances against the Parliament for their failure to hold the JSC accountable, and to ensure Article 285 was fulfilled meaningfully. I was advocating for substantive and meaningful action on Article 285 aimed at judicial reform as envisaged by the Constitution, and Naaz agreed with my interpretation and opinion.

8. Naaz always left with me a standing offer of assistance, which was much appreciated, as I do not have a background in law. In retrospect, that assistance never materialised, as Naaz was occupied when and where I did request help. My requests mainly were for assistance in reading through some of my drafts, and in translating to English and/or preparing briefs in English to share some information of the ongoing dispute, and the dozens of pages I was putting out in Dhivehi at the time.

9. With all attempts to get an inquiry into Article 285 and the JSCs’ constitution breach blocked, the judges took their infamous “symbolic” oath, en masse, on August 4, 2010. No one, neither the state institutions nor the media, questioned the oath or its legitimacy despite what was witnessed live and the questions it raised. It was the public left with unanswered questions.

10. The UN was satisfied. Naaz was on the ground, and was active in the efforts that followed to legitimise the judiciary, appointed unconstitutionally and without due process, by the will of the majority. No one mentioned rule of law. Not until 2012.

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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Hulhumale Magistrate Court suspends all trials concerning arrest of judge following High Court order

The Hulhumale Magistrate Court has suspended all trials concerned the detention of Criminal Court Judge Abdulla Mohamed in 2012, following the High Court’s order yesterday to suspend the trial against former President Mohamed Nasheed.

Meanwhile eight High Court judges today submitted a case to the Judicial Services Commission (JSC) against the Chief Judge of the High Court.

The High Court on Sunday ordered the Hulhumale’ Magistrate Court to halt President Nasheed’s trial until it determined the legitimacy of the panel of judges appointed to examine his case. The stay order signed by Judge Ahmed Shareef of the High Court stated that the court was of the view that Nasheed’s ongoing trial must come to a halt until the legitimacy of the bench was established.

Following the resumption of the trials after a Supreme Court battle between President Nasheed’s legal team and the Judicial Service Commission (JSC) over the legitimacy of Hulhumale Magistrate Court – which ended in favour of JSC after Supreme Court declared the court legitimate – Nasheed’s legal team again filed a case at the High Court requesting that it look into the legitimacy of the appointment of the three member judges panel.

The decision by the Hulhumale Magistrate Court means trials of former Defense Minister Tholthath Ibrahim Kaleyfaanu, former Chief of Defence Force retired Major General Moosa Ali Jaleel, former Maldives National Defense Force (MNDF) Male Area Commander retired Brigadier General Ibrahim Mohamed Didi and former MNDF Operations Director Colonel Mohamed Ziyad’s will be suspended until the High Court comes to a decision on the matter – or the Supreme Court takes over the case, as it did following the previous injunction.

An official from the magistrate court was quoted in local media as stating that the suspension of the trials came because the case that is currently being heard in the High Court is closely linked to all cases.

At the time of suspension of the trials, all defendants including Nasheed had denied the charges levied against them.

Chief Judge of Criminal Court Abdulla Mohamed was taken into military detention in January 2012, following a request made by then Home Minister Hassan Afeef to then Defense Minister Tholthath Ibrahim Kaleyfaanu.

Justifying the arrest, former Home Minister Afeef claimed that the judge had taken the entire criminal justice system in his fist which posed threats to the country’s national security.

All the individuals are facing the same charge under section 81 of the Penal Code – the offence of “arbitrarily arresting and detaining an innocent person”.

Section 81 states – “It shall be an offense for any public servant by reason of the authority of office he is in to detain to arrest or detain in a manner contrary to law innocent persons. Persons guilty of this offense shall be subjected to exile or imprisonment for a period not exceeding 3 years or a fine not exceeding MVR 2,000.00”.

The Judicial Services Commission (JSC) has come under heavy scrutiny over its appointment of the panel of the judges – which several lawyers and members of JSC itself have claimed exceeded the JSC’s mandate.

Among the JSC’s critics include JSC member Sheikh Shuaib Abdul Rahman – the member appointed from among the public. Sheikh Shuaib Abdul Rahman previously claimed the JSC had arbitrarily appointed three magistrates from courts across the Maldives to Nasheed’s case after dismissing the three names first submitted to the commission by the Hulhumale’ Magistrate Court.

“Moosa Naseem (from the Hulhumale’ Court) initially submitted names of three magistrates, including himself. This means that he had taken responsibility for overseeing this case. Now once a judge assumes responsibility for a case, the JSC does not have the power to remove him from the case,” Sheikh Rahman explained. “However, the JSC did remove him from the case, and appointed three other magistrates of their choice.”

Sheikh Rahman stated that the commission had referred to Articles 48 to 51 of the Judge’s Act as justification.

“But then I note here that the JSC breached Article 48 itself. They did not gather any information as per this article. They stated that it was due to the large amount of paperwork that needs to be researched that they are appointing a panel. However, this is not reason enough to appoint a bench,” he said.

Rahman further stated that the judicial watchdog body was highly politicised, and openly attempting to eliminate former President Nasheed from contesting the presidential elections.

Meanwhile, Speaker of Parliament Abdulla Shahid – who is also a member of the JSC – stated that he believed that the judicial watchdog had acted unconstitutionally in assigning magistrates to a particular case.

“In deciding upon the bench, the JSC did follow its rules of procedures. As in, it was voted upon in an official meeting and six of the seven members in attendance voted on the matter. The seventh member being the chair, does not vote in matters,” Shahid explained.

“However, whether it is within the commission’s mandate to appoint a panel of judges in this manner is an issue which raised doubt in the minds of more than one of my fellow members,” he added.

Other critics included United Nations Special Rapporteur (UNSR) on the Independence of Judges and Lawyers, Gabriela Knaul, who also said the appointment was carried out arbitrarily.

“Being totally technical, it seems to me that the set-up, the appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws,” Knaul said, responding to questions from media after delivering her statement in February.

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Comment:Without justice, talk of democracy is meaningless

The ambitious journey towards a modern liberal democracy that we, the people of the Maldives, embarked upon has now come to a crossroads. With the ratification of a landmark constitution in August 2008, that enshrined broad civil and political rights to its people, hopes of moving on from decades of oppression towards a free and fair society remained on course.

However, the chronicles of Maldivian efforts to sustain democracy have yet again proven to the world that democracy does not happen overnight; exactly as former President Mohamed Nasheed said – that dictatorships don’t die with the routing of a dictator.

The first few steps we as a nation took towards democracy were led by Nasheed, a determined human rights and political activist, who had been repeatedly put behind bars for his dissent towards oppressors.

Nasheed backed by the country’s first established political party, the Maldivian Democratic Party (MDP), won the country’s first free and fair multiparty presidential elections in 2008, putting an end to the tyranny of a 30 year long autocracy.

Five years later, it is daunting to note that the nation’s first democratically elected president is being tried in a court with hand-picked judges by the Judicial Service Commission (JSC) – whose composition includes his key political rivals – for his desperate attempts to see through the much anticipated democratic transition.

What came forth after the usurpation of Nasheed’s democratically elected government was a practical narrative of what Gene Sharp had described in his book, From Dictatorship to Democracy: A conceptual framework for liberation.

“The collapse of an oppressive regime will be seen by some persons and groups as merely the opportunity for them to step in as the new masters,” he wrote. “Their motives may vary, but the results are often approximately the same. The new dictatorship may even be more cruel and total in its control than the old one,”

When Nasheed ascended to power, it became clear that the task of consolidating a democracy was more critical and difficult than toppling a dictator. President Gayoom was defeated in an election, but the roots of his dictatorship had taken hold within key state institutions, including the country’s judicial system.

The sustenance of certain corrupt judges within the judiciary, in the end, paved the way for the perfect opportunity to successfully oust Nasheed through a ‘judicially-endorsed’ coup, and in the long run, could deliver a verdict that would bring an end to Nasheed’s political career.

The globally renowned ‘Island President’ is being tried for the military detention of Chief Judge of Criminal Court Abdulla Mohamed.

Judge Abdulla is well known within Maldivian society for his nefarious conduct within the court room, including ordering a victim of child abuse to reenact the perversions of her abuser in front of both the perpetrator and numerous onlookers in the court room.

In another instance, the judge released a criminal who went on to murder a witness to his alleged crimes, despite repeated pleading from the police to not do so. The judge declared it was way to hold Nasheed’s Health Minister accountable.

Other astounding decisions made by this judge during his career include acquittal of several drug lords, a ruling in which he made himself the sole authority in issuing arrest warrants, and numerous favors granted to political rivals of Nasheed’s administration.

Nasheed and his government were finally forced to do something about the judge, in a desperate extra-constitutional maneuver by a Head of State to retrieve his country’s failing criminal justice system from a position of limbo.

The arrest sparked much controversy, as Nasheed’s political opponents quickly declared that he had undermined the law. Interestingly, they never saw the need to raise concern over the rights of the abused 13 year old in the judge’s courtroom, or the murdered Afshan Basheer.

Having had lost the parliamentary elections in 2009 to sympathisers of the old dictatorship, who were willing to go to any length in order to defend the old guard, recourse through the country’s legislature proved fruitless.

Nasheed’s subsequent decision to take out the judge can be deemed as a practical application of the doctrine of necessity.

Such decisions, when extra-legal actions are invoked by state actors to restore order during a constitutional deadlock, have been found to be constitutional elsewhere – first adopted in the case of Federation of Pakistan and Others v Maulvi Tamizuddin Khan [1955] PLD FC 240, and later applied in the cases of Madzimbamuto v Lardner–Burke [1978] 3 WLR 1229 and Qarase v Bainimarama [2009] Fiji Court of Appeal.

However, Nasheed’s decision had dire repercussions, and he was ousted on February 7, 2012 by a mutinying police and military.

His Vice President Mohamed Waheed Hassan Manik – a perfect example of the tortoise who believed that he had won the marathon against the hare in a fair contest – took over power with Gayoom’s blessing.

Today, the former President is facing charges for taking on the notorious judge – charges which appear to have been fashioned to exclude him from contesting the scheduled presidential elections on September 7.

Nasheed recently sought refuge in the Indian High Commission in the Maldives to ensure his safety. During his time in India’s mission, there were rumours his trial was to proceed in absentia, grossly disregarding the principles of natural justice and the right to a fair hearing.

Meanwhile, Judge Abdulla continues to sit on the Criminal Court bench having his way with the country’s criminal justice system. The state’s judicial watchdog, the JSC – which is constitutionally mandated to hold the judiciary accountable – remains ignorant and grossly negligent in probing the contemptuous misconduct of this despicable judge.

The million dollar question was, and is – why has this judge not been held accountable for his misconduct? Perhaps the most obvious, and depressing, answer is that the delivery of justice in the Maldives is failing bitterly.

The so called independent judiciary has failed to maintain its impartiality and the confidence of the public. The International Commission of Jurists (ICJ), the United Nations, the Commonwealth, several judicial experts – including Professor Paul H. Robinson – and now the UN Special Rapporteur on the judicial independence have attested to this fact. Yet, no efforts are being made to reform the judiciary.

Without justice, talk of democracy is meaningless.

As put by Lord Denning – “Justice must be rooted in confidence and confidence is destroyed when right-minded people go away thinking that ‘the judge was biased’.”

In the Maldivian context, justice is rooted in one’s capacity to funnel ‘monetary-favors’ to the appropriate source, and to embrace Gayoom and his lingering culture of oppression.

Right-minded Maldivian people have lost all of their confidence towards the current judiciary. They have long since walked away from the courts, not only rendering moot their confidence (or lack thereof) in the judiciary, but also the confidence they had in the country’s entire justice system.

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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