Tag: justice

Comment: When Humpty Dumpty falls

When a traffic policeman raises his hand, encased in neat white gloves, all traffic automatically comes to a halt.

Obedience is ingrained in us. We barely stop to think why. Had it been otherwise we would no doubt be in the middle of a perpetual traffic jam.

When a policeman raises his hand, it is not a simple gesture of someone lifting his hand. Behind the gesture lies the authority of the people, a functioning system, an elected government and the goodwill of the masses. The combined moral authority of the people are reflected in that simple gesture.

Today, life is no longer simple anymore. Until February 7, 2012, the Maldivian people lived with the assurance that their interests were represented by a government elected by the majority; that the people’s will was reflected in the way they were governed. Everything turned topsy-turvy on February 7, when President Nasheed resigned office and his Vice President Dr Mohamed Waheed Hassan Manik assumed the mantle of government.

The transition of power would not have caused ripples or raised eye-brows unless the very next day President Nasheed claimed that he had resigned under duress. His resignation had been forced.

In the light of President Nasheed’s statement and after a clear look at the events leading to his ‘resignation’, it wasn’t difficult to believe that indeed Nasheed’s resignation was coerced. What followed afterwards – the appointment of Nazim as the Defense Minister and Abdulla Riyaz as the Police Commissioner – removed any reservations to the contrary.

The security forces – comprising of the Maldives Police Service and the Maldives National Defense Force (MNDF) were instrumental in forcing the President’s resignation. All the circumstantial evidence combined with the data compiled by the media further confirmed Nasheed’s allegations.

All doubts were removed when former police sergeant and Acting Deputy Leader of the PPM, Umar Naseer – known to friends and foes alike as a weapon of mass destruction –  blatantly confirmed his active involvement in the overthrow of Nasheed’s government on national TV – “spilling the beans”, as CNN aptly defined it.

During his three years in office President Nasheed worked hard to deliver on his election pledges. He was a symbol of hope for the downtrodden masses whose cause he championed. For 30 years the Maldivian people had lived a hand-to-mouth existence, brutally repressed by the dictator Gayoom. According to the UN 42 percent of the people lived below the poverty line.

Given the role played by the security forces in ousting a vastly popular government, the police and the military have become villains overnight. When the policeman lifts his white-gloved hand he is no longer able to covey the moral authority to instill obedience amongst the masses.

Up until February 7, the military were looked up to by the people for their professionalism and generally enjoyed the respect of the population. Even the youth who sought a career in the armed services were proud to be a part of this elite corps. The military, as a rule, upheld high ethical standards.

Except for a few among the military high command and the police services, the security forces were uninvolved in the intrigue that brought down Nasheed’s government. There was little doubt that the top brass were bought; they had sold not only their souls but had betrayed the confidence and trust of their subordinates, the rank and file of the armed forces.

Those youth, who had pledged their lives to uphold the tenets of Islam and defend the country were being labeled ‘turncoats’, a title they did not deserve as they were as much in the dark as everyone else. The greed of a few commanders who defiled the military’s code of honor had put the stamp of betrayal on the entire armed forces.

The coup has had certain unforeseen influences on the public psyche too. The MDP, led by the ousted President Nasheed doubled in membership overnight. Quite suddenly, public involvement grew by leaps and bounds.

Consequently, civil disobedience has taken root in the public psyche. The security forces are openly scoffed at by the public – the label ‘rebel’, ‘turncoat’, now precedes any description of the police and the military.

Maldivians, as a rule, are apt to shy away from violence. Even under the present trying circumstances violence has yet to be a part of the equation. Even though there have been isolated incidents of violent behavior both on the part of the police and the public, violence is frowned upon by all parties concerned.

There is a very clear demarcation line between civil disobedience and civil war. Unlike Syria, Egypt or other Muslim States where the freedom movement has escalated into unbridled violence and civil war, the Maldives is unlikely to go the same route.

Even if the worst case scenario is considered – let’s say Waheed’s regime refuses to set an early election date – with the security forces unable to contain a public uprising and the use of force becomes mandatory, the decision is likely to result in the fall of the government.

A limited population ensures a close-knit society. Members of the security forces and the general public are bound by close family ties making it virtually impossible for any member of the security forces to implement a ‘shoot order’ even if President Waheed were dumb enough or desperate enough to issue such an order.

Any member of the security forces taking aim on a member of the public will in all probability find his colleague’s gun aimed at his own head. Who else but a madman will aim at a crowd, when the likelihood of shooting a brother, sister, cousin or a close relative is almost a dead certainty?

Civil disobedience, led by the MDP, is here to stay. The protests are gaining ground day by day; each day resulting in the increase in members on the streets. The cycle has taken on a natural life of its own and the pace is being set by the members arrested on a daily basis.

It is only a matter of time before push comes to shove. Waheed’s regime, tottering on the brink, is clearly headed up the creek without a paddle. For Waheed, there is but a single option. Like Humpty Dumpty, he can only fall.

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: Justice unserved

The Maldivian justice system works on a somewhat ‘He who smelt it dealt it’ routine. Criminal law, procedure or policy is drastically lacking, with personal reputation, political affiliation and physical appearance forming the basis for arrest, and in some circumstances: conviction. T

The country relies, heavily, on the two witness rule, lacks any institution dealing with forensic science and allows incompetent judges to interpret the Quran. The word ‘warrant’ does not even exist in the Maldivian criminal dictionary and ‘probable cause’ or ‘rights’ are alien concepts to local police. When one party lodges a complaint with the police, the opposing party immediately takes the role of defendant; being arrested at the police’s pleasure and held for lengthy periods of time without charge. This is what they call the ‘investigation period’ which may only be performed whilst the accused is in custody. Point the finger at someone you claim smelt it and the police will assume he dealt it.

I am not politically affiliated. My cause, more or less, has been the Rule of Law and I am not aware that any government in the Maldives, be it dictatorship or elected has gone a long way to implement it.

Within the first few weeks of being in Hinnavaru as a volunteer teacher, a boy was placed under house arrest by the police for 14 days. This was 2009 and the first democratically elected government was in power. The police claimed the accused had intoxicated a minor and served as judge and jury in convicting him of the crime; even though no witnesses came forward and the minor’s toxicology report was negative.  I screamed bloody murder in the police station; I showed vehemence and flashed a printed copy of my law degree under their noses to no avail. They cared nothing for they believed in the power they possessed.

Months later I, myself, had a brush with the law when I was hauled down to a Male’ police station in a case of domestic disturbance (or so I suppose since I was not told why I was escorted to the station).

Whilst moving from my flat, my boyfriend, who had come over to help me pack, and I made some noise which upset the landlady’s brother. He burst into my room in a rage and held a screwdriver to my boyfriend’s neck. In a twist of events, his sister, my landlady, called the police. My shirtless boyfriend was escorted out of the building by officers and I was asked to come with them to the police station. The treatment offered him and I was vastly different; him being seen as the dark skinned aggressor with yellow eyes and I the British national working at a local TV station.

We were questioned separately, I again waved my printed degree in their faces and we were allowed to leave. Screwdriver boy was never questioned on his role in the incident; his side called the police first, hence he would be the victim evermore.

Some weeks later, whilst I was visiting Hinnavaru, my boyfriend was dragged off to Naifaru jail, under court order, to face charges for a crime; he had, allegedly committed 8 years earlier. The whole case was based on the hear say evidence of young men who claimed my boyfriend had assaulted them. The two boys lodged the complaint against him with the police and also served as the two requisite witnesses in their own case.

The irony was hardly lost on me. I again screamed bloody murder and dragged myself across Male’ spewing words like ‘arbitrary arrest’, ‘statute of limitations’, ‘rule of law’ and ‘reading of rights’. My words were considered worthy of Thilafushi. My boyfriend was exonerated as the witnesses recanted from their earlier statements in court. The Prosecutor could have saved everyone time, money and heartbreak if he had even bothered to check in with his star witnesses.

Recently I started to hear of strange happenings on my old island of Hinnavaru. Boys found on the street after 10pm are arrested, taken over to the local station and coerced into peeing in a cup. They need no warrant and no probable cause. The police has imposed an un-official curfew and breaking it means they have access to fluid from your person. Young boys are arrested every night and this is not hear say. It is on-going.

On 31 July my boyfriend was arrested for allegedly ordering an assault on a young man, who was brutally beaten earlier in the day and hospitalised.

The victim claims that although my boyfriend was not present during the incident, he is sure the attack was ordered by him. In this case he doesn’t even claim that the fart was dealt, but that my boyfriend must have provided the beans. The police did not think to question him as would be customary to do in such a situation, but arrested him and took him over to Naifaru jail. I have no idea how long he will be there or how long this ‘investigation’ will continue.

The worst part is; no matter what the outcome, the trial shall not be held for years to come, but this arrest will hang over his head until such a date. People in the Maldives do not have criminal records; rather they have what is called a ‘police report.’ One may not have a job or travel abroad whilst their police report states they are awaiting trial.

In the Maldives, you are not innocent until proven guilty; you are guilty until the slow machine called the justice system, chugs itself out of the hole it resides in.  I hear the cries of a corrupt judiciary and I find myself nodding in acquiescence for I have seen this corruption. I plead to the government of the day or those incumbent to pay more attention to the Rule of Law, however. Arbitrary arrests, incompetent police officers and mainly the lack of a criminal code are as responsible if not more so for the death of justice.

My favourite time in the Maldives was the month of Ramadan. For this one month, the air was tranquil, gossip at an all time low, children played on the streets into the wee hours of the morning and prejudice desisted. Whether you were an old, gossipy jolifathi lady, a jagah boy, a shop vendor or politician you just got on and enjoyed the month. I hate to think of this month as the month of arrests; it unnerves me.

Lubna Awan was formerly a volunteer teacher on the island of Hinnavaru.

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: Sharia and the death penalty

This article first appeared on Dhivehisitee. Republished with permission.

On July 1, a Maldivian lawyer was brutally murdered, his body stuffed into a dustbin.

On June 4,  militant Islamists tried to murder Hilath Rasheed, the country’s only openly gay rights activist and a rare voice advocating secularism in the Maldives.

On 30 May,  a 65-year-old man was killed on the island of Manafaru by robbers after his pension fund.

On the same day, in Male’ a 16-year-old school boy was stabbed multiple times and left to bleed to death in a public park.

On April 1, a 33-year-old man was stabbed to death in broad daylight by two men on a motorbike.  On February 19, a twenty-one-year-old life was taken in a case of ‘mistaken identity’.

Amidst the increasing violence and decreasing value of life, calls for restoration of the death penalty are growing. It is normal for a society experiencing unprecedented levels of crime to demand the death penalty as a solution. In the Maldives, however, the whole debate is framed within the precincts of religion, touted as a return to ‘Islamic justice.’

This is not to say other ways of looking at it are completely absent from the discourse. There’s Hawwa Lubna’s examination of the death penalty within a rule of law framework in Minivan News, and Mohamed Visham’s somewhat confused and confusing analysis of its pros and cons in Haveeru, for example. Such discussions are, however, pushed to the fringes as the theme of ‘Islamic justice’ takes precedence.

My question is, how Islamic is this call for ‘Marah Maru’ [death for death]? Is revenge what underpins provisions for the death penalty in Sharia?

The Qur’an mandates that everyone has a right to life, unless a court of law demands killing: “Nor take life — which Allah has made sacred — except for just cause.”1

What is not being said in the Maldivian debates on the death penalty is that although the Qur’an provides for situations in which the death penalty can be imposed, all such situations are carefully laid out with stringent evidentiary requirements that discourage carrying out a death sentence.

And, in all situations where capital punishment can be imposed, it offers alternative punishments that allow the death penalty to be avoided. 2

Among the three types of crimes for which the death penalty can be imposed in Sharia–hudud, qisas, and the ta’zir– murder belongs to the Qisas category. Qisas are offences proscribed by the Qur’an or Sunnah, but are subject of personal claims, rather than offences against Islam. Qisas deals with murder or bodily injury. The Qur’an allows retaliation against the individual who commits a Qisas crime, but also clearly demonstrates a strong preference for forgiveness.3

We have often heard in the current Maldivian debate the call for an ‘eye for an eye’, a ‘life for life’, citing the Qur’an; what we do not hear is the rest of the verse.

We ordained therein for them:

“Life for life, eye for eye,

Nose for nose, ear for ear,

Tooth for tooth, and wounds

Equal for equal.”

But if Anyone remits the retaliation

By way of charity, it is

An act of atonement for himself.

And if any fail to judge

By (the light of) what Allah

Hath revealed, they are

(No better than) wrongdoers. 4

The law of equality

Is prescribed to you

In cases of murder:

The free for the free,

The Slave for the Slave,

The woman for the woman.

But if any remission

Is made by the brother

Of the slain, then grant

Any reasonable demand,

And compensate him

With handsome gratitude 5

The right for the family of a murder victim to demand harm is balanced by the opportunity for family members to accept payment, or diya, for their loss instead of demanding that the perpetrator be punished. This is reflected in the fact that, generally, the Qur’an expresses a preference for diya over qisas 6 It says, for instance, that the Muslim who chooses diya will be rewarded in heaven:

It is part of the Mercy

Of Allah that thou dost deal

Gently with them.

Wert thou severe

Or harsh-hearted,

They would have broken away

From about thee: so pass over

(Their faults), and ask

For (Allah’s) forgiveness

For them; and consult

Them in affairs (of moment).

Then, when thou hast

Taken a decision

Put thy trust in Allah.

For Allah loves those

Who put their trust (in Him) 7

The question is, when Sharia so emphasises forgiveness over punishment, why is the emphasis of the Maldivian death penalty debate on punishment over forgiveness? In the murder of lawyer Ahmed Najeeb, for instance, the breathtakingly rapid investigation and court case revealed that two members of Najeeb’s eight inheritors chose diya over death, preferring not to take a life for a life.

When, according to the Qur’an and Sunna, diya is the more honourable choice, why was the choice of these two relatives Najeeb not highlighted in the national discourse as motivated by ‘Islamic values’ and, therefore, praiseworthy?

Why is ‘truly Islamic’ justice only portrayed as ‘an eye for eye, a life for a life’?

Not only is the reluctance to punish found in the Qur’an, it is also the case in the Sunnah. A’isha, the wife of the Prophet said, for instance, to:

avoid condemning the Muslim to Hudud whenever you can, and when you can find a way out for the Muslim then release him for it. If the Imam errs it is better that he errs in favour of innocence…than in favour of guilt.8

There is another narrative from the Prophet’s life that demonstrates he actively encouraged his followers to ward off punishment by looking for uncertainties that would create reasonable doubt, making the punishment impossible.

Maa’iz b. Malik was a person who presented himself to the Prophet, confessing Zina and requesting purification with the hadd. His story is scattered through the books of Hadith in numerous narrations. The Prophet repeatedly told him to go back and seek Allah’s forgiveness. After he kept returning, the Prophet made a number of attempts to make sure there was no doubt. He sent his Companions to Maa’iz’s people to inquire if he was known to be insane. He was informed there was no evidence of insanity nor was was he known to have any defect in his mind. He then asked them whether he was intoxicated, and the Companions smelled his mouth and informed him that they could not detect any signs of alcohol on his breath. Only then did the Prophet implement the hadd of stoning. In additional narrations of this same story, the prophet asked Maa’iz some specific questions to avert possible doubt:

“Perhaps you only kissed her or flirted with her or gazed at her.” Maiz replied, “No”. He then asked, “Did you have physical intercourse with her?” He replied, “Yes,” and only then was he ordered to be stoned.9

Quite clearly, Islamic justice is based on the ethos of forgiveness rather than punishment.

This understanding of the Sharia is being left out of the Maldivian debate – as it was left out of much of Western discourse on Sharia in the last decade – by those calling for an end to the moratorium on the death penalty. It is a suspension that has lasted from 1953 till now, and one that more closely reflects the Quranic understanding of Sharia.

Given that all parties pushing the death penalty are framing it as re-introduction of an ‘Islamic justice’ system, it is wrong that they are all ignoring the emphasis that the system places on finding alternatives to taking a life for a life.

It raises the question of whether the real motives behind the call for the death penalty are political rather than a desire for justice itself, Islamic or otherwise.

Leading the call are the usual suspects – prominent legal players such as Attorney General Azima Shukoor, Prosecutor General Ahmed Muizz and Home Minister Mohamed Jameel Ahmed – who have all expressed their desire for restoration of the ‘Islamic justice’ of the death penalty. And the Chief Justice Ahmed Faiz has – incredibly – described the beleaguered Maldivian justice system as capable of meting out capital punishment justly.

For politicians, imposing the death penalty at a time of unprecedented violence such as now provides the opportunity for appearing tough on crime – always a vote-attracter among a population battling with rising crime rates, especially when a crucial election is nigh. Their assumption is that if the State were only brave enough to take upon itself the power to kill, everyone else would cease to do so.

Furthermore, it provides a rare and valuable opportunity to flex political muscle at a time when the government is weak and its legitimacy is in question.

For the Islamists, it is the means with which to enforce a particularly harsh interpretation of Sharia on the Maldivian people in the name of Islam.

Given the situation, it is shocking that no member of the community of ‘Islamic scholars’ in the Maldives have come forward to emphasise understandings of Sharia and Islamic jurisprudence that highlight forgiveness and mercy as virtues much more deserving of Allah’s approval than revenge – even where justified by law.

Does the lack of an alternative view mean that in the last decade or so Islamists have established such a hegemony over Maldivian religious thought that it prevents any other views from being offered to the public?

Does it mean there are no ‘Islamic scholars’ in the country with an understanding of Islam that is not Islamist?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JJ: You are making copies of the evidence?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JJ: The police chased you?

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

JJ: They pepper sprayed you?

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

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

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

JJ: Are you concerned for your safety now?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JJ: Have you considered moving somewhere safer?

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

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

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

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

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

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

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Political tensions flare amid constitutional crisis over judiciary

Male’ is bracing for further protests after a weekend of violent demonstrations involving several hundred opposition supporters, as political tensions spiral over the military’s detention of Chief Judge of the Criminal Court, Abdulla Mohamed.

Eight opposition-aligned political parties held a joint press conference on Thursday afternoon calling on the public to join their series of protests “to defend the Maldivian constitution” and “bring the government back into legal bounds”.

Police said in a statement that five officers were “seriously injured” in protests that evening after opposition supporters in front of the Maldives Monetary Authority (MMA) building attempted to break through the police blockade.

A number of other police officers sustained minor injuries while a window of the MMA building was smashed and three police vehicles, one MNDF vehicle and the car of Civil Service Commission (CSC) head Mohamed Fahmy Hassan were damaged.

Opposition protesters also broke into the home of Youth Minister Hassan Latheef and vandalised his living room, while his wife and children were in the house. The homes of other ministers were also vandalised from the outside, and palm trees lining the main roads of Male’ were uprooted.

The Maldives National Broadcasting Corporation (MNBC) claimed that six of its reporters were attacked on Thursday evening by the opposition protesters, including a cameraman who had paving stones and oil thrown at him, and a camera woman who had an unknown substance sprayed in her eyes as demonstrators attempted to take her video camera.

A group of male demonstrators also reportedly surrounded a female MNBC journalist and threatened to kill her and dump her body into the sea, before she was rescued by other reporters in the area.

Protesters also attempted to gather outside the MNBC premises and threw rocks and other objects at the walls.

Police arrested 43 people over the weekend, including former President Maumoon Abdul Gayoom’s Progressive Party of the Maldives (PPM) MP Ahmed Mahlouf, Adhaalath Party President Imran Abdulla, and spokesperson for the coalition of NGOs campaigning against the government’s religious policy, Abdulla Mohamed.

Charges included disrupting peace, damaging public and private property, including youth minister’s residence, breaking police lines, and inciting violence.

The Criminal Court today however ruled the arrests were unlawful and ordered the release of all those arrested.

The Human Rights Commission of the Maldives (HRCM) meanwhile called on the protesters to be mindful of the rights of others and to exercise their right to free assembly responsibly.

The commission observed that as a result of the manner of speech heard at such protests, “inducing anger, hatred and fear in people’s hearts”, public order and peace was “being very adversely affected.”

“As a consequence of such actions, the country’s social fabric is weakened and the trust and respect we should have towards one another are lost, forming numerous obstacles to establishing an environment that fully guarantees rights,” the commission said.

Hundreds of supporters of the ruling Maldivian Democratic Party (MDP) meanwhile gathered at a heated rally near the tsunami monument on Saturday afternoon. The ruling party launched a campaign earlier this month dubbed “You can’t say that anymore” against the opposition’s “use of religion as a weapon for political purposes.”

Today’s rally at the tsunami memorial area was part of the campaign, which has seen eight rallies held at the party’s Haruge headquarters in past weeks.

Detained Judge

Chief Judge Abdulla Mohamed is at the centre of the constitutional impasse currently being played out in the Maldives. The opposition contends that the judge’s “abduction” by the military last week 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.

The government – and former whistleblower on the Judicial Services Commission (JSC), Aishath Velezinee – present Abdulla Mohamed as the corrupt heart of a “silent coup” by the former government to assume control of the judicary, “taking the entire criminal justice system in his fist” and ensuring legal impunity for key opposition figures.

Presented with a litany of allegations against the judge, the JSC, as the watchdog body charged with overseeing the judiciary, formed a complaints committee to investigate the cases against the judge in December 2009.

However in November 2011 the Civil Court ordered the judicial watchdog to take no action against Abdulla Mohamed, despite a report by the JSC claiming that he had violated the Judge’s Code of Conduct by making  statements favouring the opposition in an interview he gave to private broadcaster DhiTV.

The government’s decision to take action against the judge followed his opening of the court outside normal hours, to order the immediate release of Dr Mohamed Jameel Ahmed, deputy leader of the minority opposition Dhivehi Qaumee Party (DQP).

Police had attempted to arrested two senior members of the party on charges of slander and hate speech after they published a pamphlet alleging, among other claims, that the government was plotting with “Jews and Christian priests” to undermine Islam in the Maldives.

The Chief Judge was first summoned by police for questioning on January 16, but did not appear.

Instead, he filed a case at the High Court requesting the summons be cancelled on the grounds that it was illegal. The High Court then issued an injunction ordering police to halt enforcement of the summons pending a ruling.

Police subsequently requested the Maldives National Defence Force (MNDF) take Abdulla Mohamed into custody, as “the Criminal Court was not cooperating with police and that as a consequence of Chief Judge Abdulla Mohamed obstructing police work, the country’s internal security was threatened and police were unable to maintain public order and safety.”

The judge was taken to the MNDF training island of Girifushi, where he currently remains.

“In good health”

HRCM in an “emergency” press conference yesterday stated that it had visited the judge and that he was in good health and being well treated, with the ability to freely roam the island. He had been granted, but had refused, access to his family, HRCM said.

In response to HRCM’s comments, the opposition accused the human rights body of “backing down” from its responsibilities. Deputy Leader of the Dhivehi Rayithunge Party (DRP), Ibrahim Shareef, attacked the statement as “tame” and “mellow”, claiming that the “kidnapping” of the judge was inhumane.

Reaction

The detention of the Chief Judge has polarised Maldivian society – and the government – even amid the country’s already intense political divide.

In an especially dramatic tangent, Vice President Dr Mohamed Waheed Hassan declared on his blog that he was “ashamed and totally devastated by the fact that this is happening in a government in which I am the elected the Vice President.”

“Besides all the international legal obligations, the government of the Maldives is bound by the Maldives Constitution 1988 which prohibits arbitrary arrest and forced disappearance. We have just witnessed the first possible violation since the dawn of democracy in our country. I cannot understand why this is not an issue for everyone in this country,” Dr Waheed said.

“Those of us who have struggled for freedom in this country for over 30 years, are wondering whether we have wasted our efforts.”

The European Union Heads of Mission issued a statement expressing “concern at recent developments in [the Maldives], including the arrest of a criminal court judge by members of the security forces.”

“EU Heads of Mission reiterate their support for the process of democratic transition in the Maldives and note the importance of the principles underlying that transition, including respect for the constitution, due process, independence of the judiciary, the rule of law and freedom of expression are central to this process,” the statement read.

“EU Heads of Mission call on all parties in the Maldives to act in accordance with these principles and to refrain from inflammatory language or other action which could incite hatred.”

Secretary General of SAARC, Diyana Saeed, the youngest person and first woman to be appointed to the post, today confirmed her resignation following her public criticism of the executive’s refusal to obey the Supreme Court order to release the judge, during a press conference on VTV.

“[The Chief Judge’s detention] is a violation of individual human rights, a violation of the independence of the judiciary, and the violation of the constitution,” she told Minivan News on Thursday.

The government’s ignoring of a Supreme Court order is not without precedent in the Maldives.

Prior to the appointment of the new Supreme Court in August 2010 on conclusion of the constitution’s interim period, the existing bench sent a letter to the President declaring themselves permanent.

The letter was ignored, and the MNDF confiscated the keys to the Supreme Court until the new bench was eventually appointed by parliament – a process of intense and rapid backroom political compromise that was at the time hailed as a rare cross-party success for the institution.

Breaking the impasse

A government legal source told Minivan News that the JSC itself had found evidence of “gross misconduct” by Abdulla Mohamed, but was blocked from proceeding on the matter as the chief judge “has undue influence over at least one other judge of the Civil Court who issued a court order against the JSC and prevented it from performing its constitutional role.”

“The allegations levelled against him are of serious concern to the Maldivian government and community. It is apparent that both the Maldivian High Court and the Supreme Court remained silent on the matter,” the source stated.

“This is tacit acceptance of a ploy to prevent the JSC from exercising its powers under the constitution, and the JSC’s acceptance of the Civil Court order is an indication of the extent of undue influence that members of the judiciary have over the JSC.”

The government was, the source said, “taking appropriate action in extraordinary circumstances involving allegations of serious corruption and gross misconduct by a senior judge. Public statements seeking to define his detention as a human rights issue are part of the web of protection which surrounds Judge Abdulla Mohamed.”

Independent MP Mohamed Nasheed told Minivan News that the arrest of the judge could legally only have been ordered by the High Court.

“We have the security of the constitution, but while the print may be there it is evident that it doesn’t matter very much. If I am going to be arrested I deserve to expect certain rights. The arrest of Judge Mohamed should have been made on the order of the High Court,” he said.

He noted that Parliament had a standing committee, which had in turn formed a sub-committee, to investigate the JSC.

The hearings and interviews have been concluded at the sub-committee level said Nasheed, a member of that sub-committee and chair of the Independent Institutions Committee, and the information was to be compiled into a report and forwarded to the full committee.

“It’s possible we will have the investigation addressed within the first session of parliament this year,” Nasheed said.

He said the sub-committee had considered a reformation of the JSC.

“It’s the one institution that has not really taken off. It’s been bogged down with personality issues and procedural issues. Bring in a change of membership, some new blood, and give it a new chance,” he speculated, although adding that this would require bodies such as the Supreme Court to each revoke their own representatives on the commission.

The constitution also includes provision for the appointment of foreign judges from other Islamic countries, he noted.

Foreign judges may sit on court benches during the first 15 years of the constitution “only because we would like some technical assistance and expertise during the transition. This provision is the only area in which Maldivian citizenship is not required of a judge,” Nasheed said.

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JSC completes report on misconduct of Chief Criminal Court Judge

The Judicial Services Commission (JSC) has completed its investigation into the alleged misconduct of Chief Criminal Court judge Abdulla Mohamed.

The JSC has not yet decided whether to take action, however Supreme Court judge Adam Mohamed, also a member of the JSC, told local media this week that the Chief Judge had violated the Judges’ Code of Conduct by making politically contentious statements to local television media.

A JSC official who requested he not be named told Minivan News that while the report into Abdulla Mohamed’s misconduct had been completed, “there are still proceedures to follow. The judge will have 30 days to reply to the report, and then a decision will be made [whether to forward the matter parliament]. We are not obliged to give any information to the media until the report is finalised.”

The case against Abdulla Mohamed was presented to the JSC in January 2010 by former President’s member of the JSC, Aishath Velezinee, after Abdulla Mohamed appeared on private network DhiTV and expressed “biased political views”.

In 2005, then Attorney General Dr Hassan Saeed forwarded to the President’s Office concerns about the conduct of Abdulla Mohamed after he requested that an underage victim of sexual abuse reenact her abuse for the court.

In 2009 following the election of the current government, those documents were sent to the JSC.

Velezinee said today that this was the first time the JSC had ever completed an investigation into a judge’s misconduct.

“There are many allegations against Abdulla Mohamed, but one is enough,” she said.

“If the JSC decides, all investigation reports, documents and oral statements will be submitted to parliament, which can then decide to remove him with a simple two-thirds majority.”

Press Secretary for the President, Mohamed Zuhair, welcomed the JSC’s investigation and said that it had the potential to be the “first time ever that a Maldivian institution has decided against a judge.”

Abdulla Mohamed had presided over the ongoing corruption trial of Deputy Speaker and People’s Alliance (PA) MP Ahmed Nazim, Zuhair noted, in which he banned media from entering the courtroom.

A decision on Abdulla Mohamed would signal that the JSC intended to “clean up the judiciary”, Zuhair said.

He acknowledged that the executive had little ability to involve itself with the judiciary under new separation of powers, “however there is a clause that requires the President to ensure the rule of law and respect for justice, and respect for the Constitution.”

“There has been growing public concern within the President’s party over the impartiality of the judicial system,” Zuhair said.

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MDP calls for nationwide protest against judiciary

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

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

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

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

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

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

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

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

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

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

Last year the JSC received 143 complaints concerning the conduct of judges. By its own statistics none were tabled in the commission, and only five were ever replied to. Chair of the former complaints commission, Aishath Velezinee, was meanwhile stabbed in the street in January this year.

The JSC also failed to table or even acknowledge receipt of a report on the judiciary produced by the International Commission of Jurists (ICJ), which questioned whether the JSC’s possessed the technical ability and knowledge to investigate complaints and hold the judiciary accountable, as well as its independence.

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

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

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

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

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

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

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

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

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

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

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

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

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Supreme Court to rule in defamation case against self

The Supreme Court has issued a writ of prohibition and taken over a defamation case against it filed in the Civil Court by Ibrahim ‘Ibra’ Ismail.

The Supreme Court order issued today states that it had learned that the Civil Court had accepted a defamation suit filed by Ibra. It ordered the lower court not to take “any action regarding the said case” and to send “all the documents in the case file, including all actions taken since the case was filed as well as the minutes” to the court before 3:30pm this afternoon.

The writ of prohibition was signed by Chief Justice Ahmed Faiz.

Ibra, a member of the Constitution Draft Committee of the former Special Majlis, longstanding Male’ MP and founding member of the Maldivian Democratic Party (MDP), had filed the case against the Supreme Court after it reprimanded him for calling on the public to “rise up and sort out the judges”.

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

Ibra responded by filing a defamation suit in the Civil Court against the Supreme Court.

But today, “The documents and everything have been handcuffed and taken to the Supreme Court,” Ibra told Minivan News.

“Initially [the Civil Court] was of the opinion that the case was not in their jurisdiction, because it involved the Supreme Court. But I appealed to the registrar, outlined my argument, and the second time they agreed they could and should accept the case,” Ibra said.

“I paid my fees, and was waiting for them to hold the first hearing. Then today I had a call from newspaper Haveeru asking me to comment on the Supreme Court’s taking over the case – I replied that no one had told me about it and I was not in a position to comment. Later my lawyer called and said the Supreme Court had published the writ on their website.”

As a result, Ibra said, “I now have to go before the Supreme Court and say to them ‘You have defamed me, now please decide in my favour.’”

Ibra has previously observed that the act of an appellate court taking over the jurisdiction of a trial court was unprecedented “in any democratic country, anywhere in the world.”

“Even in cases of a mistrial, the instruction is to retry the case. Appellate courts don’t sit on trials. And they are systematically doing it – at least three cases so far. What they are effectively doing is influencing the independence of the trial court. The significance of that is that if trial court judges cannot be independent of the higher court, there is no room for appeals. Because the decision is going to be the Supreme Court decision,” Ibra told Minivan News.

“I don’t see how they can sit in judgement on themselves,” Ibra said today. “Every single defamation case until now has been tried in the Civil Court. Just because the Supreme Court is involved doesn’t mean the Civil Court should not hear the case – the Supreme Court is obstructing the process of justice.”

The fact that the decision to take over the case from the Civil Court implied that a majority of the seven Supreme Court judges had elected to do so, Ibra said.

“This means the majority of the Supreme Court judges are not cognisant of the principles of natural justice, and are clearly trying to obstruct the provision of judge to a citizen claiming his fundamental right as guaranteed in black and white in the Constitution.

“This is not about Ibra. If they can do this to Ibra they are setting a precedent to do it to just about anyone.”

He suggested that the Supreme Court’s action today “establishes what I originally claimed. We as citizens – the public – have to do something. We can’t let seven idiots hijack the justice system of the entire country.”

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Q&A: Ibrahim ‘Ibra’ Ismail

Ibrahim ‘Ibra’ Ismail is a Maldivian statesman and former chairman of the Special Majlis Drafting Committee responsible for the new Constitution. He remains one of the country’s key authorities on the subject.

He was recently reprimanded by both the Supreme Court and the Judicial Services Commission (JSC) for calling on the public to “rise up and sort out the judges”. He responded by attempting to file a defamation case against the Supreme Court.

JJ Robinson: This defamation case sprang from your recent comment calling on citizens to stand up and sort out the judiciary. What did you mean by that?

Ibrahim ‘Ibra’ Ismail: Basically what I meant is that the institutions that are supposed to keep the judiciary in check have been compromised too much, and they are not in a position to bring the judiciary to account. So when institutions fail in a democracy, solutions have to be found by the people.

This is what happened with [former President Maumoon Abdul] Gayoom. All the institutions that were in place failed to bring him to account. So eventually people had to come out and work really hard to bring him back into the folds of the law.

It’s a similar thing [with the judiciary] – the JSC has the prime responsibility of holding the judiciary in check, and failing them, the Majlis (parliament) has to do it. None of these institutions are acting on it.

No one wants to talk about it, and it’s very convenient for people to forget that the judiciary is making all this mischief. So the public has to remind these people that everything is not hunky dory, and they are making a lot of mischief, and the public is concerned about it.

JJ: So you’re talking about street protests?

II: Part of it involves street protests. But protests will only come when all else fails. Before street protests people have to stand up and act, lobby their MPs, write petitions, speak out, voice their concerns, have public debates. And if all these don’t get politicians moving, we’ll have to take to the streets – if necessary.

JJ: In response to your calls, the Supreme Court all but accused you of treason, stating that “making such statements in a free, democratic society under lawful governance goes against the principles of civilisation”, and demanded authorities investigate you. What did you make of the JSC’s – and the Supreme Court’s – response to your comment?

II: Very knee-jerk. I think the reaction from the Supreme Court and the JSC is an admission of guilt on their part. Because if they were doing things properly, and if they weren’t doing things they did not have to answer for, then they would not have this one person coming out and saying this. They would not have to worry about there being a bad reaction from the public. For me their response was tantamount to an admission of guilt on their part.

JJ: The JSC said it would request the authorities launch an investigation into your alleged treason. How many policemen have come to your door?

II: None. And I have begged police to take me in for investigation and conduct the investigation. I’ve even said to them that Supreme Court has ruled and passed judgement on me for treason. So why am I allowed to roam the streets? I should be behind bars. But they are not acting on it.

JJ: There seems to be quite a difference between theory and practice when it comes to the law here. Is this something you have observed?

II: Very much so. Ever since the adoption of the constitution. That is something I have been speaking out about.

JJ: When independent, outside groups such as the International Commission of Jurists (ICJ) visit the Maldives and criticise groups such as the JSC, they respond by simply pointing at the Constitution and insist “the Constitution says we are an independent institution”. Is this denial?

II: Maybe it’s a kind of denial, but what you have to remember is that adoption of a Constitution doesn’t change mentalities and culture overnight. A lot of work has to be put in to put that Constitution into practice, and I think that everyone has become very complacent about the implementation of the Constitution.

There is an assumption that “now we have the Constitution, that is how things should be”. But firstly, many people – including state officials, across different levels in all branches of government – are not really aware of what’s in the Constitution.

Most of them have not witnessed a democracy in practice. So what they are doing is interpreting the Constitution from their perspective, and what they are familiar with, unfortunately, is very undemocratic, and goes against the grain of the Constitution.

It’s a continuation of culture, with the new arrangements. This is what we are seeing, and I’m concerned that if we don’t act early too many precedents will be set and it will be difficult to turn it back again. Now is the time to act, and set it right – put it back on track.

JJ: You mentioned earlier that the judiciary had been compromised. What did you mean?

II: It’s compromised in all aspects. The first compromise was the enactment of the Courts Act and the Judges Act by parliament. Particularly the Courts Act, which was totally against what was conceived in the Constitution.

Then came the appointment of judges, particularly the Supreme Court judges.

JJ: That was hailed as a victory of compromise by all the major parties.

II: Yes, but even as it was happening I was fighting against it whatever way I could. The only avenue left to me was to speak out – which I did. I don’t believe appointments to the Supreme Court should be made through political deals.

Any appointment to the Supreme Court has to be scrutinised, both by Parliament, the executive, even the public. Judges should be beyond reproach. They can’t have baggage behind them.

Those were the compromises. Once the initial setting up of the judiciary and the key appointments were compromised, the rest would automatically follow. Their judgements are going to be compromised, their actions are going to be compromised – so that is why I said I believe the judiciary has been compromised. I blame the politicians for it – they failed the country when they did that.

The first instance of the Supreme Court’s move came while I was still in parliament in 2008, immediately after the elections were over. The Supreme Court moved a motion on itself, by itself, and ruled in their favour, to move the department of judicial administration from the purview of the JSC to the Supreme Court.

That was move number one. That very day, within hours, I was jumping up in parliament and saying “this is dangerous” – that these people have to be put in check immediately.

The entire Supreme Court was summoned to parliament – none of them turned up. We gave them the due respect that Justices of the Supreme Court deserved. We sent them a letter saying that the oversight committee would like to meet you to discuss some issues within the judiciary, so please tell us a convenient time to meet you.

They never bothered to reply. And the Speaker of Parliament took no further action on it.

For me it wasn’t just the ruling they had brought out that was a problem – it was the manner in which they were moving. I could see there would be more to come.

What we did in the 2009 budget was to put in an amendment moving the entire budget of the judicial administration to the JSC – and the Majlis passed it. So in effect, parliament was showing its displeasure, in a nice way. Saying: “You can make those rulings, but we hold the purse strings.”

But still they carried on.

JJ: And then the Supreme Court sent the President a letter ruling they were reappointing themselves for life, and no need to worry about the transition period? What did that signal?

II: The same thing. That was the next move. They were establishing that the Supreme Court was a supreme body in the country and whatever they say, goes.

That particular letter was composed saying they were going to be the Supreme Court, and neither the Majlis nor the President had any choice in the matter.

All these things signaled the same thing. First they wanted to hijack the judiciary – and through the judiciary they wanted to hijack the nation.

JJ: Who is ‘they’?

II: At that time it was the then Chief Justice – he appointed himself Chief Justice, by the way, because in the interim period there was no provision for a chief justice – and he was acting like that, leading. And then there was Mujitaz Fahmy, these were the people. Eventually when the appointments came, and the way it came, you could see, DRP had majority in parliament at the time, and by and large the People’s Alliance (PA) through their coalition was calling the shots.

JJ: Didn’t the Speaker of Parliament show up in the JSC office during the interim period to help photocopy letters of appointment?

II: Exactly. The Supreme Court and key elements within the judiciary are still controlled by Gayoom – directly or indirectly.

JJ: What does that mean for the provision of justice in the Maldives?

II: We can be guaranteed we won’t have justice. You can see these things going on – look at what the Supreme Court is doing.

Face facts – they are issuing instructions to the trial courts, saying “Case X, stop proceedings, we’ll take that over.”

Who ever heard of an appellate court taking over a trial court’s jurisdiction? I don’t know of any instance in any democratic country, anywhere in the world, where an appellate court will take over a trial court.

Even in cases of a mistrial, the instruction is to retry the case. Appellate courts don’t sit on trials. And they are systematically doing it – at least three cases so far.

What they are effectively doing is influencing the independence of the trial court. The significance of that is that if trial court judges cannot be independent of the higher court, there is no room for appeals. Because the decision is going to be the Supreme Court decision.

JJ: What has the role of the JSC been in all of this?

II: The JSC has been hijacked by these runaway judges, and they are serving their own interests in protecting the judges. This is one point where I disagree with the ICJ’s report.

JJ: The ICJ noted that it was a less-than-ideal structural oddity in the Constitution to have outside representation on the JSC?

II: They believe that the JSC should comprise of judges. I regret now putting even one judge on the JSC when writing the Constitution.

The ICJ’s caveat is very different from the ground reality here. In Britain and the US there are mature systems, and no politician in their right mind would even contemplate trying to influence court decisions – at least not publicly. Judges in the UK or the States, and most mature democracies, have come through a long history of democracy, worked as lawyers for a number of years, been scrutinised for their work and general behaviour – not just anyone can sit on the bench. But here in the Maldives we have a bunch of idiots.

What you see happening in the JSC is judges protecting their own backs.

JJ: The former President’s Member on the JSC, Aishath Velezinee, has previously stated that a majority of sitting judges have not completed primary school, while 25 percent have actual criminal records.

II: There are three judges on the JSC. And then you have a lawyer, who was elected by the lawyers – but the high court ruled at the time that a magistrate should be allowed to vote in the election of a lawyer to the JSC. So they elected this lawyer, whose wife was a magistrate.

Mujitaz Fahmy was heading the JSC at the time, he made arrangements for his wife to have her rent paid, to move to Hulhumale’ from an island court, and all this – and later even created a court in Hulhumale’ for her. So can this lawyer even hold the judges to account?

Then you have Abdulla Shahid, from the opposition Dhivehi Rayyithunge Party (DRP). Do you know the DRP leader and his cronies – MPs – have a Rf 1 billion (US$64.8 million) case suspended in the High Court, after the trial court ruled the bank could move in to take over the mortgages?

The trial court asked them to pay up, and all three or four of them would have had to declare bankruptcy and lost their parliament seats.

JJ: You are talking about Ahmed Thasmeen Ali and loans with the Bank of Maldives?

II: I have to be careful here or I could end up with a libel suit – it’s not Thasmeen now. Initially the loan was taken by companies in his name, his shareholdings. But during the Presidential election he was the running mate for Gayoom, so he transferred it to other people, and these people – the shareholders – are now MPs.

The Constitution says that if you are declared bankrupt, you will lose your seat. After the trial court ruled, they took it to the High Court, and it has been sitting there for a year and a half. The High Court has issued a court order suspending the trial court decision until the High Court sorts in out.

We all know that in an open and shut case like a bank loan there is nothing more to prove. Either you are paying it or you are not. I mean how many ordinary poor people have spent time in jail because they weren’t able to pay credit cards for personal expenses?

Under the same laws, the same court system, these people with Rf 1 billion in public money, are getting away with it. So no wonder a DRP-controlled Majlis, the Speaker, and Dr Afrashim Ali, will side with the judges. This is what I mean when I say they have been compromised.

JJ: So it all comes back to that Rf 1 billion?

II: Part of it. Look at [Deputy Speaker] Ahmed Nazim. He has a case currently against him that could put him away for a few years. Abdulla Hameed is a fugitive from justice. All these people from the old regime are fugitives from justice, so they depend on the judges to protect them.

Why was Nazim’s hearing behind closed doors? The public wasn’t allowed in, the journalists weren’t allowed in, which is against the Constitution. The Constitution spells it out that trials have to be open, unless a judge declares it a closed hearing to protect the interests of a victim in a case involving child abuse, or a rape, or a matter of national security. These are the only instances where a judge can declare a closed hearing.

I don’t think it is a coincidence that all these things involve ex-regime people.

JJ: So how right is Velezinee when she talks about the “silent coup”?

II: One hundred percent.

JJ: What do you think of Velezinee’s whistle-blowing role in this?

II: I think it was admirable what she did. But what she couldn’t do was garner the support for the cause.

JJ: Are people still intimidated by the Supreme Court to a degree that they feel they are unable to criticise it?

II: Intimidated yes, but there is also a hegemony amongst people. They think that courts can’t be criticised, that they shouldn’t be touched. Many think that if you say something against the Supreme Court they can summon you the next day and sentence you to jail. People don’t know what the limitations of power are. They see the courts as places that put people in jail – they’ve seen this happen all the time. They’ve seen wrongful convictions, and they know it’s the same judges and the same courts.

It takes someone like me to point this out. Part of my making this case against the Supreme Court is to convince the public that you can criticise the Supreme Court and remain a free man.

JJ: If this becomes a defamation case they can’t rule against you – because that supports your point – and they can’t rule in your favour, because that would place themselves in contempt of court. So what’s to stop there simply never being a hearing?

II: That’s a tricky point. I will see if the Civil Court will accept the case. I want to give the Civil Court the benefit of the doubt, until they reject it. Even if they reject it, I’ll take that to the High Court, and if they reject it, I’ll take it to the Supreme Court, and let them try themselves. (Note: the Civil Court subsequently rejected Ibra’s case).

JJ: What puts you in a position of being able to do this when many other people would not?

II: One thing is that I believe my knowledge of the Constitution tells me what they can and can’t do, which most people don’t know. Other than that, maybe because over the years and during the reform movement, I like to believe I have some standing in the public, because the majority of the public has faith in me for standing up for the truth. So that gives me courage.

But the bottom line is the same as when I stood up against Gayoom – someone has to do it. I waited for three years for someone else to do it this time, no one was forthcoming, so I figured “OK, here goes Ibra again.” Let’s give it a shot.

JJ: What kind of recourse do ordinary people have at the end of the day? You say people can go to their MP, but that engagement is not always in a democratically healthy manner given that most MPs readily admit to funding their constituents’ personal demands for money, education and overseas healthcare.

II: I think, with this recent fiasco in the Majlis regarding the committee allowances, parliament is on the back foot. They might try and please the public, if the public demands hard enough.

JJ: What is the impact on foreign investment of having a judiciary in this state? From the perspective of somebody investing in tourism if, say, I need to enforce a contract but I can’t go to the Civil Court with some guarantee of getting a fair ruling, what’s to stop somebody from just pulling my investment out from under me?

II: That’s happening already. Many potential investors are looking at the legal system here and deciding they do not want to take the risks.

JJ: Are people aware of this? Surely big businesses here are worried about this?

II: The big businesses already here are not worried, because they have the judges in their pocket. [Resort tycoon and Jumhoree Party MP] Gasim Ibrahim is now sitting on the JSC, and even as we speak he has seven cases in the courts.

JJ: The Constitution includes provisions for foreign judges, and the idea of a mercantile court has already been raised – an ‘offshore’ legal jurisdiction with authority in civil cases over a certain value?

II: I don’t think that’s a way out. It may serve a temporary purpose, but I think the real way out is to rewrite the Courts Act and appoint at least two foreign judges to the Supreme Court.

I was advocating this right from the start. I begged the President to at least nominate two foreign judges – retired or semi-retired people with experience – to come and assist us in setting up a Supreme Court and set the right precedents. But the politics got caught up.

I foresaw this even when we were writing the Constitution. On more than one occasion I said the next challenge would be the judiciary. The DRP wanted to write into the Constitution a stipulation that all judges should be Maldivian, but I fought single-handedly against it. Because that kind of nationalistic sentiment goes down very well with the public, because of the fear factor, the xenophobia and mistrust of foreigners which was actively promoted at the time.

The way is still open for foreign judges, and there is provision there for term appointments.

JJ: What is your overall prognosis? Optimistic or are you packing your suitcase?

II: I don’t know how long this will take. A short while, or longer than we think. But eventually, no society can sustain itself without justice. It is a fundamental feature a society requires to live in harmony.

The way justice manifests itself may not be readily seen or tangible, but people know when injustice is being done. And that is why people stood up against Gayoom – because of the injustices.

I’m optimistic that there will come a point – sooner or later – when people will just not tolerate it. But then it will be ugly. If we do it now it will not be ugly, with the least possible jolt to the system. I just hope the politicians – our parliamentarians – will have the wisdom to see that this is not a political issue, not something for personal gain. They should see this as serving the wider national interest and safety of all, including themselves. To get the judiciary on track.

For the bull to survive, it must ensure that the wider landscape in which it lives also survives. The judiciary is that wider landscape. You never know when you are going to end up in court, and on that day you should have confidence in the judge passing judgement over you.

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