Q&A: Kirsty Brimelow, QC

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

JJ: What would be some of those concerning issues?

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

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

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

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

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

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

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


Participation of UK legal experts in Nasheed trial a “unique challenge”

A Maldivian legal expert has described the use of foreign legal experts in the trial of former President Mohamed Nasheed as “unique”, pointing out that the Maldivian legal system makes it particularly difficult for such experts to contribute to proceedings.

Mohamed Shafaz Wajeeh, a practising layer in Male’ and former Director of the Legal Director at the Human Rights Commission of Maldives (HRCM) said that while foreign advisers to corporate clients was fairly common, foreign experts for a specific criminal case was not.

“From a common law/international standards perspective, I believe foreign legal involvement is very much prevalent, especially if you consider the number of foreign legal experts who would be advising corporate clients operating in the Maldives in resorts, major telecom providers etc,” Wajeeh told Minivan News.

“However, the Nasheed trial is unique in that common law/international standards perspective expertise is being brought in for stated involvement in a specific criminal court case, as part of the defense team, not merely on a corporate/commercial transactional matter in an advisory capacity,” he added.

Nasheed’s Maldivian Democratic Party (MDP) revealed earlier this month that it was to add the expertise of two UK-based lawyers to the legal team working on the Judge Abdulla Mohamed detention case.

Sir Ivan Lawrence QC and Barrister Ali Mohammed Azhar were brought in to work alongside Hisaan Hussain, Abdulla Shair. On Thursday, it was announced that Kirsty Brimelow QC – a human rights expert – would also join Nasheed’s defense team.

Azhar is an expert in Shariah law – the Maldives legal system encompasses a combination of common and Shariah legal practices.

“It is not uncommon for foreign legal experts to be involved in transactional matters in an advisory capacities, but virtually never as Shari’ah experts (in recent history),” said Wajeeh. “What’s unique is for foreign legal experts to be involved in a criminal case – in the defence team, and especially in a court case.”

Lawrence, Azhar and Brimelow will work alongside Hisaan Hussain, Abdulla Shair, Hassan Latheef and Ahmed Adbulla Afeef – although the latter two have been barred from appearing in court on technical grounds.

Afeef will not be allowed to attend the hearings in an official capacity after failing to sign the Supreme Court’s new “Regulation on Lawyers practicing law in the courts of Maldives”.

Wajeeh cited this particular regulation as “disturbing” and “dangerous” – further sign, he feels, of the need for major reform of the judicial arm of the state which he described as undeveloped and “primeval”.

Latheef cannot appear as he has been listed by the Prosecutor General (PG) as a witness to the detention of the Judge. Latheef described the inclusion of his name on this list as unnecessary and “irrelevant” as the judge’s detention was not in question.

In the press release announcing Brimelow’s inclusion in the case, appearing on Nasheed’s website, it was acknowledged that legal restrictions would also prevent any of the UK experts appearing in court.

“I imagine they would be severely restricted – if not intentionally, then due to the structure of the legal system,” said Wajeeh.

“Foreign legal experts can’t attend as lawyers, they can’t attend in Nasheed’s stead either (only lawyers may represent individuals in criminal cases),” he added.

“I’m not really sure if they can sit at the bench even. My understanding would be, if the foreign legal experts are to be allowed into the Court room at all, they would have to go in and sit in the public gallery,” he continued.

Latheef explained that Ms Brimelow was the only member of the legal team scheduled to be present in Male’ for the trial, and that the team would be applying for a permit from the Attorney General to allow her to appear in court.

“This has been done once before,” explained Latheed, “although the lawyer involved was married to a Maldivian.”

Wajeeh also noted that there were certain procedural factors which would make it difficult for UK experts to fully participate in the case, in particular the use of Dhivehi in the courts without English translation services being readily available.

“The foreign lawyers would of course be free to offer their views and opinions to the appointed defence team on drafting submissions and responses in defence of Nasheed, given the documents are efficiently translated for their use,” explained Wajeeh.

“This would mean they could play a minimal role in the formal hearing, although could potentially play a crucial role in how the defence argument takes shape.”

Nasheed’s trial continues tomorrow at 4:00pm at the Hulhumale’ Magistrate Court, which is has been temporarily relocated to Male’ for the purpose of the case.


Nasheed adds third British legal expert to defense team

Former President Mohamed Nasheed has further bolstered his legal team by accepting the services of Kirsty Brimelow QC ahead of the continuation of the Judge Abdulla Mohamed detention case on Sunday.

Brimelow will join fellow UK-based legal experts Sir Ivan Lawrence QC and Barrister Ali Mohammed Azhar on  Nasheed’s defence team.

A statement appearing on Nasheed’s website describes Brimelow as a criminal law specialist with international experience who is “particularly sought after in cases with a human rights law element”.

Brimelow was appointed Queen’s Counsel in 2011 and has, among a number of high profile cases, acted as Legal Adviser to the Constitution Commission of Fiji. She is vice-chairwoman of the Bar Human Rights Committee and appears regularly on British television and radio.

Earlier this month, the Department of Judicial Administration informed local media that two of Nasheed’s lawyers, Hassan Latheef and Ahmed Adbulla Afeef had been barred from the trial.

Latheef had been barred from the trial as the state had called him as a witness, while Afeef was was barred as he had not signed new behavioural regulations for lawyers recently issued by the Supreme Court, explained department spokesperson Latheefa Gasim.

This leaves just two of Nasheed’s lawyers able to appear in court – former President’s Office Legal Advisor Hisaan Hussain and criminal defence lawyer Abdulla Shair.

Nasheed has stated repeatedly that he feels the outcome of the trial to be pre-ordained, with his conviction designed specifically to prevent him running in next year’s presidential elections.

“On Sunday I will face an extraordinary court, established especially to hear my case,” Nasheed wrote in Britain’s Financial Times this week.

“I am to be tried for abuse of power, in particular for the arrest of a corrupt judge, who was an ally of Mr Gayoom. My conviction is a foregone conclusion. Mohamed Waheed, my former vice-president, may decide to pardon me, but only in a way that ensures I remain barred from seeking office next year,” he wrote.

The issue of Nasheed’s trial was raised in the UK House of Commons this week by Conservative MP Karen Lumley, who asked Alistair Burt – Under Secretary of State for the Foreign and Commonwealth Office, about the fairness of Nasheed’s trial.

“We have sought and received assurances from President Waheed of the Maldives that any trial of former President Nasheed will be fair and free from political influence,” replies Burt.

“No trial date has been set. The next court hearing is on November 4 and we expect international observers to be present,” he added.

In response to Lumley’s question regarding the effect of the trial on a sustainable political outcome in the country, Burt said the following:

“The trial process is, of course, a matter for the Maldives, but there is international concern that if it results in the former President being prevented from leading his party into the elections next year, it will be seen as though the process was designed for exactly that object.”

“We urge political stability under all circumstances in the Maldives, and that will no doubt be enhanced if the former President is allowed to lead his party and take part in those elections,” continued the Under Secretary.

The statement on Nasheed’s website noted that the Attorney General’s regulations prevented any of the new additions to his legal team appearing alongside him in court.

“Article 2 (a) of the regulation states ‘a person has to either be a Maldivian citizen or be married to a Maldivian citizen and reside for most part in the Maldives’ in order to practice law in the Maldives,” read the statement.

“This restriction is a hindrance to clients who wish to have foreign legal professionals represent them in courts of the Maldives,” it said.

Nasheed’s legal team raised several procedural issues at the cases first hearing on October 9, all of which were dismissed by the court.

After challenging this ruling in the High Court, and calling for an injunction to halt the trial until the matter was resolved, it was announced last week that the High Court would hold a hearing on the matter on the morning of November 4 – the same day Nasheed’s trial in the Hulhumale’ Magistrate’s Court recommences.

“The party believes that the result of conducting both hearings on the same day will be the defence attorneys losing the opportunity to prepare for the original case at the Hulhumale Magistrate Court’,” a Maldivian Democratic Party (MDP) statement read.

The party held a march around the capital island Male’ on Tuesday calling for judicial reform. Over 500 protesters marched around Male’ with banners and placards displaying messages arguing the importance of judicial independence and of holding the judiciary accountable.

Chief Judge Abdulla Mohamed was originally taken into custody in January after blocking the Judicial Services Commission’s (JSC) proceedings into his alleged misconduct. A police mutiny and unrest in the capital led to Nasheed’s resignation three weeks later.