Tag: law

Domestic Violence Bill ratified by President Waheed

President Dr Mohamed Waheed Hassan has today ratified the Domestic Violence Bill – the first piece of legislation to be approved by him since taking office on February 7.  The bill was passed by the parliament on April 9 and how now been approved by the president, allowing it to come into force as the Prevention of Domestic Violence Act.

This act defines domestic violence as an attack against someone by any other person with whom that they are presently, or have been in a domestic relationship. It also provides protection for victims of domestic violence and seeks to punish the perpetrators of such crimes.

According to the President’s Office, some of the objectives of the act include; declaring all acts of domestic violence as a punishable crime, giving protection and safety to victims of domestic violence and giving cost-effective, due and timely justice to victims of domestic violence.

The Prevention of Domestic Violence Act also includes frameworks for  conducting programmes to support victims of domestic violence.  This includes setting out measures for taking all necessary steps to prevent domestic violence, whilst rehabilitating perpetrators of such crimes and facilitating the implementation of court orders and orders from other law enforcement authorities to prevent domestic violence.

Speaking after ratifying the bill, President Waheed announced that the Family Protection Authority (FPA), which is required to be established under the act, would be formed soon.  The president has pledged to appoint the seven member FPA board without any further delay.

UN Women, which provided detailed inputs on the draft bill with other United Nations agencies has meanwhile welcomed the passage of the law and pledged its full support to consolidate the Act.

“This is a remarkable gain for the women of Maldives,” said Anne F. Stenhammer, the Regional Programme Director of UN Women in South Asia in a statement released last week.

“We hope to work together with the government and other UN agencies to raise awareness of the law and help in its implementation.”

Michiyo Yamada, Gender Specialist at the UN Women Maldives organisation added that her office has been working together with other UN agencies to support the government in developing the 4th and 5th combined state report for the Convention on The Elimination of All Forms of Discrimination Against Women (CEDAW).

“Addressing violence against women is one of the key areas highlighted in the previous concluding remarks in 2007. UN Women hopes to support the Maldives in implementing the UN Secretary General’s Campaign, UNiTE to End Violence Against Women, which aims at adopting national laws and multi-sectoral action plans and collecting data on the prevalence of violence against women and girls.” Yamada observed.

According to a national survey on “Women’s Health and Life Experiences”, which was conducted with the support of UNFPA, UNICEF and the WHO, one in every three Maldivian women aged between 15 and 49 reported experiencing some form of physical or sexual violence at least once.

Information from Family Protection Units confirm such a prevalence, and indicate that 87 per cent of perpetrators are known to the survivors.

Likes(0)Dislikes(0)

Hopes of victims renewed as parliament passes domestic violence bill

The Maldives parliament yesterday passed a much awaited Domestic Violence Bill which for the first time will provide legal provisions to protect victims from domestic abuse through protective orders and improved monitoring mechanisms.

The bill received broad cross party support when it was submitted by then opposition Dhivehi Rayithunge Party (DRP) in October 2011.  It was submitted in an attempt to enact  key changes to existing legislation and address societal attitudes to violence committed against women and girls within domestic circles.

Out of the 54 MPs present at Monday’s parliamentary session, 50 voted in favour of the bill, while two members, including Jumhoory Party MP Ibrahim Muththalib and MDP MP Mohamed Gasam voted against it. Two MPs abstained from the vote.

The passage to endorsement took over an year longer than anticipated, mostly due to the resistance from several MPs who had argued the bill was “un-Islamic” and criticised it for “unduly favouring” women while at the same time making life “extremely difficult” for men, who they said, were wronged by women.

Independent MP Mohamed Nasheed, who re-drafted the bill during the committee stage, noted in an interview with Minivan News today that several MPs had proposed amendments during the committee stage to revise clauses they deemed were in contravention to Islam.  However, these proposed amendments failed due to the lack of support, he added.

Nasheed insisted that the bill is actually “gender neutral” and provided equal protection to “everyone in a domestic relationship” including husband and wife, family and non-family members such as house-helps.

He added, “The argument for women is generated as a larger segment of the vulnerable victims include women and girls”.

A Ministry of Gender and Family study – the first comprehensive nationwide survey of domestic violence in the Maldives – showed that one in every three women between the ages of 15-49 has been a victim of domestic violence.

The study suggested there was general acceptance of domestic violence across the country and among both sexes, who perceived it as being ‘normal’ or ‘justified’.

Seventy percent of Maldivian women believe, for example, that there are circumstances under which a man is justified in beating his wife. Infidelity and disobedience, most women accept, are valid reasons for taking a good beating from the husband.

A majority of women also accept that they have a subordinate role to men, the report stated among it’s conclusions.

The survey added that one in every three Maldivian men who commit acts of domestic violence against women do so for ‘no reason’. One in four does it to punish the woman for disobedience, and one in five does it because he is “jealous”.

One in every ten men beats up his partner because she refuses him sex, and the rest of them do it for any number of reasons  – lack of food at home, family problems, because they are broke or unemployed, because they are having problems at work, or because the woman is pregnant

The new legislation passed this week is designed to offers a holistic and effective legal framework for addressing domestic violence in Maldives. It aims to do this by providing sweeping powers to regulatory authorities to expedite investigations of abuse within private spheres, makes provision for protection orders and legal remedies for victims; punishments to perpetrators who violates the court orders; psychological and rehabilitative services for victims or perpetrators, and processes for promotion of reconciliation.

Offences and Protective Remedies

According to the legislation, sexual, physical and emotional abuse of victims, economic and psychological abuse, intimidation, stalking and harassment, deliberate damage to property of the victims are all considered offences and perpetrators are subjected to the punishments and court orders under this legislation.

A husband who deliberately impregnates a wife seeking a divorce from an abusive marriage, or impregnates her despite the known health risks will also be committing an offence under the legislation.

However, MP Nasheed observed the stated offences in the Domestic Violence Law are considered “civil offences”, but it does not prevent the criminal prosecution of the perpetrator under penal code and other relevant legislations.

The legislation also offers several civil remedies for alleged victims to protect themselves and families from further abuse from assailants through protective orders, restraining orders and custody/maintenance orders.

The protective orders include “certain things that cannot be done or acts from which the victims are protected,” Nasheed explained.

The restraining order meanwhile prohibits an alleged perpetrator from committing specific acts pertaining to the complaints. For instance, where the perpetrator and the victim share the same household, the court can restrict the victim from “entering and exiting their private dwelling, place of work, employment, teaching, learning or any other commonly visited place.”

Meanwhile, in the event a wife applies for a protection order, the bill gives courts the authority to evict the husband from the residence, if the need arises.

The court can grant a three-month provisional order without a trail or to the knowledge of the alleged perpetrator while he or she is given the right to challenge the order during the trial to make the order permanent.

Violations of these orders are constituted as a criminal offence and the perpetrator is subjected to a maximum fine of Rf50, 000 and maximum three years of imprisonment.

Police and Family Protection Authority

Under the legislation, in cases where the police has reasonable evidence to believe a person is a victim of domestic abuse, the police can enter the place of crime without a court order and arrest perpetrators.

It also mandates the police to transfer the victim from the abusive environment to a secure location, if necessary with their own expenses.

“Once the legislation is ratified, the police must decide and announce protocols to address domestic violence cases, assess the level of damage to the victims and if necessary remove the victim from abusive environment and give shelter,” Nasheed noted. “Once these protocols are activated, [police] don’t wait to decide who takes care of the expenses.”

Police media official Hassan Haneef said today that the police will comment on the legislation after a thorough study.

Health professionals and care workers are subjected to statutory obligations to report and act on suspected domestic violence cases.

Meanwhile, an institution named “Family Protection Authority” (FPA) must be established under the legislation with the primary mandate to implement the legislation and create awareness.  The authority must establish easy mechanisms among other responsibilities, to allow victims to report abuse, provide psychological and rehabilitative services for victims and perpetrators, and processes for promotion of reconciliation.

According to Nasheed, the existing Department of Family and Child Protection Unit under the Health Ministry is likely to “ripen into the full fledged institution [FPA]”.

The Gender Department had earlier echoed concerns over the lack of a budget required to implement the legislation and asked the parliament to pass it with the necessary budget.

However, Nasheed responded although a budget has not been allocated under the legislation it does not” prevent the legislation coming from into being” and added that once the law is passed, it “gives the authority the right to charge the consolidated fund.”

Likes(0)Dislikes(0)

Comment: International community’s inaction may lead to carnage

The Maldives is beautiful. It is an archipelago of 1200 islands with pristine beaches, blue lagoons and thousands of coconut palms. It is one of the world’s most exclusive tourist destinations. It is a honeymooners’ haven and diver’s paradise. It is a hideaway for over-exposed celebrities and a sanctuary for the stressed. A string of islands nature intended as a playground for the rich and famous. Somewhere where Western billionaires come to have spa treatments underwater and the famous can relax without being photographed. A picture postcard.

Well, here’s a news flash. The Maldives is home to 300,000 people. They may not appear in the photographs, they may not be serving you your cocktails, they may not be cleaning your $4500 a night room, they may not be serving you the $1000 dinner on your golden plate under the full-moon, and the hands massaging your body in the spa under the palm tree may not be theirs, but they exist. They live, they talk, they walk, they feel, and they have the same silly notions about human rights, justice, equality and the rule of law as any other people in the world.

Last week, the Maldivian government was overthrown; its first democratically elected president held at gunpoint and forced to write a letter of resignation. It has been reported that ‘tourists barely put down their cocktails’ on the beaches of their exclusive holiday resorts just a few waves of the ocean away, so far removed is the tourism industry from the reality that Maldives is for Maldivian people.

Despite the tourists, and the rest of the world, being kept in deliberate ignorance, video evidence exists of the coup right from the planning stages to its successful execution. The only missing footage, so far, is that of the deposed president sitting down to write the letter. Everything else, from the violent take over of the state broadcaster by armed ‘policemen’, the beleagured president trying to control military and police personnel who were involved in the coup, coup leaders commanding the defecting officers, extreme brutality by the police against the public in the aftermath of the coup – it is all there, if you want to see it. ‘Want’ being the keyword here.

The ‘international community’ has not wanted to do so. British Prime Minister David Cameron, who had only months before described the deposed Maldivian President Nasheed as his ‘new best friend’, refused to lend him any support.

India, the supposed leader of democracy in South Asia, was the first to congratulate the new government and pledge its allegiance to its leader Dr Mohamed Waheed Hassan Manik.

Sri Lanka, despite Nasheed’s ill-judged support of President Mahinda Rajapaksa while the intenational community condemned him for alleged human rights abuses, followed suit.

It would come as no surprise for any observer of China’s recent foreign policy decisins that Beijing had no qualms over the legitimacy of the new government in declaring its willingness to carry on with business as usual.

Australia, home to many Maldivians and supposedly a close friend, found the Maldivian situation to be fodder for political jokes; the violence that its people endured in the aftermath of the coup nothing but material for double-entendres to be lobbed between parliamentarians on opposite sides.

And, of course, given the manner in which the United States has sought to spread democracy in the world in the last decade, it should come as no surprise that it finds no room to exercise its soft power in assisting Maldivians establish the truth about how their democracy was derailed last week.

The international community is making a huge mistake in ignoring the current crisis in the Maldives. The foremost reason being that the Maldives is incapable of conducting its own independent investigation into the events of the day as the international community is recommending. Like a small community in which twelve impartial people cannot be found for a jury in a trial where everybody has a stake in the verdict, there can be no tribunal of truth held in the Maldives where the majority is not biased one way or another.

The United States and others have rejected the deposed president and his supporters’ calls for new elections on the basis that there are no institutions capable of holding a fair and free one. What makes it, and the rest of the international community, then think that there can be an independent institution capable of conducting an impartial enquiry into the facts of 7 February? If any of the international teams that have been so active in the Maldives in the last week have done any homework at all, they know the biggest impediment to consolidation of democracy in the Maldives has been failure of the so-called independent institutions have been unable to free themselves from political influence.

It is not just the Maldivian people that the international community is betraying by leaving them to their own fate. It is also the ideals of democracy they have espoused so stridently, not to mention violently, for the last decade. By refusing to help the Maldivian people establish the truth of how its first democratically elected president was deposed, it is allowing the burial without ceremony of the role that anti-democratic forces – including radical Islamists – have played in bringing the fledgling Maldivian democracy to its knees.

It is also turning its back on a valuable opportunity to increase its own knowledge of how Islamists can radicalise not just a small Muslim community, but an entire population. Available evidence shows that without a clear pact made with Islamists, the coup could not have been successfully planned or executed. By refusing to help join Maldivians’ efforts to establish the truth of the events of 7 February and the conspiracies that led up to it, the international community is doing what it does best: ignore a threat until it escalates to the point where there is carnage on the streets and thousands of lives are lost.

The most significant characteristic of the days that have followed 7 February in the Maldives is the deafening silence of the Islamists. They helped incite hatred and anger towards Nasheed when he was the legitimate president; they were the loudest and the most vocal of his critics. In the week that has followed his ousting, they have been ominously silent. And, judging from how they have conducted their operations in the Maldives for the last decade, the silence is not due to pious reflection and quiet contemplation of God’s greatness. It is a silence of anticipation, the calm before the storm. The conspirators who financed the coup have done a deal with them, and they are waiting in silence because they are sure their grand chance is about to come. That is, the chance to impose Sharia rule in the country, the chance to crackdown on the women and turn them into inferior human beings and citizens, the chance to bring the Maldives back to the early days of ‘pure’ Islam and turn it into the newest region of the Islamic Caliphate that bin Laden envisioned.

Unfortunately, we live in a world of realist international politics where until a state’s own ‘national interest’ is threatened or one’s own self-interest is at risk, there is no ‘legitimate’ reason to act. As long as the anti-democratic activities in the Maldives pose no geostrategic threat to the ‘international community’, as long as foreign investment in the Maldives is safe, as long as tourists can keep sipping their cocktails under the palm trees, and as long as Maldivian blood does not spill on the pristine white beaches that the rich and famous lounge about on, paradise is not lost. Until then what prevails will be accepted as what passes as ‘democracy’ these days – government for the rich by the rich.

Azra Naseem holds a doctorate in International Relations.

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]

Likes(0)Dislikes(0)

Resolving judicial crisis “a huge challenge” for the Maldives: President Nasheed

Judges in the Maldives were reappointed by the Judicial Services Commission (JSC) at the conclusion of the interim period “in conflict with the constitution”, President Mohamed Nasheed has said during his weekly radio address.

The JSC reappointed the vast majority of sitting judges prior to parliament approving a statute establishing the criteria for serving on the bench, Nasheed said.

The consequence – a judiciary almost identical as the one appointed by the former Ministry of Justice under the previous government, but badged as independent – was “a huge challenge” for the Maldives, he added.

Prior to the reappointments, the President’s Office in May 2010 sent a letter to the JSC expressing concern that a large number of judges lacked both the educational qualifications and ethical conduct required of judges in a democracy.

“While the Act relating to Judges was passed in August 2010, and while the Constitution is very clear that Judges cannot be appointed without this Act, to date the JSC has failed to reappoint Judges,” Nasheed said.

“The Supreme Court Judges were appointed in accordance with the Constitution and law. The High Court bench was appointed in accordance with the Constitution and law. However, it is hard to say that the lower court Judges were appointed as per the Constitution and law,” he contended.

The government has faced critcism from the opposition and weeks of opposition-led protests, some of them violent, after the Maldives National Defence Force (MNDF) took Chief Judge of the Criminal Court, Abdulla Mohamed, into custody on January 16.

The government had accused the chief judge of endemic corruption, obstructing police investigations and of links with both the opposition and organised crime. Abdulla Mohamed sought a High Court ruling to prevent his arrest – which was granted – leading police to request the MNDF to take the judge into custody.

The judge was previously under investigation by the JSC – the judicial watchdog body – however he was granted an injunction by the Civil Court which ordere the JSC to halt the investigation.

In his radio address, Nasheed identified four areas of reform under the 2008 constitution: change of regime through multiparty elections, election of a new parliament, introduction of decentralised administration, and election of local councils.

“The major remaining reform envisioned by the Constitution is the establishment of an independent and competent judiciary,” Nasheed said.

The Foreign Ministry has requested a senior international legal delegation from the United Nations Human Rights Commission (OHCHR) to help resolve the current judicial crisis.

Last week, former President’s member on the JSC, Aishath Velezinee, told Minivan News that outside help from an independent and authoritative body such as the International Commission of Jurists (ICJ) was desperately needed.

“We need the ICJ to be involved – someone like [former] UN Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy. He was here for a fact-finding mission and had a thorough understanding of it, and gives authoritative advice,” she said.

“We need to look for people who understand not only the law in the constitution, but what we are transiting from. Because that is really important. The UN had brought in a former Australian Supreme Court Judge, but he didn’t get any support. There was a lady [from Harvard] but she left in tears as well. There was no support – the JSC voted not to even give her a living allowance. They are unwelcoming to knowledge – to everyone. It is a closed place,” she warned, adding the difficulty was enhanced further because all the documentation was in Dhivehi.

UK MP for Salisbury, John Glen, has meanwhile urged UK Parliament to “urgently make time for a debate on judicial reform in the Republic of the Maldives.”

“Although the judiciary is constitutionally independent, sitting judges are underqualified, often corrupt and hostile to the democratically elected regime,” Glen stated.

Leader of the House of Commons, George Young, responded that Under-Secretary of State for Foreign and Commonwealth Affairs, Alistair Burt, was “in touch with the Maldives President to see whether we can resolve the impasse. The high commission in Colombo is also engaged. We want to help the Maldives to make progress towards democratic reform in the direction that John Glen outlines.”

Several hundred opposition protesters meanwhile gathered last night for the second week running, with police arresting several dozen people and deploying pepper spray after the crowd reportedly began hurling paving stones at officers outside the Maldives Monetary Authority (MMA) building.

MP Ahmed Nihan of former President Gayoom’s Progressive Party of the Maldives (PPM) and recently-resigned SAARC Secretary General Dhiyana Saeed were among those detained by police. Haveeru reported that 17 of the 22 arrested were detained in Dhoonidhoo custodial overnight.

Likes(0)Dislikes(0)

Allegations against Chief Judge first sent to Gayoom in 2005

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Likes(0)Dislikes(0)

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

Aishath Velezinee was formerly the President’s Member on the Judicial Services Commission (JSC), the watchdog body assigned to appoint and investigate complaints against judges.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

AV: We need the ICJ to be involved – someone like [former] UN Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy. He was here for a fact-finding mission and had a thorough understanding of it, and gives authoritative advice.

We need to look for people who understand not only the law in the constitution, but what we are transiting from. Because that is really important.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We can’t do that, so we have to act.

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

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

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

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

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

JJ: So this is a struggle for survival?

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

Likes(0)Dislikes(0)

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.

Likes(0)Dislikes(0)

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.

Likes(0)Dislikes(0)

Velezinee appointed Deputy Home Minister

President Mohamed Nasheed has appointed his former member on the Judicial Services Commission (JSC), Aishath Velezinee, to the position of Deputy Home Minister.

As a member of the JSC, Velezinee was an outspoken whistle-blower who campaigned against the reappointment of sitting judges in what she contended was a violation of article 285 of the Constitution and part of a “silent coup” to seize control of the judiciary.

In early 2010, she set about publicly exposing the independent institution she claimed was operating “like a secret society” and serving as a “shield” for a judiciary that was “independent in name only”, and had tabled only several of the hundreds of complaints submitted against judges.

Using her access to court documents, Velezinee revealed that almost a quarter of the sitting judges had criminal records – ranging from theft to terrorism – and that an even greater number had not even completed grade 7 education. The only qualification of many was a ‘Diploma in Judging’ presenting to them by the former Ministry of Justice, Velezinee contested.

For the past 30 years judges effectively worked as the employees of those “hand-picked” by the former government, Velezinee explained – to the extent that failures to extend a particular ruling as required by the Ministry of Justice resulted in a black mark on the judge’s file.

“The only qualification it appears was a willingness to submit to the will of the government at the time – to follow orders,” Velezinee told Minivan News in a previous interview.

“Not everyone has the mindset to follow orders and serve in that kind of capacity. I believe it has excluded people with independent thinking, or the necessary legal knowledge – such people would take it as an insult for someone to order them how to decide a case.”

She also presented documents and recordings that implied the JSC had forged documents for a hearing over High Court appointments, accused the commission of embezzling state funds by awarding itself a ‘committee allowance’ contrary to Article 164 of the Constitution, and criticised it for abolishing its Complaints Committee in the name of “efficiency”. The previous year the JSC received 143 complaints concerning the conduct of judges, none of which were even tabled at the commission.

In January this year Velezinee was hospitalised after she was stabbed three times in the back in broad daylight on the main tourist street of Male’, “right outside the Home Minister’s door.”

Many international organisations, including Transparency International and the International Commission of Jurists (ICJ), at the time expressed “grave concern that the attack may be politically motivated.”

Velezinee told Minivan News today that her new role at the Home Ministry will see her focusing on “international affairs and projects in planning and development, and monitoring of agencies.”

“Many international conventions were signed in 2005 but were not incorporated into the domestic system,” she noted. “The Home Ministry should be a very strong Ministry, as it has a huge mandate, and should ensure it complies with the conventions the Maldives has signed.”

The remit of the Home Ministry includes police and the Department of Penitentiary and Rehabilitation Services (DPRS), as well as juvenile justice, civil society and decentralisation.

Velezinee speculated that one of the reasons she may have been offered the role was because of her focus on justice, as “the Home Ministry is very much concerned with justice and the rule of law.”

She expressed surprise and delight at the welcome she received from her team at the Ministry, observing that it was “completely unlike the experience of the JSC where I felt I was unwanted the entire time.”

Likes(0)Dislikes(0)