Lawyers ‘entertaining’ Nasheed during daily visits, complains home minister

Home minister Umar Naseer has advised former president Mohamed Nasheed’s lawyers not to use their visits to “entertain” the imprisoned opposition leader.

In a letter to Nasheed’s attorney, Hassan Latheef, the home minister said that the legal team was “having fun, laughing and joking, and entertaining him” during daily visits to the Maafushi jail.

“I advise you to make proper use of the opportunity to meet lawyers,” Naseer stated.

The letter was dated May 3, but the legal team said it was only delivered yesterday.

Nasheed is serving a 13-year jail sentence following his conviction on terrorism charges on March 13 over the detention of a judge during his tenure. The 19-day trial was widely criticised by foreign governments, the UN, and international human rights organisations over its apparent lack of due process.

In a tweet last night, Latheef called Naseer’s letter “insane.”

“Stupidity to the max!” the former labour minister tweeted.

Latheef told Minivan News that Naseer did not have the authority to “determine whether we can laugh or not.”

The consultations with Nasheed were “none of Naseer’s business,” he continued and expressed concern with the home minister’s knowledge of confidential meetings between lawyers and a client.

“We fear that the meeting areas may be bugged,” he said.

Latheef said the legal team was only allowed to meet Nasheed once a week for two hours, which poses difficulties as the lawyers were also communicating with the former president’s international legal team and providing documentation.

The lawyers were able to meet other clients on any day at their convenience, he continued, but visits to Nasheed were authorised under strict supervision of the home minister.

In his reply to the home minister – shared on social media today – Latheef said the legal team’s efforts are intended to “save” the former president from the jail sentence and prove his innocence.

“As such, a case has been filed at the UN working group of arbitrary detention,” Latheef noted.

Former first lady Laila Ali lodged the petition last month requesting a judgment declaring Nasheed’s detention arbitrary and illegal.

Latheef said the conduct of the criminal court judges and proceedings at the court were amusing.

“Therefore, laughing at times while talking about the case is only natural,” Latheef wrote.

Latheef urged the home minister not to use his complaints “as an excuse” to narrow or deny the former president his constitutional right to legal representation.



Latheefa Gasim elected to represent lawyers on JSC

Attorney Latheefa Gasim won yesterday’s polls to elect a lawyer to represent the legal community on the Judicial Service Commission (JSC).

Latheefa won the polls with 238 votes while her closest contender, former Deputy Prosecutor General Hussain Shameem, secured 163 votes.

In mid-August, the AG Office postponed the election for a second time after the Supreme Court struck down section 11(a) of the regulations enacted for conducting the polls, which state that polling mechanisms would be established on inhabited islands with at least five registered voters.

The apex court had declared that all licensed lawyers eligible to vote in the elections – including magistrates of island courts – should be able to do so anywhere in the country without registering.

The order prompted the AG Office to repeal the procedural regulations as the “essence” of the annulled clause was assuring “secrecy of the ballot”.

Latheefa had previously served on the JSC as former President Dr Mohamed Waheed’s member on the 10-member judicial oversight body.

Shameem meanwhile thanked voters on Twitter following the polls and expressed gratitude for support despite “nonstop rain, flooding and difficulties in communication.”

Among the other contestants, Mohamed Faisal received 63 votes, Anas Abdul Sattar received 19 votes, and Rusdhulla Ibrahim got 10 votes.

The AG Office had enacted new regulations (Dhivehi) in line with the Supreme Court order (Dhivehi). Lawyers and magistrates in other islands were allowed to vote via fax from a polling station arranged by the AG Office.

Once the faxed ballot paper with the name, signature and fingerprint of the voter is received by the AG Office, an election official at the office was to omit the section with the name and cast the ballot into a ballot box in Malé.

After withdrawing his candidacy, lawyer Mohamed Fareed had objected to judicial interference in the election following an earlier Supreme Court’s ruling allowing all licensed lawyers, including sitting MPs and judges, to vote in the election.

“The belief that an election in the Maldives may proceed without Supreme Court interference is against the facts, reality. This is the reality now,” he said at a press conference.

With voting mechanisms set up on every island, magistrates would be forced to vote for the judiciary-backed candidate Latheefa Qasim, he suggested.


Home Ministry dissolves Bar Association

The Ministry of Home Affairs has dissolved the Maldives Bar Association (MBA) for failure to change its name as per a Supreme Court ruling and appoint a governing committee.

A Home Ministry letter also said the organisation had failed to submit an annual report as per regulations.

The Bar Association – formed in April 2013 to empower, lobby, and advocate on behalf of legal practitioners – is headed by veteran lawyer and former Attorney General Husnu Al Suood.

On April 9, Supreme Court told the Home Ministry to ask the organisation to change its name within 14 days, claiming the Bar Association title could only be used for an official  body regulated by law with the participation of the entire legal community and judicial sector.

Speaking to Minivan News, Suood he believed the government had dissolved the Bar Association claiming it posed a threat to national security.

“We are aware that one of the reasons for dissolving the Bar Association is that it poses a threat to national security and sovereignty of the Maldives as per national security intelligence,” he said.

Suood said the organisation would challenge the Home Ministry’s decision at court and condemned the limited space for civil society in the Maldives.

“We feel that there is no space for civil society in the Maldives. It has come to our knowledge that the Home Ministry has temporarily suspended registration of NGOs until they have received legal opinion from the Attorney General’s Office,” he added.

The Bar Association had refused to change its name, but said it would step aside should new legislation on the legal profession provide for a Bar Council.

A 2013 UN report recommended that a “self-regulating independent bar association or council” be established to oversee the legal profession.

Suood noted that the MBA currently has over one hundred members, representing around one fifth of the country’s practising lawyers, with a full membership drive waiting until new legislation is completed.

The Supreme Court’s initial letter to the Home Ministry came in the aftermath of a Bar Association statement calling for the suspension of Supreme Court Judge Ali Hameed pending an investigation into the judge’s alleged appearance in a series of sex tapes.

Hameed’s continued presence on the Supreme Court bench contravenes the Islamic Shariah and the norms of justice, the organization said.

“Given the serious nature of the allegations against Ali Hameed, that the judge continues to hold trial contravenes norms of justice, conduct of judges, and established norms by which free and democratic societies deal with cases of this nature,” the statement read.

Suood was on a watchdog Judicial Service Commission’s sub committee to investigate the matter. The Supreme Court had suspended Suood from practicing law in January for alleged contempt of court.

Meanwhile, lawyer and former Minister of Youth and Sports Hassan Latheef condemned the Home Ministry’s decision as a violation of the right to freedom of association.

“I believe this is an attempt to stop us lawyers from advocating in our defense,” he added.


Attorney General resumes issuing lawyers permits

The Attorney General’s (AG) Office has resumed issuing permits for lawyers after the publication of new regulations (Dhivehi) governing legal licences today.

The AG’s Office announced last December that it was ceasing the issuance of licenses pending amendments to regulations governing the legal profession.

Former Attorney Husnu Suood – also president of the Maldives Bar Association – has suggested that the regulations had been drafted without sufficient input from within the legal profession.

“We have brought to the attention of the Attorney General that the new regulation should involve the profession,” Suood told Minivan News after discussing the new regulations with fellow lawyers today.

In order to practice law in the Maldives, the new regulations state that an individuals must be a Maldivian citizen, married to a Maldivian, or reside in the Maldives, must be 18 years old, and must be of sound mind.

Prospective lawyers must not hold convictions for any hadd offences, for criminal breach of trust, or for rape. If an individual has been convicted of any other offences, seven years must have passed since the sentence was completed or pardoned.

Suood took issue with the regulation’s failure to define what the ‘other’ offences consisted of, particularly in light of the recent spate of contempt of courts cases.

“It’s very scary with the contempt issue – they can fine us or make an order for house arrest of 15-30 days. If we are unable to actually practice for seven years onward, that’s too much actually.”

A bill to regulate the legal profession is included in the government’s 207-bill legislative agenda, to be pursued during the current administration’s five year term.

In the absence of a law governing the legal profession when the new constitution was adopted in August 2008, parliament passed a General Regulations Act – recently renewed – as parent legislation for over 80 regulations without a statutory basis, including the regulation governing lawyers.

Appropriate regulator?

A 2013 report by UN Special Rapporteur for the Independence of Judges and Lawyers Gabriela Knaul argued that the AG’s role in the regulation of the legal profession was “contrary to the basic principles on the role of lawyers”.

Powers to issue licenses to practice laws as well as enforce disciplinary measures should not rest with the executive, Knaul advised.

Moreover, Knaul recommended that a “self-regulating independent bar association or council should be urgently established to oversee the process of admitting candidates to the legal profession, provide for a uniform code of ethics and conduct, and enforce disciplinary measures, including disbarment.”

Local lawyer Mohamed Shafaz Wajeeh told Minivan News today that, for the time being, the AG’s Office was the most appropriate body to be regulating the industry.

“We already have a legislation in the pipeline with considerable involvement from the Bar Association. I hope the bill is passed soon,” said Shafaz.

The Supreme Court’s attempts to regulate the legal profession in 2012 prompted an emergency meeting of the country’s top lawyers – prior to the formation of the Bar Association in April 2013.

The court’s regulations required all lawyers to be registered with individual courts before they could represent their clients there. Open criticism of the courts was also proscribed.

Suood today suggested that the AG’s regulations now created “two parallel systems” which “contradict with each other”.

“I think that the new regulations should have included the Supreme Court regulations because one issue we face day-in and day-out is that if there is an action administrative action taken by the court, for instance contempt of court issue and they take disciplinary action, we are unable to challenge those administrative actions.”

The Bar Association earlier this week called for the suspension of Supreme Court Judge Ali Hameed pending an investigation into allegations over the judge’s appearance in a series of sex tapes.

The group’s statement came just days after the suspension of its president, former Attorney General Husnu Suood, had been lifted by the court on the condition he refrain from engaging in any act that may undermine the courts.

Suood was told his January suspension was related to an allegedly contemptuous tweet regarding the Supreme Court’s decision to annul the first round of last year’s presidential election.

Charges of contempt were also used by the Supreme Court to dismiss senior members of the Elections Commission just two weeks before last month’s Majlis elections.


Parliament extends Generals Regulations Act

Parliament has approved an extension to the General Regulations Act for a further one-year period.

The General Regulations Act was passed in late 2008 as a parent legislation for over 80 regulations without a statutory basis when the new constitution was adopted.

Article 271 of the constitution states, “Regulations derive their authority from laws passed by the People’s Majlis pursuant to which they are enacted and are enforceable pursuant to such lawful authority.”

The parent act prolonged the lifespan of the regulations – which did not derive authority from an act of parliament – until new legislation such as a Criminal Procedures Act and Evidence Act could be passed.

Parliament has since been periodically extending the General Regulations Act with a further extension of one year approved today with unanimous consent.

The 42 regulations (Dhivehi) in the law includes rules governing trial procedures, criminal and civil justice procedures, defamation cases, the insurance industry, finance leasing transactions, ports, telecommunications, business registration, operation of clinics, issuance of national identity cards, medicine, importation of animals and birds, and desalination.

Regulations governing the parole programme as well as prisons were omitted from the law following the enactment of the Jails and Parole Act this year.

A bill on the legal profession is meanwhile in the government’s legislative agenda (Dhivehi), to be submitted during the second session of the People’s Majlis for 2014.


Bar Association expresses concern with AG office ceasing issuance of law licences

The Bar Association of Maldives has expressed concern with the Attorney General’s (AG) office indefinitely suspending issuance of licenses to practice law in December last year.

In a press statement today, the Bar Association noted that a number of newly graduated lawyers have since been awaiting licenses from the AG office.

The new graduates were “facing financial and professional losses” as a result of the delay, the Bar Association stated.

The AG office announced on December 17 that it was ceasing the issuance of licenses pending amendments to regulations governing the legal profession.

The office would resume issuing licenses once the amended regulations take effect, the announcement stated.

An official from the AG office told Minivan News today that the amendment or review process was still ongoing, adding that it was difficult to estimate a time for completion.

The Bar Association stated in its press release that it accepted that the regulations were “in need of reform”.

“And this association believes that the solution to this would be the submission of the legal profession bill to the People’s Majlis and its passage into law as soon as possible,” the statement read.

Pending the enactment of a law governing the legal profession, the Bar Association recommended that the AG office resume issuing licenses after amending the regulations in accordance with the draft legislation on the legal profession.

The draft legislation was formulated by the association and shared with the AG office.

Legal lacuna

A bill on the legal profession is included in the government’s legislative agenda (Dhivehi), to be submitted during the second session of the People’s Majlis for 2014.

In the absence of a law governing the legal profession when the new constitution was adopted in August 2008, parliament passed a General Regulations Act as parent legislation for over 80 regulations without a statutory basis, including the regulation governing lawyers.

Article 271 of the constitution states, “Regulations derive their authority from laws passed by the People’s Majlis pursuant to which they are enacted and are enforceable pursuant to such lawful authority. Any regulations requiring compliance by citizens must only be enacted pursuant to authority granted by a law enacted by the People’s Majlis.”

The parent act prolonged the lifespan of the regulations – which did not derive authority from an act of parliament – until new legislation could be passed. Parliament has since been extending the regulations for one year periods.

The last extension was approved in April 2013 with the next extension due in the coming weeks.

Meanwhile, in a comprehensive report on the Maldivian justice system released in May 2013, UN Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, expressed concern “about the absence of an independent self-regulating bar association or council that oversees the process of admitting candidates to the legal profession, provides for a uniform code of ethics and conduct, and enforces disciplinary measures, including disbarment.”

The AG office being the authority who regulated the legal profession was “contrary to the basic principles on the role of lawyers,” she wrote.

Powers to issue licenses to practice laws as well as enforce disciplinary measures should not rest with the executive, Knaul advised.

She recommended that parliament “should pass comprehensive supporting legislation for the legal profession,” which should be drafted following “comprehensive and substantive consultations with lawyers and should be in line with international principles.”

“The Special Rapporteur believes that the current draft bill on the legal profession needs a lot of revision as it centres on the creation of a Bar Council and neglects other necessary aspects, such as examination procedures to get a licence to practice and continuing education and training,” read the recommendations.

Moreover, Knaul recommended that a “self-regulating independent bar association or council should be urgently established to oversee the process of admitting candidates to the legal profession, provide for a uniform code of ethics and conduct, and enforce disciplinary measures, including disbarment.”

“The Bar Association should, as a matter of priority and in accordance with international standards and norms, develop a code of ethics applicable to all lawyers, which it should vigorously and coherently implement and enforce.”


A justice system in crisis: UN Special Rapporteur’s report

UN Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, has expressed “deep concern” over the failure of the judicial system to address “serious violations of human rights” during the Maldives’ 30 year dictatorship, warning of “more instability and unrest” should this continue to be neglected.

“It is indeed difficult to understand why one former President is being tried for an act he took outside of his prerogative, while another has not had to answer for any of the alleged human rights violations documented over the years,” wrote Knaul, in her final report to the UN Human Rights Council following her Maldives mission in February 2013.

The report is a comprehensive overview of the state of the Maldivian judiciary and its watchdog body, the Judicial Services Commission (JSC). Knaul examines the judiciary’s handling of the trial of former President Nasheed, the controversial reappointment of unqualified judges in 2010, and the politicisation of the JSC.

Knaul also examines parliament’s failure to pass critical pieces of legislation needed for the proper functioning of the judiciary and “legal certainty”, as well as raises serious concerns about an impending budget catastrophe facing the judicial system.

“The immediate implications of the budget cuts on the judiciary are appalling. For instance, the Department of Judicial Administration only has funds to pay staff salaries until November 2013 and it had to cancel training this year,” Knaul notes.

“The Civil Court reported that it would not have sufficient funds to pay its staff salaries after October 2013; furthermore, existing budgetary resources would not be sufficient to pay for utilities and facilities after June 2013,” she adds.

The Nasheed trial

Former President Mohamed Nasheed is currently facing criminal charges in the Hulhumale’ Magistrate Court for his detention of the Criminal Court’s Chief Judge, Abdulla Mohamed, days prior to the controversial transfer of power in February 2012.

“Judge Abdulla had allegedly shielded a number of powerful politicians in corruption cases by refusing to issue orders to investigate, and many complaints had been made regarding his conduct and supposed lack of ethics,” Knaul outlined.

“The Judicial Service Commission had completed an investigation on him in November 2011, holding him guilty of misconduct. This decision was appealed to the Civil Court, which ordered that the Judicial Service Commission’s complaint procedure be suspended.

“Although the Commission appealed the Civil Court’s ruling, Judge Abdulla was allowed to continue in his functions,” she added.

The opposition Maldivian Democratic Party (MDP) maintain the case against Nasheed is a politically-motivated attempt to convict and bar him from the September 7 presidential elections, while the new government has emphasised the judiciary’s independence and insisted on its policy of non-interference.

Following Knaul’s visit and her departure statement, several members of the JSC have also challenged the commission’s creation of the Hulhumale’ Court, and its appointment of the bench. The commission includes several of Nasheed’s direct political rivals, including a rival presidential candidate, resort tycoon, Jumhoree Party (JP) Leader and MP Gasim Ibrahim.

“The trial of the former President raises serious concerns regarding the fairness of proceedings,” Knaul notes, questioning the constitutionality of the Hulhumale’ Court and the appointment of the three-member panel of judges, “which seems to have been set up in an arbitrary manner, without following procedures set by law.”

“According to the law, the Prosecutor General’s office should have filed the case of Mr Nasheed with the Criminal Court. While the concerns of the Prosecutor General’s office regarding the evident conflict of interests in this case are understandable, since Judge Abdulla sits in this court, it is not for the Prosecutor to decide if a judge is impartial or not,” stated Knaul.

“The Prosecutor should act according to the law when filing a case, as it is the duty of judges to recuse themselves if they cannot be impartial in a particular case,” she explained.

“All allegations of unfair trial and lack of due process in Mr Nasheed’s case need to be promptly investigated, including the claims that the trial is being sped up to prevent Mr Nasheed’s participation in the 2013 elections,” she added.

Knaul noted a decision by the Supreme Court to declare the Hulhumale’ Magistrate Court as legitimate after the Commission filed a case with it in 2012.

“The Special Rapporteur was informed that the judge of the Supreme Court who cast the deciding vote in this case also sits as a member of the Judicial Services Commission, whose decision to establish the Hulhumalé court as a magistrates court was under review,” the report noted.

Politicisation of the JSC

Knaul observed that the JSC had a “complicated” relationship with the judiciary, given that the commission “considers that it has exclusive jurisdiction over all complaints against judges, including over criminal allegations, while the Prosecutor General understands that the criminal investigation agencies have the competence to investigate criminal conducts by anyone.”

Knaul underlined that “judges and magistrates, as well as other actors of the justice system, are criminally accountable for their actions. Criminal actions entail consequences and penalties that are different from those resulting from disciplinary or administrative investigations.”

The special rapporteur stated that there was near unanimous consensus during her visit that the composition of the JSC – which draws members from sources outside the judiciary, such as parliament, the civil service commission and others – was “inadequate and politicised”. This complaint was first highlighted in a report by the International Committee of Jurists (ICJ) in 2010.

“Because of this politicisation, the commission has allegedly been subjected to all sorts of external influence and has consequently been unable to function properly,” said Knaul.

State of the courts

Conflicts of interest and the resulting impact on judges’ impartiality was also a concern, noted Knaul.

“It seems that judges, and other actors of the State, do not want to fully acknowledge and understand this concept, leading to the dangerous perception from the public that the justice system is politicised and even corrupted,” she said.

Knaul also expressed “shock to hear that many members of the judiciary, including in the Supreme Court, hold memberships in political parties.”

The Supreme Court, she noted, has meanwhile been “deciding on the constitutionality of laws ex-officio, without following appropriate examination procedures, under the understanding that they are the supreme authority for the interpretation of the Constitution.”

The relationship between prosecutors and the judiciary was also difficult, Knaul noted, expressing “serious concern” that some courts “use the threat of contempt of court and disbarment to impose their decisions and superiority over prosecutors.”

“The lack of a centralised case-management system does not facilitate their tasks either. In some places, such as Addu City, one prosecutor covers four courts and is often called to different hearings at the same time,” she observed.

“Symbolic” reappointment of judges

Two months prior to the end of the constitution’s transitional period and the deadline for the appointment of new judges according to moral and professional criteria – article 285 – the interim Supreme Court informed President Nasheed “that all its members would permanently remain on the bench.”

This action, Knaul noted, had “no legal or constitutional basis.”

“The five judges who had been sitting on the transitional bench were appointed to the seven-member permanent bench, leaving many with the perception that the Supreme Court was appointed in a politicised manner,” she noted.

The rest of the courts followed suit several months later at the conclusion of the interim period, with the Commission “opting for interpreting article 285 of the Constitution in a rather symbolic way and [not scrutinising] judges’ qualifications thoroughly.”

“For instance,” Knaul noted, “not all criminal allegations pending against judges were investigated. This resulted in a seemingly rushed reappointment of all sitting judges but six, which in the opinion of many interlocutors corrupted the spirit of the constitutional transitional provision.”

While the 2008 Constitution had “completely overturned the structure of the judiciary”, at the conclusion of the JSC’s work on article 285, “the same people who were in place and in charge, conditioned under a system of patronage, remained in their positions.”

As a result, “many believe that some judges who are currently sitting lack the proper education and training […] A simple judicial certificate, obtained through part-time studies, is the only educational requirement to become a judge.”

Way forward

Knaul’s report contains four pages of recommendations for judicial reform, starting with a “constitutional review” of the composition of the Judicial Services Commission – the same conclusion reached by the ICJ in 2010.

“The Maldives finds itself at a difficult crossroad, where the democratic transition is being tested, while remnants of its authoritarian past are still hovering,” Knaul observed, stating that the power struggle she witnessed during her visit had “serious implications on the effective realisation of the rule of law in the Maldives.”

Among many other recommendations, Knaul called on the government to show “strong and nonpartisan leadership”, by pushing for “constructive dialogue aimed at establishing clear priorities for the country, the adoption of necessary core legislation, and policy measures to consolidate the democracy. Such leadership should be guided by the Maldives’ obligations under international human rights law, which provide for a sound and sustainable foundation for democracy.”

She also noted that “the delicate issue of accountability for past human rights violations also needs to be addressed.”

Read the full report


Maldives Bar Association established

The Maldives Bar Association is being established to build legal capacity, lobby, and address problems faced by lawyers in the judiciary, reports local media.

The association will also aim to improve the educational standard of lawyers as well as hold problem solving discussions.

The association was founded by Attorney General Husnu Al Suood, Lawyer Ismail Wisham, Company Registrar of Economic Ministry Ali Shujau, Fayaz Ismail and Aishath Sheeza, according to local media.

It was registered with the Ministry of Home affairs April 11.


MP Nasheed alleges criminal activities in legal profession

Kulhudhuffushi-dhekunu MP Mohamed Nasheed has criticised his fellow lawyers on his personal blog, alleging that they assist criminals in covering up crimes, work closely with gangs, and intimidate witnesses, reports local media.

A recent report by the Asia Foundation highlighted the strong links between politicians, businessmen and Male’s numerous gangs.

“Due to lawyers’ influence, people often refuse to provide statements, or wish to revise previous statements, or say that they do not wish to provide statements, or travel abroad to avoid the Court process,” he wrote.

Nasheed argued that recording conversations between lawyers and clients could alleviate some of these problems.

“I am not a criminal defence lawyer. However, when the sunset bill was made, I listened to senior members of relevant state institutions discuss ways to address the challenges faced due to crime in the society,” said Nasheed.

“One and a half years later, they are still discussing the same thing. This article was based on the information obtained from them,” he added.