Judges sought for magistrates courts in 49 islands

Judges are being sought to oversee magistrates courts in 49 islands, the Judicial Service Commission (JSC) has announced.

The JSC has said it is searching for chief magistrates for 41 courts and magistrates for 8 courts. The deadline for submitting an application is February 14, 2013.


Budgetary constraints temporarily halt efforts to bring in foreign experts for CoNI report review

Efforts to bring in two international legal experts to review the Commission of National Inquiry (CoNI) report have been put on hold due to budgetary constraints, local media has reported.

The parliament’s Government Accountability Committee had attempted to seek the legal experts in order to look into the report of the controversial transfer of power in February 2012.

Parliament Secretary General Ahmed Mohamed was quoted as saying that there were no funds available to the committee in order to bring in the foreign experts.

The committee had earlier chosen a legal expert from Denmark’s Copenhagen university and two lawyers to review the report, who were scheduled to start on Friday and work for seven days, local media said.

Maldivian Democratic Party MP Ali Waheed said that the committee will make a decision and set a date based on “what is decided by the Parliament Speaker on the budgetary issues”.

Parliament Speaker Abdulla Shahid is currently abroad and is expected to return next week, according to local media.


Legal wrangling begins over MDP camp seizure

The seizure and dismantling of the Maldivian Democratic Party’s (MDP) camp in the south-east coast of the capital by security forces has sparked debates over the legality of their actions.

The camp, often referred to as “Justice Square” at Lonuziyaaraiy Kolhu had served as the base for MDP protests since the resignation of former President Mohamed Nasheed in February.

During a press conference at Iskandar Koshi last night, Police Superintendant (SP)Ahmed Mohamed noted that the “operation [at the camp] was executed with regard to complaints received that major illegal activities were taking place”.

Following the raid, police displayed a case of beer cans and a barrel of home brewed alcohol – reportedly seized from the camp – to local media.

The SP also cited constitutional obligations which include the maintenance of law and order in the face of criminal activities as a reason for the dismantling of the camp.

“The violence in Male’ was also linked to the protesters who started the demonstrations from the Lonuziyaaraai area,” Mohamed alleged.

MDP’s response

Meanwhile, the MDP has denied all allegations about the camp and filed a civil suit against the Maldives National Defence Force (MNDF) and the Maldives Police Service (MPS) arguing that the security forces had acted unconstitutionally on a number of counts when dismantling the party’s camp.

In the first hearing of the case last night, the Attorney General’s (AG) Office justified the raid.  She argued that the raid was executed without a court order, on the grounds of suspected criminal activity in the camp, according to the head of the MDP’s legal team, Hissan Hussian, in an interview with Minivan News today.

According to the AG’s office, the suspected illegal activities negate any need for a court ordered warrant.

Hisan explained that the MDP’s defence calls on Article 19 of the constitution, amongst others.  These articles provide freedom from restraint in any activities unless the activities’ restraint is expressly authorized by law.

Should the veracity of the police’s suspicions be supported, they could provide the legal cover necessary to nullify this aspect of the MDP’s argument.

Additionally, the apparent discovery of alcohol at the camp yesterday may jeopardise the MDP’s defense under Article 19 which does not guarantee protection of any activities prohibited under Shari’ah.

The finding of alcohol has been questioned by the MDP, which has argued that a media blackout immediately following the military occupation gave time for such evidence to be planted.

Hissan claimed that basic rights to private property had been infringed due to the actions of security forces.

MDP spokesman Hamid Abdul Ghafoor meanwhile has complained that property belonging to the party members were seized during the raid and “nothing has been returned”.

“They [police] have even eaten the food [at the camp].” Ghafoor alleged.

Police however have stated that all property owned will be returned to the rightful owners and that officers “had not inflicted any damage to any item confiscated from the area.”

The other “reasonable limits” to which the constitution’s basic freedoms are subject to will no doubt form a major part of the next hearing which is scheduled for Wednesday at 4pm.

Ownership debate

Should the MDP’s constitutional arguments prevail, it is likely that they will still have to overcome the issues of jurisdiction regarding the camp area.

Attorney General Azima Shukoor was reported as having told local media yesterday that the area around the tsunami monument belonged to the Maldives National Defence Force, invalidating any deals made between the MDP and the Maldives City Council (MCC).

This argument has been used before by the Defense Ministry who have argued that 3,800 square metres of the south-eastern corner of Male’ were granted to the MNDF in 1997 owing to its strategic significance. State Minister Muizz Adnan confirmed to Haveeru on March 14 that this was the case.

This claim is disputed by Hissan who felt this agreement was superseded by the 2010 Decentralisation Act, under which the land was transferred to the MCC. The land was then leased to the MDP, with the lease running until the end of July.

This view has been corroborated by Mayor of Male City, Ali Manik, who also told Haveeru that the council had not been informed of the security forces’ intentions.

The Attorney General’s Office explained during the court hearing on Monday night that the reason a court order was not required was because the space was a public one.  Attorney General Shukoor referred Minivan News to the police for further comment on the issue.

Hassan Latheef of the MDP’s legal team doubts that this argument is “watertight”.

“Ninety-five percent of Male’ belongs to the state, so this is a questionable policy. There should be a warrant. One should not go into private property,” said Latheef.

Controversy over the area’s use has been building for some time. The decision to extend the MDP’s use of the area until the end of July was contested, with Council member Ibrahim Shujau in particular feeling that it was unfair that one group monopolise a public space for such a length of time.

Local media recently alleged that the MCC had denied a medical emergency helicopter from using the area’s helipad.

Similarly, there have been reports of complaints being made regarding the noise created by the camp and the disturbances caused to local residents.


Commonwealth to provide technical assistance to help resolve Maldives’ judicial crisis

The Commonwealth will provide technical expertise to the Maldives to help resolve the ongoing judicial crisis in the Maldives, the Ministry of Foreign Affairs has stated.

High Commissioner of the Maldives to the UK, Dr Farahanaz Faizal, met with Deputy Secretary-General of the Commonwealth Mmasekgoa Masire-Mwamba this week and raised “the urgent need to modernise the Judiciary to international standards and possible Commonwealth assistance in this regard.”

The crisis was sparked on January 16 when the government ordered the military to detain Chief Judge of the Criminal Court, Abdulla Mohamed, after he filed a High Court injunction against his police summons.

Allegations against the judge dating back to 2005 include misogyny, sexual deviancy, throwing out an assault case despite the confession of the accused, political bias, obstruction of police duty, disregarding decisions of high courts, 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, maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes, and releasing a murder suspect “in the name of holding ministers accountable” who went on to kill another victim.

In one instance Abdulla Mohamed was accused of requesting that two underage victims of sexual assault act out their attack in court, in front of the perpetrator.

The judge had previously been under investigation by the Judicial Services Commission (JSC), but had successfully sought an injunction from the Civil Court against his further investigation by the judicial watchdog.

The JSC itself has itself been accused of perjury, embezzlement and corruption – by one of its own members.

The ongoing detention of the judge has polarised public opinion in the Maldives and resulted in several weeks of opposition-led protests consisting of between 200-400 people, some of them resulting in violence and injuries to police, protesters and journalists.

Judge was “clearly demonstrating his independence”: ICJ Australia

Earlier this week ABC Radio in Australia aired an interview with John Dowd, President of the Australian branch of the International Commission of Jurists (ICJ), who stated that Judge Abdulla Mohamed had “clearly been demonstrating independence as he’s supposed to do and the government doesn’t like it.”

None of the government’s allegations against the judge warranted his arrest, Dowd argued, “and it’s clear that the must be immediately released. This will do serious damage to the Maldives internationally and their tourist industry is a big part of their income and they just can’t allow this to go on.”

The Maldivian judiciary, Dowd claimed, was “generally competent”.

“It’s not a legally focused country. They’ve had a change of government after some 30 odd years and there’s obviously a settling down period and they do need assistance in terms of bringing their legal system up to date. But nonetheless, there is nothing wrong with the way the judges carry out their duties and it’s just a classic situation of a government not liking someone’s decision.

“It’s got a funny legal system in that there are aspects of Sharia law in it and British Commonwealth law and so on. But I would have thought that the Commonwealth Secretariat could have arranged some judges or someone that could go in there to mediate, and the Commonwealth is the more likely basis for resolving the issue. It really is very difficult for outsiders to intervene and I don’t think the UN is the correct body,” Dowd told the ABC.

Maldives Foreign Minister Ahmed Naseem responded to the criticism on ABC Radio the following day.

The government, he said, did not want to keep Abdulla Mohamed under arrest, but did not want him sitting on the bench until the charges against him were cleared – “but the point here is that we are in a Catch-22 situation – which court do we go to?

“Existing judges swore themselves in unilaterally without looking into the relevant clauses of the constitution, which says that they have to be sworn in according to the new constitution.

“Now, this new constitution strictly stipulates that these judges should have qualification to act as judges. The present judges that we have don’t have these qualifications.

“There are quite a lot of people whose interests are vested with these judges. That is, there are politicians connected to the former regime, who have many court cases. Now all these court cases are being held by the judge who is under detention at the moment. No cases have been conducted on this and no sentence has been passed. So it’s in the interests of the opposition to see that this judge remains as a judge.”

The country’s “entire judiciary is at stake”, Naseem argued. “What democracy can we have, when we don’t have a proper judicial system and we can’t dispense justice properly? The democracies of the world should really help us and find ways of sorting this issue out. We have requested UN bodies to help us in this and they’ve promised to send us some people to sit down with us and work something through.”

Criminal Court letter

Meanwhile, a group of Criminal Court judges this week sent a letter to Chief Justice of the Supreme Court, Ahmed Faiz, contending that the Supreme Court had as much responsibility for the crisis as President Mohamed Nasheed.

Ensuring an independent judiciary as envisioned in the new constitution adopted in August 7, 2008 was “a legal as well as national duty” of the Supreme Court, the judges noted, adding that it was “regrettable” that the Criminal Court’s functions have not been developed in line with the changes to the criminal justice system.

Among the main points raised in the letter included the Supreme Court abolishing an article in the Judicature Act – “without any discussions with anyone” – that stipulated the formation of judicial councils, intended to represent all courts and provide advice and counsel.

The Supreme Court also took over a case filed at the Civil Court challenging the legality and validity of the JSC’s process for vetting candidates to the High Court “in the name of public interest litigation” and dismissed the case without issuing a verdict.

Moreover, the letter stated, the Chief Justice “turned a deaf ear” to numerous complaints from the public as well as judges and took no action regarding Chief Judge Abdulla Mohamed.

The judges also criticised the Supreme Court for not undertaking efforts towards dialogue with the government or President Nasheed to resolve the current crisis, calling on the Chief Justice to bring both sides to the negotiating table.

The letter took note of inconsistent standards and rulings made by different judges of the Criminal Court regarding extension of detention and evaluating evidence as well as the release of suspects detained for serious crimes, and referred to a list of “urgently needed” reforms previously recommended to the Supreme Court.


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.


Comment: Building a modern justice system that is right for the Maldives

As we see in the stories carried daily in this newspaper, Maldives is deep into the difficult business of building a strong and democratic society. There is often an understandable impatience about the time it takes to see the fruits of democracy, but when you compare to other countries that have had to do the same thing, you realise that the Maldives is trying to achieve in a few years what others have taken decades or centuries to do.

This is possible, but the key to success continues to be mobilising everybody around issues that are in the national interest. This is particularly true in the area of justice, which is the foundation of all democratic societies and the development of any nation. Developing a strong and independent justice system needs a concerted effort from all three branches of government, and civil society.

Change in the Maldives has brought its own anxieties, and society is particularly concerned about increasing levels of crime. This lends new impetus to the reform of the Criminal Justice System.

A reliable and operational criminal justice delivery system is needed to sustain democracy and the rule of law, strengthen new democratic institutions, and protect security, economic development and foreign investment, based on the firmest of foundations of justice and human rights. Establishing a robust criminal justice system is a very complex, long and difficult exercise, requiring work across many areas.

A vital step, however, is ensuring that the legislative foundation is put in place as soon as possible. Of priority, therefore, is enactment of criminal reform legislation, particularly the Penal Code, Criminal Procedure Code (CrPC), Evidence Bill, and the Juvenile Justice Bill.

A solid and modern Penal Code gives consistency to legal systems and makes criminal law more understandable and transparent to people. The Penal Code defines the general principles of criminal responsibility, classifying crimes and their penalties. If there is a proper Penal Code, it is much less necessary to draft legislation defining every crime or procedure. The Criminal Procedure Code will define procedures in criminal matters, which then provide transparency and accountability.

Another important piece of legislation is the Juvenile Justice Bill. Statistics on crime demonstrate that children under 18 and youth are involved in a lot of the cases of violent crimes. However, currently there are no strategic crime prevention programmes or rehabilitation programmes specifically targeting juvenile offenders.

In addition, there is no detention facility that caters for juvenile offenders, and there are no separate spaces for juvenile offenders to be incarcerated. In light of the emerging challenges and the increase in juvenile crime, the current law does not adequately cover rights of children or address the need for proper treatment of children in conflict with the law to rehabilitate them back in to society.

Until August 2008, Maldives’ criminal justice depended heavily on confessions. However with Constitutional reform, we are moving from a confession based to an evidence-based system, which is in line with international standards. It is therefore vital that we have an Evidence legislation that is in line with the new Constitutional reform and best practice.

Strong and functioning criminal justice systems certainly depend on a solid foundation of law, and effective courts, police, prosecutors, prisons and other institutions and actors. But it is equally important that public confidence in the system is high – to know that criminal conduct will be investigated and prosecuted in accordance with the rule of law, that the streets will be safe, that rehabilitation of offenders is possible, that human rights will be protected. Public confidence is served by knowledge and certainty. This demands the process of investigation and prosecution to be independent of political pressure, that it is transparent and follows a process that is fair and just.

We have already seen this year that pressure to ‘do something’ about crime, combined with a lack of the legal and institutional foundations discussed in this Opinion Editorial, can lead to a tendency to find reactive short-term solutions to complex problems, and even violate human rights.

The Maldives, instead, needs a proper criminal legislative framework as a matter of urgency. A real opportunity is now before the Majlis, supported by the justice system and the Government, to deliver a unanimous and thorough response to crime. It is possible to pass these key pieces of legislation in this session of the Majlis.

Technical support is available, if it is needed, from the UN and others, but above all, it is now a matter of political will to take this important step, in the national interest, to finalise and pass these key legislations. I urge MPs of all parties to pass these Bills as a matter of priority, resolve areas of disagreement constructively, and present the Bills to the Majlis for passage.

Andrew Cox is the Resident Coordinator of the United Nations System in the Maldives.

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]


Comment: How a democracy was derailed

Republished with permission from the report by Aishath Velezinee titled ‘Democracy Derailed: The unconstitutional annulment of Article 285; and its’ consequences for democratic government in the Maldives.’ Full version, with footnotes, can be downloaded here (English).

The Maldives is a long-time constitutional autocracy used to a President with all the powers of the State.
The President – signified in persona by former President Maumoon Abdul Gayoom who held the title the past 30 years – was a President who could, and often would, allot land for service, provide medical assistance and scholarship to the worthy, and could hand out jobs with titles and benefits to fit the social status of those hand-picked.
The President also policed the streets, undertook investigations, administered justice, interpreted law, set standards of “jurisprudence”, and held the final word and verdict as the last resort of appeal, the Supreme Justice, where the Courts failed.
Those who fell afoul of the regime were restrained for public order, and those who gained favour were blessed by the good government of the day. The stress was on homogeneity, a people of one language, one religion, one ideology, one voice and one mind.
The peaceful transition to separation of powers and constitutional democracy on August 07, 2008, then, is already situated in this socio-cultural and political context.
On the dawn of August 08, 2008, little of the political realities of a 30-year regime changed. With no interim caretaker arrangement, President Gayoom continued in office until elections; even then choosing to contest, running for his 7th five-year term, with the interim Supreme Court decision that the two-term limit on presidents did not apply to President Gayoom for he is a first time contender under the “new” Constitution.
The manifest change then, to the lay observer, as well as media and the public, is the change of a President in three decades, when President Mohamed Nasheed won the 2008 elections and took office on 11 November 2008.
Today, neither the media and general public, nor the politicians, appear to quite understand that all powers are not vested in the President once a State adopts separation of powers.
The role of the Parliament in government, the role of the Judiciary to promote democracy and ensure good government, the role of the Civil Service to be loyal to the government of the day and implement policy, the differential roles of independent bodies and their positions as powerful and trusted accountability agencies to hold together the constitutional democracy is overshadowed by politics.
The Judicial Services Commission

Ignored by the media and citizen as outside the main political arena, is the Judicial Service Commission (JSC); with the constitutional mandate to establish an independent judiciary in the first two-years of the Constitution, to protect independence of judges, and to promote public confidence in the judicial system.
An offspring of the former Ministry of Justice, the JSC was set up by MP Ahmed Zahir, a former Minister of Justice, and the first Chairperson of the JSC.
Staff of the abolished Ministry of Justice took the lead positions, bringing in their personal connections to judges developed over years of daily dealings when the Ministers of Justice provided administrative support, legal advice, as well as guidance on verdicts in some cases before the Courts.
Thus, self-interpreted as the Guardian of the Judiciary with a duty to protect the judges, the JSC rejects Rule of Law, Accountability and Transparency as “threats to judicial independence”.
JSC’s approach is to defend judges, deny complaints, interrogate complainants, ensure financial security and other benefits to judges, and to provide bodyguards and protection of the police to judges when public discontent against a judge becomes serious; leading to impunity amongst judges, not all, but the few whose names come up serially.
Few amongst the general public, or media, understand the critical position of the Judicial Service Commission in institutionalising democratic government, or its constitutional powers, duties and obligations; or its unique role in its first term of office.
Those who do understand either confuse the public more with their “polititalk” or remain silent, for they have far more to lose than gain of an Independent Judiciary.
The Parliament majority being those who administered the judges, and the justice system of yesterday, have shown no interest in checking JSC.
Worse still, is that the judges themselves are miseducated into the notion that independence of judges equals non-interference by the President. With this, the “leaders” of the judiciary adopted for themselves the role of the former Minister of Justice; and the Judges Association became a tool, used strategically, to confuse the public, and judges themselves.
The Interim Supreme Court took on “parental responsibilities”, miseducating of judges, putting out self-interested rulings, amending laws to reorganize the judiciary, and strengthening their hold on the judiciary as a whole, by usurping powers and taking control, of the JSC, denying an independent check on the judiciary.
Insulated behind closed doors, inadmissible to anyone but those ten members privileged under Article 158 of the Constitution, the JSC does what it wills, without check or penalty.
JSC’s resistance to change, denial of democracy, and breach of trust – the irresponsibility, irrationality, and self-interest of its members, and their refusal to uphold Constitutional duties and obligations – and, downright treachery in dismissing Article 285 as ‘symbolic’ is the greatest challenge to the Constitution (2008), Rule of Law and democratic government in the Maldives.
Why Article 285?

Article 285, is, in my informed opinion based on privileged access to restricted records on the judges database as well as records on their official files, and discussions with those few judges I have had the honour to meet, the backbone of
democratic government in the Maldives.
The drafters of the Constitution, many of whom now sit in Parliament (Majlis) including Speaker Abdulla Shahid and MP
Dr Afraasheem Ali – who are also ex-officio members of the JSC – shared the same vision, at least at the time of Constitution drafting.
It is a pragmatic clause, a necessity when one considers the Judiciary is often the weakest link in “new democracies” (UN, 2000); and an obligation when one considers the realities of the Maldives’ Administration of Justice under the
previous Constitution (1998); and the vast difference it had to the Independent Judiciary the Constitution (2008) envision to achieve in fifteen years, by 2023.
The judges appointed prior to 7 August 2008, were appointed by the Minister of Justice, some hand-picked on to the bench as pay-off for their various political contributions or some other service.
They all have a Certificate in Justice Studies (or similar title, of a duration of six months to two years), awarded on completion of a tailor-made crash course offered upon the adoption of the Constitution (1998).
Not all sitting judges have a formal education of any substance, nor are they fluent in a second language, and little opportunity for knowledge improvement or professional development was provided.
It was not necessary as all decisions could be guided by the legal teams at the Ministry of Justice. Only about 40 among about 200 sitting judges are graduates.
Of the 40 graduates not all hold an LLB – some have degrees in Sharia’ or in another subject, acquired from an Arab university.
The “ruling” of current Chair Adam Mohamed Abdulla being that all Arab Universities include Sharia’ as a mandatory subject in all programmes qualifying all graduates from Egypt, Yemen and Saudi Arabia to the bench.
Competency of a judge was decided based simply upon a judges’ physical health, ie. his ability to come into Court.
As for impunity and misconduct, records show judges have rarely received more than an administrative caution by the Minister of Justice for such serious crimes as breach of trust and abuse of power and negligence, as well as serious sexual offences, possession of pornography etc.
Most of the complaints lodged with the Ministry of Justice by members of the Public remain unattendedxiii in the judges’ personal files and include not only misconduct, but serious allegations of a criminal nature such as repeated sexual offences against minors.
The public has tales of islands where few women dare go to claim child support for fear of Magistrates who expect sexual favours in return, of islands where Magistrates dictate personal edict in place of law etc.
Whilst none of these public complaints were addressed, what was taken seriously, records show, was disobedience in refusals to follow orders of the Ministry of Justice. As long as the directives of the Minister of Justice were followed the judges had absolute powers to act with impunity if they so deemed. Some often did so.
A few had returned to the bench after serving criminal sentences, and some had continued on the bench with no penalty despite having been found guilty of dishonesty.
Article 285 placed upon JSC the duty and obligation to assess every sitting judge appointed prior the Constitution (2008) coming into force, to confirm whether or not they possess all the qualifications of a judge as required under Article 285.
The purpose, from a rights-based approach, is two-fold: first, to assure the public that all judges are qualified and worthy of their high office on the bench, and are thus capable of building and maintaining public confidence and trust in the judiciary; and second, to provide judges with the necessary knowledge, capacity and most important of all, confidence to work in independence.
The sitting judges recruited for the Administration of Justice, having had no orientation on the newly introduced doctrine of governance, Article 285 was a personal affront as evident from three statements issued by the Judges Association.
That Article 285 is an obligation to the people, and not an offence to judges, who after all were quite qualified to preside over trials where the Ministry of Justice [or later the Courts in Male’ could guide and direct cases, and provide support to judges, was never explained.
Instead, it became a tool for the self-acclaimed leaders of the judiciary to be used in fear-mongering and controlling the
Power Play and Politics

Interim Supreme Court Justice Abdulla Saeed who, as head of the Interim Supreme Court, declared himself the Chief Justice and the interim bench as the Supreme Court in the days running up to the end of the two-year interim term, did not see it as his duty to correct the judges’ misconception, but rather was actively engaged in miseducating judges, creating strife, and causing discord between the administration of President Nasheed and the Judiciary.
In the name of developing judges for the new Constitution and upgrading them to meet the educational standards required, Justice Abdulla Saeed brought to Male’ batches of Magistrates from the islands, using them as tools, and breaching the innocent trust they placed in Justice Abdulla Saeed as the Godfather of the Judiciary.
Dr Afraasheem Ali (MP) who chaired the JSC Committee to develop an on-the-job training plan for those judges who meet all other requirements, decided to have the Magistrates trained by his old school, the College of Islamic Studies, even going so far as to train the Magistrates himself, personally, as a part-time lecturer.
Once JSC set to work on deciding indicators for assessment, it became clear this was one for discord. On one side was Justice Abdul Ghani Mohamed of the High Court with a graduate degree in Sharia’ and Law, who wished to uphold the vision of the Constitution to have a high quality judiciary established in 15 years as provided by Article 285.
In opposition were Justice Mujuthaaz Fahmy of the Interim Supreme Court and Judge Abdulla Didi of the Criminal Court.
Justice Mujuthaaz Fahmy intently argued that lack of education could be not be considered an impediment, and nor should misconduct before 2000 be taken into account.
Quite a logical reading when one considers Justice Mujuthaaz held a six-month tailor-made Certificate of Sentencing, and had on record a conviction by the Anti-Corruption Board for embezzling State funds – a minor matter of pocketing Rf900 for overtime in 1998.
Judge Abdulla Didi rarely joins in discussion, unless it is the matter of Criminal Court “Chief Judge” Abdulla Mohamed’s
misconduct, a matter that has been under investigation for a whole year now, costing the State over Rf100,000 to date in fees for Committee sittings.
Justice Mujuthaaz Fahmy sulked, willfully dragging the matter until the balance was in his favour, with the High Court “mutiny” of 21 January 2010 where three Justices colluded to publicly accuse High Court Chief Justice Abdul Ghani Mohamed of misconduct and remove him from the JSC by a Resolution.
Justice Mujuthaaz Fahmy as Vice Chair took the helm replacing the outgoing Justice Abdul Ghani Mohamed, and all turned into mayhem at JSC as, what I have reason to believe is a high-level conspiracy, was carried out aggressively by the majority; six of the ten members whose personal and political interest it was to retain the former Administration of Justice.
The matter of Article 285 remained pending till the arrival of Justice Adam Mohamed Abdulla on 18 February 2010, when a new task-force of four judges (two from the Commission, and two hand-picked from outside by Justice Mujuthaaz Fahmy) set to work under the efficient direction of the Interim Civil Service Commission Chair, Dr Mohamed Latheef.
In perhaps the most methodical effort in JSC so far, Dr Latheef had the indicators/standards decided in
three days, working an hour and a half each day. The only consideration, it appeared, was to make sure no sitting judge fell outside the standards.
Once “decided”, there was no room for debate at the Commission. MP Dr Afraasheem Ali, with falsely assumed “authority” declared, speaking in his capacity as MP, that Article 285 was ‘symbolic’.
Speaker Abdulla Shahid remained silent, choosing to evade the question even when asked pointedly to explain to JSC
members the purpose and object of Article 285.
When Justice Mujuthaaz Fahmy took over, all the work done during Justice Abdul Ghani’s time disappeared off the record, including submissions I myself had made in writing.
None of it was tabled or shared amongst the members. The “majority”, all of whom stood to gain from a wholesome transfer rather than a transformation of the Judiciary in line with the Constitutional Democracy decided, by mob rule, that all judges would be reconfirmed – for reasons that certainly are not in the best interest of the people, nation, or constitution.
Unfettered by concerns raised by President Mohamed Nasheed, Chair of the Constitution Drafting Committee former MP Ibrahim Ismail, or the public; and with the tacit blessings of the Parliament majority, JSC held the judges under lock and key to ensure, the all judges were re-appointed for life.
That is an estimated 30 to 40 years when one considers the average age of judges and the retirement age of
70. No judge may be removed unless JSC recommends, and the Parliament votes a judge out.
JSC being a Members Only club, electronically locked within the Department of Judicial Administration premises, and under the parental guidance of the Supreme Court, no one, not a single journalist, judge or member of the public, is privy to the details of what went on at JSC.
The records of meetings are not available for public scrutiny, nor are they shared with the media or members of the judiciary. Even members are prevented from accessing audio records of sittings, the written minutes being edited by the Chair where he sees fit.
The fact is that the majority was achieved through pay-offs and “mob rule” rather than rule of law; and upheld self interest rather than national or public interest.
To benefit are:
(i) members of the previous regime holding majority in parliament, some of whom stand accused of serious crimes;
(ii) former Ministers of Justice and former Attorney Generals who appear before the Court as legal counsel for the MPs and other politicians accused of serious crimes;
(iii) the serious criminals who allegedly operate under the protection of certain members of the previous regime, by the assurance that the same cover-ups and abuse of justice would continue; and
(iv) “Chief Judge” Abdulla Mohamed of the Criminal Court who is set to sit comfortably in the Criminal Court for life, ie. approximately 30 years until retirement at age 70.
The fact is that fully aware of the public discontent, and the fact that at least two of the 10 members of the JSC had expressed concern and publicly criticised JSC’s actions on Article 285 as unconstitutional and downright treacherous; 59 judges, including 11 judges who do not fall under the jurisdiction of Article 285, sat docilely at the orders of the JSC Chair, and took oath under lock and key.
Supervising the lifetime appointments was interim Supreme Court Justice who had earlier initiated a Ruling declaring himself the Chief Justice.
What went on in the minds of those taking oath, they would know? What fear led them to submit to such degradation, they would know?
To my mind, and to many others who witnessed the scene, it was ample proof there is neither independent judge nor independent judiciary.
Independence begins with an independent mind, and the freedom and power to think for oneself.
In my mind, more questions remain:
Where goes the common individual right to a free and fair trial?
Where goes building public confidence and trust in the judiciary?
Where goes the judges’ right to independence and non-interference?
Where goes the independent judiciary, the backbone of democracy?

Aishath Velezinee is a member of the Judicial Service Commission of the Maldives (JSC). She holds a Diploma in Journalism (IIMC, India; 1988), BA in Government; and in Women’s Studies (University of Queensland, Australia; 2000) and a Masters’ in Development Studies (Institute for Social Studies, Netherlands; 2004).


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]


Comment: What do you call a lawless State?

On Tuesday the Maldives appointed a Supreme Court bench in one of the few displays of cross-party cooperation seen in parliament since the ratification of the 2008 Constitution.

But Raadhafathi, a Maldivian national currently working on a project to strengthen the justice sector of the Maldives, and with experience training judges and inspecting courts all over the country, claims the road to an experienced, impartial and capable judiciary will be long and arduous.

The Maldives is in a state of transition. A new Constitution, a new Supreme Court, a new President, multi-party systems and many other factors creating a crucial period for the judiciary as well as for the country as a whole.

I am writing this to highlight the justice sector of Maldives.

Since independence the Maldives has acceded or ratified the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Committee on the Elimination of Racial Discrimination (CERD), Committee on the Elimination of Discrimination against Women (CEDAW), Convention Against Torture (CAT), Convention on the Rights of the Child (CRC) and Convention on the Rights of Persons with Disabilities (CRPD). The Maldives was officially awarded a seat in the UN Human Rights Council in Geneva in May 2010.

The Constitution adopted in 2008 provides for independence of the judiciary, creates new individual liberties, establishes judicial review and gives certain responsibilities relating to the judiciary to the Judicial Services Commission (JSC). These developments present challenges as well as opportunities for the judiciary.

The dynamic reforms of the past two years require that the judiciary transforms itself to ensure that it has the capacity to address the issues brought before it in the coming years. The Maldives is geographically unique in that it is comprised of 20 Atolls containing nearly 1200 islands, out of which 200 are inhabited. This presents numerous governmental challenges which judiciaries in other countries do not face.

During the past five months I have:

  • Been involved in the training of 18 Judges from the Malé courts and 23 Magistrates from the Island Courts on Human Rights and the Constitution;
  • Interviewed NGO’s, Human Rights Commission of the Maldives, Migrant Workers, Bangladesh Embassy, Indian High Commission, Department of Immigration and private lawyers.
  • Visited all the police stations, prisons and detention facilities in the Malé surrounds;
  • Interviewed prisoners and prison staff
  • Visited and interviewed drug rehabilitation facilities
  • Visited all the courts in Malé and interviewed judges and court staff including the [interim] Chief Justice of the Supreme Court
  • Visited Southern and Northern Atolls Courts and interviewed Magistrates, Atoll police commanders, Investigation officers, court staff, prosecutors and court users in the community.

It is evident there is an urgent need to increase the capacity of judges and the court staff to handle the number and complexity of the cases brought to the judiciary, in particular protecting rights enshrined in the Constitution. In addition, Human Rights is a new concept in Maldives and very few people poses the necessary skills and knowledge.

Major features and problems of the legal and judicial system operating in the Maldives

There are total of 208 judges/magistrates in Maldives. Although rights are defined and independent institutions exist to ensure rights are protected, the weakness of the current legal framework lies with the lack of trained professionals in the justice sector, in particular judges, magistrates, prosecutors and police.

98 percent of the legal profession in Maldives (including prosecutors, lawyers, judges, magistrates) are less than qualified to be in the legal profession. Most judges and magistrates have only completed secondary education, and they are not required to be lawyers.

Very few have completed undergraduate or post graduate degree from a western country. Most degrees are from Egypt or Saudi Arabia, and they are usually from unrelated fields. Some have received a Diploma in Sha’riah Law from Institutions established in Malé.

There is no common denominator in judicial training and experience. Some have learned in Arabic, some in Dhivehi, a few in English (the majority of the Judges I have met do not speak English to a serious degree).

The average age of judges at present is 28-32 years.

This situation gives rise to many problems such as reconciling Shari’ah law and the codified common law, as well as the attitudes of judges trained in the Shari’ah law and lawyers trained in common law traditions of the Commonwealth. In addition, the lack of laws governing legal procedure exacerbates the situation further, ensuring there is no consistency in their judgments or conduct of cases.

The judicial system is in considerable chaos. There are no Rules of Court, instead certain rules and regulations are found in more informal publications called ‘Court Circulars’.

In criminal cases, there is no formal onus of proof, and Judges can and do conduct cases any way they want. Every Judge does his or her cases differently and unpredictably.

State attorneys can appear in private legal cases and can be and are members of the Majlis. These arrangements are a direct breach of the separation of powers doctrine. This again demonstrates a failure to appreciate how a democracy and the separation of powers are intended to operate.

The right to a fair trial is a cornerstone of democratic societies. How a person is treated when accused of a crime provides a concrete demonstration of how far a state respects human rights. Unfortunately in the Maldives:

  • Courts assume guilt based on the prosecution case before the ‘trial’
  • A Russian national who only speaks Russian is provided an English Interpreter
  • Prosecution did not provide the documents filed to the accused. Prosecution stated “providing a copy to the accused is not included in the budget.”
  • If a woman submits an application for a divorce, the courts treat the woman with disrespect and 99 percent of the time, they are not granted a divorce regardless of evidence produced – even in domestic violence cases.
  • Prosecution takes too long to file a case, particularly in the islands.
  • Legal profession lacks basic advocacy skills
  • Majority of the legal profession are not competent. They are independent by law but not in practice. As for impartiality – the island courts in particular – this is not exercised due to the small community they live in. Island prosecutors often discuss matters with the magistrates. The prosecution is also allowed to go and spend time with the court staff, while the accused is waits outside in the waiting room.
  • Most judges do not know that public can attend hearings. Hence often those who attend are sent away. The other issue is lack of space in the tiny court rooms.
  • Accused not given an opportunity to cross-examine

Despite all this, the JSC, the independent body responsible for the judiciary, approved all judges to be appointed without term (tenure to retire at 70). If the JSC were to continue the way they have been conducting themselves, there is no hope to strengthen the judiciary of Maldives nor to protect rights enshrined in the Constitution.

The transitional period (Chapter 14 of the Constitution) ended on 7 August 2010.  While the Supreme Court has been appointed, unfortunately the judiciary remains in a state of disarray.

No one (including the executive, parliament and judiciary) knows the meaning of the term ‘separation of powers’, ‘what the law is’ nor even what ‘Human Rights’ means.

No one obeys or respects the legal system, and the Maldives legal system is oppressive and unjust. The entire situation contravenes basic tenets of the rule of law and requires urgent change. The concepts of enforceable natural justice, procedural regularity and due process are not known in Maldivian courts.

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]


Unregistered marriages leave children unable to inherit, warns Family Court

The Family Court has claimed that unregistered marriages occurring in the Maldives are denying children the legal rights of those born to ‘registered’ couples.

According to Maldivian law, children born out of wedlock can face difficultly obtaining legal recognition for matters such as claiming their inheritance.

Permanent Secretary for the Ministry of Islamic Affairs Mohamed Didi confirmed that children born to couples who exchange vows in unsanctioned private marriages do not have the same legal rights as children born to those who marry legally.

“It’s a serious problem,” Didi said, explaining that such children can experience problems claiming inheritance and tracing their family.

“The children cannot find their family line or claim their property,” he said.

There were “certain religious people” giving false information to others in small communities, he said, who were instructing their followers to marry “according to Islam and not Maldivian law.”

Didi noted that although these marriages could technically be recognised by Islam, “the country’s law says we have to register a marriage.”

He said the ministry is running “awareness programmes giving proper information to people,” as well as providing education through the media, information sessions at the ministry and during Friday sermons.

Didi said the ministry “has not found clues” as to why certain religious scholars are marrying people outside the law, but he thinks the only reason is “they want to have a bigger group of followers.”

The Family Court confirmed it was dealing with some cases involving private marriages, and said if the marriage was not registered at the court, it was not technically legal.

Couples receive a certificate through the court which proves they are married, she explained.

Children born to couples who are not registered will not appear under the father’s name and “will not have legal rights”, the court registrar noted.

Press Secretary for the President’s Office Mohamed Zuhair said the problem was all down to the “concubine business.”

According to legal procedures concerning polygamy, for a man to marry more than one woman, the first wife must give her consent for her husband to marry someone else. In this event, his finances and ‘level of commitment’ will be examined by the court.

Zuhair said some men who did not pass the requirements were getting married outside the law.

“The problem is that divorce is then also not legal, and children are unable to claim their inheritance,” he said, noting that although the marriage could be recognised under Islam, it was not recognised under Maldivian law.

Zuhair noted the greater issue behind these ‘private marriages’ was the discussion by Islamic scholars over whether State laws should stand alone from Shari’a, although “of course State law is influenced by Shari’a law.”

“The Constitution gives power to the State,” he said, “but certain Islamic scholars believe this shouldn’t be the case.”

A source who wished to remain anonymous from an island “well known for these type of illegal marriages” told Minivan News that “there is a group of people who believe the Constitution of the Maldives should not be followed because it is not based on Shari’a law.”

He said these people claimed that judges at the courts were “apostates” and that marriage under a Maldivian court could not be recognised under the tenets of Islam.

He said people who do not follow this group “would also be considered apostates.”

He said many people involved with this group were also not sending their children to school because they would have to sing the school song “as they believe singing is haraam, and also claim the school uniform is not very ‘Muslim’.”