Tag: Separation of powers

State wage bill sent back to Majlis for the third time

President Abdulla Yameen has returned ‎the state wage policy bill back to the People’s Majlis for reconsideration after expressing concern over the inclusion of some public companies and parliamentary oversight.

President’s Office Spokesperson Ibrahim Muaz said that the inclusion of public companies with more than fifty percent shares would create difficulties as these are separate legal entities which would subsequently have an outside authority setting wages.

The other key issue related Article 18 of the bill which states that all decisions of the pay commission regarding the setting of wages and formulating wage policies must be approved by parliament.

“The president does not believe the commission would be an implementation authority if the People’s Majlis is to approve its decisions,” said Muaz, noting that it would create difficulties in implementing the Pay Commission’s decisions.

Majlis economic committee member, Kelaa MP Dr Abdulla Mausoom, told Minivan News the bill was being delayed mainly due to a conflict between the two branches of the government, arguing that the Majlis ought to have final say on pay awards as representatives of the people.

The bill which was passed on April 27 had been returned twice by the previous President Dr Mohamed Waheed.

It aims to resolve public sector pay discrepancies through the creation of a National Pay Commission and was first proposed by Kulhudhufushi South MP Mohamed Nasheed in March 2011, and was passed by the Majlis in December 2012 and again in April 2013.

In a letter sent to the speaker of the majlis, President Yameen has requested that points noted by the government be considered.

According to Muaz, further issues emerging from the bill are that it essentially hands over the authority to decide salaries of all institutions, including president’s staff and security forces, which are currently under the executive according to the constitution and laws.

He described the parliament’s deciding upon all changes to salaries and benefits of state employees as “People’s Majlis infringing on the executive’s responsibilities”.

The constitution is clear on the parliament’s roles in allocating salaries independent institutions, continued Muaz, and the parliament’s role when it comes to the wages of other state employees – not specifically stated in the constitution – should be limited to formulating policies on the matter and holding other relevant stakeholders accountable.

President Waheed had previously told the Majlis that the requirement for parliament approval of commission decisions “dissolves the separated boundaries of, and would present difficulties in carrying out the functions of, the state – particularly in carrying out the duties of the executive”.

In response, the economic committee of the Majlis which reviewed the bill said “the best way to maintain checks and balances” is keeping the bill as it is, instead of leaving the power of determining the wages under the total control of the executive.

“People’s Majlis has the largest number of people’s representatives and should be viewed as the people. [In the bill] all the decisions are made by the [Pay] commission and it is only sent to the parliament to see if the people approve of it,” said Dr Mausoom.

When asked if the issue could take another turn with the newly elected parliament, Dr Mausoom said that he believed the new members of the parliament would make a responsible decision.

The ruling Progressive Coalition currently maintains a parliamentary majority and has won a ‘super-majority’ of two-thirds in the newly elected parliament.

The government is currently under pressure from workers over pay discrepancies and minimum wage, with both civil servants and teachers considering strike action in recent weeks.

Meanwhile President Yameen yesterday ratified five bills passed along with State wage bill at the eighth sitting of Majlis’ ‎first Session, on 27 April ‎‎2014.

The five bills which were ratified are the sole proprietorship ‎bill, business registration bill, the fourth amendment to the ‎‎Maldives Land Act,  the sexual harassment bill, and the sexual offences bill.

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EC dismissals: Majlis says commissioners’ removal was unconstitutional

The People’s Majlis has written to the chief justice and the attorney general, stating that the president and vice president of the Election Commission (EC) were removed contrary to the constitutional procedures governing their appointment and dismissal.

The letter – signed by Speaker Abdulla Shahid and Deputy Speaker Ahmed Nazim – also noted that the move contravened the Elections Commission Act.

According to Majlis, the content of the letter was based on legal advice of parliament’s counsel general after her analysis of the Supreme Court’s verdict.

The Supreme Court yesterday sentenced EC President Fuwad Thowfeek to six months imprisonment under Article 88(a) of the penal code, and ordered the enforcement of the sentence be delayed for a period of three years.

The verdict also declared that Fuwad and Vice President Ahmed Fayaz had “lost the right and legal status to remain members of the commission and that the pair’s seats on the commission have become vacant”.

The letter stated that it was the People’s Majlis which is tasked with the appointment and removal of EC members, and that for any given reason a member of that commission can only be removed by a simple majority of votes in a parliament sitting as “clearly stated” in Article 177 of the constitution and Article 14 of the Elections Commission Act.

“Referring to the said article of the constitution and the elections commission act, it is clear that the authority to appoint and remove member from that commission is especially reserved for the People’s Majlis without the involvement of any other party.”

The letter also said that the removal of the pair by the Supreme Court contravenes the procedures specified in Article 177 of the constitution and Articles 5, 10, and 14 of the EC Act.

The letter referred to a number of statements from the Supreme Court’s verdict nullifying parliament’s removal of Mohamed Fahmy Hassan from the Civil Service Commission (CSC) in March last year.

The Majlis today noted that the constitutional procedures for removing EC members and CSC members were the same, saying that the court’s previous ruling had said the following:

“It is clear from the letter of the constitution that the constitution does not allow any of the three powers of the state to carry out the constitutional jurisdiction or functions of another, and that it is clearly stated that the system of separation of powers, and check and balance established between three powers by constitution is an principal feature of the constitutional system and the constitution of the Maldives.”

Referring to the same verdict, the letter said that the court had stated that “all powers of the state should fulfil their jurisdictions and functions within the constitutional limits set for that power by the constitution”.

The same ruling also stated that constitutional procedures regarding independent institutions are there to ensure their independence. In this regard, the verdict noted that tasking the executive with appointment, the parliament with removal and accountability, and the chief justice with oath taking are also check and balance procedures established under the constitutional principle of separation of powers.

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MDP will not obstruct government through parliament, says Nasheed

The opposition Maldivian Democratic Party (MDP) will not obstruct or hinder the government should the party win a parliamentary majority in the upcoming general elections, former President Mohamed Nasheed said last night.

Speaking at the campaign launching ceremony for the MDP’s candidate for Manchangoalhi North, MP Mariya Ahmed Didi, Nasheed said obstruction of development projects or government programmes was not the opposition party’s intention.

“Our philosophy is not obstruction. We do not wish to stop undertakings of President [Abdulla] Yameen’s government. We wish for it go ahead on the right path,” he said.

The role of an opposition party in a country with a presidential system was ensuring that campaign pledges are fulfilled, Nasheed added.

Nasheed noted that President Yameen made a number of pledges during last year’s presidential campaign, including raising old age pensions to MVR5,000 a month, providing MVR10,000 to fishermen during lean months, assuring “unlimited” health insurance, and assigning a general practitioner to each family.

“MDP’s legal responsibility today is to encourage holding the government answerable for fulfilling its pledges, if the pledge is not contrary to our philosophy and principles,” he said.

Nasheed suggested that a supplementary budget should be submitted to parliament with funds allocated for fulfilling the ruling Progressive Party of Maldives’ (PPM) campaign promises, which was not the case with the 2014 state budget approved by parliament.

As an additional MVR34 million (US$2.2 million) would be needed to raise the elderly benefits, Nasheed said the required amount could be saved from the budget by halving the salary and allowances of ministers, deputy ministers and state ministers.

He added that the MDP would seek amending the relevant laws to reduce wages of political appointees.

“We need a majority of the People’s Majlis to bring about this change through the law,” he said.

Meanwhile, campaigning in Noonu Velidhoo last night, President Yameen urged voters to choose candidates representing the governing ‘Progressive Coalition’ in order to ensure that the executive receives the necessary cooperation from the legislature.

Yameen argued that parliament was “in need of change” and needed to earn the public’s respect.

He added that it was the parliament that would “put the final stamp” on the government’s efforts to fulfil its campaign pledges.

“If the general rule that they follow is to try to stop everything that is beneficial for the people, that’s not responsible,” the president was quoted as saying by Sun Online.

Yameen also reportedly indicated that the government could submit a supplementary budget this year. The president has previously accused parliament of delaying approval of loans through the public finance committee.

“I need some cash”

In his speech, Nasheed meanwhile referred to a leaked phone conversation in July 2010 between business magnate MP Gasim Ibrahim and then-Independent MP Mohamed ‘Kutti’ Nasheed, who recently joined the PPM, in which the latter asks the business magnate for “some cash”.

In a second leaked conversation, Nasheed read out a draft outlining the then-opposition’s plans to block taxation legislation and amend the Public Finance Act to require parliamentary approval for signing agreements such as the airport privatisation deal with GMR.

The amendments were cited as the main reason for the en masse cabinet resignation in June 2010 with Nasheed announcing at the time that the new laws would make it “impossible for the government to function.”

While then-President Nasheed ratified the amendments after parliament overrode his veto, the government filed a case at the Supreme Court in December 2010 contesting the constitutionality of some provisions.

Nasheed contended last night that opposition politicians obstructed the MDP government because they feared the party would win reelection if it was allowed to implement its policies.

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MDP will not respect separation of powers, says President Yameen

The Maldivian Democratic Party (MDP) did not respect separation of powers during its three years in government, President Abdulla Yameen has said, urging voters to consider the track record of former President Mohamed Nasheed’s administration before choosing parliamentary candidates.

Speaking at the Progressive Coalition’s parliamentary campaign launching rally on Thursday night, President Yameen strongly criticised the opposition party’s campaign slogan – “Vote for the scale [of justice] for separation of powers” – contending that an MDP-controlled parliament would exert undue influence on other state institutions.

“Our rival opposition party is saying that they are coming to the People’s Majlis to separate powers. No doubt separation of powers is important in modern democratic systems. Separation of powers is a basis we all believe. But let us consider how responsibly and the extent to which powers were separated during the three years of the MDP government,” he said.

“We have to learn from past experience and they have shown very well, in much detail, during their three years how they want to separate powers in the future.”

The state of affairs that prevailed in the country at the end of the MDP’s three years in government should not have been what it was if the party had ruled democratically, Yameen argued.

Yameen said he “could not believe” that national debt could rise from MVR5 billion (US$324 million) to over MVR30 billion (US$1,195 million) during a democratic government.

MDP in office

President Yameen claimed that the MDP government attempted to merge the three powers of state during its time in office.

Yameen referred to the military’s controversial detention of Criminal Court Chief Judge Abdulla Mohamed in January 2012, which he contended was prompted by “verdicts or punishments not being delivered the way the president wanted.”

Moreover, the arrest of two opposition MPs in June 2010 “showed the extent to which political space was offered” to members of the People’s Majlis, Yameen said.

Following the en masse resignation of Nasheed’s cabinet on June 29, police arrested then-MP Yameen and MP Gasim Ibrahim over allegations of bribery and treason. Both MPs were subsequently released by Judge Abdulla.

Yameen also referred to the delayed appointment of the Anti-Corruption Commission’s (ACC) President Hassan Luthfy, who was eventually sworn in 24 months after parliament approved him for the post.

After President Nasheed recalled Luthfy’s name and proposed a substitute nominee in late 2009, parliament rejected the substitute and approved Luthfy to the commission.

The President’s Office delayed swearing-in the new commissioner as it sought a Supreme Court ruling. Yameen alleged that the appointment was held up to prevent the ACC from functioning.

MDP MPs have not shown “even a small example of separating powers,” Yameen continued, accusing opposition MPs of obstructing the government and blocking development projects.

“Dark clouds” on horizon, warns vice president

Yameen also accused the opposition party of refusing to cooperate with the government on confirming the appointment of a new prosecutor general.

“So I have to say that it might be that they are obstructing [the appointment] because there are cases involving [opposition MPs]. This is why I am saying they are not trying to separate powers. What we are seeing is the merging of powers,” he said.

In his speech at the rally, Vice President Dr Mohamed Jameel Ahmed contended that MDP MPs contesting the upcoming parliamentary elections endorsed former President Nasheed’s alleged “inhumane activities” and “insults” to Islam and the Prophet Mohamed (pbuh).

Voting or campaigning for such MPs was “without a doubt aiding and abetting sin and strife,” he said.

Repeatedly urging voters to consider the MDP’s track record before voting on March 22, Dr Jameel called on the public to vote for coalition candidates to empower citizens, defend the constitution and protect Islam.

Reiterating a central theme from last year’s presidential campaign, Dr Jameel insisted that the MDP would pursue an agenda to eradicate Islam from the Maldives.

The vice president also said he could see “dark clouds gathering” on the horizon, warning of arson in the capital Malé and judges “tied with rope and dragged through the streets.”

Former President Maumoon Abdul Gayoom – figurehead and leader of the ruling Progressive Party of Maldives – meanwhile praised the candidates fielded by the PPM and its coalition partners Jumhooree Party and the Maldives Development Alliance.

Gayoom stressed that the Progressive Coalition must “work together” in the parliamentary campaign to secure a majority in the People’s Majlis, adding that government supporters contesting as independents would split the vote and benefit the MDP.

“Our three parties are working together as one party. We are working towards one objective. So there is no doubt that candidates contesting from our parties will have the full support of the other two parties,” said Gayoom.

“That is why I am saying that the foundation of the efforts we are commencing is working together, helping one another, and cooperating with each other.”

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President calls for constitutional reforms to curb “conflict” between state institutions

President Dr Mohamed Waheed  has called for reforms to the current Maldivian constitution in order to reduce “conflict” between different government institutions while carrying out their respective mandates.

The president stated during a campaign speech on Vaadhoo Island in Raa Atoll Thursday (April 11) that he too had faced difficulties in carrying out constitutional duties as a result of such conflicts between the different branches of government.

“The whole system would be complete only when the power, authority and responsibility rendered to a particular position by the constitution, was properly carried out,” he stated.

The president claimed that amendments to the constitution were therefore necessary to allow each institution to “use their powers” independently, since currently “great conflict” is sometimes encountered.

He stated that the Supreme Court ultimately held the final decision-making power to resolve constitutional matters and its decisions should therefore be respected.

The nation’s highest court has been involved in a number of disputes with the Maldives legislature in recent months.

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Supreme Court rules secret ballot, dismissal of CSC chair unconstitutional

The Supreme Court on Thursday ruled that contested decisions by parliament to remove Civil Service Commission (CSC) Chair Mohamed Fahmy Hassan and conduct no-confidence votes through secret ballot are unconstitutional.

On December 3, 2012, parliament voted 41-34 to approve amendments to the parliamentary rules of procedure to conduct no-confidence votes to impeach the President and remove cabinet members through secret ballot. The house rules were changed with pending no-confidence motions against President Dr Mohamed Waheed and Home Minister Dr Mohamed Jameel Ahmed submitted by the formerly ruling Maldivian Democratic Party (MDP).

In late November, parliament dismissed Fahmy in a 38-32 vote after the Independent Institutions Committee investigated a complaint of sexual harassment by a female employee of the CSC.

Both moves were challenged at the Supreme Court, which issued injunctions or stay orders to parliament to halt both conducting no-confidence votes through secret ballot and appointing a replacement to the CSC, pending rulings on the legality of the decisions.

In its judgment (Dhivehi) on the constitutionality of secret ballots for no-confidence votes, the Supreme Court ruled 6-1 to strike down the amendment to parliament’s standing orders as unconstitutional. The majority opinion contended that the move contravened article 85 of the constitution as well as parliamentary principles and norms of free and democratic societies.

Article 85 stipulates that meetings of the People’s Majlis and its committees must be open to the public.

In the second judgment (Dhivehi) on Thursday night, the Supreme Court noted that Fahmy was alleged to have committed a criminal offence and contended that the Independent Institutions Committee violated due process and principles of criminal justice procedure in dealing with the accused.

The Supreme Court ruled 6-1 that Fahmy would receive two punishments for the same crime if he was convicted at court following his dismissal by parliament (double jeopardy). Following the judgment, Fahmy would be reinstated and compensated for lost wages since December 2012.

Delivering the judgment, Supreme Court Justice Abdulla Saeed reportedly said that a person should be considered innocent unless proven guilty in a court of law and was entitled to protect his reputation and dignity.

Dissenting opinion

Meanwhile, Justice Ahmed Muthasim Adnan – the only Supreme Court justice with a background in common law – issued dissenting opinions in both cases.

On the constitutionality of the secret ballot, Justice Adnan noted that article 101(f) of the constitution states that “the regulations governing the functioning of the People’s Majlis shall specify the principles and procedures concerning a resolution to remove the President or Vice President from office as provided in this Constitution.”

Unless a clause added to the regulation was explicitly in violation of the constitution, Justice Adnan said that he believed it “could not be challenged in any court in the Maldives.”

He further noted that while article 85 of the constitution requires parliamentary proceedings to be open to the public, 85(b) states that a majority of MPs present and voting could decide to exclude the public or press “if there is a compelling need to do so in the interest of public order or national security.”

Moreover, article 85(c) states, “Article (b) does not prevent the People’s Majlis from specifying additional reasons for excluding the public from all or any part of a committee meeting of the People’s Majlis.”

He added that the secret ballot would be taken at a sitting open to the public.

In the case submitted by Fahmy contesting his dismissal, Justice Adnan’s dissenting opinion noted that article 187(a) of the constitution authorised parliament to remove members of the CSC “on the ground of misconduct, incapacity or incompetence.”

Article 187(b) meanwhile states, “a finding to that effect by a committee of the People’s Majlis pursuant to article (a), and upon the approval of such finding by the People’s Majlis by a majority of those present and voting, calling for the member’s removal from office, such member shall be deemed removed from office.”

Justice Adnan argued that an inquiry by a parliamentary committee into alleged misconduct would not be a criminal investigation. Therefore, he added, the oversight committee would not be required to prove guilt to the extent required at trial before making a decision.

He further noted that parliament’s dismissal under the authority of article 187 and a possible conviction at a late date could not be considered meting out two punishments for the same offence.

Separation of powers

Following the injunctions issued by the Supreme Court in December 2012, MDP MP Eva Abdulla told Minivan News that the supremacy of parliament was at stake in the cases before the apex court.

“By its actions, the Supreme Court is challenging the separation of powers that underpins the constitutional basis of governance,” Eva said.

Meanwhile, Independent MP for Kulhudhufushi South, Mohamed ‘Kutti’ Nasheed, contended in his blog on December 12 that the Supreme Court did not have the legal or constitutional authority to issue the injunctive orders against parliament.

Moreover, the Supreme Court “does not have the power to even accept those cases,” he wrote.

Article 88(b) of the constitution states: “Unless otherwise specified in this constitution, the validity of any proceedings in the People’s Majlis shall not be questioned in any court of law.”

Nasheed argued that decisions made by parliament could not be challenged in court except in instances clearly specified in the constitution, which did not include dismissal of members of independent institutions and amendments to Majlis regulations.

The purpose of article 88 was to prevent parliament’s decisions being challenged or overturned, Nasheed said, as in the absence of such a clause the Supreme Court would become a “People’s Appeal Majlis” with supremacy over the house of elected representatives.

“If every decision of the People’s Majlis is appealed at the Supreme Court in the manner that any judgement by the High Court can be appealed at the Supreme Court, then there is no difference between the People’s Majlis and the High Court,” Nasheed wrote.

This was against the separation of powers envisioned in the constitution, Nasheed said, which vested legislative powers in parliament and clearly specified instances where its decisions could be challenged at court.

Former legal reform minister Nasheed is chair of the Independent Institutions Committee. Asked by the Supreme Court to hand over minutes of the committee inquiry, Nasheed had refused.

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Supreme Court issues injunction to withhold no confidence vote on president

The Supreme Court has issued an injunction ordering parliament to withhold the impending no-confidence motions against both Defence Minister Mohamed Nazim and President Mohamed Waheed Hassan.

The ruling was made after a case concerning the legality of the no confidence motions had been filed by Progressive Party of Maldives (PPM) council member and lawyer Mohamed ‘Wadde’ Waheed Ibrahim.

The Supreme Court in its injunction today ordered parliament to withhold the no-confidence motion until it could decide on the legality of the matter after looking into the “necessary constitutional principles that had to be followed”.

Earlier this month, Ibrahim filed the case in the Supreme Court contending that the parliament’s decision to make impeachment votes a secret ballot was unlawful.

Speaking to local media after filling the case, Ibrahim said that Article 85 of the constitution clearly articulates that a session of parliament can only be held in ‘closed doors’ only if the issue debated in parliament concerns the national security of the state and if not the sessions should be held open to public.

He said therefore parliament does not have the authority to come to a decision outside its jurisdiction laid down in the constitution and sought the Supreme Court to invalidate the decision.

No-confidence motion

The opposition Maldivian Democratic Party (MDP) had proposed a no-confidence motion against President Mohamed Waheed Hassan in October claiming that the police and the military had “brutalised” its supporters on February 8 under direct orders from the president himself.

The MDP also alleged that President Waheed had destroyed the sensitive economy of the nation and adversely impacting investor confidence in the Maldives.

Other reasons, the MDP alleged, included the failure of President Waheed’s administration to curb gang violence in the country, as well as his government taking a loan worth MVR 300 million (US$19.5 million) from the Bank of Maldives (BML) without prior approval from parliament – a violation of Public Finance Act and Public Finance Regulation.

The MDP subsequently proposed the amendment to parliamentary regulation which would pave the way for a secret ballot in the vote to impeach President Waheed. However, the first attempt, despite approval from parliament’s General Affairs Committee was defeated in parliament by 39 to 34 votes.

Parliament this month passed the amendment when it was again re-submitted and approved with a 41 to 34 majority. The approval was backed by two government aligned parties, the Jumhoree Party (JP) and Dhivehi Rayyithunge Party (DRP).

Legality of two DRP seats

Meanwhile, Ibrahim has also raised doubts over the legality of the secret ballot decision, claiming it was passed by the votes cast by two DRP MPs Ahmed Nashiz and Ali Azim, whose seats he claimed were in question.

JP’s Policy and Legal Committee member Mohamed Haleem Ali had previously filed a case in the Supreme Court asking it to rule the concerned parliamentarians “unfit to stay in their elected seats” over the Bank of Maldives (BML)’s foreclosure on their loans.

“The Civil Court’s ruling number 935 of 2009 asks them to pay back the debts to BML. They didn’t. So I have submitted this case in accordance with subclause one of Article 73(c) and 74 of the constitution,” Haleem said at the time.

Subclause 1 of Article 73 of the Constitution of the Maldives states that a candidate for membership or a sitting member of the parliament would be disqualified if he has a decreed debt which is not being paid as per court rulings.

Article 74 states that any question concerning the qualifications or removal of a member of the People’s Majlis shall be determined by the Supreme Court.

Both MPs Nashiz and Azim were elected to parliament in 2009 general elections, the same year in which the civil court ordered them to pay the BML debts. The case was accepted by Supreme Court on December 10.

Supreme Court decision ‘void ab initio’: Ibra

Following the decision, former MP and Chair of Drafting Committee of Constitutional Assembly (Special Majlis) Ibrahim ‘Ibra’ Ismail stated that the decision was “void ab initio” (void from the beginning).

“They cannot suspend the decisions of the parliament. Parliament should not adhere to the decisions of Supreme Court,” he said.

“Parliament is free to conduct its business anyway they want to. Only the public can reprimand the parliament,” he added.

Counsel General of Parliament Fathimath Filza and Parliamentary Speaker Abdulla Shahid were not responding to calls at time of press.

No one should meddle with the courts: Supreme Court

In a previous bid, the Supreme Court issued an order quashing the decision of Parliament’s Independent Institutions Oversight Committee to not recognize the legitimacy of the Hulhumale’ Magistrate Court.

Supreme Court in the order stated that while the Maldivian constitutional system broadly entertained the principle of separation of powers, no one power of the state can go beyond the limits set out in the constitution.

“According to articles 5, 6 and 7 of the constitution that came to force on 7 August 2008, the Maldivian constitutional system has explicitly set out that the executive power, legislative power and the judicial power is independent from one another and the boundaries of each power being clearly set out, it is unconstitutional for one power of the state to go beyond its constitutional boundaries as stated in article 8 of the constitution,” read the order.

The Supreme Court also in its order maintained that as per the constitution, the judicial power of the state was the sole constitutional authority in settling legal disputes between the institutions of the state or private parties.

“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” it added.

Speaking to Minivan News yesterday, Former Foreign Minister and UN Special Rapporteur on Human Rights in Iran Dr Ahmed Shaheed identified the “pathetic state of the judiciary” as one of the key human rights concerns he believed needed to be addressed in the Maldives.

“[The judiciary] is not only corrupt, but also coming under the influence of radical Islam, even to the extent of violating codified laws of the Maldives and clear international obligations,” Dr Shaheed claimed yesterday.

“Disregard for rule of law has also meant that a culture of impunity is deeply entrenched, rendering many of the human rights of the people meaningless.”

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