JSC clears Criminal Court Judge Abdul Bari Yousuf of ethical misconduct

The Judicial Service Commission (JSC) has cleared Criminal Court Judge Abdul Bari Yousuf of allegations of ethical misconduct and lifted his suspension after more than one year and five months.

The judicial watchdog revealed in a statement on Thursday (July 24) that the commission decided there was “insufficient concrete evidence” to prove wrongdoing following consideration of a report prepared by an investigating committee.

The JSC had suspended Bari in February 2013 pending the outcome of an investigation after a complaint was submitted the previous month.

Bari has reportedly been receiving full pay and allowances since his suspension.

Although the commission did not reveal any details regarding the complaint, local media reported that a female attorney from the Prosecutor General’s Office had alleged that Bari sexually assaulted her.

While the JSC refused to confirm the allegations at the time, JSC Spokesperson Hassan Zaheen told Minivan News last week that the commission only provides information to the media after concluding a case.

The JSC is tasked by the Constitution with investigating complaints and taking disciplinary action against judges.

Judge Bari has presided over a number of high-profile cases at the Criminal Court in recent years.

In February 2010, he acquitted Adam Naseer Aboobakuru, whom the administration of former President Mohamed Nasheed had labelled one of the country’s “top six” drug kingpins.

Naseer was arrested in June 2009 with over MVR6 million (US$461,500) in cash while police also found a tin containing drugs outside his house.

Judge Bari, however, ruled that the prosecution was unable to establish that the money was earned from dealing drugs and that the narcotics could have been placed outside Naseer’s house.

In 2011, Bari also ordered the release of Abdul Latheef, who was suspected of involvement with a high-profile drug cartel.

Despite initially ordering Latheef be kept in detention, the Criminal Court changed its first decision in a letter sent to the police asking for the suspect to be transferred to house arrest.

Latheef had been taken into custody with over 1,000 grams of cannabis in the trunk of his car.

Judicial oversight

Last week, the JSC denied media reports alleging that an investigating committee had found former Criminal Court Judge Muhthaz Muhsin – who was appointed as the new prosecutor general on Tuesday – guilty of ethical misconduct.

Muhsin had allegedly attempted to save a suspect arrested for theft from being held in remand detention.

According to the JSC’s annual report for 2013, the commission has yet to conclude investigations or make a decision regarding 106 cases, which were pending at the end of last year, including one complaint dating back to 2008 and four complaints from 2009.

Other pending cases included 13 complaints from 2010, 16 complaints from 2011, 17 complaints from 2012, and 55 complaints from 2013.

The complaints against judges involved allegations of bias, lack of integrity, behavioural misconduct, discrimination, incompetence, procedural violations, inordinate delays in concluding cases, and breach of law and the constitution.

In a comprehensive report on the Maldivian judiciary released in May 2013, UN Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, noted that there was consensus on the view that the current composition of the JSC was “inadequate and politicised”.

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

Moreover, a lack of transparency regarding proceedings over complaints, the criteria used to initiate proceedings, and JSC decisions “nourishes serious allegations of selectivity in the management of complaints.”


Judge’s public sexual misconduct charge upheld

The High Court yesterday (27 August) concluded a case appealed by former Civil Court Judge Mohamed Hilmy and his wife Aiminath Ali after the Criminal Court ruled that they were guilty of having sex in public.

On December 21, 2011, the Criminal Court ruled that the pair were guilty as charged and sentenced them to six months banishment and 15 lashes.

Hilmy had argued that his arrest was part of a police set-up.

The High Court ruling stated that, according to the statements provided by the police officers that attended the scene, they first saw a motorbike parked on the road near the beach area and, discretely approaching the beach, saw the pair sitting on the shadowy beach with their pants down.

According to the police officers the shadows of the pair were visible each time the Hulhule’ tower light passed them and as they walked closer they noticed that Aiminath Ali had her pants down to her feet, Hilmy’s trousers were down to his knees, and Aiminath was sitting on Hilmy’s lap.

When the police officers approached within six feet and turned the searchlights on the pair, Aiminath Ali got up and moved quickly to put up her pants but one of the police officers ran and held her hand. Police said she tried to pull her pants up using her other hand but another officer came and handcuffed her.

According to the police officers Hilmy got up and started running but he was also stopped and handcuffed.

The officers reported back to their superior in Hulhumale’ police station – Sub-Inspector Muthaba Abdulsattar – and he instructed the officers to take pictures of the couple as they were.

Hilmy, who has heard high-profile cases including former President Maumoon Abdul Gayoom’s request for an injunction against the Presidential Commission, and the Herathera Resort dispute, was suspended from the bench soon after his arrest.

Shahinda Ismail, then President of the Police Integrity Commission, confirmed to Minivan News at the time that a complaint was filed by the Judges Association (JA) and the Judicial Services Commission (JSC), alleging that the judge was arrested through a police set up regarding an issue that had arisen as a result of his work in the courts.

“In their letter, the JSC said the JA are saying that he has complained to them, that he was walking in with his fiancé and police came and handcuffed both of them and basically undressed them by force,” she said.

The police denied the accusations at the time in a public statement.

“The two had to be taken into custody on suspicion of sexual behaviour in a public place as they were at the garbage dump in the south of Hulhumale’ with their pants down,” police said.


Criminal Court Judge Abdul Baari Yoosuf suspended over allegations of sexual misconduct

The Judicial Service Commission (JSC) has suspended Criminal Court Judge Abdul Baari Yoosuf, informing him to not to report for work until it makes a final decision on his position.

JSC media official Hassan Zaheen confirmed to Minivan News that the judge had been suspended from Wednesday (February 6) onwards, but refused to provide any details. Local newspaper Haveeru reported that Baari Yoosuf was suspended over a disciplinary problem.

“The judge has been asked to not to report to work until further notice from JSC. The matter is being investigated by the JSC, so no additional information can be provided at the moment,” Zaheen said.

Local media outlet CNM reported that the suspension followed a case filed by a female lawyer from the Prosecutor General’s (PG) office, who alleged that Baari Yoosuf had sexually assaulted her.

However, the JSC media official refused to confirm the allegations to Minivan News.

Judge Abdul Baari Yoosuf has looked into many high profile criminal trials including murder and drug offences.

High profile cases he has overseen include the murder case of Police Lance Corporal Adam Haleem, a murder of an expatriate that took place in Shaviyani Atoll and trials concerning drug kingpin Adam Naseer Aboobakuru and Abdul Latheef Mohamed.

Baari Yoosuf sentenced the murderer of Police Lance Corporal Adam Haleem, Ahmed Samah, to death after heirs of the murdered man demanded the death penalty instead of blood money.

In July 2012, Adam Haleem was stabbed to death on Kaashidhoo in Kaafu Atoll Island by Mohamed Samah while Haleem was on his way to report for duty.

He also acquitted Adam Naseer Aboobakuru, whom the former government of President Mohamed Nasheed had labelled one of the country’s ‘top six’ drug dealers.

In June 2009, police found over MVR 6 million (US$461,500) in cash and a tin containing drugs outside Naseer’s house during a raid on his home in Addu Atoll.

He was again arrested in July 2009 in Addu Atoll, but “he wasn’t in prison the whole time,” explained then President’s Office Press Secretary Mohamed Zuhair. “On several occasions, the court has delayed his imprisonment until the hearing.”

In his verdict, Judge Baari Yousuf said there was not enough evidence to prove the money had come from dealing drugs. He added that the drugs could have been placed outside Naseer’s house by anyone and did not necessarily belong to him.

In 2011, Baari made another controversial decision by ordering the release of another drug lord, Abdul Latheef of Fuvamulah in Gnaviyani Atoll, suspected to be involved with a high profile drug cartel.

Despite initially ordering Latheef be kept in detention, in a letter sent to police at the time, the Criminal Court changed its first decision and demanded that police switch Latheef’s detention to house arrest.

Latheef was arrested in December 2010, as he was about to drive away in his car after loading some vegetables into the vehicle’s trunk.

Police officers who stopped his car unpacked the loaded items in his presence and discovered 1083.42 grams of illegal narcotics containing the substance tetrahydrocannabinol (found in cannabis).

The country’s judiciary is currently being subjected to questions over its lack of impartiality and failure to deliver justice.

A substantial amount of criticism is also being levied against the JSC, which is mandated to oversee the functioning of the judiciary.

Several international experts and organisations including the International Commission of Jurists (ICJ) have expressed concern over the state of the judiciary and the JSC.

In February 2011, the ICJ claimed that the Maldives legal system is failing to serve its citizens despite many “positive developments” that have been made in an effort to depoliticise the courts, with many judges found to be lacking qualifications and independence.

Former director of the ICJ’s Asia Pacific operation’s Roger Normand at the time said he did not believe that the Maldives had an “independent judiciary capable of resolving problems”.

A similar report by Professor Paul H Robinson observed that “persons with little or no legal training can hardly be expected to know how to conduct a fair and effective trial.”

“Serious efforts must be made to provide substantial training to current judges in order to insure that all have the background they need in both law and Shari’a. Perhaps more importantly, no judge should be hired who does not already have the needed training,” he further wrote.

The spokesperson of the Criminal Court was not responding to calls at time of press.


Lawyers question reappointment of judges convicted of sexual misconduct

A group of lawyers have questioned the Judicial Service Commission (JSC)’s decision to reappoint two judges, previously removed from the bench for sexual misconduct, as magistrate court judges.

The lawyers, including Former Attorney General Husnu Suood, said on Thursday that  Gaafu Dhaalu Thinadhoo, Meeraaz Ahmed Shareef and Dhaalu Meedhoo Biloori Villa, Ali Shafeeg who were appointed as magistrate court judges had previously been convicted for sexual misconduct.

Speaking to Minivan News, Suood said the two judges were removed from bench in 2010 because they did not possess the “high moral character” required to be a judge according to the article 149 (a) of the amended constitution.

According to the records, Shareef – appointed to Gaafu Alifu Dhevadhoo Court – was sentenced to two months under house arrest on July 30 2001, for having an affair. He was former Chief Magistrate of Thinadhoo in Gaafu Dhaalu Atoll.

Ali Shafeeg, appointed to Kaafu Gaafaru Magistrate Court, was sentenced to four months banishment and subjected to seven lashes in 1989, for having an affair with a married woman.

Suood noted that, article 149 (a) of the amended constitution states “a person appointed as a Judge in accordance with law, must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a  Judge, and must be of high moral character”.

Referring to the previous convictions of the Judges, Suood said that the “two judges were not up to the moral standards required and that’s why they were disqualified in 2010”.

“We are preparing the documents to submit to JSC requesting them to investigate the case. It’s up to the JSC to hold the integrity of the judiciary,” he said.

JSC spokesperson Hassan Zaheen noted that Shareef and Shafeeg were also removed in 2010, under the article 285, which allowed  JSC to dismiss judge failing to meet the requirements in article 149.

However, he added, that Shareef and Shafeeg were reappointed “because the Judges Act now allows it.”

According to the article 15 of the Judges Act – which came into effect five days after the reappointment of judges with life time tenure – a judge will be considered as failing to meet the required ethical and moral standards if they had served a sentence for a criminal offence in the seven years prior to the appointment.

“Shareef and Shafeeg were sentenced before the seven year period,” Zaheen added.

In 2010 when Shareef was dismissed from the bench, he also protested against the JSC in court, claiming his conviction was 11 years old when he was removed from the bench on August 5, 2010, and his sentence had been suspended. The Judges Act was being debated in the parliament at the time of Shareef’s removal.

Therefore, JSC pointed out at the time, the Judges Act post-dated its decision to remove Shareef from the bench, and argued that it could not be expected to rely on legislation that did not exist.

The JSC reiterated that he was removed from bench under the article 285, that allowed JSC to dismiss the judges failing to meet the moral and ethical requirements of article 149.


Discrepancies in rape statistics highlighted in NGOs report

A coalition of NGOs have condemned the performance of the judiciary and the State for its treatment of criminal cases, especially those concerning rape.

Maldivian Detainee Network, Trasparency Maldives, Rights for All, Maldives Aid, Madulu, Democracy House, Maldives NGO Federation and Strength of Society issued a statement “condemning the increase in serious crime and the failure of the state and responsible authorities to convict those responsible for these crimes.”

The statement referred to statistics on crimes such as murder, child abuse, assault with sharp weapons, and threats to journalists and others in the media, comparing these with the number of crimes investigated by police, the number sent to the Prosecutor General’s office and the number tried in the Criminal Court.

The NGOs said the blame for the “failure to deliver justice” should not be placed on the new democratic system or human rights safeguards, “but rather [on] the unsatisfactory implementation of these systems and safeguards.”

They “note with great concern that there is not a single case of ‘rape’ in the statistics maintained by either the PG or the Criminal Court.”

Technical misunderstanding

Information provided by the Maldives Police Service (MPS) to Transparency Maldives states that in 2009 ten cases of rape were reported to police, eight of which were investigated and five sent to the Prosecutor General (PG)’s office.

Police Sub-Inspector Ahmed Shiyam said in the instance of these rape cases, the three that had been labelled as ‘finished’ by police but were not sent to the PG were still “being checked” by police before being sent to the PG’s office.

“Sometimes we check and update information,” Shiyam said, “and there could be other documents being collected.”

Information gathered by the coalition of NGOs from the Criminal Court show zero cases under ‘rape’ were prosecuted in 2008 and 2009.

But Senior Judge at the Criminal Court Abdulla Mohamed said the Criminal Court had processed six cases of rape during the year.

Deputy Prosecutor General Hussein Shameem said the discrepancy was “a misunderstanding of technical terms.”

“If consent is lacking, regardless of whether or not there was intercourse, the case would fall under sexual misconduct,” he said.

Shameem said when the PG’s office received cases from the police, they decided whether or not to prosecute it depending on the evidence.

He added that the statistics from the police might “not give a clear idea” of the number of cases, as the PG’s office might prosecute for a different offence.

“For example, if police investigate a case for rape, and within the document we find evidence for battery and assault, we would prosecute both charges.”

In the document provided by the Criminal Court, 37 cases falling under the category of “sexual misconduct” are shown as being received by the court.

Of those, nine were dismissed due to lack of evidence while fourteen were tried.

Aishath Velazinee from the Judicial Service Commission said the remaining fourteen cases did not appear asdismissed or tried because they were still being processed by the court.

She said that “because rape is not a crime under the current Penal Code” cases of rape would fall under the category of “sexual misconduct”.

“The existing Penal Code is not adequate,” she noted, adding that under the new Penal Code (which is still tabled in the Parliament) rape, including spousal rape, would be considered a crime under its own category.

Rising concerns, rising crime

The coalition of NGOs said “lack of communication between the [State] authorities” was one of the “main reasons behind the recent failure to convict criminals.”

They called upon the State to “comprehensively study and identify the causes for the recent rise in crime, in particular, identify why convicted criminals are able to offend repeatedly.”

The Human Rights Commission Maldives (HRCM) has also recently condemned the rise in crime.

In their 2009 annual report released on 9 March 2010, they claimed the crime rates in the country had risen, and communities in the Maldives have reached a state of fear, mainly because of “failure to enforce sentences for convicts.”

The United States 2009 annual country reports on human rights, published on 11 March 2010, also expressed concern for increased violence against women in the Maldives and lack of convictions by the judiciary.

The report cited that “In 2008 the Ministry of Gender and Family released data showing an increase in the reported cases of violence against women, although NGOs believed that most cases remained unreported.”