velezinee – Minivan News

Supreme Court has removed right of appeal, claim legal experts

Legal experts have accused the Supreme Court of effectively removing the right of appeal after the bench shortened the time in which an appeal case can be filed at a higher court to 10 days.

In a ruling issued yesterday (January 27), the court revoked Article 15 and 42 of the Judicature Act and Article 85 of the Employment Act – which stipulates the current appeal durations – while a Supreme Court circular signed by Chief Justice Abdullah Saeed announced the new time frame.

The move has prompted legal experts to accuse the court of infringing upon the constitutional right to an appeal.

“They have taken out the appeal process,” says former Judicial Services Commission (JSC) member turned whistle-blower Aishath Velezinee. “Ten days for appeal will deprive people of the right to appeal.”

Another legal expert – who wished to remain anonymous – suggested that the new time frame would make it practically impossible for many people to lodge an appeal.

The Supreme Court ruling – signed by all five of the Supreme Court justices – said the current regulations are in violation of Article 42 of the Constitution which states the right to a “fair and public hearing within a reasonable time”.

The Judicature Act currently states that appeals to the higher courts will only be accepted within 90 days, while 180 days is allowed for cases adjudicated in island courts outside of the capital Malé.

Meanwhile, the Supreme Court circular stated that the establishment of two regional High Court branches under amendments to the Judicature Act means all appeal cases should be appealed in the region of the court issuing the decision.

According to the amendments passed by parliament last month – which also resulted in the controversial dismissal of two Supreme Court Judges – the nine member High Court will be divided into three branches with three judges assigned to each.

The two regional branches in the North and South will be allowed to hear appeals against magistrate court verdicts while only the Malé branch will be allowed to hear challenges to laws and regulations.

Constitutional rights

Velezinee claimed that by changing the regulations, the Supreme Court is “taking over the functions of the legislator” in an “attack on the Constitution”.

“No right is guaranteed anymore,” said the outspoken critic of the judiciary. “Supreme Court is under the constitution, but now it has gone above the Constitution.”

Velezinee has previously accused the Supreme Court of dominating the entire judiciary, and compromising the independence of the lower courts, via its close oversight of the Department of Judicial Administration.

Similar suggestions made by the Human Rights Commission of Maldives (HRCM) to the UN Human Rights Council last year prompted the initiation of ‘suo moto’ proceedings on charges of undermining the Constitution and the sovereignty of the country.

Velezinee was barred from the public gallery during the proceedings of the HRCM case in October.

Meanwhile, a prominent legal expert said that by shortening the appeal period, the Supreme Court is “trying to limit a fundamental right guaranteed by the Constitution”.

“The right to a timely trial should not overlap the right to appeal,” he said. “It is going to be logistically and practically impossible for most people to prepare an appeal case and submit it within ten days.”

He pointed out that most atolls do not have the adequate transportation systems to the nearest court branch, saying that it might be easier for islanders to travel to Malé to file an appeal.

Both he and Velezinee suggested that it normally takes in excess of two weeks to acquire the court report required to adequately prepare for an appeal case.

Related to this story

Supreme Court controls the judiciary, says HRCM report to United Nations

Judicial administration brought under direct control of Supreme Court

Majlis removes Chief Justice Ahmed Faiz, Justice Muthasim Adnan from Supreme Court

Removal of Supreme Court judges will have “chilling effect” on work of judiciary: UN special rapporteur

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

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Velezinee barred from Supreme Court trial

Former Judicial Service Commission (JSC) member Aishath Velezinee was barred from yesterday’s trial at the Supreme Court against members of the Human Rights Commission of Maldives (HRCM).

Although Velezinee registered at the reception to observe proceedings, she was later told by a court officer that she could be let into the court room for “security reasons”.

Other members of the public as well as journalists were allowed to enter after registering.

Velezinee subsequently wrote a letter to Chief Justice Ahmed Faiz Hussain in protest of the discriminatory treatment. Noting that she was even given a pass after registering, Velezinee asked for an explanation from the court for depriving her of a constitutional right to observe proceedings.

In 2010, Velezinee turned whistleblower and alleged the JSC was complicit in protecting judges appointed under the Gayoom’s government, and was colluding with parliament to ensure legal impunity for senior opposition supporters. In January 2011 she was stabbed twice in the back in broad daylight.

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Tourists blissfully unaware of Islamist tide in Maldives: Irish Times

“On arrival in the Maldives, holidaymakers bound for the exclusive resort of Gili Lankanfushi are whisked from the airport to a speedboat, given a freshly prepared coconut to sip and a cloth bag bearing a slogan: ‘No News, no Shoes.’ The idea is to place your shoes in the bag during the 20-minute boat journey and forget them, along with distressing world events, for the duration of your stay at the tropical island paradise,” writes the Irish Times.

“Avoiding the headlines may be no bad thing while watching sea turtles swim under your luxurious water villa, or while walking barefoot along the sparkling lagoon’s palm-shaded white beaches. It is certainly no bad thing for the Maldivian tourism industry, because the news is not good from this resort archipelago of some 1,200 low-lying coral islands in the Indian Ocean.

“In April, following a 60-year moratorium, the Muslim country’s government reactivated the death penalty. Facilities are being built at a prison on Maafushi Island to have murder convicts executed by lethal injection. The age of criminal responsibility in the Maldives is 10, but children as young as seven – who may be found guilty of certain crimes under Islamic sharia – could now potentially face a death sentence.”

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Comment: Mutiny in the Supreme Court

Just three weeks to the Maldives’ presidential elections scheduled for September 7, Chief Justice Ahmed Faiz Hussain has announced a mutiny in the Supreme Court!

In a statement issued on Thursday, the Chief Justice declared an injunction order issued by the “Supreme Court majority” of four judges on Thursday to be unlawful, issued without due process by the secret collusion of four members of the seven member bench, without the knowledge of himself and two other justices.

The injunction order is to stop the appointment of a Civil Service Commission (CSC) member to replace the disgraced CSC Chair Mohamed Fahmy Hassan, who was removed from office and CSC membership by the Majlis earlier this year for sexual assault of a staff member. He continued to sit in the office despite the removal, while politicians haggled and MPs pointed the finger at each other and outside to explain his impunity and the absence of rule of law.

No one appeared to understand that it is the Majlis that has the power to appoint and remove CSC members, with the CSC Act having been amended in 2010 for Majlis to take full powers of appointment, oversight and removal of CSC members, or that squatting in public office after removal is a crime.

Also unnoticed, or deliberately ignored in public discussion, are the wider connections of the Fahmy case to the silent coup and the hijack of the judiciary in 2010 with the CSC Chair being an ex-officio member of the Judicial Service Commission (JSC), and the serious and dangerous implications of the Supreme Court mutiny on the upcoming elections.

Discussed in the Maldives on political platforms, media, social media and other public fora is “bad man Fahmy” – the removed CSC Chair at the centre of the controversy; “bad man Ali Hameed” – the Supreme Court justice who has continued to sit on the bench protected by both the JSC and Majlis despite his public expose in the sex tapes scandal where he is seen having sex with multiple foreign women in a Colombo hotel room; and “bad man Abdulla Saeed” – the interim, self declared “Chief Justice” who is said to “lead the majority in the Supreme Court”.

Democracy, in the Maldives, is simplified to a struggle between The Majority and The Minority, with majority by any means deciding all, be it in the Majlis, the High Court, the Supreme Court or elsewhere. Democratic principles and standards, due process and rule of law, transparency and accountability, are all dismissed, the focus of all being on majority building by any means to have their way.

The report of the UN Special Rapporteur on the Independence of Judges and Lawyers issued in May 2013 Ms Gabriella Knaul, highlights the critical issues in Maldives engagement with democracy, and provides insight into the coup of February 7, 2012 like no other report, but remains ignored by government, opposition, civil society and other actors.

Precedent: Mutiny in the High Court

On January 21, 2010 a similar mutiny took place in the High Court, in my opinion the first of the many mutinies that had eventually led to the coup of Feb 7, 2012 and the fall of legitimate government with the forced resignation of President Mohamed Nasheed, the first President elected through democratic process.

The High Court mutiny attacked the JSC, removed the JSC Chair who was the then Chief Judge of the High Court, Abdul Ghani Mohamed, and delivered the Commission to the then Vice Chair of the JSC, now removed Justice of the interim Supreme Court, Mujthaaz Fahmy, who had cleverly manipulated the Commission, committed high treason using public office and the powers of JSC, hoodwinked the public, and delivered the full judiciary intact to former President Maumoon Abdul Gayoom and his allies.

The High Court mutiny was never investigated by the JSC despite a unanimous decision in the Commission in January 2010; the modus operandi of Mujthaaz Fahmy being to give in when challenged in a public display of concession and going behind the back to corrupt any decision he did not agree with.

The first Inquiry Committee appointed by the JSC to investigate the High Court Mutiny never sat, and I, a JSC member at the time, was informed by the Commission that it was due to the non appearance of Inquiry Committee member, then interim Supreme Court Justice, Ahmed Faiz Hussain – now the same Chief Justice who has declared that “the majority” has gone behind his back and there is a mutiny in the Supreme Court.

The Inquiry Committee never sat, and there was no investigation or action against the judges in the High Court mutiny, and eventually they were rewarded with lifetime appointments to the Supreme Court under the careful management of the Majlis majority. The removed interim Justice Mujthaz Fahmy was rewarded for life by the Majlis.

Ironically, but to no surprise, those in the Supreme Court mutiny today are the same “judges” in the High Court mutiny of January 21, 2010, who were appointed to the Supreme Court on August 10, 2010 in a political deal reached by the political leaders and the sitting interim Supreme Court who had by then declared themselves permanent.

The international community itself played by the politicians without a single independent observer to comment, had itself played a role pushing for “calm” and haste over due process and trust, ignoring the politics of it all, and the serious and lasting negative impact on democracy in the Maldives.

The Maldives is today more an active crime scene than a State, and whilst free and fair elections are a necessary first step to come out of the current situation, return to Constitutional rule, and rebuilding the democratic State we failed to build in the first attempt, there is little reason to expect a smooth electoral process.

The final word on the results of the September 7, 2013 elections will surely come from Court and not votes; and it is imperative that the political leaders and the international community come to an agreement on an alternative dispute resolution mechanism leaving the corrupted judiciary out of the process.

Ignoring the serious issues, hoping for the best, and relying on the possible goodwill of the judges given the power of numbers voting, is, unfortunately, no guarantee.

Aishath Velezinee (@Velezinee on twitter) is an independent democracy activist and writer. She was the Editor of Adduvas Weekly 2005-07 and served on the Maldives’ Judicial Service Commission (2009-11). She claims the Commission she sat on breached constitution in transition; and advocates for redress of Article 285, and a full overhaul of the judiciary as a necessary step for democracy consolidation.

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]

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Three years ago, the JSC colluded to reappoint Gayoom’s judges: Aishath Velezinee

On this day three years ago, on July 27, 2010, I cried in public, standing on the road, outside Maldives Police Headquarters.

I had gone to the police to report that the Judicial Service Commission (JSC) was sitting at work, on a public holiday, in a hastily called, irregular, unlawful sitting, putting the final stamp on a long-drawn conspiracy to hijack the judiciary.

It was, I now believe, the first major takeover in the coup that brought down the Maldives’ first democratically-elected President on Feb 7, 2012.

The station was on holiday mode and there was no one available to hear my complaint. The junior officers at the counter tried calling superiors but it appeared they had all been busy with the Independence Day, the day before, and were “off”.

There was none to speak to. I told the officers on duty that the Judicial Service Commission was sitting, at work, and that given two hours, they would bring down the state, and walked out. They stood, in silence.

I had tried all other avenues before, and had tried to reach President Nasheed through his office. The President was out of reach, out of Male’ on official ceremony with the Maldives National Defence Force (MNDF), on their territory, outside Male’ where he was Commander in Chief with the MNDF alone.

I was helpless to stop it, and I was convinced the state was collapsing. The Judicial Service Commission was at that moment sitting, colluding, to reappoint Gayoom’s judges en masse and approving them name by name, without check or inquiry.

No one else in the country appeared to know. The media found it all too fantastic. It appeared a Hollywood script, too unreal to be taken seriously.

I stood outside the Police Headquarters, frantic, tears streaming down my face from behind my big black sunglasses, trying to think what to do next, when Colonel Zubair came out of MNDF Headquarters saw me and came up. He saw me crying as I couldn’t stop the tears, though I pretended I wasn’t crying, and it just started pouring and poured more as I spoke. I explained my predicament to Zubair, who called up a police chief.

To cut short, it was explained to me that they understood my case but the police could not act to prevent the Judicial Service Commission from breaching the constitution, acting against the state, hijacking the courts, or robbing the people of the independent judiciary guaranteed by the constitution. These were the crimes I was reporting in my non-legal mind.

I walked back slowly, and went to Maanel, my haven, where I ran to breathe whenever the JSC stifled me, and where I went to vent and collect myself before running back when the JSC taunted, threatened, and attacked me as it often did in those days, in 2010. The JSC was just down the street.

I went to Maanel, left safe the documents I’d taken out from JSC that morning safe, and telling Wimla and Huchen what was going on, I left Maanel and walked back to JSC with only a water bottle, my phone and JSC keycard.

I was on my way to my first ever protest, having only been an observer, a reporter, in the years protesting had begun.

All along, I had been calling up media and contacts, telling people what was going on, and there was some public activity. A small crowd was already gathered outside the JSC when I went back.

I had gone that morning at 10:00am to find the Speaker, Abdulla Shahid, sitting at his place in the Commission, to the right of then Commission Chair, interim Supreme Court Justice Mujthaaz Fahmy, ready to complete the elaborate pretence of executing Constitution Article 285.

Until then, I had kept hope Abdulla Shahid was outside the matter, and despite all evidence to the contrary had kept my trust in him, and appealed to him, to bring an end to this awful charade that was about to kill the Constitution. I knew Abdulla Shahid understood constitution and democratic principles and standards like no other.

Seeing Shahid, I realised this was far bigger a conspiracy than I had wanted to believe.

I protested, inside the conference hall where the JSC continued with its treason despite my live commentary via my phone to a loudspeaker speaker outside. I protested until early evening when it finally ended.

By then there were MPs and a few lawyers speaking on the media, and the media was covering the protests outside JSC.

The people protested. And the JSC pretended to hear. After the protesters left, they returned the next day, and quietly carried out the crimes that haunt us today.

I stayed away on July 28, 2010, having informed the Commission that I would not be participating in any unconstitutional sittings or activities in the JSC.

It was Sheikh Shuaib Abdul Rahman, member appointed to the JSC from the Public by the Majlis, who protested on July 27, 2010, against the JSC’s breach of trust.

Sheikh Shuaib walked out in protest over the JSC approving the appointment of Chief Criminal Court Judge Abdulla Mohamed, despite the commission having evidence Abdulla Mohamed did not possess the qualifications of a judge required under Islamic Sharia.

Sheikh Shuaib then spoke tothe media and informed the public what had happened in the JSC that day, July 27, 2010.

I spoke with JJ Robinson of Minivan News a few days later about what I was seeing.

The rest is history, to be written and rewritten, as it comes.

Velezinee protests the reappointments in 2010:

http://www.youtube.com/watch?v=HDiTN72684s

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Comment: Courts now more a source of comedy than justice

In May 2013, the report presented to the UN Human Rights Council by the Special Rapporteur on the Independence of Judges and Lawyers made critical observations on the Maldives’ state and current constitutional crisis.

Ms Gabriela Knaul observed, among other things, two issues that, in my opinion, negate any belief in the Maldives as a democratic State respecting rule of law, or even as a so-called infant democracy intent on building a democratic government and a democratic culture.

She noted; (1) The “concept of independence of the judiciary has been misconstrued and misinterpreted in the Maldives, including among judicial actors”; and (2) The “People’s Majlis should bear in mind how their actions or inaction affects the establishment of the rule of law.”

Can there possibly be a more damning observation to conclude that the Maldives State has failed? Can there be a more damning observation to declare that the Maldives State does not hold legitimacy under its’ own Constitution? Or, in fact, that the events of February 7, 2012 were the end result of a long drawn struggle, and the eventual kill of the Constitution?

The responses of the State to the UNSR report is further incriminating.

The Government, instead of being alarmed or attempting to inquire or redress as may be expected of a responsible State, pointed the finger at Ms Knaul, inferring the report “undermined the country’s sovereignty and legal jurisdiction”.

How it undermines the legal jurisdiction is not quite understood, and it appears the Government is referring to Ms Knaul’s interpretations, perhaps claiming it a sovereign right, the right to interpret its laws independently, independent of established international law, democratic principles and standards?

The Parliament saw little of concern in the report. Government aligned MPs had no initiative and opposition Maldivian Democratic Party (MDP) overlooked the fundamental questions on the legitimacy of the Courts, the breach of trust by judge, Court and the Judicial Service Commission, instead focusing on subsidiary issues: Hulhumale’ Magistrate Court and the political trial of President Nasheed.

The corruption of the judiciary, impunity of the JSC and its constitutional breaches are matters the Parliament has been unable to address, the real struggle being within the Parliament itself, as conflict of interest interferes in MP duties.

Presidential candidate, Jumhooree Party (JP) leader, MP and sitting JSC member Gasim Ibrahim, during a rally soon after the UNSR’s visit to the Maldives in February this year, went as far as to call Ms Knaul an ignorant busybody – “just like that Velezinee” – who does not understand the Maldives is a sovereign country and has the right to define and interpret its own Constitution and act free of foreign influence.

He had a lot more to say, suggesting the UNSR was either charmed or bought into repeating a tale the majority do not agree with!

The JSC itself too found the UNSR had not told the tale they had to tell. The same for the Supreme Court, which has previously expressed the opinion that they are not bound by international human rights covenants the State is a Party to.

Today, the Courts in the Maldives are more a source of comedy than justice, ridiculed rather than respected, and the subject of much discussion on the widely used social media network as “news” of judges, Courts and JSC make frequent headlines on local media.

The most recent scandal to hit the headlines, and rise to international news too, is the blackmail of a Supreme Court “Justice” using a sex tape of the judge in a compromising position.

The police caught the blackmailer red-handed. He turned out to be Ahmed Faiz, an Executive Committee member of sitting President Dr Mohamed Waheed’s Gaumee Ihthihaad Party (GIP).

Ironically, Faiz had been dismissed from Dr Waheed’s government himself following an earlier leaked audio clip in which Faiz was heard telling some friends all about how the February 7, 2012 coup that was not was really a coup had been carried by Faiz on behalf of Dr Waheed.

I myself was ambushed by the same Faiz in a café a few weeks after the tape leak and he told me a very long story where he said Dr Waheed had dismissed him only from an honorary position he held without pay, that it was “just for show” to pacify the public, and that he was not dismissed from his real paid job!

Faiz also confided that he’d been called to meet President Waheed where all was explained to Faiz and he was reassured Waheed was only taking a superficial action to end pressure from others. Faiz owned up to it being him on the recording, alleged that it was the Progressive Party of Maldives (PPM) of former President Gayoom behind the leak of his conversation, and named a PPM activist as the one responsible.

It must be said, Faiz is not a person I had met in person or spoken a word to before this chance meeting, and I only “knew” him from Facebook where he had harassed me relentlessly (2010-11) without reason or argument until I finally blocked him.

Since the leaked sex tape, another “tape” of another friendly chat has been made public. In this spy camera recording, Supreme Court Justice Ali Hameed, who is alleged to be the subject in the exposed sex tape, and Mohamed Saeed, a local businessman from Ali Hameed’s native Addu Atoll, are heard to discuss the politics of the judiciary, and a mention of a possible murder is also heard.

If Ali Hameed as heard on the tape is to be believed, the judiciary is in cohort with the politicians backing the coup, and are now at the receiving end of the political scuffles within the “unity government” as the politicians realign in a bid to take over government in the scheduled September 7, 2013 elections.

The Supreme Court remains silent. So does the Judicial Service Commission. The Parliament, instead of focusing on holding the State accountable, has taken upon them the role of attacking or defending the judge and Courts.

Considering that “the Supreme Court has been deciding on the constitutionality of laws ex-officio, without following appropriate examination procedures, under the understanding that they are the supreme authority for the interpretation of the Constitution,” as the UNSR Ms Knaul noted, and that the checks and balances do not function, it seems the scramble now is to re-conquer the Supreme Court.

The sitting “Judges” remain sitting ducks, without will or agency to stand up independently for the independence of judges, and to protect their own good names tarnished in the political struggle to control or free the judiciary.

Where the President Maumoon Abdul Gayoom had, for 30 years up to 2008, “the supreme executive and judicial authority” and the culture developed therein, it is no surprise that there is little understanding or identification of real issues by the masses.

Worrying is the continued misreading by the politicians and the miseducation of the public.

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]

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Comment: The private eye?

This is the second of a series of articles as I attempt to unpack the Naaz Report, Access to Justice in the Maldives: Through the Eyes of a Colourless Lens published in May 2013.

Part one of Velezinee’s critique of the Access to Justice report is available here.

1. Naaz was a warden of Vice President Waheed Deen who taught and groomed her. He sponsored her study in Australia where she read Law, and lived and worked in Australia before returning home in late 2009.

2. I was first introduced to Naaz in 2009 by a mutual friend, a judge, who was a school friend of Naaz, and my closest friend at the time. As I understood, Naaz had been away for a long period, returned to the Maldives for a “break year,” and was excited by the changes she was seeing in the Maldives. She wanted to contribute to the nation with her knowledge and experience, and at the same time build her CV. Maldives lacks people of the knowledge, experience, exposure and grooming Naaz has, and she could help fill the gap. Naaz was living in Bandos Island Resort, courtesy of VP Deen, and was exploring opportunities. It was an exciting time.

3. She met with the then Vice President Dr Mohamed Waheed by appointment to introduce herself, and express her interest, and met others whom she knew from earlier, looking for a way to contribute. I was aware of the issues in child protection and the lack of expertise in law or human rights in the then Department of Gender and Family Protection (DGFPS) and thought Naaz could contribute much to strengthening the child protection system, and encouraged her to take up the challenge.

4. In the end, Naaz joined the UNDP office in Male as a Project Director to lead the Access to Justice project, an ongoing UN program with the government. With the UNDP, Naaz had privileged access to all institutions that few others had.

5. The author’s introduction in the publication, Access to Justice in the Maldives: Through the Eyes of a Colourless Lens (May, 2013) reads somewhat different.

6. In it she informs the reader she was the “Protecting Human Rights and Access to Justice Project” Program Specialist as well as the Project Manager with UNDP Maldives”, and that she is “a practicing lawyer in Australia” who has been “in the legal field for over 12 years”. All facts.

The “framing”, however, is misleading. It gives the reader the impression that the author is an Australian lawyer practicing in Australia, who happened to be in the Maldives working with the UN between 2010-12. A Maldivian would have “interests”, but what interests, as such, would an Australian have in rewriting a narrative? The framing, thus, gives a false impression of author as standing outside.

7. Second, the tag “Lead Researcher and Author: Naaz Aminath (LLB, GDLP, LLM)” implies the report is the work of a team. This too is misleading. There is no research team mentioned elsewhere in the report or credits, nor is there a reference list or bibliography included in the report.

8. Copy editing is credited to Maaeesha Saeed and Aishath Rizna, who was the Registrar at the Interim Supreme Court during the transition period, and is currently working for the Department of Judicial Administration.

10. Could the author be deliberately misleading the reader? Are these all innocent omissions and/or typos? Maybe. Or maybe not. What is the purpose of the Naaz Report? What influence could it have on the political processes in the Maldives today? Everything, depending on the winners in the presidential elections scheduled for September 7, 2013.

11. Naaz’s long standing patron, Waheed Deen, a businessman, resort owner, and society-man of wide social contacts known for his philanthropy and gift-giving, is the current Vice President, handpicked by Dr Waheed following the February 7, 2012 coup d’état. And the fact is, with all the plotting and re-plotting, it was “on a judges’ back” that Dr Waheed rose to office.

What went on in the JSC during 2009 and 2010 is clearly linked to events of January and February 2012, as I tried explaining to the Commission of National Inquiry (CoNI) in my testimony.

So, what does Naaz say?

1. On “access to justice”, Naaz argues that the urban-rural disparity, the “deficiency in development and lack of access to justice creates inequality and injustice while giving an advantage to politicians to ‘buy’ their ideas rather than sell it.” Access to Justice as a fundamental right, and the broader definitions of it, and the constitutional guarantees and requirements are not recognised.

2. There is no mention of the crucial role of an independent judiciary in democratic government, or necessity of independent judges and public trust in the justice system to protect human rights and provide access to justice.

3. The fact that a UNDP Study (2000) of governance found the judiciary to be “the weakest link” in transitional constitutional democracies; and that Article 285 of the Maldives’ Constitution provided exactly for this challenge, is not recognized by Naaz.

This, despite her position as the Project Director of the Access to Justice project with the UNDP in Male’ during the Maldives’ transition from a constitutional autocracy to a constitutional democracy.

4. The Maldives, I maintain, lost an independent judiciary and the independence of judges through the high treason of the Judicial Service Commission (JSC), on which I sat a member under oath.

The JSC nullified Article 285 unconstitutionally in an elaborate game of lies, deception and drama. The state refused to officially acknowledge the dispute in the JSC, or the alleged treason and constitution breach, with the Majlis majority unashamedly covering up the hijack of the judiciary in what I have since called the Silent Coup.

5. Post coup, the JSC has become exposed as it never was in 2010. The frequent public appearances of the JSC, especially the Chair, Supreme Court justice Adam Mohamed Abdulla, has revealed more about the Commission than any other intervention could.

Concurrently, renewed interest in transitional matters, and inquiries into the JSC and its functioning by independent experts have exposed the secrets of JSC: the JSC does not act to uphold the Constitution, is highly politicised, and misconstrues constitutional concepts and law for its own ends and the benefit of judges. In short, the JSC acts against the Constitution and the State.

6. The latest report on the Maldives’ judiciary and access to justice by the UN Special Rapporteur on the Independence of Lawyers and Judges, Gabriella Knaul, provides a substantive summary of the challenges Maldives faces, and highlights where a UN-led Access to Justice program must focus.

7. On the ground in 2010, Naaz was a sympathetic ear to my complaints against the JSC, and my grievances against the Parliament for their failure to hold the JSC accountable, and to ensure Article 285 was fulfilled meaningfully. I was advocating for substantive and meaningful action on Article 285 aimed at judicial reform as envisaged by the Constitution, and Naaz agreed with my interpretation and opinion.

8. Naaz always left with me a standing offer of assistance, which was much appreciated, as I do not have a background in law. In retrospect, that assistance never materialised, as Naaz was occupied when and where I did request help. My requests mainly were for assistance in reading through some of my drafts, and in translating to English and/or preparing briefs in English to share some information of the ongoing dispute, and the dozens of pages I was putting out in Dhivehi at the time.

9. With all attempts to get an inquiry into Article 285 and the JSCs’ constitution breach blocked, the judges took their infamous “symbolic” oath, en masse, on August 4, 2010. No one, neither the state institutions nor the media, questioned the oath or its legitimacy despite what was witnessed live and the questions it raised. It was the public left with unanswered questions.

10. The UN was satisfied. Naaz was on the ground, and was active in the efforts that followed to legitimise the judiciary, appointed unconstitutionally and without due process, by the will of the majority. No one mentioned rule of law. Not until 2012.

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]

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

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

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

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

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

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

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

The Nasheed trial

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

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

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

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

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

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

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

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

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

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

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

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

Politicisation of the JSC

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

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

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

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

State of the courts

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

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

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

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

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

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

“Symbolic” reappointment of judges

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

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

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

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

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

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

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

Way forward

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

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

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

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

Read the full report

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Comment: Will Maldivians be allowed to choose their leader?

President Nasheed is poised to win the Maldives’ presidential elections on September 7, 2013. It has become increasingly obvious that the only way to prevent Nasheed’s return is to ensure his name stays off the ballot paper.

At the same time, the repeated exposure of the farce of the courts and the dishonesty and idiosyncrasy of the Judicial Service Commission (JSC) by open parliamentary committee sessions since the February 7, 2012 coup d’état, and the mounting evidence against the JSC in many international reports investigating the status of the Maldives’ judiciary and its transition, has made it increasingly difficult to convince the public or the international community that any decision to exclude Nasheed from the elections will be impartial.

With less than four months to the elections it is undeniable to all observers on the ground in the Maldives, including the skeptics, the political opponents and the grudge bearers who form the majority opposition to Nasheed, that he has won the hearts and minds of the Maldivian public. The colour yellow, symbolic of Nasheed’s Maldivian Democratic Party (MDP) undeniably brightens the islands despite the pink in the corridors of power.

Fifteen months since his forced resignation, the public has continued to rally around Nasheed who has come to be popularly known as the “elected president”. All signs today suggest Nasheed will win the upcoming September 7 elections in one round of voting. As the latest campaign slogan of Nasheed’s Maldivian Democratic Party (MDP) promisea, President Nasheed is set to appear a clear winner, in one round; #EhBurun. Nasheed himself predicts 150,000 votes to MDP.

The government parties, despite an outward show of confidence and ‘fighting spirit’, are in silent consensus that there is no formidable challenge to Nasheed from any of their named candidates. Nor is there a possibility of a fight unless the so called ‘unity government’ can agree to back a single candidate to challenge the MDP.

But that is out of the question given that there is no common ideology shared by the seven parties said to be part of the unity government. What the coalition leaders share in common are a desire for presidency, and a need to cover-up the coup they led and backed in an effort to expunge President Nasheed.

The sitting coup-appointed President, Dr Mohamed Waheed Hassan Manik, is today seen a front-runner among the opposition leaders, despite his Qaumee Ihthihaadh Party (GIP) not having the required 10,000 party membership, and his rise to office having little to do with any power or influence he held.

According to the latest published Election Commission records, dated March 10 2013, GIP has a total of 3930 registered members and 1101 forms pending. It is highly unlikely Dr Waheed will be able to double his party membership in the next few months.

Dr Waheed is backed by his Advisor Dr Hassan Saeed, the leader of the Dhivehi Qaumee Party (DQP), whose personal opinion of Dr Waheed is that he is “the most naïve and gullible amongst political leaders” -an opinion he revealed to a group of Maldivian students he entertained while in London to lobby with CMAG following the coup. A leaked audio recording has Dr Saeed explaining the “unique coup” they pulled, and belittling Dr Waheed: “Honestly, he’s the dumbest of them all.”

Dr Hassan Saeed’s own party has had no say in the decision as the DQP leadership split between Dr Waheed and the majority party in the unity government, Gayoom’s Progressive Party of Maldives (PPM).

Deputy leader of the DQP, Dr Mohamed Jameel Ahmed, has switched to the PPM, adopted as the running mate and Vice President of Yameen Abdul Gayoom.

PPM’s interest, still, is control over the courts as signified by the selection of Dr Jameel, an old Justice Minister of Gayoom and the only one within the unity government who may be able to direct the sitting judges to Gayoom’s needs. Quite likely, DQP members will swing independent of both Dr Hassan Saeed and Dr Jameel.

Joining Dr Waheed is the religion-waving Sheikhs of the Adhaalath Party, whose use of the religion card has failed to win them any seats in parliament or council despite their capacity to rouse frenzied crowds in rallies denouncing “moderate Islam” as blasphemy.

Umar Naseer, who commanded the coup d’état of February 7 2012 according to his own testimony to the Commission of National Inquiry, has declared support for Dr Waheed after his expulsion from PPM within weeks of losing the presidential primaries.

Umar was expelled as a disciplinary action after he accused Yameen Abdul Gayoom of not only vote rigging in the party primaries but of links with serious organised crime including gangs and the drug trade, during a post-primary rally for his supporters.

If Umar Naseer is to be believed, brother Yameen is quite the Don, and if anyone knows, Umar does, having been a lifetime loyalist of Gayoom until he was discarded. EC records show PPM to have 22,383 registered members and 1671 forms pending.

The Dhivehi Rayyithunge Party (DRP) has bravely stuck to its charter which decrees that the party president is the party’s presidential candidate despite internal discord and the eventual exit of DRP founder and appointed leader-for-life, Maumoon Abdul Gayoom.

What remained of DRP after Gayoom’s exit was left to party president, MP Ahmed Thasmeen Ali, who was Gayoom’s 2008 running mate, his one-time Home Minister, and the presidential candidate of DRP for 2013 per the party charter. The DRP has 21,411 registered members and 1147 forms pending after the split.

The DRP has however conceded defeat, backing out of elections to back Dr Waheed, in a move which may be deemed another silent coup. The party president is the presidential candidate only if the party chooses to contest in elections, and the DRP council has decided it is not in 2013.

Business Tycoon, Entrepreneur, Philanthropist, Educator, MP, the Honorary Dr Gasim Ibrahim’s Jumhooree Party (JP, Republican Party) declared himself a presidential candidate way before calls for early elections and the contested power transfer of February 7 2012, but has not yet found a coalition partner willing to back the JP.

Aside from the politicians, military leaders and police seniors share a common interest with candidates Dr Waheed, Yameen and Gasim to cover up the coup and their crimes. Judges too are neither free of influence, nor independent of politics. Having given into politics once, their interest will be to sit on to the bench they appropriated with a ceremonial oath and no due process, just as the sitting president did when he took office.

Given the current scenario, and the growing conviction that ousted president Mohamed Nasheed will return with a clear majority of the kind he never had in 2008, how far will the “friends of Dr Waheed” and those who backed the coup d’état go to ensure Nasheed’s name stays off the ballot paper? Whose interests would be served by eliminating him?

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]

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