Tag: velezinee

Letter: JSC claims to have been endorsed by US Ambassador

Dear Madam Ambassador Michele J Sison,

I write to you as a member of the Maldives Judicial Service Commission 2009 to 2011, and as an advocate for rule of law and constitutional democratic government in the Maldives, to express my concern following the recent remarks attributed by the Maldives’ Judicial Service Commission to yourself, Madam Ambassador, in a statement published on the said Commission’s website on May 8, 2013.

The original statement in Dhivehi is to be found on http://jsc.gov.mv/2013/05/1561.

The Dhivehi statement claims that “Ambassador Michele J Sison approves of the functioning of the Maldives’ Judicial Service Commission”, and agrees the actions of the Commission are up to the “best possible standards”.

The statement further suggests that, thus, the Commission is cleared of all the long standing, very serious allegations against it.

The statement appears to be another attempt by the Maldives Judicial Service Commission to cover up its breaches, political activism, abuse of powers, and continued actions against Constitution and State through political activism, misconstruing dialogue, and misleading the public.

Hence, I would like to recall to your kind attention the very serious allegations against the Maldives’ Judicial Service Commission that remain pending without proper Inquiry by the State. These include:

  1. Breach of trust, refusal to uphold its constitutional duties, and cover up of judicial activism and corruption;
  2. Unconstitutional nullification of Constitution Article 285, and the deliberate and willful corruption of the Judiciary, the silent coup;
  3. Corruption of the High Court by cherry picking judges;
  4. Corruption of the Supreme Court by the Judicial Service Commission failing to follow due process, and fulfill its constitutional duties and responsibilities.

Further, I would also like to bring to your attention the reports of some major independent fact finding missions and international bodies which consistently conclude that the Judicial Service Commission acted outside its mandate, failed to respect Constitution or the democratic principles therein, misconstrued law and legal concepts, is highly politicised and partial, and is not fulfilling its constitutional mandate of building trust in the judiciary by holding judges to account.

  1. Report of the International Commission of Jurists (February, 2011)
  2. Dialogue and Concluding Observations of the UN Human Rights Committee, Geneva (June, 2012)
  3. Report of Professor Tom Ginsburg supported and funded by the United States Embassy and UNDP, and prepared for Raajje Foundation (December, 2012)
  4. Observations by the UN Special Rapporteur on the Independence of Judges and Lawyers at the conclusion of visit to the Maldives (February, 2013)
  5. Press Release and Report of the South Asians for Human Rights (SAHR) mission led by Justice Leila Seth (India) to the Maldives in August 2012 (April, 2013)

Having been a part of the Judicial Service Commission, and being very familiar with the modus operandi of the Commission and its current Chair, Supreme Court Justice Adam Mohamed Abdulla, it is plausible to me that the statement of the Judicial Service Commission is its own politics and does not necessarily reflect the United States’ endorsement of the Maldives’ Judicial Service Commissions’ constitutional breaches or the sitting bench permitted to continue without check or due process as required by section 285 of the Maldives’ Constitution (2008).

Further, the Judicial Service Commission’s role leading up to the February 7, 2012 transfer of power, and in its close personal engagement with prosecuting President Mohamed Nasheed has only confirmed to the Maldives’ public that the Commission is not deserving of public trust, and that the Judiciary is hijacked as I have consistently maintained.

It is also very telling that I have continued to strongly and continuously criticize the Judicial Service Commission and Courts without any legal action whatsoever against myself for “contempt of court” or “tainting the image of the Courts and judges” in a situation where others have been investigated and prosecuted for the said “crimes” for saying far less than I have and continue to do.

It stands to reason the Maldives cannot consolidate democracy with a flawed judiciary; or the questions that hang upon it, and haunt us in the Maldives today.

Yours sincerely,

Aishath Velezinee

Velezinee is a former member of the Judicial Services Commission (JSC) and an outspoken whistleblower on judicial corruption. She was stabbed three times in the street in broad daylight in early 2011.

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: Appointment of Supreme Court bench a grave blunder

This article recounts the appointment of the Supreme Court bench on August 10, 2013, and was first published on Dhivehi Sitee. Republished with permission.

On 7 August 2010, the two-year Constitutional period for transition and the setting up of first-ever democratic State ended without a Supreme Court, Chief Justice or Civil Service Commission in place. The Human Rights Commission, too, was up for reappointment.

The Judicial Service Commission continued, technically, with some members still being valid, but remained in suspension without leadership or full membership.  The JSC Secretariat, which often carried out functions of the Commission as directed by the Chair, without knowledge or advice of the Commission, carried on as usual. It was fashioned upon the dissolved Ministry of Justice by the first Chair of JSC and former Minister of Justice, Seena Ahmed Zahir, and continued to handle- the Courts and administration of justice much like it did prior to the 2008 Constitution.

The Secretary General at JSC, Muna Mohamed, had resigned on 2 August 2010. Muna left after it became known that she had, at the urging of JSC Chair Mujthaz Fahmy and members Criminal Court Judge Abdulla Didi and MP (DRP) Dr. Afraashim Ali, altered records on Article 285 proceedings at JSC forwarded to the Parliamentary oversight Committee.

Interim Supreme Court, which was to be dissolved with the appointment of the first Supreme Court remained in office, with no Supreme Court yet appointed. The nomination of Ahmed Faiz Hussain for Chief Justice remained pending in parliament, the Speaker refusing to table the matter as a stand alone appointment, and parliament majority insisting on full bench being approved en masse.

The President was insisting on parliament deciding numbers on bench for nominations to be made. The Judicial Service Commission embroiled in the battle against Article 285, had not had time to discuss names for the Supreme Court despite the topic being frequently raised by the judges on the Commission. The judges had names they wanted to forward to the President.

Did locking the Supreme Court prevent a coup?

On 7 August 2010, President Mohamed Nasheed ordered the Maldives National Defence Force (MNDF) to lock up the Supreme Court. At 6pm, they did. There was no Supreme Court appointed.

I do not know on what information or what basis President Nasheed acted, and I have my own opinion on what ensued, but still I would defend the the lock up of the Supreme Court on 7 August 2010 was a pre-emptive act; and, I have good reason to believe, it successfully prevented the final act of the silent coup, at least for then.

If “intelligence” I had from the inside is correct, the Interim Supreme Court had drafted a ruling, and the plan was for the bench to convene that evening to declare themselves permanent by the power of their self-declared permanency earlier and by virtue of sitting on the bench at the end of the Constitutional two-year period. Concurrently, I was informed, the newly self-appointed Supreme Court would also declare President Nasheed unconstitutional for his failure to appoint the Supreme Court in the period provided. I cannot explain the reasoning, nor confirm the information as 100 percent accurate. I can only relate here the information I had from sources I found reliable. What I know for a fact is the Interim Supreme Court had been busy, lights often burning well into early hours of the morning.

As with the “lock up” of Abdulla Mohamed in January 2012, no one probed why the Supreme Court was locked up.

The Prosecutor General (PG), having listened to interim Chief Justice Abdulla Saeed appealed to the Civil Court to order MNDF/President Nasheed to unlock the Supreme Court. My request to meet the PG was swept aside with an “I will call you.” It did not happen. We were too familiar with each other as former colleagues and friends. Despite my constant reminders that I spoke to him as a sitting JSC member, he could not see me as any other but his “friend Vel”.

The sleeping Law Society, too, roused itself. The Secretary, Dheena Hussain, issued a public statement condemning the “president’s interference in the Judiciary”. Dheena Hussain had worked on the Constitution drafting Committee and is noted as the translator of the Constitution (2008) from Dhivehi to English. What schocked me is the fact that neither Dheena nor Law Society President Shaheen Hameed, who had been a member of the Constitutional Assembly, spoke up on JSC’s politics and high treason or the loss of an Independent Judiciary. I had personally shared all related documentation forwarded to President Nasheed with the Law Society, which has since been dissolved. It was the only professional organization of lawyers in existence.

The country was tense.

The international community, as wary as it is of domestic politics, urged a peaceful resolution through political talks. The fact that the Maldives was in a Constitutional crisis without a domestic remedy given that it was the judiciary in question; it was the the Judicial Service Commission  committing acts against the Constitution and State; and it was the parliament that stood accused of a cover-up, all went unobserved, or was deliberately ignored.

The pressure was on for a quick resolution, and President Nasheed was in a corner.

Appointing the Supreme Court

On the morning of 10 August 2010, I received an SMS from the President’s Office. President Nasheed wanted to meet the Judicial Service Commission (JSC) at a meeting to be held in his office at 1:00pm. On the agenda was the Supreme Court.

Parliament, meanwhile, was at work, adopting the Judges Bill and Judicature Bill which had been left out of agenda for months of political bickering. That morning, it had adopted a proposal by DRP member Abdul Raheem to grant a 7-year period for judges not meeting required educational qualifications to get their degrees.

I was the first to arrive for the meeting with President Nasheed. As I sat down in the waiting lounge, Speaker Abdulla Shahid, who also doubles as ex-officio member of the JSC under Constitution Article 158(a) walked in. Shahid tensed upon seeing me and protested against my “naming him” in an interview to Minivan News. I responded I couldn’t help who is named. Shahid then announced to me that the amendment proposed to the Judges’ Act by MP Abdul Raheem that morning was a proposal he made.

I did not comment. Both he and I knew it contradicted a Constitutional provision and was in fact a political move to alter the Constitution and manipulate the courts without changing a single letter of the constitution. The same modus operandi, majority by any means (with the majority decision standing above Constitution) had effectively nullified Article 285. Article 8 on the supremacy of the constitution leaves no room for majority decisions. When objections were raised, the majority drowned it in the collective claim that democracy works on majority. Respect of constitution, due procedure and rule of law were all to be by majority agreement.

The Judicial Service Commission: Who were they?

By 1:00pm, all sitting JSC members except for member elected by the lower Courts, Judge Abdulla Didi of Criminal Court, had arrived.  Member appointed from the general public, Sheikh Shuaib Abdul Rahman was on leave, gone on Umrah.

Seat of JSC Member 158(i), the Attorney General, was vacant. Husnu Al-Suood resigned on 8 August 2010 immediately after the “end of transition”. Media reported Suood saying he’d resigned to take responsibility for State’s failure to take responsibility.

I resigned… There are a lot pending matters. I believe that all state bodies have failed (to take their responsibilities). So I believe that at least someone should take the responsibility,’ Suood said in an interview with Haveeru. “Suood said he resigned to take responsibility of the constitutional void triggered after the transition period deadline.”

Seats of Member 158(b) from Supreme Court and 158(g) President of the Civil Service Commission were vacant following the dissolution of both those bodies with the end of the interim period on 7 August 2010.

It can be argued that the JSC as a legal body, did not exist on 10 August 2010 for the President to consult. Neither had the JSC discussed the Supreme Court prior to it going defunct on 7 August 2010.

The JSC was bereft of a Chair or Vice Chair when interim Supreme Court judge Mujthaaz Fahmy lost his seat on 7 August 2010. Mujthaz, the Vice Chair, took over as Chair after High Court Chief Judge Abdul Ghani was stripped of his JSC membership in the High Court mutiny of 21 January 2010. Mujthaz had refused to agenda elections until 11 March 2010 when he elected himself Chair and refused to elect anyone to the Vice Chair post he had just vacated. From 11 March 2010 till Mujthaz Fahmy was forced to depart on 7 August 2010, he remained Chair, and never allowed the appointment of a Vice Chair thaty would have allowed for the Commission to continue.

Meeting President Nasheed were six individual members of the Commission, giving the 50 plus 1 majority quorum required for a JSC sitting:

  1. Member  158(a), Speaker Abdulla Shahid (DRP)
  2. Member 158(c), Judge Adam Mohamed Abdulla of the High Court of Maldives
  3. Member 158(d), Judge Abdulla Didi of the Criminal Court
  4. Member 158(e), MP Dr. Afraasheem Ali (DRP)
  5. Myself, Member 158(h) Aishath Velezinee, and
  6. Member 158(j), Lawyer Ahmed Rasheed.

President Nasheed chaired. No one except for the six members of the Judicial Service Commission, the President and his Secretary, Rugiyya Ahmed Didi (who was taking notes) was present in the closed meeting. Before us was a dossier prepared by the JSC earlier for the selection of the Chief Justice, listing 17 names and giving their curriculum vitae and other records.

A name for the Chief Justice had been been decided by President Nasheed following a similar exercise carried out earlier in July. President Nasheed had invited the JSC, and in a meeting chaired by himself consulted the JSC, asking members to inform if there was any reason any one whose name was on the list must not sit on the Supreme Court bench. Much was told by JSC members, each member drawing upon their long-time and in-depth knowledge of the individuals to relate stories and anecdotes.  Then Attorney General Husnu Al-Suood who knew the interim Chief Judge Abdulla Saeed, as well as having had the long experience of working with the Courts as a lawyer, was adamant Abdulla Saeed was not to continue.

A significant difference between these two meetings, the first to nominate a Chief Justice and this one to nominate full Supreme Court bench was, that unlike on 10 August 2010, the JSC was then a functional body with an elected Chair. Further, JSC had had a preparatory meeting before meeting with the President when selecting a Chief Justice.

The nomination of Ahmed Faiz Hussain for the post of Chief Justice was submitted for Parliamentary approval before the 7 August 2010 deadline but remained unattended, neglected in a parliamentary tug of war.  The Speaker refused to agenda approval of the Chief Justice in isolation, and Parliament majority demanded names for the full bench before tabling the matter.

Naming mames

President Nasheed began the meeting of 10 August 2010, explaining the purpose of the meeting was to consult the JSC on the appointment of the Supreme Court and requested names. He then invited JSC members to speak.

Article 148(a) of the Constitution states:

The President as the Head of State shall appoint the Judges of the Supreme Court, after consulting the Judicial Service Commission and confirmation of the appointees by a majority of the members of the People’s Majlis present and voting.

This was the first step.

If I recall correctly, Member 158(c) Adam Mohamed Abdulla of the High Court was the first to speak. He declared his concerns about being in the sitting when his name is discussed.  I cannot sit when you’re discussing my name, he raised his concern noting  the meeting would lose quorum were he to leave the room. No one had yet mentioned any names.

MP Dr. Afraashim Ali protested at President Nasheed chairing the meeting, but only for the record, as the same protests had been made and dismissed earlier, on the day a nominee for Chief Justice was discussed.

Member 158(a), Speaker Abdulla Shahid intervened, and inquired of Chair President Nasheed if names proposed were to be limited to the list. President Nasheed responded in the negative, and repeated it was up to the Commission.

Abdulla Shahid, having given the opening to name names, nominated Muththasim Adnan for the Supreme Court. It was a name included in the dossier before us.

Member 158(e) MP Dr. Afraashim Ali immediately followed with a list of names he recommended, some outside the dossier. They  included Parliament Secretary General Ahmed Mohamed; Parliament Legal Counsel Dr. Ahmed Abdulla Didi;  Interim Supreme Court Justice and former JSC Chair Mujuthaz Fahmy;  self-declared Chief Justice, head of interim Supreme Court, Abdulla Saeed;  High Court Justices Ali Hameed and Adam Mohamed Abdulla and other “old friends”.  I do not recall today the full list of names he proposed.

Dr. Afraashim immediately added an apology for having proposed two names from Parliament, and gave his reasons for their nomination.

They are good people. I know them both very well. Because I am in Parliament, and work very closely, I am very familiar with both Usthaaz Ahmed Mohamed and Usthaaz Dr. Ahmed Abdulla Didi; very suitable people for Supreme Court.

Afraashim also gave eloquent speeches praising former JSC Chair and interim Supreme Court Justice Mujthaz Fahmy, and urged his nomination to the Supreme Court.

In my turn, I noted the task before us was to appoint the Supreme Court of the country, and that it was important to include a woman on the bench as the Supreme Court bench would sit for life, and appointment of another Supreme Court judge may not happen for the next 30 years.

Further, I objected to JSC members nominating friends, colleagues and acquaintances to the bench just because the member is familiar with them and knows them to be ‘perfect for the Supreme Court’. None of us knew all eligible candidates for the Supreme Court. In my opinion, it was abuse of office to give an unfair advantage to our friends by naming them for Supreme Court. Many, more worthy candidates, may miss out just because none of us sitting JSC members know them personally.  Then, I raised my objections to some names floated.

Mujuthaz Fahmy did not have the educational qualifications nor the good character required. Further, the Anti Corruption Board had found him guilty of embezzling State funds in 1998. And there were other allegations against him pending investigation. Mujthaz Fahmy was not fit to sit Judge.

Abdulla Saeed, though having the required educational qualifications, had lost all moral authority to sit.  He made a public spectacle of himself and in an interview on DhiTV following the lock-up of interim Supreme Court on 7 August 2010. He publicly demonstrated then that he does not possess the good character required of a Judge.  We all watched him scream, plea, threaten and cajole, calling for the return of “Supreme Court powers”.

Earlier in the year, Abdulla Saeed had taken advantage of political fighting between the parliament and executive to declare himself Chief Justice, and the interim Supreme Court the permanent bench. He abused trust and attempted to usurp for himself the constitutional powers vested in the president and parliament to appoint the Supreme Court. While this was a silent coup in itself, a betrayal of trust, and an attempt by trusted caretakers at the interim Supreme Court to take over the Supreme Court, neither the parliament nor president held the interim Supreme Court to account.

The JSC, headed then by interim Supreme Court Justice Mujthaz Fahmy, ignored and denied repeated requests to agenda the matter of interim Supreme Court’s self declared permanency in the Commission as a matter of serious breach and misconduct. Media reported on Interim Chief Justice Abdulla Saeed’s letter but failed to do follow-ups, allowing the matter to remain buried. Neither State nor the law community noted anything amiss.

I also stated that Ali Hameed and Adam Mohamed Abdulla of the High Court were signatories to the High Court declaration of 21 Jan 2010 and that their misconduct was pending investigation in the JSC. So was the complaint of misconduct against Abdul Ghani Mohamed, Chief Judge of the High Court, based on allegations publicly raised by three of the five High Court justices on 21 January 2010.

While at the meeting I received information, via SMS, that Dr. Ahmed Abdulla Didi did not meet the qualifications required of a Supreme Court judge. I raised the concern, and noted no one had checked Dr. Ahmed Abdulla Didi’s qualifications. I, a member JSC, had never seen even a CV of his.

President Nasheed himself spoke of Abdulla Saeed as unfit, giving good reason why he was not fit to sit judge.  Former Attorney General, Husnu Al-Suood had earlier, on the day of deciding a nominee for Chief Justice, shared till then unknown information and anecdotes on Abdulla Saeed’s character. This included information about how he divorced his wife in a rage one Ramazan for not having his shirt ironed and ready when he wanted. All of this was known fully to the President and the Commission.

The meeting ended on the dot, at 1:00pm, without further happening. It was a one-hour meeting and President Nasheed is excellent at time management. JSC never finishes a sitting in the allotted one hour, thirty minutes. Often, sitting time has to be extended before the Commission even reaches items on the agenda.

As we stood up and were taking leave, I heard Shahid request a word with President Nasheed. As I walked out of the room, I saw President Nasheed in the corner of the room, Shahid before him.

Parliament approves full bench without question

Rumour round town was that Parliament would reconvene at 2:00pm the same day to approve the Supreme Court. People waited in anticipation but nothing happened at 2pm. Parliament was delayed as committees worked and parties talked behind closed doors. After another delay at 4:00pm the Majlis finally sat that evening.

The list of nominees for the Supreme Court, when it was announced in Parliament, came personally as a shock to me. I had heard President Nasheed’s objections to Abdulla Saeed’s name, with good reason. It was very clear that Saeed was not fit to sit on the bench. Yet, his name was on the list. Also included were Ali Hameed and Adam Mohamed Abdulla, both with serious misconduct allegations uninvestigated at JSC.

In another unusual development, perhaps unprecedented in parliamentary history anywhere in the world, Parliament amended the Judges’ Act just before the names were approved. The amendment specified that the 7-years experience required to qualify for a judge may include legal experience outside the Maldives, a redundant change as nothing elsewhere prevented the interpretation of the clause to include outside experience. Clearly, it was meant to mislead the public and cover the fact that Dr. Ahmed Abdulla Didi did not meet required experience.

The Supreme Court bench was approved without question or query. No one noticed anything amiss.

I observed it all closely, from my seat on the Judicial service Commission, said what I must, and kept silent. This wasn’t just the Judicial Service Commission in breach. The President, Parliament and the proposed bench for the Supreme Court were all violating the Constitution, all in the name of peace and national security. The international community, ignorant of the realities or not interested in domestic politics, were urging political negotiations, ignoring the fact that negotiations between unequal parties invariably turns out skewed. Not only was MDP (Maldivian Democratic Party) the minority  in Parliament, MDP itself did not have agreement within the Party leadership on executing the Constitution and building a democratic State. Individual MPs had their own notions and interests which preceded the Constitution, an independent Judiciary, or democratic government. Of utmost importance to certain influential MPs was control. Control information. Control dissent. Control judges. Control verdicts.

Of course, for some, it is nothing but madness to suggest the whole State is entangled in a web of deception. But that is the fact of the matter.  Maldives lost an independent judiciary, and with it the constitution and democratic government, by the failure of us all to watch the politics and respect the Constitution.

Not even President Nasheed’s own announcement that the Supreme Court is in fact a political deal is taken note of.  Still, even today, the goal is a political deal to reorganise the bench when it is very clear that there is no legitimate Supreme Court. The politicians, Party leaders and MPs are, understandably reluctant to own up to a deal gone bad. At stake, is the Constitution, democracy and justice the people of Maldives  stood up for.

Maldives must respect the Constitution and re-appoint the judiciary across all three tiers if it is to free the judges of suspicion and begin anew on the path of constitutional democracy.

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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Former JSC Member calls on Parliament to review JSC’s 2010 appointment of judges

Former President’s Appointee to the Judicial Services Commission (JSC) Aishath Velezinee has called on parliament to review the appointment of judges and to begin to make the JSC accountable.

Speaking at a press briefing on Sunday, Velezinee pointed out that while a week has passed since UN Special Rapporteur on the independence of judges and lawyers Gabriela Knaul had released her preliminary findings, the JSC, Supreme Court, Attorney General, the Law Community and the Judges’ Community had failed to make any official comments on the findings.

She added that while it was important for all relevant actors to reflect and act on the recommendations, she especially hoped that the parliament would review the concerns raised by Knaul upon the beginning of its new session.

“Most serious case of corruption yet”

“Article 13 of the Act Against Corruption states that it a very serious form of corruption to obstruct citizens from receiving any benefits or good,” Velezinee said. “what is a more serious case of corruption than cheating citizens out an independent judiciary?”

Velezinee stated that since the complaints on the matter she had filed with the parliament in 2010 had never been examined, dueto political reasons, she had then submitted the case to the Anti Corruption Commission (ACC).

“In light of the background information I had, I saw a coup d’etat being rolled out when the then opposition set to the streets to ‘find Ablo Ghazi’ [Criminal Court Chief Judge Abdulla Mohamed] in January 2012,” Velezinee said.

“Therefore, I wrote to the ACC about these observations and enquired how far the case I had submitted had proceeded.”

“I got a response on February 6, 2012. The ACC said they had sent the details to the Independent Institutions Oversight Committee of the parliament on September 9, 2010,” she continued.

“Why then was the chair of this committee, independent member of parliament Mohamed Nasheed seen among the opposition group on the streets looking for Judge Abdulla Mohamed in January last year? Until the case at the committee is properly investigated there is no Judge Abdulla. What I see is Abdulla Mohamed of Bahaaruge from the island of Hulhudhufaaru just passing himself off as chief judge of the Criminal Court.”

“If we are to refer to the ‘rule of law’ and ‘due process’ that Home Minister Mohamed Jameel Ahmed keeps referring to, then no judges were appointed during my time serving in the JSC,” Velezinee stated.

Parliamentary initiative

“I have been continuously saying that numerous criminal offences have been committed within the JSC. The allegations I make against them are not matters that can be taken lightly. Hence, it cannot be at all acceptable to let the JSC continue with their duties without the parliament’s Independent Oversight Committee investigating these claims,” stated the former JSC member.

“One action that can be taken by the parliament even immediately is to enforce transparency in JSC proceedings and make their sessions accessible to the public,” she said.

“If the JSC meetings are seen by the public, no one else will need to run around like I did with concerns about the commission. Citizens will witness proceedings themselves. This in turn would ensure they do not get any opportunities to do wrong in there,” Velezinee recommended.

JSC politicised and ineffective

“Many of the recommendations shared by Knaul are matters which the JSC, initially constituted after the ratification of the new constitution in 2008, was mandated to do. Incidentally, I was then a member of this commission,” Velezinee said.

Velezinee stated that she had put in a lot of effort during her time at the JSC to align the commission’s work to the mandate it was constitutionally given, but said she had failed to achieve her goal.

“The JSC failed to establish a free and independent judiciary as detailed in our constitution. You must have seen the oath taking ceremony held on 4th August 2010 of the existing judges who had not been screened as per the due process. As a result of this failure, we have been hearing since that day, in local media and in various international forums, comments about how there is no justice in the Maldives, how judges lack freedom, and how the judiciary is politicised,” Velezinee stated.

While Knaul recommended that the JSC be reconstituted to free it from the current political influences which inhibited it from fulfilling its constitutional duties, Velezinee said she felt the failure of the commission was more a result of the members’ refusal to abide by the disciplinary guidelines than the nature of their political backgrounds.

“They [JSC members] always say that the constitution provided us with two years to build up the judiciary. But that is an outright distortion of what really is in our laws,” Velezinee stated.

“The constitution gave us two years to lay the foundation. It, however, allows us a period of 15 years in which we are to build an independent judiciary to an internationally acceptable standard. Nevertheless, even this article has been discarded without fulfillment by the JSC.”

Stating that the International Committee of Jurists (ICJ) had made similar comments in 2010, Velezinee said that Knaul’s findings indicated that the problems which had existed then had continued to elevate.

Velezinee alleged that the public were left unaware of the seriousness of the problems in the judiciary due to the highly politicised dialogue around the issues in the judiciary that were being put forth by various politicians.

“Article 285 is the foundation on which the constitution of the Maldives is based on. I sincerely hope that the parliament members will take a step back and review the events that took place when this article was breached in 2010 – matters that no state body previously paid any attention to – and that the parliament will this time around ensure that the people of the Maldives is guaranteed an independent judiciary free from any form of influence, and a proper democratic system,” Velezinee continued.

Velezinee furthermore criticised local media’s coverage of Knaul’s remarks, stating that some articles had sought to make implied political statements by picking out a single concept that Knaul had referred to, instead of focusing on the main issues.

Asked for a response to Jumhooree Party MP, leader, presidential candidate and member of JSC Gasim Ibrahim’s remarks about Knaul’s findings being “lies, jokes”, the former member dismissed these remarks as irresponsible.

“A man of Gasim’s status should not be making comments like this. Being an MP, a JSC member and a presidential candidate, it could prove dangerous to him to make irresponsible comments of this nature,” she said.

Unlawfully appointed judges

“Since there are so many contentious issues around the appointment of judges, we must keep a keen eye on events that unfold in the next couple of months,” Velezinee stated.

“We are now in the midst of some very strong political battles. I, for one, suspect that the current judiciary may abuse its powers to orchestrate political plots planned to interfere in the independence and fairness of the approaching presidential elections, and use the Supreme Court to issue rulings in favour of a particular side,” Velezinee predicted.

Adding that many citizens held similar doubts about the judiciary, Velezinee called on political leaders to set aside differences, engage in dialogue with international experts to find a lawful means to carry on all proceedings related to the elections through a system other than the existing Supreme Court.

“We must find a way to have inclusive presidential elections here, one that will be widely accepted by all. Perhaps one way might be to consult with international experts and then set up a judicial bench. This bench can be tasked with presiding over all cases relevant to the elections,” Velezinee said.

“Yes, this is an extraordinary idea. Then again, no other country has seen anything like Article 285. No other country has had the need to completely overhaul a judiciary,” she stated.

Velezinee served as President’s Appointee to the JSC from April 2009 to May 2011. She has been vocal about the problems in the commission and the judiciary, and in early 2011, was stabbed three times in broad daylight.

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Comment: What case, if there is no Judge Abdulla?

This article was first published in Ceylon Today on 27 February 2013, and is reproduced with the permission of the author.

President Mohamed Nasheed is being prosecuted, accused of using the military to remove ‘Chief Judge of the Maldives Criminal Court’. Found guilty, Nasheed will lose the chance to contest elections; and the public will lose the first consistent voice for democratic change for nearly a quarter of a century.

On 17 January 2011, Abdulla Mohamed, who sat as Chief Judge of Criminal Court, was forcibly “removed” by the military. Political opponents of Nasheed, all once linked to former President Maumoon Abdul Gayoom, quickly screamed foul, praised “Top Judge Ablow”, wreaked havoc on Male’ streets, damaged public property in nightly riots, and by 7 February had co-opted the security forces in a drama that unfolded live on local media.

This Criminal Court, which in fact was the ‘subject’ of the political crisis, had kept the nightly ‘vigil’ for “Judge Ablow”, systematically releasing detainees and helping to sustain numbers out on the streets. Those released praised Allah on social media, their release a sign that victory was theirs and God was with them.

To the familiar eye, the crowd of no more than 300 to 400 people who came out nightly were easily identifiable. Leading opposition politicians, MPs, recognised gang activists, and petty criminals. Many had cases before the Criminal Court or had appeared before ”Judge Ablow” on some criminal allegation. They were joined by former security personnel ‘retired’ during the government transition and a few serving policemen adorned in pink t-shirts. With them was sitting member of the Judicial Service Commission – business tycoon, MP and presidential candidate Qasim Ibrahim – and Chair of the JSC’s Parliamentary Oversight Committee, MP Mohamed (Kutti) Nasheed. It certainly was not the ‘public’, as public would be defined in a democratic state.

I watched these unfolding scenes, stunned, as my fears were confirmed.

To all outward appearance, however, President Nasheed had faulted. He had, it seemed, interfered in the business of the independent judiciary, an area strictly forbidden to the executive.

The international community, wary of domestic politics and players, is cautious not to be seen as interfering in a matter of rule of law. Due process, while reiterating the importance of free and fair, inclusive elections, is the mantra of the democratic international community.

The sitting government echoes back the words: ‘rule of law’, ‘due process’. Home Minister Dr Mohamed Jameel, who served in President Gayoom’s cabinet as Justice Minister during the transitional years and was personally involved in selecting many of the sitting judges, is one of the loudest voices insisting on ‘rule of law’.

What is not obvious to the casual observer, or understood by distinguished members of the international community, is that while the government and the international community voice the same words, they may not have a shared understanding of the concepts so familiar to democracies that they do not even think to question how another may be using or abusing it. What is forgotten, it seems, is that the Maldives never was a democratic state, but is a state in transition.

The Maldives’ judiciary, unlike in Sri Lanka or even Egypt, has never been independent. The Constitution introduced the concept of an “Independent Judiciary” with requirements upon the state to appoint a new judiciary within two years, and 15 years transitional provision to develop it.

Hence, the suggestion that Nasheed interfered in the judiciary holds true only if built upon certain assumptions, such as the assumption that Abdulla Mohamed is a legitimate judge appointed through due process.

If this assumption – the premise for the case against President Nasheed – stands, if indeed he had disregarded due process, interfered in the judiciary, and physically removed Chief Judge of the Criminal Court from duty, President Nasheed must stand trial. Rule of law must not be disregarded for President Nasheed, Abdulla Mohamed, or myself, and must prevail in all instances for democracy to take root.

Having said that, what if that premise does not hold true?

What if Abdulla Mohamed, who had become a household name with frequent reports of his irregularities in the media and public speeches against President Nasheed and his government, was placed as Chief Judge of Criminal Criminal Court without due diligence or due process?

What if the Judicial Service Commission, backed by President Nasheed’s powerful opposition, had indeed breached the Constitution and corrupted the judiciary in an elaborate scam to deceive Maldivian citizens and the international community? What if Abdulla Mohamed is indeed unfit to sit as a judge?

What if, apart from the criminal conviction for hate speech and disrupting public order – on record before Abdulla Mohamed was first appointed a judge in 2005 – there is truth to the claims that Abdulla Mohamed systematically works with organised crime, “launders” criminals and is likely being blackmailed?

What if there is truth to reports that certain influential MPs are linked to organised crime, and Abdulla Mohamed is kept Chief of Criminal Court by the power and influence of these criminal elements in parliament?

Of course none of these questions will rise anew with the trial of President Nasheed, had they not existed or been raised before.

Questions on constitution breach by the Judicial Service Commission, and the constitutionality of Abdulla Mohamed’s reappointment, together with the reappointment of all other men and women sitting as judges prior to ratification of the Constitution, is a matter pending inquiry in parliament since 2010.

The Parliamentary Oversight Committee for Independent Commissions first summoned the JSC on 2 August 2010, following months of appeal, and after I went public with information pointing to high treason in the JSC.

The summons from parliament to the JSC clearly stated the inquiry was in relation to complaints filed by myself, leaving no doubt that the committee was finally ready to inquire into the matter.

However, the committee sitting, telecast live, turned out to be a farce, a clever cover-up, a signal for the JSC and ‘judges’ to go ahead. The scandalous three-hour sitting centered on allowing then JSC Chair Mujthaaz Fahmy to air his story, a story that he has no evidence to back, and a story I could easily disprove with the documents and audio evidence I had brought to the committee.

Not only did the parliament committee deem it unnecessary to hear my evidence, they decided I was not to speak at all after my initial response to Chair Fahmy’s statement, declaring “all members have equal opportunity to speak” – ie, once. Chair Fahmy and Vice Chair, the late MP Dr Afraashim Ali, responded on behalf of the Commission.

That the matter was a disagreement in the JSC, and the fact that I stood against the Commission, was irrelevant to the MPs. In fact, the DRP and current PPM MPs took the opportunity to ridicule, slander and attack me, and praise the JSC Chair and Vice Chairs’ perjury while I sat gagged. The only other member to join me in noting the Chair was committing perjury was member of the general public appointed by Parliament, Sheikh Shuaib Abdul Rahman.

Attorney General Husnu Al-Suood, who also sat as a member of JSC, remained silent.

MDP MPs were of little help. Not having given time to review the evidence they were either not fluent enough with the subject to see the JSC was committing perjury, or not interested in entering a battle where a sure win was far from guaranteed given the balance of power in the Committee and in Parliament.

The JSC session with the committee ended not with a conclusion on the issue, but having run out of time. Committee rules did not permit a further extension. The Chair quickly closed the sitting as one MP noted the issue of Article 285 was a very serious matter and was to be investigated.

The JSC, for its part, fabricated a “legal reasoning on Article 285”, organised a press conference unknown to Sheikh Shuaib Abdul Rahman and myself, and made a statement attacking and defaming me in what was supposedly their legal reasoning.

In 24 hours, the judges took a ceremonial ‘symbolic’ oath without check or scrutiny in a ceremony that shocked the entire nation as unexpected live footage of it appeared. It was a moment that replayed continuously on all local TV stations for the next 72 hours, and has been repeated often since. The video footage raised serious doubts in the public.

Questioned by the media immediately after the now infamous oath, parliament made a statement to the effect that the Article 285 inquiry was pending while Legal Counsel Dr Ahmed Abdulla Didi reviewed the matter.

However, all was forgotten within the week, as “political dialogue” encouraged by the international community diffused the situation.

The suspension of the interim Supreme Court ended with the appointment of a politically-agreed Supreme Court, and the constitution compromised. On the bench among others of dubious integrity sits the said Legal Counsel Dr.Ahmed Abdulla Didi, who, despite not qualifying even after an unusual amendment to the Judiciary Act hours after its ratification, was approved by Parliament in the same sitting that amended the Act.

The question of Article 285 was forgotten except for my continued ‘rants’. Repeated calls for an inquiry went unheeded despite an International Commission of Jurists report in February 2011, noting both substantive and procedural issues in the JSCs’ actions regarding Article 285.

Repeated concerns on the JSC acting against Constitution and State, the runaway judiciary, the  politicisation of judges, and specifically the JSCs’ cover-up of Abdulla Mohamed and his threat to national security reported in communications to parliament and shared with military intelligence, were ignored. Nor was there any action against me by parliament or the court, all keeping silent on the subject.

If, there is any substance in what I repeat, wherein is rule of law or justice in the trial of President Nasheed?

The real questions in the Maldives case are not about Judge Abdulla Mohamed or the Hulhumale’ Magistrate Court. It is a battle centred around the Constitution; its meaningful execution and state building. It is a tug of war between President Nasheed, who attempted the judicial reform required by Constitution, and his opposition intent on preventing fulfillment of Article 285 and retaining their handpicked judges. Abdulla Mohamed is a shield.

Today, the future of the Maldives’ democracy is more than ever dependent on the goodwill, wisdom and diplomatic skills of the international community. The trial of President Nasheed is a standoff where a domestic resolution is out of the question.

Try President Nasheed, and myself too, but not without trust in the judiciary and the guarantee of a free and fair trial. Will the international community guarantee there is no aberration of justice in the name of democracy, rule of law and justice?

Velezinee served on the Maldives’ Judicial Service Commission (April 2009-May 2011) and is the author of ‘The failed silent coup: in defeat they reached for the gun‘ published in August 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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Comment: Maldives’ judiciary unreformed and unrepentant

I have read with concern a number of articles and commentaries over recent weeks which appear to be based on two false premises: first, that the Maldives judiciary is independent and impartial; and second, that it is capable of delivering a fair trial to the democratically elected President of this country, Mr Mohamed Nasheed.

Neither premise holds-up to careful scrutiny.

The first false-premise, which is regularly put forward by members of the Government, especially Dr Hassan Saeed, as well as by the Maldives’ own ‘independent’ UN Resident Coordinator, Mr Andrew Cox, appears to be based on a misguided reading of the concept of ‘independence’. In essence, this misreading holds that if our Constitution says that the judiciary is ‘independent’ then it must be so, irrespective of what the on-the-ground reality tells us.

The 2008 Constitution does of course establish a separation of powers and makes clear, in article 142, that “judges are independent”. But just because the Constitution says this is so, does not, of course, magic the situation into existence.

What the Constitution also does therefore is set up mechanisms to ensure judicial independence, impartiality and integrity. It therefore makes clear that all judges will, under the new Constitution, be subject to a reappointment process (article 285) and that to be (re)appointed, judges (article 149) “must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of a high moral character”.

Central to this process is the Judicial Services Commission (JSC), which is responsible for both the (re)appointment process and for upholding the impartiality and integrity of judges including by listening to complaints and taking “disciplinary action” against them if necessary (article 159b).

The importance of these mechanisms is clear when one recalls that all judges at the time of the entry-into-force of the new Constitution had been appointed by, and owed their loyalties to, former President Gayoom during his 30-year rule.

However, as Aishath Velezinee, President Nasheed’s former member on the JSC, has demonstrated in her book “The Failed Silent Coup”, former President Gayoom succeeded, through securing a post-election de facto majority in the Majlis, in controlling the appointment of members to the JSC and thus of controlling the JSC’s reappointment and disciplinary procedures.

As a result, despite ample evidence of some judges possessing neither the competence, qualifications nor moral character to be reappointed, the JSC quickly moved to swear them all in, arguing that the criteria laid down by the Constitution to control reappointment were only “symbolic” .

When Velezinee objected she was manhandled out of the room.

In the years thereafter, the JSC compounded this failure by refusing to process any of the multiple public complaints it received against Gayoom-era justices. When, in 2011, it finally bowed to public pressure and recommended disciplinary action be taken against Judge Abdullah Mohamed, a man accused of serial wrongdoings over many years, the judge in question simply asked his friends in the Civil Court to annul the proceedings.

When the Civil Court did so, it removed the last pretense that the Maldives’ judiciary is independent, impartial or accountable. As of that date, the Maldives’ judiciary became a failed institution.

So what of the second premise: that such a judiciary is capable of delivering a fair trial to President Nasheed, who is ‘accused’ of arresting Judge Abdullah Mohamed after the judge used his friends in the Civil Court to circumvent the Constitution and then used his position in the Criminal Court to repeatedly free not just allies of former President Gayoom, but also a number of known criminals?

Here, it is perhaps worth turning to respected international experts, international organisations and NGOs which have studied the Maldives judiciary and the justice sector more broadly.

The systematic problems facing the judicial system have been widely documented and were perhaps best summed-up by legal expert Professor Paul Robinson who advised the Maldives on judicial reform.

In his 2005 report, he characterised the Maldives criminal justice system as “systematically failing to do justice and regularly doing injustice”.

One of Professor Robinson’s main recommendations – to conduct a complete overhaul of the country’s archaic Penal Code – remains unimplemented. As a consequence, the Prosecutor-General is insisting on prosecuting President Nasheed on the basis of a Code drafted in the 1960s and which is based on a document produced in India in the 19th century.

In February 2011, the International Commission of Jurists (ICJ) visited the Maldives and issued a report which echoed many of Professor Robinson’s earlier concerns and demonstrated that, irrespective of the new Constitution, little had changed.

In its report, the ICJ expressed concern at “the apparent failure of the JSC to fulfill its constitutional mandate of properly vetting and reappointing judges” as well as the “judicialisation of politics”.

“The JSC”, according to the ICJ, “was unable to carry out its functions in a sufficiently transparent, timely, and impartial manner”. The ICJ concluded that the complete lack of judicial accountability in the Maldives undermines public confidence and calls into question the institution’s independence.

In July 2012, the United Nations Human Rights Committee considered the state of the Maldives judiciary. In its concluding statement, the Committee said it was “deeply concerned about the state of the judiciary in the Maldives”.

“The State has admitted that this body’s independence is seriously compromised” noted the Committee, which called for serious reform of the Supreme Court, the judiciary more broadly and the Judicial Service Commission.

These findings were mirrored by both Amnesty International and the International Federation for Human Rights (FIDH) in late 2012, following their visits to the Maldives. For example, FIDH in its report “From Sunrise to Sunset” on human rights in the Maldives, noted that despite important constitutional changes, “different sections of the judiciary have failed to become fully independent”, while pointing out that the JSC lacks transparency and its members are prone to “conflicts of interest”.

With the above in mind, it is difficult to understand how members of the government or some parts of the international community can claim with any degree of sincerity that our judiciary is either independent or capable of delivering a fair trial for President Nasheed or the hundreds of other Maldives Democratic Party (MDP) members currently facing prosecution for “terrorism” and other trumped-up charges.

If justice is indeed blind, then why are hundreds of MDP supporters awaiting trial, while not one police officer or member of the current government has been held accountable for the widely-documented brutality unleashed against protesters since February 7?

And if justice is indeed blind, then why are cases against MDP supporters being fast-tracked while there are over 2000 other cases pending with the Prosecutor-General? Why have all the serious corruption cases against Gayoom’s political allies been either sidelined or discontinued?

Perhaps the most damning indictment of the Maldives judiciary is that, at this time of political division, it is the one subject about which nearly everyone in the country can agree. Whether you are for President Nasheed or against him; whether you think February 7 was a legitimate change in government or a coup, nearly everyone – at least outside the President’s Office – agrees that our judicial sector are not fit for purpose.

And yet it is this deeply flawed institution, wielding a two hundred year old legal code that is supposedly able to deliver a fair trial for President Nasheed.

Over recent years, we have achieved much. We have amended our Constitution, embraced party politics, held our first free and fair elections, voted-out a 30 year old autocracy and voted-in our first democratically elected leader.

But the judiciary has failed to come even close to matching this pace of change and remains, by-and-large, the same institution as it was during the Gayoom era – unreformed and unrepentant.

Eva Abdulla is an MP in the opposition Maldivian Democratic Party (MDP).

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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Failure of judiciary, JSC and parliament justified detention of Abdulla Mohamed, contends Velezinee in new book

Former President’s Member on the Judicial Services Commission (JSC) Aishath Velezinee has written a book extensively documenting the watchdog body’s undermining of judicial independence, and complicity in sabotaging the separation of powers.

Over 80 pages, backed up with documents, evidence and letters, The Failed Silent Coup: in Defeat They Reached for the Gun recounts the experience of the outspoken whistleblower as she attempted to stop the commission from re-appointing unqualified and ethically-suspect judges loyal to former President Maumoon Abdul Gayoom, after it dismissed the professional and ethical standards demanded by Article 285 of the constitution as “symbolic”.

That moment at the conclusion of the constitutional interim period marked the collapse of the new constitution and resulted in the appointment of a illegitimate judiciary, Velezinee contends, and set in motion a chain of events that ultimately led to President Mohamed Nasheed’s arrest of Chief Criminal Court Judge Abdulla Mohamed two years later.

Nasheed resigned on February 7 after mutinying police and military officers joined forces with opposition demonstrators, who had been accusing Nasheed of interfering with the ‘independent’ judiciary in his arrest of the judge, and demanding not to be given ‘unlawful orders’.

The Commonwealth-backed Commission of National Inquiry (CNI) report found that there was no evidence to support Nasheed’s claim that he was ousted in a coup d’état, and that his resignation was under duress and the events of the day were self-inflicted.

“The inquiry is based on a false premise, the assumption that Abdulla Mohamed is a constitutionally appointed judge, which is a political creation and ignores all evidence refuting this,” Velezinee stated.

“Judge Abdulla Mohamed is at the centre of this story. I believe it is the State’s duty to remove him from the judiciary. He may have the legal knowledge required of a judge; but, as the State knows full well, he has failed to reach the ethical standards equally essential for a seat on the bench.

“A judge without ethics is a judge open to influence. Such a figure on the bench obstructs justice, and taints the judiciary. These are the reasons why the Constitution links a judge’s professional qualifications with his or her moral standards,” she states.

The JSC itself had investigated Abdulla Mohamed but stopped short of releasing a report into his ethical misconduct after the Civil Court awarded the judge an injunction against his further investigation by the judicial watchdog.

“There is no legal way in which the Civil Court can rule that the Judicial Service Commission cannot take action against Abdulla Mohamed. This decision says judges are above even the Constitution. Where, with what protection, does that leave the people?” Velezinee asks.

“The Judicial Service Commission bears the responsibility for removing Abdulla Mohamed from the bench. Stories about him have circulated in the media and among the general public since 2009, but the Commission took no notice. It was blind to Abdulla Mohamed’s frequent forays outside of the ethical standards required of a judge. It ignored his politically charged rulings and media appearances.

“Abdulla Mohamed is a man who had a criminal conviction even when he was first appointed to the bench during President Maumoon Abdul Gayoom’s time. Several complaints of alleged judicial misconduct are pending against him. The Judicial Service Commission has ignored them all. What it did, instead, is grant him tenure – a lifetime on the bench for a man such as Abdulla Mohamed. In doing so, the Judicial Service Commission clearly failed to carry out its constitutional responsibilities. It violated the Constitution and rendered it powerless. Where do we go from there?”

Parliament, Velezinee states, was the body responsible for holding the JSC accountable.

“The Majlis knew the threat Abdulla Mohamed posed to national security and social harmony. The Majlis was also aware of the Judicial Service Commission’s failure to carry out its constitutional responsibilities and its efforts to nullify constitutional requirements.

“Concern had been shared with the Majlis that the Judicial Service Commission had committed the ultimate betrayal and hijacked judicial independence. The Majlis failed its Constitutional responsibility to hold the Judicial Service Commission accountable for any of these actions. The Majlis had violated the Constitution and rendered it powerless. Where to from there?”

Ultimate responsibility for upholding the constitution fell to the President, Velezinee states.

“Democratic governance can only function if the entire system is working as an integral whole; it is impossible if the three separated powers are failing in their respective duties.

“Under the circumstances – once it was clear that Abdulla Mohamed was an obstruction to justice and a threat to national security, and once it became apparent that neither the Judicial Service Commission nor the Parliament was willing to hold him accountable – the only authority left to take control of the situation was the Head of State.”

With the return to power of Gayoom’s autocratic government behind President Mohamed Waheed’s “fig leaf of legitimacy”, the judiciary continued to be subject to influence, Velezinee writes.

“The judiciary we have today is under the control of a few,” she wrote.

“This was an end reached by using the Judicial Service Commission as a means. Most members of the Judicial Service Commission betrayed the Constitution, the country, and the people. They broke their oath. There is no room for free and fair hearings. And most judges do not even know how to hold such a hearing.”

“For democracy and rule of law to be established in the Maldives, and for the right to govern themselves to be returned to the people, they must have an elected leader. And the judiciary, currently being held hostage, must be freed.

“Article 285 of the Constitution must be fully upheld, judges reappointed, and an independent judiciary established,” she concludes.

Download The Failed Silent Coup (English translation by Dr Azra Naseem)

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CNI report “based on false premise that Abdulla Mohamed is a constitutionally appointed judge”: Velezinee

The Commission of National Inquiry (CNI)’s report into the circumstances surrounding the controversial transfer of power on February 7 mistakenly presumes that the Maldives has an independent and constitutionally-appointed judiciary, former President’s Member of the Judicial Services Commission (JSC), Aishath Velezinee, has stated.

The report, focused on the events of February 6 to 8, claimed there was no evidence to support allegations by former President Mohamed Nasheed that he was ousted in a coup d’état, that his resignation was under duress, or that there was any mutiny by the police and military. It dwells heavily on “unlawful orders” given by Nasheed as justification for police disobedience and protests, in particular his ordering the detention of Chief Criminal Court Judge Abdulla Mohamed by the military.

“The report, by its failure to probe the events leading up to the removal of Abdulla Mohamed and the January 2012 protests, fails to recognise the systematic breach of the Constitution by the JSC and Majlis that forced President Nasheed to use the powers of Head of State to address the issue of Abdulla Mohamed,” said Velezinee, in a detailing statement responding to the report.

“The inquiry is based on a false premise, the assumption that Abdulla Mohamed is a constitutionally appointed judge, which is a political creation and ignores all evidence refuting this,” she stated.

Velezinee noted that Article 285 of the constitution – concerning the appointment and qualification of judges on conclusion of the interim period – was discarded by the JSC in 2010 as “symbolic”, “the CNI report indirectly legitimises a judiciary where at least 196 judges sworn in by the JSC/Interim Supreme Court between 4 August and 7 August 2012 are a nullity, having been appointed without due procedure, and without fulfilling the qualifications and qualities required of a Judge under the Constitution.”

She noted that many of the “prominent lawyers” and politicians who protested the arrest of Abdulla Mohamed’s removal “were MPs with criminal cases before Abdulla Mohamed and their lawyers.”

Furthermore, “the report does not mention that many of the ‘prominent lawyers’ who protested at the removal of Abdulla Mohamed now sit in office.”

“Suspicion is further raised when it is observed that the MPs who led the January 2012 [protests] were the same MPs who had obstructed attempts to get a parliamentary inquiry [into the JSC] by disrupting Committee [hearings], and included the current Chair of the Majlis Committee,”

The report further failed to note recent observations by the UN Human Rights Committee in July 2012 substantiating the JSC’s nullification of Article 285, she noted.

In its concluding observations, the UNHRC noted “concerned at the fact that the composition and the functioning of the JSC seriously compromises the realisation of measures to ensure the independence of the judiciary as well as its impartiality and integrity.”

The Committee is also concerned that such a situation undermines the judicial protection of human rights and fundamental freedoms in the State party (art. 2 (3), 14).

“The State party should take effective measures to reform the composition and the functioning of the Judicial Service Commission (JSC). It should also guarantee its independence and facilitate the impartiality and integrity of the Judiciary, so as to effectively protect human rights through the judicial process.

The CNI report itself recognised the poor standard of the judiciary, Velezinee observed, citing from it:

Perhaps the most fundamental requirement for a vibrant democracy is the rule of law which appears weak in the Maldives. Notably, the Commission was confronted regularly by allegations of the breach of the rule of law and clear absence of confidence in the institutions which are entrusted with upholding it.

Indeed, this appeared central to the frustrations of government under President Nasheed and his own lack of recourse to the judiciary to redress grievances and settle disputes. He did not appear alone.

Despite this, Velezinee noted that the report failed to recognise “that judicial reform is a fundamental Constitutional requirement under Article 285, or comprehend the centrality of Article 285 to the establishment of de facto independence of the judiciary in a state where de jure Independence of the judiciary was first introduced with the ratification of the Constitution in 2008.”

Instead, Velezinee stated, the report “explicitly politicises judicial reform as the political agenda of President Mohamed Nasheed and the Maldives Democratic Party (MDP); and fails to note that the political pledge in the MDP’s manifesto echoes Article 285 of the Constitution and its’ obligation upon the state of Maldives.”

By concluding that Judge Abdulla was just the “focus of their antipathy and antagonism”, the report “disregards major events that led to the events of January 2012, including but not limited to:

  • Events of 2010 around Constitution Article 285 and re-appointment of Judges
  • JSC’s unconstitutional nullification of Article 285 declaring it a “Symbolic Article” and re-appointing the sitting bench without due check
  • Failure of the Majlis to hold an inquiry into the JSC’s alleged Constitution breach and loss of an independent judiciary despite a commitment to hold an inquiry given by the Independent Bodies Oversight Committee on 2 August 2010
  • The fact that amongst those MPs and other political figures leading the January protests calling to “Free Judge Abdulla”, and seen celebrating President Nasheed’s “resignation” on 7 February 2012, were those same MPs who had obstructed all attempts to probe the said issues in Majlis Committees
  • The fact that these MPs, instead of upholding their duty and establishing the truth of the matter by holding an Open Inquiry allowing me to present evidence, politicised the issue and resorted to publicly attack myself, engaging in defamation and character-assassination whilst denying an inquiry. Action that gives good reason to believe in a cover-up, and a wider conspiracy against Constitutional Democratic Government that link events of 2010 (and beyond) to the events of 7 February 2012.
  • The fact that the matter of Abdulla Mohamed being a threat to national security was known to the Judicial Service Commission, the Maldives Police Services, the Maldives National Defence Forces and the Parliament in addition to the President; and that the system had failed to hold Abdulla Mohamed accountable, or the JSC accountable. Instead the JSC and Majlis were covering up for each other.”

The CNI report, Velezinee stated, “fails to consider how the collapse of Rule of Law could possibly have been engineered by those in positions of power, despite evidence of JSC’s Constitution breaches and Majlis cover-up provided to the CNI by myself.”

“The case of Abdulla Mohamed takes a completely different turn if it is established that Abdulla Mohamed is a political plant of President Maumoon Abdul Gayoom, and is unconstitutionally retained by political influence, and placed as Chief Judge of Criminal Court by law, with the Majlis encroaching upon Constitutional powers given to the Judicial Service Commission alone,” Velezinee concluded. “Were it so, it is incumbent upon the Head of State to exercise his powers to prevent abuse of the Criminal Court by a political plant.”

“I am deeply concerned that the CNI report legitimises a dangerous precedent to permit de facto lowering of international standards despite the assurance of the highest standards of democracy as practiced in an open democratic society throughout the Constitution.”

CMAG to meet

The Commonwealth Ministerial Action Group (CMAG) is due to meet and a consider the report in the next week.

The Australian Minister for Foreign Affairs, Senator Bob Carr, on Tuesday issued a statement acknowledging its release.

Senator Carr will chair next week’s meeting of the CMAG which suspended the Maldives from the organisation’s human rights and democracy arm and placed the Maldives on its formal agenda after the events of February.

“Australia urges all party leaders to take part in discussions which pave the way to free and fair elections and strengthen Maldives’ democratic institutions,” Senator Carr said.

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Civil Court dismisses ruling of own watchdog body against Chief Judge Abdulla Mohamed

The Civil Court today dismissed a decision by its own watchdog body, the Judicial Service Commission (JSC), to take action against Chief Judge of the Criminal Court Abdullah Mohamed for violating the Judge’s Code of Conduct.

An investigation into a complaint of ethical misconduct against Judge Abdulla was completed by a JSC special committee which recommended in the final report to the commission that action be taken against the Judge for violating the Judge’s Code of Conduct – specifically, by making a politically biased statement in an interview with DhiTV.

However, during the period given to Judge Abdulla to respond to the report, he instead obtained a Civil Court injunction against his further investigation by the judicial watchdog.

The JSC appealed the injunction on January 24 of this year, claiming that the Civil Court had disregarded the commission’s constitutional mandate which allowed it to take action against judges, and argued that the court did not have the jurisdiction to overrule a decision of its own watchdog body.

But the appeal was rejected, concluding that the commission had not provided the court “any substantial reason to terminate the injunction and that the High court cannot make a decision on the case while the case is pending at a lower court.

As the final verdict on the case came out today, the Civil Court overruled the the decision stating that Judge Abdulla was not given an opportunity to respond to the allegations during the investigation.

According to the decision, providing a chance to submit any complaints after the investigation is completed cannot be deemed as an opportunity for the Judge to present his defence.

Like all other state institutions the JSC must also be held accountable in front of the law, the court noted, addding that party who believes to have suffered damages due to a decision by the commission have the right to litigate  matter to protect his rights.

Furthermore the Civil Court concluded that action cannot be taken against the Abdullah under the Judge’s Code of Conduct, because the said violation predates the regulation.

Charges against the Judge

Apart from the ethical misconduct complaint, the JSC revealed that a total of 11 complaints have been submitted to the commission against Judge Abdulla Mohamed, among which are serious allegations of corruption and abuse of authority.

The first complaints against Abdulla Mohamed were filed in July 2005 by then Attorney General Dr Hassan Saeed – now Dr Waheed’s political advisor – and included allegations of misogyny, sexual deviancy, and throwing out an assault case despite the confession of the accused.

Among the allegations in Dr Saeed’s letter was one that Judge Abdulla had requested an underage victim of sexual abuse reenact her abuse for the court, in the presence of the perpetrator.

In 2009, those documents were sent to the JSC, which was requested to launch an investigation into the outstanding complaints as well as alleged obstruction of “high-profile corruption investigations”.

The JSC decided not to proceed with the investigation on July 30, 2009.

Former President’s member on the JSC and whistleblower Aishath Velezinee for several years contended that Abdulla Mohamed was a central, controlling “father figure” in the lower courts, answerable to former President Maumoon Abdul Gayoom and a key figure responsible for scuttling the independence of the judiciary under the new constitution.

Central figure in Nasheed’s downfall

Abdulla Mohamed was also a central figure in the downfall of former President Mohamed Nasheed, following the military’s detention of the judge after the government accused him of political bias, obstructing police, stalling cases, links with organised crime and “taking the entire criminal justice system in his fist” to protect key figures of the former dictatorship from human rights violations and corruption cases.

Judge Abdulla’s arrest sparked three weeks of anti-government protests starting in January, while the government appealed for assistance from the Commonwealth and UN to reform the judiciary.

As protests escalated, elements of the police and military mutinied on February 7, alleging Nasheed’s orders to arrest the judge were unlawful. A Commonwealth legal delegation had landed in the capital only days earlier.

Nasheed publicly resigned the same day, but later said he was forced to do so “under duress” in a coup d’état. Nasheed’s Maldivian Democratic Party (MDP) has taken to the streets in recent months calling for an early election.

Judge Abdulla was released on the evening of February 7, and the Criminal Court swiftly issued a warrant for Nasheed’s arrest. Police did not act on the warrant, after international concern quickly mounted.

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PPM submits amendment to make enforcement of death penalty mandatory

Former President Maumoon Abdul Gayoom’s Progressive Party of the Maldives (PPM) has proposed an amendment to the Clemency Act (Act no 2/2010) which would make performing the death penalty mandatory in the event it was upheld by the Supreme Court.

The amendment was submitted by PPM MP Ahmed Mahloof, the third MP to submit an amendment to put the death penalty into practice.

Mahloof’s amendment would require the President to enforce any death penalty if the Supreme Court issues the verdict of death, or if the Supreme Court supports the ruling of the death penalty made by either the Criminal court or the High Court. The move would halt the current practice of the President commuting such sentences to life imprisonment.

Mahloof, in a press conference held in his party head quarters on Monday, stated that he had proposed the amendment in an effort to stop crimes of murder and violence.

He claimed people were of the view that if death penalty or capital punishment is enforced it would bring down crime, and that he had decided to propose the amendment in consultation with several people including fellow parliamentarians.

“I believe nobody would want to die. So if the death penalty is enforced, a person who is to commit a murder would clearly know that if he carries out the act, his punishment would be his life. I believe this will deter him from committing such acts,” Mahloof said.

However, Mahloof admitted that enforcement of capital punishment would not be the sole solution to the problem. He reiterated that in order to achieve a solution, the new penal code and the criminal evidence bill had to be passed.

He also stated that he has been working on drafting a separate bill which is intended to prevent ongoing violence, murder and other criminal activities.

Mahloof has proposed to amend the article 21 of the Clemency Act.

The article 21 of the existing Clemency Act states: “Even if stated otherwise in this act, if the Supreme Court issues a death sentence, or a lower court or High Court issues a death sentence and if the Supreme Court upholds that sentence, the President has the authority to relieve the sentence into a life imprisonment, after consideration of either the state of the guilty, the legal principles behind the issue, consensus of the state or the values of humanity. But once such a sentence is being relieved to a life imprisonment, the guilty shall not be eligible for pardon, under any clause of this act.”

Mahloof’s amendment to the same article reads: “Even if stated otherwise in this act, if the Supreme Court issues a death sentence, or a lower court or High Court issues a death sentence and if the Supreme Court upholds that sentence, the President shall enforce the sentence.”

In Islamic Sharia, death penalty is the punishment of a murderer (one who kills deliberately) and that he is to be killed in retaliation (Qisaas) unless the victim’s next of kin let him off or agree to accept the ‘Diyah’ (blood money).

Previously, Maldivian Democratic Party (MDP) MP Ahmed Rasheed and later MP Ibrahim Muthalib submitted similar amendments to the clemency act but both subsequently withdrew these.

MP Rasheed at the time said that he felt he had to present the amendment because of the increase in assaults and murder cases, which had “forced the living to live amid fear and threats.”

After the preliminary debate was concluded and he was given the opportunity to say the last word on the amendment, MP Rasheed withdrew the changes he had originally submitted to parliament citing that he withdrew the amendment because other necessary bills related to curbing criminal activities, such as the Penal Code and Criminal Justice Procedure Bill, had yet to be passed.

In April 2011, MP Ibrahim Muthalib became the second MP who had proposed amendments to Clemency act requiring the state to enforce death sentence.

MP Muthalib at the time told Minivan News that the purpose of the amendment was to uphold Islamic Shariah in the Maldives.

“[The amendment aims] to avoid human beings from changing the verdict determined by Islamic Shariah,” said Muthalib. “It’s the same bill as presented last time. [Referring to MP Rasheed’s amendment]”

On November 2010, Criminal court sentenced Mohamed Nabeel to death for the murder of Abdulla Faruhad, after reviewing the statements of witnesses and finding him guilty of the crime, making it first such sentence to be issued in a case related to gang murder.

The Judge issuing the sentence stated that article 88 clause (d) of the Penal Code of the Maldives stated that murders should be dealt accordingly to the Islamic Shariah and that persons found guilty of murder “shall be executed” if no inheritor of the victim denies the murderer to be executed, according to Islamic Shari’ah.

Previous death sentences issued in the Maldives have included (in 2005) those found to be involved in the death in custody of Evan Naseem, and the perpetrators of 1988 coup.

However none of these sentences were implemented and the guilty were given sentences of life imprisonment.

“An attempt to conceal the real truth”

Aishath Velezinee, formerly the President’s appointee to the Judicial Services Commission (JSC), said the amendment was another attempt by the MPs to avoid “the real issue” and to “deceive the public”.

“The real issue for thriving crime is corruption. The constitution has recognised this and required the judiciary be checked and cleansed.  The JSC breached the constitution, and those MPs are proposing this to cover up the JSC,” Velezinee said.

“Islam upholds justice, and not only has death penalty; it has very clear qualifications for judges too. Neither MP Mahloof, nor any of the Sheikhs, has expressed alarm that the judges are far below standard and some of them are convicted criminals themselves. This is pure politics and abuse of Islam,” she added.

Velezinee also stated that she had earlier sent a letter to the Parliament highlighting the incapacities of the judiciary and the question of public trust upon the the courts and the JSC, when the amendment had earlier been proposed by MDP MP Ahmed Rasheed.

Velezinee claimed that Mahloof’s amendment was an attempt to hide what her letter had highlighted about the Criminal Court and the Judiciary as a whole.

Speaking to Minivan News, MDP MP and spokesperson, Imtiyaz Fahmy stated that the amendment was a “childish act” from MP Mahloof and that it could be a popularity stunt, especially at a time when a very “complete” and “relevant” Penal Code is about to be passed by the Parliament.

The last person to be executed in the Maldives after receiving a death sentence was in 1953 during the first republican President Mohamed Ameen. Hakim Didi was charged with attempting to assassinate President Ameen using black magic.

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