The Judicial Services Commission (JSC) last night reappointed 59 sitting judges, including all but two of the judges currently serving in Male’ courts, swearing them during a closed-door oath-taking ceremony in the Supreme Court.
Minivan News understands that three members of the 10 member JSC were present during the oath-taking ceremony, including two members who were taking the oath as sitting judges, and opposition Dhivehi Rayyithunge Party (DRP) MP Dr Afrasheem Ali.
A senior staff member of the JSC today told Minivan News he had been unaware the ceremony was taking place until he saw media reports, but said he felt there were “no legal issues” blocking the reappointments.
Meanwhile, President’s member of the Commission Aishath Velezinee, who has criticised the issuing of tenure to those judges appointed under the former administration as “robbing the nation of an honest judiciary”, claims she was locked outside the ceremony after attempting to intervene when she learned it was taking place.
Prior to being locked outside, Velezinee took to the podium and called on any judges who supported her position not to take the oath of office, however none did so.
“I don’t think the international community is going to accept that this is legitimate,” she said. “They locked members of the JSC out. The only ones present were Dr Afrasheem Ali and two judges on the commission, who took the oath themselves.”
People’s member on the Commission, Sheikh Shuaib Abdul Rahman, also objected to the JSC’s action, stating in an interview with Television Maldives (TVM) that while he supported reappointing judges and training them to improve their standard, he did not endorse granting life tenure to judges who did not meet the requirements.
Head of the Judicial Services Commission (JSC), Supreme Court Justice Mujthaz Fahmy, answered his phone but did not respond to questions from Minivan News. His phone was subsequently switched off.
Parliament was due to debate a bill on judges in a special sitting of parliament on Saturday, to coincide with the constitutional deadline for reappointments of August 7.
Velezinee contends that parliament’s Independent Commissions Committee (ICC) did not issue an injunction against the reappointment pending investigation of her complaint that the JSC’s behaviour was contravening the Constitution, thus giving the JSC the opportunity to rush the appointments through before the passing of the bill.
Speaker Abdulla Shahid did not respond to calls today. But in a text message reportedly sent to Velezinee last night, Shahid expressed his “deep disappointment” that the event was organised without consulting him, and despite his request to Mujthaz Fahmy that the reappointments be held until Saturday after the bill on judges had been adopted.
According to the Constitution once tenured, judges can only be removed following allegations of gross misconduct and a two-thirds majority vote in parliament, the same number required to impeach the President or Vice President.
Press Secretary for the President Mohamed Zuhair said the government “regretted” the JSC’s decision to reappoint judges behind closed doors while the Majlis was “actively discussing and debating a decision on the bill on judges for the 7th, and despite this being communicated to the JSC.”
Zuhair claimed that as a consequence the reappointments were “not credible at all to a large section of society – and the whole point of the exercise was to establish credibility.”
The activities of the JSC were “legally questionable” Zuhair added, “and the government intends to follow up on it. Today we have received complaints that the commission has contravened the Constitution.”
Zuhair observed that while two members opposed the move to rush the reappointments – Velezinee and Sheikh Shuaib – “a common thread ties all the other eight members. They either belong to the opposition DRP, or they are strong supporters.”
“The outgoing government has made sure it would retain control of institutions like the judiciary,” he noted.
Zuhair explained that while the government was communicating with international institutions on the issue, such as the International Committee of Jurists (ICJ), “so far we have been advised to do everything possible to keep to ‘norms and standards’. But that’s difficult when of the 197 judges, only 35 have any recognised qualifications. All the others have a local diploma.
“We can’t dismiss the other 150 judges, because that would only leave 35 to take care of the rest of the country. There has to be a middle ground,” Zuhair suggested.
The government was working on “attractive” overseas training and retirement packages for judges, he added.
Police cordoned the Judicial Services Commission (JSC) on Monday morning, preventing its staff from working or entering the building, while the President’s Office summoned members of the judicial oversight body for questioning at an 11am meeting.
A statement from the Maldives Police Service (MPS) said the office was closed by police at the request of President Mohamed Nasheed, to prevent “unlawful and unconstitutional work from taking place.”
Police cited Article 115[a] of the Constitution, which concerns the powers of the President and reads that he “must faithfully implement the provisions of this Constitution and the law, and to promote compliance by organs of the State and by the people.”
Sub-Inspector Ahmed Shiyam said the President requested police investigate the institution after hearing reports that the JSC had been “open all night acting illegally.”
Speaking to Minivan News, Attorney General Husnu Suood said commission members, including JSC head and Supreme Court Justice Mujthaz Fahmy, met President Mohamed Nasheed and explained that the commission was attempting to finalise work on the reappointment of 160 sitting judges before the Constitutional deadline of August 7.
A complaint that papers had been illegally removed from the premises had proven unfounded, Suood added, noting that following the meeting the President had asked police to remove the cordon.
“I think the present criteria for judges, as determined on July 27, is acceptable, subject to the 37 judges who have been identified as having criminal records,” Suood said.
The President’s member on the JSC, Aishath Velezinee, has submitted a complaint to Parliament’s Independent Commissions Committee (ICC) alleging that the “substandards” being used to grant life tenure to judges appointed under the former administration would “rob the country of an honest judiciary, as guaranteed under Article 285 of the Constitution.”
“Most [of the current judges] haven’t completed primary school,” she told Minivan News in a recent interview.
Suood said that “If there is evidence of corruption and political fixing of the judicial appointments, then I support the President’s actions [today].”
The Attorney General added that he was not convinced of the integrity of the current Supreme Court: “I do not trust it. I see certain incidents occurring that I am having to think about,” he said.
Velezinee has appealed to the Independent Commissions Committee (ICC) to issue an injunction preventing the reappointment of judges pending an investigation of the JSC.
Minivan News understands that a meeting between the JSC and the ICC today focused on the procedural functioning of the commission, and not the complaints made against it.
Prior to this meeting on Monday, staff at the commission confided that they were ordered into the commission on Sunday night and had been kept up working until 2:00am printing letters of reappointment for the judges, Velezinee explained.
A staff member from the Supreme Court was also observed to be directing proceedings, Velezinee alleged, claiming that this was a clear violation of the JSC’s independence.
“The first to be processed was Chief Judge of the Criminal Court, Abdulla Mohamed. He was convicted in 2000 for violating the Religious Unity Act and disobeying orders,” she claimed.
The JSC has argued that convictions for crimes under the former Constitution should not be a barrier for reappointment, and should instead be determined on a case-by-case basis.
“At the same time they are trying to restore the same culture that [issued those convictions],” Velezinee stated.
“Presenting the letters of reappointment is the final step [of the reappointments]. The judges have to first perform an oath-taking ceremony arranged by the Supreme Court at the instruction of the JSC, but none of the JSC staff know anything about this. The commission members are being very secretive,” Velezinee said.
She further accused commission members of ordering the tampering of evidence submitted to the ICC.
“Two days ago the Secretary General admitted to me that recordings of meetings were edited ‘for ease of use,'” she claimed, “and recordings were cut before being sent to the Majlis so they would fit on one CD.”
It was also common practice for the commission to edit her out of the meeting minutes, she explained, and members were regularly given insufficient information on which to base their votes.
“I believe the public should have access to the full transcripts and recordings of the meetings,” she said. “The people will be outraged.”
Velezinee called for an open and transparent public inquiry into the activities of the JSC, with the participation of impartial mediators from an organisation such as the UN or the International Committee of Jurists, acceptable to both sides, “as we do not have anyone impartial enough [in the Maldives].”
“The judiciary is the foundation that will uphold the future of our country,” Velezinee said. “I want the opportunity to write a report, but have not yet been given the chance – all the evidence is available, and the public needs to hear this. If I am wrong they can shoot me.”
Minivan News attempted on several occasions to contact JSC President Mujthaz Fahmy and Speaker of Parliament Abdulla Shahid, but they were not responding at time of press.
The international community has urged the Maldives executive to respect the rule of law in negotiating a solution to its current political deadlock with the Majlis (parliament), and in handling its accusations of corruption and treason against several prominent MPs and high-profile businessmen.
In a democracy the judiciary is the crucial arbitrator of any such disputes between the other two arms of government. But Aishath Velezinee, the President’s Member of the Judicial Services Commission (JSC), the independent institution tasked with reforming the judiciary and ensuring both its independence and accountability to the public, believes the current state of the judiciary renders it unfit to do so.
Article 285 of the Constitution outlines an interim period for the reappointment of the judiciary by the JSC, according to minimum standards, with a deadline of August 7, 2010. After this, a judge may only be removed for gross incompetency or misconduct in a resolution passed by a two-thirds majority in parliament – the same number required for impeaching the President or Vice President.
Last week the JSC reappointed 160 of the judges appointed by the former government, despite a quarter of the bench possessing criminal records and many others with only primary school level education. The Supreme Court meanwhile sent the President a letter claiming it had ruled itself tenure for life.
Velezinee blows the whistle, speaking to Minivan News about the JSC’s failure to ensure the accountability of the judiciary, the compromise of its own independence at the hands of the Majlis – and the ramifications for the country in the lead up to the August deadline.
JJ Robinson: What is the function of the Judicial Services Commission?
Aishath Velezinee: The main function of the JSC – as I see it – is to maintain judicial integrity, and to build public confidence in the judiciary and individual judges.
The way we would do it under a democratic governance structure would be to hear the complaints of the people, and to look into these matters objectively and independently, and take action if necessary, to assure the public there is no hanky-panky [going on].
But instead of that, we are putting out press releases saying things like: “You can’t criticise judges”, “You can’t criticise the judiciary”, and ‘‘the president is exercising influence over judges”.
JJ: So the JSC is working as shield organisation for judges rather than as a watchdog?
AV: Very much. It is a shield for judges, and the evidence for that is very obvious. We have all this evidence in the media now from what is happening in the criminal court – a fact is a fact.
Why did [Criminal Court] Judge Abdulla Mohamed open the Criminal Court at midnight when two high-profile [opposition MPs Abdulla Yameen and Gasim Ibrahim] were arrested?
From August 2008 to today there have been many instances when the public might have wanted the court to open outside hours. But no – before that day, they have never opened the court out of hours for anybody else.
This was the first time they have done it – and then put out press releases saying it happened at 9pm? This is not the truth. We have evidence it is wrong.
But the Commission takes for granted that whatever the judge says is right. We can’t protect judges and oversee them.
JJ: This was the case taken to the Criminal Court by Yameen’s defence lawyer [former attorney general Azima Shukoor]?
AV: That’s not standard procedure. According to regulations the Criminal Court can only accept submissions from the State.
It would not have been an issue – the defence lawyer would have been given the opportunity to argue the case when the State went to the court. But Yameen’s lawyer initiated it – and got into the Criminal Court in the wee hours of the night – that is strange.
I’m not saying it is right or wrong – I don’t know. But what I do know is that this is out of the ordinary. The JSC has an obligation to the people to ensure the Criminal Court has done nothing wrong.
JJ: How did the JSC react?
AV: They did nothing. Article 22(b) of the Judicial Services Act gives us the power to look into matters arising in public on our own initiative. But what did the JSC do? They said nobody had complained: “We haven’t received an official complaint.” They were waiting for an individual to come and complain.
My experience, from being part of the complaints committee in the JSC, is that whenever a complaint is received, we have two judges on the complaints committee who will defend the [accused] judge, trashing the complainant, and talk about “taking action” against these people “who are picking on judges”.
Then they will put out a press release: “Nobody should interfere with work of judges.” Their interpretation is that “nobody should criticise us. We are above and beyond the law.”
Since January – when the JSC censored its own annual report, despite the law clearly saying what we should include – they decided to hide the names of all judges who had complaints made against them.
Instead, they released the details – including quite private information – about the complainants.
Civil Court judge Mohamed Naeem has "a box-file" of complaints pending, says Velezinee
JJ: What is the current state of the judiciary?
AV: The current judiciary has 198 judges that were appointed prior to this Constitution being adopted. Those judges were appointed by the then-executive: the Ministry of Justice. The appointment procedure, the criteria – none of these were transparent.
They were only given ‘on-the-job’ training. This ‘Certificate in Justice Studies’ they say they have is on-the-job training given after the 1998 Constitution was adopted, to teach them how to run the country according to that Constitution.
How do we expect these people – without exposure to democratic principles and cultures, without exposure to the world, with only basic education, and with only tailor-made on-the-job training for a different Constitution – how do we expect them to respect and uphold this Constitution?
A majority have not even completed primary school. A quarter have criminal convictions: sexual misconduct, embezzlement, violence, disruption of public harmony, all sorts of things – convictions, not accusations.
We are not even looking at the 100 plus complaints we have in the JSC that are unattended to. They have not been tabled. Civil Court Judge Mohamed Naeem has a box-file of complaints against him. And Criminal Court Judge Abdulla Mohamed has way too many against him.
JJ: Given the condition of the judiciary, and if the government is in a state of political deadlock with parliament, how is the government able to legitimise accusations against the MPs it has accused of corruption and treason?
AV: That is where we have the problem. The international community seem to have forgotten that this is a new-found democracy. We have in all our institutions people who have been in the previous government. We haven’t changed everybody – and they are still following their own culture, not the law.
How can [the international community] ask for the rule of law to be followed when there are no courts of law? Where are the courts? Where are the judges? A majority never even finished primary school.
Supreme Court Justice and President of the JSC, Mujthaz Fahmy
JJ: What possible reason was there for appointing judges with only primary grade education?
AV: It’s very obvious – just look at the records. As a member of the JSC I have been privy to records kept from before [the current government]. In their files, there are reprimands against judges for not sentencing as they were directed. That was a crime when the Minister of Justice ran the courts. The Ministry of Justice directed judges as to how sentences should be passed, and that was perfectly legitimate under that Constitution.
JJ: Has anything changed since 2008 and when the judges were appointed under the former government?
AV: Yes – what has changed is that [the judges] were freed from the executive. So they are very happy with the freedom they have received. But unfortunately they haven’t understood what that freedom and independence means.
They are looking for a father-figure, and they have found him in the current President of the JSC, Supreme Court Justice Mujthaz Fahmy. He has taken on this role, and he is now the king and father of the judges.
So they are all looking up to him to protect their interests. If you look at all the press releases from the Judges’ Association – which is run from Mujthaz Fahmy’s home address – he makes arbitrary decisions in the JSC and then puts out press statements from this organisation run from his home, to defend his own position.
We are in a very big game. Mujthaz Fahmy has been under the thumb of the former executive for way too long – the man is going on 50, he has been on the bench for 25 years, he has never had anybody come and argue with him – he can’t stand anybody who challenges him. So he’s got a problem with me sitting on the Commission because I do not take his word as the law. The man thinks that anything that comes out of his mouth is the law, and the majority of the JSC members take it as a fact.
But if you look into the documentation, if you look into the recordings – nothing that comes out of that man’s mouth will hold. Those interviews he is giving, all he is using is this image he has built up of himself as ‘the esteemed justice’. That is what he is using to convince the public that he is right. And they are trashing me in public and in biased media, just so people do not listen to me.
I do not ask anybody to take my word. I am saying: hear the recordings in the commission. Listen to what they say.
They have this belief that whatever happens in the Commission must be kept a secret amongst ourselves. This was run like a secret society – we have a pact of secrecy amongst us. I broke it, because I do not believe in tyranny of the majority. What we are seeing here is a repeat of what happened in the High Court in January, what we are currently seeing happen in the Majlis, and the same things are now happening in the JSC.
Elements of the parliament are collaborating with the JSC, says Velezinee
JJ: What are the links between the Majlis and the judiciary?
AV: That is a very serious issue. I am currently sitting on this seat as the President’s appointed member of the JSC, but prior to this, I was was the member of the general public appointed by the Majlis. They have forgotten that part.
I have brought this to Majlis attention. When the Commission voted on what I call the minimum ‘sub-standards’ for the judiciary, I sent a complaint to the Majlis. The same letter I sent to the President and the President of the Law Society. I sent it to the Speaker of the Majlis, as well as the chair of the Independent Commissions Committee, Mohamed Mujthaz.
When the JSC finalised the ‘substandards’, the Majlis into recess. So I went to the Anti-Corruption Commission (ACC), because it was the only constitutional structure where I could go to hold the JSC accountable. It is rather odd for one Commission member to go to another commission and ask them to investigate her own commission.
I met the ACC on May 12. The JSC say they adopted the substandards on May 11. Later I collected all the documentation, and wrote a report – because this is not going to be something easy to investigate. This is a whole conspiracy cooked up from the time the JSC was initially constituted. It has been planned, and it is very clear this is a plot.
When the Majlis reopened in June, I sent an official complaint to the Independent Commissions Committee which they accepted. On June 16, the Majlis wrote two letters to the JSC, one letter requesting all documentation and recordings relating to Article 285 – my complaint.
The JSC is not respecting Constitution and is doing as it pleases. Their disregard of Article 285, and their decision to adopt substandards for judges, comes from their belief in a promise made by the former government.
They do not refer to the Constitution in adopting the standards. They refer to conversations they had with the majority party at that time, a delegation led by our dear JSC President, Mujthaz Fahmy. He and a team of judges met with the politicians to negotiate a guarantee that no judge would be removed under the new Constitution.
Although we have Article 285 in the Constitution – to give the people a judiciary they can trust and respect – we have the President of the Commission responsible for the implementation of this article working on this political understanding with the former government.
This is very clear from the recordings.
All I’m asking is for third party to look into this – and that third party is the Majlis. After the Majlis took all the documentation and recordings, they had requested the JSC meet with the Majlis Independent Commissions Committee at 2:30pm on June 23.
If you go back to your news files, that was the day when the Majlis floor heated up. Since then the Speaker [DRP MP Abdulla Shahid] has suspended the Majlis.
The committee accepted the complaint – if they had not, they would not have asked us to come and discuss this with them.
I believe the speaker is taking undue advantage of this political crisis. The Speaker of the Majlis is now coming and sitting in the JSC [office] day and night, during Friday, holidays and Independence Day. The Speaker is sitting in the JSC trying to expedite this process of reappointing judges before the Majlis starts on August 1. What is going on here?
The Supreme Court, formerly the Presidential Palace
JJ: What is going on?
AV: I believe that when the Majlis was suspended, they should have directed the JSC to at least halt what was going on until they have looked into the matter. It is a very serious complaint I have made – it is a very serious allegation. And if that allegation and complaint is unfounded, I am willing to stand before the people, in Republic Square, and be shot.
I believe we have all the evidence we need to look into this matter – but under this Constitution, we have to go to the Majlis. But where is the Majlis? And what is the Speaker doing in the JSC?
What about all those other complaints? The Commission’s president is not letting us work on them. We have in our rules that any member can ask for a matter to be tabled. I asked him to look into the matter – and do you know what he did? He sent me a letter to my home address – as though I was not a member of the Commission – and asked me to write it in a proper form and bring it to the attention [of reception].
The JSC has decided Article 285 is symbolic, that article 22(b) does not exist, while the esteemed people of the law in the commission, include the Commission President, Supreme Court Justice Mujthaz Fahmy, explain to me that article 22(b) gives me the power to write a letter, fill in a form and submit a complaint. I asking – why did the drafters of this law put in a clause to give me a right I already have as any ordinary citizen?
Where we are right now – with the lack of confidence in the judiciary – it all lies with Mujthaz Fahmy.
JJ: What do you mean when you talk about “a plot”? How interconnected is this?
AV: They are trying to expedite the reappointment of judges without looking into my complaint. If you look into my complaint, you will find this has been done in an unconstitutional way.
What they are doing right now is going to kill the Constitution.
We are not going to consolidate democracy if they succeed in getting away with what they are doing right now. The Speaker has suspended the Majlis whilst a very serious complaint is with the Majlis committee, and now he is sitting in the JSC doing this.
If there is a matter pending in a court of law, usually they ask for a court order until the matter is settled. You don’t just carry on as if nothing is happening.
We have a petition signed by 1562 people – the JUST campaign – calling for an honest and impartial judiciary. This was not even put on the Commission’s agenda – it said it did not find it necessary to take it into account, and on that day I was not given opportunity to participate because on the agenda was the matter of approving judges under the substandards.
We are asked to put before any other matter the people, and the Constitution. Instead, the Commission is working in the interests of these individual few judges who have hijacked the judiciary. Mujthaz Fahmy must go.
JJ: So these Commission members met with politicians from the former government, to obtain a guarantee that sitting judges would remain on the bench, and not be subject to reappointment under Article 285? What do the politicians get back from the judges?
AV: We are talking about corruption. The change in government came in 2008 because people were fed up with a corrupt administration and autocratic governance.
But all those people who were in power entered parliament. The Speaker, who is right now sitting in the JSC working night and day expediting the reappointment of the judges, was also part of that administration. It is within their interest to keep this judiciary here, and not work in the interests of this Constitution, or the People.
Their personal interests take precedence over everything else. I’m afraid that is what we are seeing.
JJ: Do you feel the media has been taking this case seriously enough?
AV: I’ve been writing to all the concerned authorities since Januruary. I’ve been going on and on about the JSC and the dictatorship within it for a long, long time. I knew where we were heading, I have been warning the Majlis and talking to people from various parties. I have been talking about Article 285 for so long that I have become ‘the old article 285 madwoman.’
JJ: Do you think the current political crisis can be resolved without a functioning judiciary?
AV: Absolutely not. But then a functioning judiciary cannot be introduced without this crisis being resolved. How can the international community ask for the rule of law to be followed when there are no courts of law?
We need an impartial investigation of what is going on. And I believe the Maldives does not have anyone able to conduct an impartial investigation. We need assistance – the International Commission of Jurists (ICJ) should be here. The UN Special Rapporteur on Independence of the Judiciary should be here, right now.
This is not the fault of the judiciary. We have a large bench, and most of the judges have absolutely no idea about what is going on. They have not even been given orientation on the new Constitution.
I had the opportunity to meet magistrates from four Atolls. They know the law. But what they need is a basic understanding of the principles of this Constitution, of the foundations of democracy. Because it is through those lenses that they should be interpreting the Constitution.
I am not in favour of the removal of all judges. But I demand that all judges with criminal records be removed – they should not be sitting there even now, and there’s 40-50 of them – a quarter of the bench.
Why is the JSC remaining silent? Why is the Speaker of the Majlis in the JSC [office]? By his silence, and through the act of suspending the Majlis, the Speaker has given the JSC the opportunity to complete this act of treason they are currently committing.
The deadline for the judicial reform period under the new constitution in August 7. The Speaker and the President of the JSC are working overtime to get all these judges reappointed before the Majlis restarts on August 1. That is treason.
Supreme Court Judge Uz Ahmed Faiz Hussain, the President's nomination for Chief Justice
JJ: What benefit would outside arbitration bring?
AV: It is difficult because all our documentation is in Dhivehi. But we need an independent and impartial body to look into this properly. Forget listening to me or Mujthaz. Forget listening to politicians, and investigate. We need an impartial mediator.
It is very easy for the international community to turn around and blame the executive for taking a dictatorial attitude. We are demanding the executive uphold the rule of law. But what about the Majlis? Where is the rule of law when the Speaker suspends the Majlis and hides in the JSC expediting the reappointment of judges? Where are the courts to go to?
We need the public to understand the Constitution, and we need all duty-bearers to uphold the Constitution. I’m afraid half the members of the JSC do not understand the principles of democracy or the role of the JSC, or the mandate we have. Then there are a few who understand it very well but remain silent while all this goes on
JJ: The President recently nominated Supreme Court Judge Uz Ahmed Faiz Hussain as the new Chief Justice, and is awaiting Majlis approval. How likely is this to resolve the current situation, given the Majlis is currently suspended?
AV: Uz Ahmed Faiz Hussain is a well-respected man amongst the judges. I have never heard anybody question his independence or impartiality. He is a learned man and amongst all the politicking and hanky-panky going on, he has maintained his integrity.
But the Majlis has to appoint him and the Majlis may not even get that far – the Supreme Court has already declared itself permanent.
I’m telling you: this is big. What we are seeing is all interconnected – it is one big plot to try – in any way possible – to return power to the corrupt.
The British Foreign and Commonwealth Office (FCO) has issued a travel warning for the Maldives following recent political turmoil in the country, urging caution around “large political gatherings”, while debate on the political deadlock has spread to the House of Lords in the UK Parliament.
During Question Time, the UK Labour Party’s Lord Foulkes expressed “disappointment that President Nasheed seems to be reverting to the bad habits of his predecessor”, following the detention of People’s Alliance (PA) MP Abdulla Yameen, and urged the government to pressure the Maldives to restore “democratic freedoms”.
Conservative Lord Howell, also State Minister for the FCO, responded that the government was “pursuing full encouragement through our high commission in Colombo and other means to ensure that democratic development continues.”
Nasheed’s restoration of his cabinet ministers was “a step forward”, Howell promised.
Conservative Lord Naseby pointed out that the Maldives “is no longer a protectorate of the United Kingdom… and that being the situation, what role do we have at all to interfere in what is in fact the Maldivian exercise of democracy as they interpret it?”
Yameen meanwhile remains in MNDF custody on the Presidential Retreat ‘Aarah’, although appears free to communicate with the media given that Minivan News was able to contact him yesterday.
The Maldives National Defence Force (MNDF) – and the government – insist that the MP and high-profile businessman is under ‘protective’ custody after demonstrations outside his home last week turned violent.
Yameen has told local media he does not wish to be detained in ‘protective’ custody. The MNDF have also refused to present him before the court on a court order, raising some international eyebrows.
The President’s Press Secretary Mohamed Zuhair stuck to that story, insisting Yameen was being “protected” rather than “detained”.
Zuhair also claimed Yameen’s custodial protection was not unconstitutional, as the opposition has claimed, although Minivan News is still awaiting clarification from government lawyers as to how this is so.
“The MNDF is working absolutely within the constitution,” Zuhair said. “Yameen is being held by the MNDF, not the government. If Yameen is concerned about this he will be able to challenge it in court.”
“Dark and evil schemes”
Beyond the debate over Yameen’s detention, and recent court cases concerning the legality of his arrest along with that of Jumhoree Party (JP) leader Gasim Ibrahim, Zuhair said that given the severity of the allegations against them, neither could be considered prisoners of conscience.
“I cannot describe these people as political leaders – they are accused of high crimes and plots against the state,” Zuhair said.
“These MPs are two individuals of high net worth – tycoons with vested interests,” he explained. “In pursuing their business interests they became enormously rich during the previous regime, and now they are trying to use their ill-gotten gains to bribe members in the Majlis and judiciary to keep themselves in power and above the fray.”
“They were up to all sorts of dark and evil schemes,” Zuhair alleged. “There were plans afoot to topple the government illegally before the interim period was over.”
Zuhair explained that the government felt obliged to take action after six MDP MPs came forward with statements alleging Yameen and Gasim had attempted to bribe them to vote against the government.
The opposition PA-DRP coalition already has a small voting majority, with the addition of supportive independent MPs, however certain votes require a two-thirds majority of the 77 member chamber – such as a no-confidence motion to impeach the president or vice-president.
“In one incident early on in this administration, following the President’s return from Italy, they set up a telephone and a video camera in a committee room in parliament, brought a judge to sit in, and then tried to get two members of the president’s delegation swear on the Qur’an under oath that the President was drinking alcohol,” Zuhair observed.
The privatisation of Male’ International airport had clashed with the vested interests of the accused MPs, Zuhair claimed, sparking the current political debacle.
“Gasim was concerned the new airport might take the charter flights he had intended would be landing at the new airport he is building in Maamagilli,” Zuhair alleged, “while Yameen is a third party supplier of fuel at Male International Airport through the Maldives National Oil Company, which has representation in Singapore.”
The fuel trade is the most immediately lucrative part of the airport deal, Minivan News understands, and is a key reason behind both GMR’s interest and the government’s decision to award the contract to the Indian infrastructure giant. GMR has told Minivan News it will amalgamate the trade under one umbrella, a decision that will likely affect current third party suppliers.
Meanwhile Opposition DQP leader Hassan Saeed, who opposed the airport privatisation and is currently lobbying in the UK for international support for Yameen’s release, “is receiving huge legal fees from both Yameen and Gasim,” Zuhair claimed.
NGOs speak
A coalition of NGOs including Madulu, the Maldivian Democracy Network, Huvadhoo Aid, Transparency Maldives, Maldives Youth Action Network, HAND and Democracy House, meanwhile issued a statement “categorically denouncing the undemocratic actions of the three Powers of the State, at a time when democracy is in its infant stages in the Maldives.”
“We believe recent political and civil unrest is a consequence of these three arms of the State disregarding the spirit of the Maldivian Constitution,” the NGOs said. “We believe a culture of manipulation of the law to infringe upon the rights of one another has developed and that the three arms of the State have failed to give each other due respect.”
“It is not responsible on the part of the parliament, that they should pass laws that undermine the powers of the executive.
“It is unacceptable that the executive, should use its powers to harass and deter the functioning of the parliament, to disrepute the judiciary and to try to exert undue influence on the judicial system.
“The lack of consistency in the rulings of the courts, and actions which undermine the trust of the people in the judicial system are contrary to the high standards which are expected of Judges. We call upon the judiciary to work to restore the people’s faith in the judicial system.
The NGOs added that “other concerned State institutions” have also failed to “give due regard to the situation” and have acted irresponsibly.
The coalition also urged political parties to refrain from bringing violence to the streets, but condemned the security forces “for stepping outside the boundaries of the law with regards to arrest and detention” and the recent distribution of private telephone conversations by the media containing implications of corruption behaviour among MPs.
Between a rock and the Maldives
The government well aware of its status as international darling on climate change, but Nasheed appears willing to risk international censure for the sake of isolating Yameen while the state accumulates evidence in the background. Police were preparing to “make a splash” on the subject, Zuhair hinted.
However even if this evidence is obtained, demands from the international community – and opposition – that the government respect the rule of law and the judicial system, mean the government is faced with the new problem of legitimising its case against the businessmen and opposition leaders, now that allegations of obstruction have been levelled at the judiciary – including, yesterday, from the police themselves.
The government has been urging public respect for the judicial system – and the President’s Political Advisor Hassan Afeef has stated that the government will abide by any rulings from the Supreme Court.
The Judicial Services Commission (JSC), tasked with reforming the judicial system, has three sitting judges as members and vested interests, according to the President’s outspoken member on the commission, Aishath Velezinee.
“Of the 207 of the judges currently in office, 39 have degrees or higher. Some left school before grade seven, meaning they haven’t completed primary school,” Velezinee noted.
In addition there are seven sitting judges found guilty of a criminal breach of trust; five with allegations of a criminal breach of trust; two being prosecuted for an alleged breach of trust; one on trial for sexual misconduct; two have been found guilty of sexual misconduct; one was found guilty for an offence which had a prescribed punishment in Islam; and another who has both been accused of a criminal breach of trust, and found guilty of sexual misconduct – a total of 19 with documented criminal history.
Behind the scenes the executive is racing to nominate new judges before the interim period concludes on August 7, when sitting judges are granted automatic tenure.
However nominations for any new judges will have to be approved by the Majlis, which was cancelled this morning on points of order that developed into a scuffle outside.
“[The MPs] are trying to derail the process,” suggested Zuhair. “They are also panicking because they have no way of knowing who is going to be [implicated] by these corruption charges.”
As for tourists reading the today’s travel advisory urging caution in the capital, Zuhair observed that they “should be happier to know the top dollars they are paying are not being used for corrupt purposes.”
The Judicial Service Commission’s (JSC) decision yesterday to reappoint all sitting judges unless they have been convicted of either a crime with a punishment prescribed in the Qur’an, criminal breach of trust or bribery was “nothing less than treason to rob the people of an honest judiciary”, claims Aishath Velezinee, the president’s member on the commission.
The decision was approved with five votes in favour, two against and one abstention.
Writing in her personal blog, Velezinee warns that the new standard for judges’ conduct could give tenure to 19 judges with either prior convictions or allegations of gross misconduct.
If the decision is validated, she writes, the country “stands to inherit” seven judges found guilty of criminal breach of trust by the relevant authorities but not convicted in court; five judges with allegations of criminal breach of trust; two judges who face prosecution for criminal breach of trust; one judge on trial for sexual misconduct; two judges found guilty of sexual misconduct but not tried at court; one judge guilty of a crime with a punishment prescribed in the Quran; and one judge guilty of sexual misconduct and accused of criminal breach of trust.
“It is indeed a sad state of affairs, and an insult to all those honest judges whose integrity and good name is compromised by today’s decision,” writes Velezinee.
Confidence in the judiciary
Velezine told Minivan News today that the JSC decision could lead to eroding public confidence in the judiciary.
Article 285 of the constitution stipulates that the JSC shall determine before 7 August 2010 whether or not the judges on the bench posses the qualifications specified by article 149.
The criteria in the constitution requires that he or she “must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, and must be of high moral character”.
The JSC’s decision went “against the purpose” of the constitutional provision, said Velezinie: “I believe this was a decision taken by four men raising their hands. It is a matter of national interest as public perception will be affected if people can’t trust the honesty of judges.”
Moreover, it was of the utmost importance to inspire public trust in the judiciary “to avoid democracy failing because of a weak judiciary”.
Velezinie said official records show that some judges “have convictions from other institutions” such as the former Anti-Corruption Board.
“As you know, in the past we did not have a culture where everything was decided by the courts,” she said, adding that the judgments were passed in accordance with the old constitution.
After delaying and “failing in its primary task” of reappointing judges until August last year, a subcommittee chaired by Civil Service Commission President Dr Mohamed Latheef was formed to draft guidelines for the standards.
But, she added, the final report of the committee comprised of “four judges and Dr Latheef” was only presented last Sunday.
Abuse of power
Both Velezinee and Attorney General Husnu Suood have accused Supreme Court Justice Mujthaz Fahmy, president of the JSC, of “abusing the authority of his position” to delay and obstruct the reappointment process.
While Velezinee said Mujthaz Fahmy was among the 19 judges with prior records, Suood accused Fahmy of holding up the promotion of rival judges for “personal reasons”.
Suood said the judges on the commission were “not cooperating” with the task of reappointing judges.
Supreme Court Justice Mujthaz Fahmy
However, Judge Fahmy has denied the allegations: “Velezinee is lying if she really said that. That’s incorrect information.”
Fahmy stressed that the process of screening judges for reappointment had not yet begun and yesterday’s meeting was to “discuss the guidelines drafted by the subcommittee”.
The commission will go through old records and judges with prior convictions in court would be “disqualified”, he said.
Fahmy said he had “complete confidence” that the process could be completed by the August 7 deadline.
Apart from reappointment, he added, the commission has been active with hearing complaints, evaluating judges for promotion and formulating regulations and a code of ethics.
On the allegations of abuse of power, Fahmy said he doubted Suood would have accused him of it as the commission’s proceedings take place in accordance with the regulations and all members have an equal say.
“I wouldn’t say that judges have an undue influence in the commission as we don’t have a majority,” he said. “There are three judges on the ten-member commission”.
“Runaway judiciary”
Meanwhile, Ibrahim Ismail “Ibra”, former MP for Male’ and chairman of the drafting committee of the Special Majlis, the assembly that revised the constitution, said the substance of the criteria in article 149 was not limited to convictions.
“The assumption is that judges will have a higher than average standard of conduct,” he said. “Judges should be exemplary figures. So even if they have not been convicted of a crime, it does not mean they automatically have the code of conduct expected from a judge. They are expected to exhibit moral standing.”
He added that the JSC’s decision was tantamount to “the lowering of the standard expected from judges”.
Moreover, he said, the JSC was not empowered to “set standards by themselves” as the constitution grants that power to the People’s Majlis.
The parliamentary committee on independent institutions could order the commission to overturn its decision, Ibra continued, or establish standards and criteria for judges’ qualifications in the Judicature Act.
Ibra predicted that the decision will lead to escalating tension between the executive and the judiciary, which would have “very negative consequences”.
“Sadly, because of the actions of some judges who want to subvert the constitution for their own purpose, the credibility of the entire judiciary will be diminished,” he said.
While the Supreme Court was making “some headway” in reforming the judiciary, the courts did not inspire “a great deal of confidence from the public”.
Ibra speculated that judges understood “a divided Majlis cannot not hold the judiciary accountable” as the “comics in there can’t agree on anything”.
In the absence of effective oversight, he ventured, the judiciary was “having its heyday”.
Parliament exercising its authority to set minimum standards for judges would not be a solution either, Ibra argued: “Because the JSC is dominated by judges and the old guard, they will disregard it and even strike down laws.”
The procedure for the removal of judges laid out in article 154 requires the JSC to find that the judge is grossly incompetent and submit a resolution to parliament for the removal of the judge.
A judge could only be dismissed if a two-thirds majority of MPs present and voting support the resolution.
Ibra said some judges were misinterpreting the “independence of the judiciary” to mean that “judges were above the law”.
“What I see happening is that some people are arguing that no organ of the state can influence or dictate anything to the judiciary,” he said. “That is not independence. That is putting them above the law.”
After two years of the JSC, he added, most people would agree on “the wisdom of the Special Majlis” in constituting the commission.
According to Article 158 of the constitution, the JSC shall consist of the speaker of parliament, an MP and a member of the general public appointed by parliament; three judges each elected from the Supreme Court, High Court and the trial courts and a private lawyer elected among licensed lawyers; the Chair of the Civil Service Commission, a person appointed by the president and the attorney general.
“In retrospect if I could change anything in the constitution, I would argue that the time has not yet come to keep any judges on the commission,” Ibra said.
Moreover, he said, the current judiciary faced an acute lack of qualified professionals with an “adequate” grasp of the constitution and the laws of the country.
“What I see is a runaway judiciary that will become increasingly tyrannical, that will pass judgment on people and no one can hold them accountable.”
Forced labour is a “serious problem” in the Maldives and a sign that the government is not fulfilling its obligations as a member of the International Labour Organisation (ILO), claims a report into the country’s labour and trade union policies by the International Trade Union Confederation (ITUC).
The report, produced for the World Trade Organisation (WTO) in October, found a “relatively large number of forced labour-type situations among migrant workers and female domestic workers in the Maldives.”
“Domestic workers, especially migrant female domestic workers, are sometimes trapped in situations of forced labour and are in many cases forbidden from leaving the employers’ home through threats and other means,” the report said, citing figures from the 2009 report of the Human Rights Commission of the Maldives.
“It is estimated that the number of migrant workers has almost tripled during the past five years and there are more than 80,000 migrant workers in the country, equivalent to
around 26 per cent of the population. While many are not in a situation to be defined as bonded labour or forced labour, many other labourers from neighbouring countries pay
large sums as commissions to receive employment in the Maldives and often are not in a position to quit their job before they have paid back the sums of money borrowed.”
“I think there’s some truth in it, particularly with female workers from Sri Lanka and India finding themselves in situations where they are not being paid, or not able to limit their working hours,” said President of the Human Rights Commission of the Maldives (HRCM) Ahmed Saleem.
Children were particularly at risk, the report noted, with some of those migrating to Male from the outer islands for educational purposes finding themselves forced to work as informal domestic workers in exchange for accommodation and food.
“The house work done by such children is not voluntary in the cases where their continued stay in such houses depends on such children obediently doing house work as required by the owners of houses,” the report found, adding that child labour was also reported in the fishing industry.
Saleem said he had not heard of such practices in the fishing industry, but noted that when people living on the islands sent children to study in Male “many places will provide food and pay expenses, and in return the [child] may feel obliged to do work.”
There were many advertisements for such arrangements in local newspapers, he observed.
Workplace discrimination
The report also lambasted the government for failing to implement the prohibitions in the Constitution and Employment Act against workplace discrimination, especially regarding women.
“Women face discrimination at the workplace and in society, a problem which the government has failed to address in any satisfactory way,” the report said.
“At certain workplaces it is not permitted to get married or pregnant as this would lead to a termination of employment or change of job, and the complete absence of child care facilities forces many women to leave their job once their first child is born.”
Aishath Velezinee, member of the Judicial Services Commission, questioned whether this occurred and noted that the Maldives’ lack of childcare facilities stemmed from the culture historically relying on extended families for this purpose.
“Until lifestyles and ways of living began to change, there hasn’t been a need for it,” she said.
As for sexual harassment, another area highlighted in the report, “it exists but there is also a bill being drafted. I would say the state is addressing the issue.”
Discrimination based on sex was similar to that based on perceived cultural and profession hierarchies, she said.
“People don’t seem to understand the concept; they see [discrimination] as a cultural thing. It is a big issue: we don’t seem to understand the discrimination as it is meant in the Constitution or as it is expected in a democratic country.”
Even in the Supreme Court, she said, junior staff were made to take off their shoes and either wear slippers or go barefoot to protect the soft marble floors while senior staff could wear shoes.
The report also noted that women were prevented from working at many resorts because of their remote locations, as it was not considered socially acceptable for young unmarried females to stay on resorts for long durations.
“Traditionally women are disadvantaged in the Maldives, particularly in the application of Shari’a law in matters such as divorce, education, inheritance, and testimony in legal proceedings,” the report said, a state of affairs Velezinee admitted was “true”.
Saleem however observed that the Maldives treated women far better than other Islamic cultures, “where many [women] would describe themselves as slaves and sex objects.”
“Maldivian women have had voting rights since time immemorial. I’m not saying anything is perfect, but I think we have done more than other Islamic countries,” he said.
Collective bargaining
Furthermore, the report claimed that the Constitution and Employment Act contained no provisions allowing workers to collectively bargain, and despite the presence of active workers’ organisations such as the Tourism Employees’ Association of Maldives (TEAM) and the Teachers’ Association of the Maldives (TAM) the country had yet to formally recognise any trade unions.
“Strikes have been suppressed and encountered violent reactions from the the police [in the past],” the report said, observing that “freedom of association is still far from common practice.”
The right to collective bargaining “should be integrated [into the Constitution and Employment Act] now the Maldives is a member of the ILO,” the report urged.
“It must be the primary priority of the Maldives to ratify and fully implement the eight core ILO conventions and bring its labour law and practice in line with international labour standards.”
Saleem agreed: “Everyone knows the Employment Act needs changes. The Labour Ministry has said it will look at the recommendations we made [on the subject], but it has been two months. It’s time the government made it a priority – the Labour Minister has a lot of work to do.”
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