Page added on February 2, 2012
The Commonwealth will provide technical expertise to the Maldives to help resolve the ongoing judicial crisis in the Maldives, the Ministry of Foreign Affairs has stated.
High Commissioner of the Maldives to the UK, Dr Farahanaz Faizal, met with Deputy Secretary-General of the Commonwealth Mmasekgoa Masire-Mwamba this week and raised “the urgent need to modernise the Judiciary to international standards and possible Commonwealth assistance in this regard.”
The crisis was sparked on January 16 when the government ordered the military to detain Chief Judge of the Criminal Court, Abdulla Mohamed, after he filed a High Court injunction against his police summons.
Allegations against the judge dating back to 2005 include misogyny, sexual deviancy, throwing out an assault case despite the confession of the accused, political bias, obstruction of police duty, disregarding decisions of high courts, deliberately holding up cases involving opposition figures, barring media from corruption trials, ordering the release of suspects detained for serious crimes without a single hearing, maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes, and releasing a murder suspect “in the name of holding ministers accountable” who went on to kill another victim.
In one instance Abdulla Mohamed was accused of requesting that two underage victims of sexual assault act out their attack in court, in front of the perpetrator.
The judge had previously been under investigation by the Judicial Services Commission (JSC), but had successfully sought an injunction from the Civil Court against his further investigation by the judicial watchdog.
The ongoing detention of the judge has polarised public opinion in the Maldives and resulted in several weeks of opposition-led protests consisting of between 200-400 people, some of them resulting in violence and injuries to police, protesters and journalists.
Judge was “clearly demonstrating his independence”: ICJ Australia
Earlier this week ABC Radio in Australia aired an interview with John Dowd, President of the Australian branch of the International Commission of Jurists (ICJ), who stated that Judge Abdulla Mohamed had “clearly been demonstrating independence as he’s supposed to do and the government doesn’t like it.”
None of the government’s allegations against the judge warranted his arrest, Dowd argued, “and it’s clear that the must be immediately released. This will do serious damage to the Maldives internationally and their tourist industry is a big part of their income and they just can’t allow this to go on.”
The Maldivian judiciary, Dowd claimed, was “generally competent”.
“It’s not a legally focused country. They’ve had a change of government after some 30 odd years and there’s obviously a settling down period and they do need assistance in terms of bringing their legal system up to date. But nonetheless, there is nothing wrong with the way the judges carry out their duties and it’s just a classic situation of a government not liking someone’s decision.
“It’s got a funny legal system in that there are aspects of Sharia law in it and British Commonwealth law and so on. But I would have thought that the Commonwealth Secretariat could have arranged some judges or someone that could go in there to mediate, and the Commonwealth is the more likely basis for resolving the issue. It really is very difficult for outsiders to intervene and I don’t think the UN is the correct body,” Dowd told the ABC.
Maldives Foreign Minister Ahmed Naseem responded to the criticism on ABC Radio the following day.
The government, he said, did not want to keep Abdulla Mohamed under arrest, but did not want him sitting on the bench until the charges against him were cleared – “but the point here is that we are in a Catch-22 situation – which court do we go to?
“Existing judges swore themselves in unilaterally without looking into the relevant clauses of the constitution, which says that they have to be sworn in according to the new constitution.
“Now, this new constitution strictly stipulates that these judges should have qualification to act as judges. The present judges that we have don’t have these qualifications.
“There are quite a lot of people whose interests are vested with these judges. That is, there are politicians connected to the former regime, who have many court cases. Now all these court cases are being held by the judge who is under detention at the moment. No cases have been conducted on this and no sentence has been passed. So it’s in the interests of the opposition to see that this judge remains as a judge.”
The country’s “entire judiciary is at stake”, Naseem argued. “What democracy can we have, when we don’t have a proper judicial system and we can’t dispense justice properly? The democracies of the world should really help us and find ways of sorting this issue out. We have requested UN bodies to help us in this and they’ve promised to send us some people to sit down with us and work something through.”
Criminal Court letter
Meanwhile, a group of Criminal Court judges this week sent a letter to Chief Justice of the Supreme Court, Ahmed Faiz, contending that the Supreme Court had as much responsibility for the crisis as President Mohamed Nasheed.
Ensuring an independent judiciary as envisioned in the new constitution adopted in August 7, 2008 was “a legal as well as national duty” of the Supreme Court, the judges noted, adding that it was “regrettable” that the Criminal Court’s functions have not been developed in line with the changes to the criminal justice system.
Among the main points raised in the letter included the Supreme Court abolishing an article in the Judicature Act – “without any discussions with anyone” – that stipulated the formation of judicial councils, intended to represent all courts and provide advice and counsel.
The Supreme Court also took over a case filed at the Civil Court challenging the legality and validity of the JSC’s process for vetting candidates to the High Court “in the name of public interest litigation” and dismissed the case without issuing a verdict.
Moreover, the letter stated, the Chief Justice “turned a deaf ear” to numerous complaints from the public as well as judges and took no action regarding Chief Judge Abdulla Mohamed.
The judges also criticised the Supreme Court for not undertaking efforts towards dialogue with the government or President Nasheed to resolve the current crisis, calling on the Chief Justice to bring both sides to the negotiating table.
The letter took note of inconsistent standards and rulings made by different judges of the Criminal Court regarding extension of detention and evaluating evidence as well as the release of suspects detained for serious crimes, and referred to a list of “urgently needed” reforms previously recommended to the Supreme Court.