Page added on September 29, 2011
Ibrahim ‘Ibra’ Ismail is a Maldivian statesman and former chairman of the Special Majlis Drafting Committee responsible for the new Constitution. He remains one of the country’s key authorities on the subject.
He was recently reprimanded by both the Supreme Court and the Judicial Services Commission (JSC) for calling on the public to “rise up and sort out the judges”. He responded by attempting to file a defamation case against the Supreme Court.
JJ Robinson: This defamation case sprang from your recent comment calling on citizens to stand up and sort out the judiciary. What did you mean by that?
Ibrahim ‘Ibra’ Ismail: Basically what I meant is that the institutions that are supposed to keep the judiciary in check have been compromised too much, and they are not in a position to bring the judiciary to account. So when institutions fail in a democracy, solutions have to be found by the people.
This is what happened with [former President Maumoon Abdul] Gayoom. All the institutions that were in place failed to bring him to account. So eventually people had to come out and work really hard to bring him back into the folds of the law.
It’s a similar thing [with the judiciary] – the JSC has the prime responsibility of holding the judiciary in check, and failing them, the Majlis (parliament) has to do it. None of these institutions are acting on it.
No one wants to talk about it, and it’s very convenient for people to forget that the judiciary is making all this mischief. So the public has to remind these people that everything is not hunky dory, and they are making a lot of mischief, and the public is concerned about it.
JJ: So you’re talking about street protests?
II: Part of it involves street protests. But protests will only come when all else fails. Before street protests people have to stand up and act, lobby their MPs, write petitions, speak out, voice their concerns, have public debates. And if all these don’t get politicians moving, we’ll have to take to the streets – if necessary.
JJ: In response to your calls, the Supreme Court all but accused you of treason, stating that “making such statements in a free, democratic society under lawful governance goes against the principles of civilisation”, and demanded authorities investigate you. What did you make of the JSC’s – and the Supreme Court’s – response to your comment?
II: Very knee-jerk. I think the reaction from the Supreme Court and the JSC is an admission of guilt on their part. Because if they were doing things properly, and if they weren’t doing things they did not have to answer for, then they would not have this one person coming out and saying this. They would not have to worry about there being a bad reaction from the public. For me their response was tantamount to an admission of guilt on their part.
JJ: The JSC said it would request the authorities launch an investigation into your alleged treason. How many policemen have come to your door?
II: None. And I have begged police to take me in for investigation and conduct the investigation. I’ve even said to them that Supreme Court has ruled and passed judgement on me for treason. So why am I allowed to roam the streets? I should be behind bars. But they are not acting on it.
JJ: There seems to be quite a difference between theory and practice when it comes to the law here. Is this something you have observed?
II: Very much so. Ever since the adoption of the constitution. That is something I have been speaking out about.
JJ: When independent, outside groups such as the International Commission of Jurists (ICJ) visit the Maldives and criticise groups such as the JSC, they respond by simply pointing at the Constitution and insist “the Constitution says we are an independent institution”. Is this denial?
II: Maybe it’s a kind of denial, but what you have to remember is that adoption of a Constitution doesn’t change mentalities and culture overnight. A lot of work has to be put in to put that Constitution into practice, and I think that everyone has become very complacent about the implementation of the Constitution.
There is an assumption that “now we have the Constitution, that is how things should be”. But firstly, many people – including state officials, across different levels in all branches of government – are not really aware of what’s in the Constitution.
Most of them have not witnessed a democracy in practice. So what they are doing is interpreting the Constitution from their perspective, and what they are familiar with, unfortunately, is very undemocratic, and goes against the grain of the Constitution.
It’s a continuation of culture, with the new arrangements. This is what we are seeing, and I’m concerned that if we don’t act early too many precedents will be set and it will be difficult to turn it back again. Now is the time to act, and set it right – put it back on track.
JJ: You mentioned earlier that the judiciary had been compromised. What did you mean?
II: It’s compromised in all aspects. The first compromise was the enactment of the Courts Act and the Judges Act by parliament. Particularly the Courts Act, which was totally against what was conceived in the Constitution.
Then came the appointment of judges, particularly the Supreme Court judges.
JJ: That was hailed as a victory of compromise by all the major parties.
II: Yes, but even as it was happening I was fighting against it whatever way I could. The only avenue left to me was to speak out – which I did. I don’t believe appointments to the Supreme Court should be made through political deals.
Any appointment to the Supreme Court has to be scrutinised, both by Parliament, the executive, even the public. Judges should be beyond reproach. They can’t have baggage behind them.
Those were the compromises. Once the initial setting up of the judiciary and the key appointments were compromised, the rest would automatically follow. Their judgements are going to be compromised, their actions are going to be compromised – so that is why I said I believe the judiciary has been compromised. I blame the politicians for it – they failed the country when they did that.
The first instance of the Supreme Court’s move came while I was still in parliament in 2008, immediately after the elections were over. The Supreme Court moved a motion on itself, by itself, and ruled in their favour, to move the department of judicial administration from the purview of the JSC to the Supreme Court.
That was move number one. That very day, within hours, I was jumping up in parliament and saying “this is dangerous” – that these people have to be put in check immediately.
The entire Supreme Court was summoned to parliament – none of them turned up. We gave them the due respect that Justices of the Supreme Court deserved. We sent them a letter saying that the oversight committee would like to meet you to discuss some issues within the judiciary, so please tell us a convenient time to meet you.
They never bothered to reply. And the Speaker of Parliament took no further action on it.
For me it wasn’t just the ruling they had brought out that was a problem – it was the manner in which they were moving. I could see there would be more to come.
What we did in the 2009 budget was to put in an amendment moving the entire budget of the judicial administration to the JSC – and the Majlis passed it. So in effect, parliament was showing its displeasure, in a nice way. Saying: “You can make those rulings, but we hold the purse strings.”
But still they carried on.
JJ: And then the Supreme Court sent the President a letter ruling they were reappointing themselves for life, and no need to worry about the transition period? What did that signal?
II: The same thing. That was the next move. They were establishing that the Supreme Court was a supreme body in the country and whatever they say, goes.
That particular letter was composed saying they were going to be the Supreme Court, and neither the Majlis nor the President had any choice in the matter.
All these things signaled the same thing. First they wanted to hijack the judiciary – and through the judiciary they wanted to hijack the nation.
JJ: Who is ‘they’?
II: At that time it was the then Chief Justice – he appointed himself Chief Justice, by the way, because in the interim period there was no provision for a chief justice – and he was acting like that, leading. And then there was Mujitaz Fahmy, these were the people. Eventually when the appointments came, and the way it came, you could see, DRP had majority in parliament at the time, and by and large the People’s Alliance (PA) through their coalition was calling the shots.
JJ: Didn’t the Speaker of Parliament show up in the JSC office during the interim period to help photocopy letters of appointment?
II: Exactly. The Supreme Court and key elements within the judiciary are still controlled by Gayoom – directly or indirectly.
JJ: What does that mean for the provision of justice in the Maldives?
II: We can be guaranteed we won’t have justice. You can see these things going on – look at what the Supreme Court is doing.
Face facts – they are issuing instructions to the trial courts, saying “Case X, stop proceedings, we’ll take that over.”
Who ever heard of an appellate court taking over a trial court’s jurisdiction? I don’t know of any instance in any democratic country, anywhere in the world, where an appellate court will take over a trial court.
Even in cases of a mistrial, the instruction is to retry the case. Appellate courts don’t sit on trials. And they are systematically doing it – at least three cases so far.
What they are effectively doing is influencing the independence of the trial court. The significance of that is that if trial court judges cannot be independent of the higher court, there is no room for appeals. Because the decision is going to be the Supreme Court decision.
JJ: What has the role of the JSC been in all of this?
II: The JSC has been hijacked by these runaway judges, and they are serving their own interests in protecting the judges. This is one point where I disagree with the ICJ’s report.
JJ: The ICJ noted that it was a less-than-ideal structural oddity in the Constitution to have outside representation on the JSC?
II: They believe that the JSC should comprise of judges. I regret now putting even one judge on the JSC when writing the Constitution.
The ICJ’s caveat is very different from the ground reality here. In Britain and the US there are mature systems, and no politician in their right mind would even contemplate trying to influence court decisions – at least not publicly. Judges in the UK or the States, and most mature democracies, have come through a long history of democracy, worked as lawyers for a number of years, been scrutinised for their work and general behaviour – not just anyone can sit on the bench. But here in the Maldives we have a bunch of idiots.
What you see happening in the JSC is judges protecting their own backs.
JJ: The former President’s Member on the JSC, Aishath Velezinee, has previously stated that a majority of sitting judges have not completed primary school, while 25 percent have actual criminal records.
II: There are three judges on the JSC. And then you have a lawyer, who was elected by the lawyers – but the high court ruled at the time that a magistrate should be allowed to vote in the election of a lawyer to the JSC. So they elected this lawyer, whose wife was a magistrate.
Mujitaz Fahmy was heading the JSC at the time, he made arrangements for his wife to have her rent paid, to move to Hulhumale’ from an island court, and all this – and later even created a court in Hulhumale’ for her. So can this lawyer even hold the judges to account?
Then you have Abdulla Shahid, from the opposition Dhivehi Rayyithunge Party (DRP). Do you know the DRP leader and his cronies – MPs – have a Rf 1 billion (US$64.8 million) case suspended in the High Court, after the trial court ruled the bank could move in to take over the mortgages?
The trial court asked them to pay up, and all three or four of them would have had to declare bankruptcy and lost their parliament seats.
JJ: You are talking about Ahmed Thasmeen Ali and loans with the Bank of Maldives?
II: I have to be careful here or I could end up with a libel suit – it’s not Thasmeen now. Initially the loan was taken by companies in his name, his shareholdings. But during the Presidential election he was the running mate for Gayoom, so he transferred it to other people, and these people – the shareholders – are now MPs.
The Constitution says that if you are declared bankrupt, you will lose your seat. After the trial court ruled, they took it to the High Court, and it has been sitting there for a year and a half. The High Court has issued a court order suspending the trial court decision until the High Court sorts in out.
We all know that in an open and shut case like a bank loan there is nothing more to prove. Either you are paying it or you are not. I mean how many ordinary poor people have spent time in jail because they weren’t able to pay credit cards for personal expenses?
Under the same laws, the same court system, these people with Rf 1 billion in public money, are getting away with it. So no wonder a DRP-controlled Majlis, the Speaker, and Dr Afrashim Ali, will side with the judges. This is what I mean when I say they have been compromised.
JJ: So it all comes back to that Rf 1 billion?
II: Part of it. Look at [Deputy Speaker] Ahmed Nazim. He has a case currently against him that could put him away for a few years. Abdulla Hameed is a fugitive from justice. All these people from the old regime are fugitives from justice, so they depend on the judges to protect them.
Why was Nazim’s hearing behind closed doors? The public wasn’t allowed in, the journalists weren’t allowed in, which is against the Constitution. The Constitution spells it out that trials have to be open, unless a judge declares it a closed hearing to protect the interests of a victim in a case involving child abuse, or a rape, or a matter of national security. These are the only instances where a judge can declare a closed hearing.
I don’t think it is a coincidence that all these things involve ex-regime people.
JJ: So how right is Velezinee when she talks about the “silent coup”?
II: One hundred percent.
JJ: What do you think of Velezinee’s whistle-blowing role in this?
II: I think it was admirable what she did. But what she couldn’t do was garner the support for the cause.
JJ: Are people still intimidated by the Supreme Court to a degree that they feel they are unable to criticise it?
II: Intimidated yes, but there is also a hegemony amongst people. They think that courts can’t be criticised, that they shouldn’t be touched. Many think that if you say something against the Supreme Court they can summon you the next day and sentence you to jail. People don’t know what the limitations of power are. They see the courts as places that put people in jail – they’ve seen this happen all the time. They’ve seen wrongful convictions, and they know it’s the same judges and the same courts.
It takes someone like me to point this out. Part of my making this case against the Supreme Court is to convince the public that you can criticise the Supreme Court and remain a free man.
JJ: If this becomes a defamation case they can’t rule against you – because that supports your point – and they can’t rule in your favour, because that would place themselves in contempt of court. So what’s to stop there simply never being a hearing?
II: That’s a tricky point. I will see if the Civil Court will accept the case. I want to give the Civil Court the benefit of the doubt, until they reject it. Even if they reject it, I’ll take that to the High Court, and if they reject it, I’ll take it to the Supreme Court, and let them try themselves. (Note: the Civil Court subsequently rejected Ibra’s case).
JJ: What puts you in a position of being able to do this when many other people would not?
II: One thing is that I believe my knowledge of the Constitution tells me what they can and can’t do, which most people don’t know. Other than that, maybe because over the years and during the reform movement, I like to believe I have some standing in the public, because the majority of the public has faith in me for standing up for the truth. So that gives me courage.
But the bottom line is the same as when I stood up against Gayoom – someone has to do it. I waited for three years for someone else to do it this time, no one was forthcoming, so I figured “OK, here goes Ibra again.” Let’s give it a shot.
JJ: What kind of recourse do ordinary people have at the end of the day? You say people can go to their MP, but that engagement is not always in a democratically healthy manner given that most MPs readily admit to funding their constituents’ personal demands for money, education and overseas healthcare.
II: I think, with this recent fiasco in the Majlis regarding the committee allowances, parliament is on the back foot. They might try and please the public, if the public demands hard enough.
JJ: What is the impact on foreign investment of having a judiciary in this state? From the perspective of somebody investing in tourism if, say, I need to enforce a contract but I can’t go to the Civil Court with some guarantee of getting a fair ruling, what’s to stop somebody from just pulling my investment out from under me?
II: That’s happening already. Many potential investors are looking at the legal system here and deciding they do not want to take the risks.
JJ: Are people aware of this? Surely big businesses here are worried about this?
II: The big businesses already here are not worried, because they have the judges in their pocket. [Resort tycoon and Jumhoree Party MP] Gasim Ibrahim is now sitting on the JSC, and even as we speak he has seven cases in the courts.
JJ: The Constitution includes provisions for foreign judges, and the idea of a mercantile court has already been raised – an ‘offshore’ legal jurisdiction with authority in civil cases over a certain value?
II: I don’t think that’s a way out. It may serve a temporary purpose, but I think the real way out is to rewrite the Courts Act and appoint at least two foreign judges to the Supreme Court.
I was advocating this right from the start. I begged the President to at least nominate two foreign judges – retired or semi-retired people with experience – to come and assist us in setting up a Supreme Court and set the right precedents. But the politics got caught up.
I foresaw this even when we were writing the Constitution. On more than one occasion I said the next challenge would be the judiciary. The DRP wanted to write into the Constitution a stipulation that all judges should be Maldivian, but I fought single-handedly against it. Because that kind of nationalistic sentiment goes down very well with the public, because of the fear factor, the xenophobia and mistrust of foreigners which was actively promoted at the time.
The way is still open for foreign judges, and there is provision there for term appointments.
JJ: What is your overall prognosis? Optimistic or are you packing your suitcase?
II: I don’t know how long this will take. A short while, or longer than we think. But eventually, no society can sustain itself without justice. It is a fundamental feature a society requires to live in harmony.
The way justice manifests itself may not be readily seen or tangible, but people know when injustice is being done. And that is why people stood up against Gayoom – because of the injustices.
I’m optimistic that there will come a point – sooner or later – when people will just not tolerate it. But then it will be ugly. If we do it now it will not be ugly, with the least possible jolt to the system. I just hope the politicians – our parliamentarians – will have the wisdom to see that this is not a political issue, not something for personal gain. They should see this as serving the wider national interest and safety of all, including themselves. To get the judiciary on track.
For the bull to survive, it must ensure that the wider landscape in which it lives also survives. The judiciary is that wider landscape. You never know when you are going to end up in court, and on that day you should have confidence in the judge passing judgement over you.