3 Sep 2012 Statement on CoNI Report

Monday, 3 September 2012

I welcome the publication of the Commission of National Inquiry (CoNI) Report without any further extension and delay; and have raised my observations and comments on the substance and recommendations of the Report in a Statement issued today.

Full text is provided here, and the Statement inPDF may be accessed by the link below.

QUOTE

Male’

Maldives

3 September 2012

 

 

Statement on the CoNI Report

by Ms Aishath Velezinee, former Member of the Judicial Service Commission

 

1.      I welcome the publication of the Commission of National Inquiry (CoNI) Report without any further extension and delay; and wish to raise the following observations and comments on the substance and recommendations of the Report.

 

A.    Comments on Part VI. THE FACTS; Section C. Conflict with the Judiciary

 

2.      The Report, whilst it notes Maldives to be a “young democracy”, fails to take into consideration the de facto transition; and base its discussion on the presumption that an Independent Judiciary exists per se with the ratification of the Constitution on 7 August 2008.

 

3.      It fails to note Judicial Reform is a fundamental Constitutional requirement under Article 285, or to 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.

 

4.      Instead, it explicitly politicizes 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 MDP’s Manifesto 2008-13 echoes Article 285 of the Constitution and its’ Obligation upon the State of Maldives.

 

5.      It concludes that, “attempt to implement the policy evolved into a confrontation with the judiciary in general, and the Chief Judge of the Criminal Court, Judge Abdulla Mohamed (“Judge Abdulla”), became the focus of their antipathy and antagonism”.

To reach this conclusion, the Report disregards major events that led to events of January 2012, including but not limited to:

(i)                 events of 2010 around Constitution Article 285 and re-appointment of Judges;

(ii)               JSC’s unconstitutional nullification of Article 285 declaring it a “Symbolic Article” and re-appointing the sitting bench without due check;

(iii)             Failure of Majlis to hold an Inquiry into 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 after a 3-hour meeting to probe a complaint against JSC by myself. The matter was first informed to Majlis in February 2010, and in subsequent letters and petitions since.

(iv)             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.

(v)               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, had politicized 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.

(vi)             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 NationalDefenceForces 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 covering up for each other.

 

6.      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.

 

7.      The Inquiry failed to note there is compelling evidence of “mischief” on the part of the Judicial Service Commission, established with the Report of the International Commission of Jurists who visited the Maldives in September 2010 following the controversy around Article 285.

 

8.      The Report also fails to note that the subsequent observation by the UN Human Rights Committee (July 2012) substantiates the allegation of Constitutional Breach by the Judicial Service Commission, and nullification of Article 285. Para 20 under Section C Principal matters of concern and recommendationsin the CconcludingObservations adopted by  the Human Rights Committeeat its 105th session, 9-27 July 2012(Advanced Unedited Version) reads:

The Committee is concerned at the fact that the composition and the functioning of the Judicial Service Commission (JSC) seriously compromise the realization 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.

It is reasonable to conclude that this would not be the case had there been substantive fulfillment of Article 285 as entrusted by the Constitution to JSC.

 

9.      The Report relates events surrounding Abdulla Mohamed’s removal on the orders of President Nasheed but ignore the much larger protests against the unconstitutional transfer of all sitting judges under this Constitution, or the public petition of 1650 verified signatures raised by Civil Society in 2010 ignored both by the JSC and Majlis.

 

10.  The Report also does not mention that many of “the many prominent lawyers” who had protested at the removal of Abdulla Mohamed now sits in Office which raises questions on their Independence, and suggests politics and conspiracy.

 

11.  Another fact is that “the many prominent lawyers” and politicians protesting at Abdulla Mohamed’s removal are MPs with criminal cases before Abdulla Mohamed and their lawyers. 

 

12.  The Report fails to recognize as “paramount duty of the Head of State and Government of the Maldives”, in the first term of the new Constitution to implement the Constitution and build the Democratic State guaranteed to the People of the Maldives by the Constitution.

 

13.  The Report, by its failure to probe the events leading up to the removal of Abdulla Mohamed and the January 2012 protests, fail to recognize the systematic breach of Constitution by the Judicial Service Commission and Majlis that had forced President Nasheed to use the powers of Head of State to address the issue of Abdulla Mohamed.

 

14.  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 Majlis encroaching upon Constitutional powers given to the Judicial Service Commission alone.  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.

 

15.  That Inquiry, to decide whether Abdulla Mohamed’s appointment is legitimate, together with the rest of the re-appointments under Article 285, is pending in Majlis. The delaying tactics of Majlis Committee as well as later attempts by the Majlis Committee to turn the Inquiry on Article 285 into an investigation of JSC’s administration gives reason to suspect a Conspiracy. Suspicion is further raised when it is observed that the MPs who led the January 2012 were the MPs who had obstructed attempts to get parliamentary Inquiry by disrupting Committee, and included current Chair of Majlis Committee.

 

B.     Comments on Part VII. OBSERVATIONS & CONCLUSIONS; Section A. Context

 

16.  CoNI Report notes Maldives’ to be a “young democracy with many new and fragile institutions and bodies which are contending with persistent elements and tendencies of a former political culture. The type of political traditions and culture which is required for these institutions and bodies to function effectively and mature needs to be fostered”; yet fails to note the Constitutional breaches of the Judicial Service Commission, the Interim Supreme Court and the People’s Majlis that underline events of January 2012 and link to 7 February 2012.

 

17.  It also notes, “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”; yet fails to consider the collapse of Rule of Law could, possibly be, engineered by those in positions of power, despite evidence of JSC’s Constitution breaches and Majlis cover-up,  provided to the Commission by myself.

 

C.    Comments on Part VIII. RECOMMENDATIONS

 

18.  It is noted with interest that CoNI, despite its non-consideration of the events within the JSC, Judiciary and Majlis that had led to events of January 2012, has as its first recommendation, “with regard to the facts, circumstances and causes of the events of 7 February 2012 that resulted in the transfer of  power in the Maldives,” a general recommendation that “immediate steps be taken to provide assistance and encouragement to the following State institutions with a view to their increased effectiveness and general performance in the service of the common good and public interest” to the Judiciary, the Judicial Services Commission and The People’s Majlis.

 

19.   The third recommendation is that, “The judiciary must enjoy public confidence and where there are allegations about judges’ conduct, the Judicial Services Commission must act in a timely and definitive way and report” which suggests CoNI is fully aware of, and accepts, the circumstances leading to the extraordinary action of President Mohamed Nasheed in his decision to remove Abdulla Mohamed. However, none of this is addressed in the Report itself.

 

20.  Finally, the fourth recommendation that, “The operation of a Parliament requires particular practices which have been cultivated in similar institutions  over centuries, and the People’s Majlis  would be assisted in understanding these so that they can better carry out  their constitutionally mandated functions” suggests CoNI is fully aware of, and accepts, Mali’s failure to uphold Rule of Law and its’ breach of Constitution created the enabling environment for those same MPs to bring down President Mohamed Nasheed’s Government using State Institutions; Judicial Service Commission, Maldives Police Services and Maldives National Defense Forces.

 

D.    Critical Concerns

 

21.  Having witnessed the High Treason in JSC, and having observed the links to politics outside, it is my opinion, that at the heart of the Constitutional crisis in the Maldives is the Judicial Service Commission. The JSC had operated in secret, without check, and effectively prevented the establishment of an Independent Judiciary as guaranteed by Article 285 of the Constitution. The Majlis, by the powers of a few influential members in key positions, aided, abetted and covered-up the hijack of the Judiciary.

 

22.  As it is, the CoNI Report tends to indirectly legitimize a Judiciary where at least 196 judges sworn in by 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. JSC had decided Article 285 is symbolic and nullified it in contravention of Constitution and standards upheld in it.

Further details are to be found in my report to CoNI, a timeline linking events of 2010 to 7 February 2012, submitted to CoNI after my appearance before the Commission is available at:

http://velezinee.aishath.com/content/my-report-coni-constitution-breach-jsc-hijack-judiciary and-link-7-feb-2012-coup-d%C3%A9tat;

A copy of my subsequent book in Dhivehi based on the timeline detailing events behind closed doors in JSC that led to what I believe to be a hijacking of the Judiciary, and subsequent wrongdoing in order to cover up Constitutional breach, is available at

http://velezinee.aishath.com/content/naakaamiyaabuvi-himeyn-baghaavaaiy-gaiy-birun-negee-badi

 

23.  As we lay the foundation for the standards the Maldives Democracy would uphold, and I am deeply concerned that the CoNI Report legitimize 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.

 

Aishath Velezinee

Former Member of Judicial Service Commission

appointed under Article 158(f) of the Constitution to the Interim Commission; April – 26 July 2009

appointed under Article 158(h) of the Constitution to the first full Commission; 26 July 2009 – May 2011

 

Email   aishath.velezinee@gmail.com

Tel.      +960 9994489

#Twitter@Velezinee 

Other

www.velezinee.aishath.com

www.wordpress.velezinee.comMay – August 2010 log on JSC

www.velezinee.aishath.com  November 2010 to date

Facebook Page Article 285 begun on 1 June 2010 initially as a daily log of JSC’s activities and issues of public concern.

 

Notes

 

(a)    The ICJ Report and the UN HRC Observations are available on the UNOHCHR website.

(b)    Until ratification of the Constitution on 7 August 2008, the Judiciary was part of the Administration and “judges” were appointed and dismissed at will as were all public servants.

(c)    The Judicial Service Commission (as found in Article 158 of the Constitution) includes the Speaker of Majlis and an appointed MP, 3 judges from the 3 tiers, the Attorney General, the President of the Civil Service Commission, an appointee from the Law Community, an appointee from amongst the General Public through Majlis, and an Appointee of the President. 

 

UNQUOTE

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