Democracy Derailed: The unconstitutional annulment of Article 285; and its’ consequences for democratic government in the Maldives.

Thursday, 9 December 2010

The Maldives is a long-time constitutional autocracy used to a President with all the powers of the State. The President – signified in persona by former President Maumoon Abdul Gayoom who held the title the past 30 years – was a President who could, and often would, allot land for service, provide medical assistance and scholarship to the worthy, and could hand out jobs with titles and benefits to fit the social status of those hand-picked. The President also policed the streets, undertook investigations, administered justice, interpreted law, set standards of “jurisprudence”, and held the final word and verdict as the last resort of appeal, the Supreme Justice, where the Courts failed. Those who fell afoul of the regime were restrained for public order, and those who gained favour were blessed by the good government of the day. The stress was on homogeneity, a people of one language, one religion, one ideology, one voice and one mind. The peaceful transition to separation of powers and constitutional democracy on August 07, 2008, then, is already situated in this socio-cultural and political context.

On the dawn of August 08, 2008, little of the political realities of a 30-year regime changed. With no interim caretaker arrangement, President Gayoom continued in office until elections; even then choosing to contest, running for his 7th five-year term, with the interim Supreme Court decision that the two-term limit on presidents did not apply to President Gayoom for he is a first time contender under the “new” Constitution. The manifest change then, to the lay observer, as well as media and the public, is the change of a President in three decades, when President Mohamed Nasheed won the 2008 elections and took office on 11 November 2008.

Today, neither the media and general public, nor the politicians, appear to quite understand that all powers are not vested in the President once a State adopts separation of powers. The role of the Parliament in government, the role of the Judiciary to promote democracy and ensure good government, the role of the Civil Service to be loyal to the government of the day and implement policy, the differential roles of independent bodies and their positions as powerful and trusted accountability agencies to hold together the constitutional democracy is overshadowed by politics. Ignored by the media and citizen as outside the main political arena, is the Judicial Service Commission (JSC); with the constitutional mandate to establish an independent judiciary in the first two-years of the Constitution, to protect independence of judges, and to promote public confidence in the judicial system.

An offspring of the former Ministry of Justice, the JSC was set up by MP Ahmed Zahir, a former Minister of Justice, and the first Chairperson of the JSC. Staff of the abolished Ministry of Justice took the lead positions, bringing in their personal connections to judges developed over years of daily dealings when the Ministers of Justice provided administrative support, legal advice, as well as guidance on verdicts in some cases before the Courts. Thus, self-interpreted as the Guardian of the Judiciary with a duty to protect the judges, the JSC rejects Rule of Law , Accountability and Transparency as “threats to judicial independence” . JSC’s approach is to defend judges, deny complaints, interrogate complainants, ensure financial security and other benefits to judges, and to provide bodyguards and protection of the police to judges when public discontent against a judge becomes serious; leading to impunity amongst judges , not all, but the few whose name come up serially.

Few amongst the general public, or media, understand the critical position of the Judicial Service Commission in institutionalizing democratic government, or its’ constitutional powers, duties and obligations; or it’s unique role in its’ first term of office. Those who do understand either confuse the public more with their “polititalk” or remain silent, for they have far more to lose than gain of an Independent Judiciary. The Parliament majority being those who administered the judges, and the justice system of yesterday, have shown no interest in checking JSC. Worse still, is that the judges themselves are miseducated into the notion that independence of judges equals non-interference by the President. With this, the “leaders” of the judiciary adopted for themselves the role of the former Minister of Justice; and the Judges Association became a tool, used strategically, to confuse the public, and judges themselves .

The Interim Supreme Court took on “parental responsibilities”, miseducating of judges, putting out self-interested rulings, amending laws to reorganize the judiciary, and strengthening their hold on the judiciary as a whole, by usurping powers and taking control, of the JSC, denying an independent check on the judiciary.

Insulated behind closed doors, inadmissible to anyone but those ten members privileged under Article 158 of the Constitution, the JSC does what it wills, without check or penalty. JSC’s resistance to change, denial of democracy, and breach of trust – the irresponsibility, irrationality, and self-interest of its’ members, and their refusal to uphold Constitutional duties and obligations – and, downright treachery in dismissing Article 285 as ‘symbolic’ is the greatest challenge to the Constitution (2008), Rule of Law and democratic government in the Maldives.

Why Article 285?

Article 285, is, in my opinion based on privileged access to restricted records on the judges database as well as records on their official files, and discussions with those few judges I have had the honour to meet, the backbone of democratic government in the Maldives. The drafters of the Constitution, many of whom now sit in Parliament (Majlis) including Speaker Abdulla Shahid and MP Dr. Afraasheem Ali - who are also ex-officio members of the JSC - shared the same vision, at least at the time of Constitution drafting.

It is a pragmatic clause, a necessity when one considers the Judiciary is often the weakest link in “new democracies” (UN, 2000); and an obligation when one considers the realities of the Maldives’ Administration of Justice under the previous Constitution (1998); and the vast difference it had to the Independent Judiciary the Constitution (2008) envision to achieve in fifteen years, by 2023.

The judges appointed prior to 7 August 2008, were appointed by the Minister of Justice, some hand-picked on to the bench as pay-off for their various political contributions or some other service. They all have a Certificate in Justice Studies (or similar title, of a duration of 6 months to two years), awarded on completion of a tailor-made crash course offered upon the adoption of the Constitution (1998).

Not all sitting judges have a formal education of any substance, nor are they fluent in a second language , and little opportunity for knowledge improvement or professional development was provided. It was not necessary as all decisions could be guided by the legal teams at the Ministry of Justice. Only about 40 among about 200 sitting judges are graduates. Of the 40 graduates not all hold an LLB - some have degrees in Sharia’ or in another subject, acquired from an Arab university. The “ruling ” of current Chair Adam Mohamed Abdulla being that all Arab Universities include Sharia’ as a mandatory subject in all programmes qualifying all graduates from Egypt, Yemen and Saudi Arabia to the bench.

Competency of a judge was decided based simply upon a judges’ physical health, i.e. his ability to come into Court.

As for impunity and misconduct, records show judges have rarely received more than an administrative caution by the Minister of Justice for such serious crimes as breach of trust and abuse of power and negligence, as well as serious sexual offences, possession of pornography etc. Most of the complaints lodged with the Ministry of Justice by members of the Public remain unattended in the judges’ personal files and include not only misconduct, but serious allegations of a criminal nature such as repeated sexual offences against minors. The public has tales of islands where few women dare go to claim child support for fear of Magistrates who expect sexual favours in return, of islands where Magistrates dictate personal edict in place of law etc. Whilst none of these public complaints were addressed, what was taken seriously, records show, and was disobedience in refusals to follow orders of the Ministry of Justice . As long as the directives of the Minister of Justice were followed the judges had absolute powers to act with impunity if they so deemed. Some often did so.

A few had returned to the bench after serving criminal sentences, and some had continued on the bench with no penalty despite having been found guilty of dishonesty.

Article 285 placed upon JSC the duty and obligation to assess every sitting judge appointed prior the Constitution (2008) coming into force, to confirm whether or not they possess all the qualifications of a judge as required under Article 285. The purpose, from a rights-based approach, is two-fold: first, to assure the public that all judges are qualified and worthy of their high office on the bench, and are thus capable of building and maintaining public confidence and trust in the judiciary; and second, to provide judges with the necessary knowledge, capacity and most important of all, confidence to work in independence.

The sitting judges recruited for the Administration of Justice, having had no orientation on the newly introduced doctrine of governance, Article 285 was a personal affront as evident from three statements issued by the Judges Association. That Article 285 is an obligation to the people, and not an offence to judges, who after all were quite qualified to preside over trials where the Ministry of Justice [or later the Courts in Male’ could guide and direct cases, and provide support to judges, was never explained. Instead, it became a tool for the self-acclaimed leaders of the judiciary to be used in fear-mongering and controlling the judiciary.

Power Play and Politics

Interim Supreme Court Justice Abdulla Saeed who, as head of the Interim Supreme Court, declared himself the Chief Justice and the interim bench as The Supreme Court in the days running up to the end of the two-year interim term, did not see it as his duty to correct the judges’ misconception, but rather was actively engaged in miseducating judges, creating strife, and causing discord between the administration of President Nasheed and the Judiciary.

In the name of developing judges for the new Constitution and upgrading them to meet the educational standards required, Justice Abdulla Saeed brought to Male’ batches of Magistrates from the islands, using them as tools, and breaching the innocent trust they placed in Justice Abdulla Saeed as the Godfather of the Judiciary. Dr. Afraasheem Ali (MP) who chaired the JSC Committee to develop an on-the-job training plan for those judges who meet all other requirements, decided to have the Magistrates trained by his old school , the College of Islamic Studies, even going so far as to train the Magistrates himself, personally, as a Part-time lecturer.

Once JSC set to work on deciding indicators for assessment, it became clear this was one for discord. On one side was Justice Abdul Ghani Mohamed of the High Court with a graduate degree in Sharia’ and Law, who wished to uphold the vision of the Constitution to have a high quality judiciary established in 15 years as provided by Article 285. In opposition were Justice Mujuthaaz Fahmy of the Interim Supreme Court and Judge Abdulla Didi of the Criminal Court. Justice Mujuthaaz Fahmy intently argued that lack of education could be not be considered an impediment, and nor should misconduct before 2000 be taken into account. Quite a logical reading when one considers Justice Mujuthaaz held a 6-month tailor-made Certificate of Sentencing, and had on record a conviction by the Anti-Corruption Board for embezzling State funds – a minor matter of pocketing MRf.900/- for overtime in 1998. Judge Abdulla Didi rarely joins in discussion, unless it is the matter of Criminal Court “Chief Judge” Abdulla Mohamed’s misconduct, a matter that has been under investigation for a whole year now, costing the State over MRf.100,000 to date in fees for Committee sittings.

Justice Mujuthaaz Fahmy sulked, willfully dragging the matter until the balance was in his favour, with the High Court “mutiny” of 21 January 2010 where three Justices colluded to publicly accuse High Court Chief Justice Abdul Ghani Mohamed of misconduct and remove him from the JSC by a Resolution.

Justice Mujuthaaz Fahmy as Vice Chair took the helm replacing the outgoing Justice Abdul Ghani Mohamed, and all turned into mayhem at JSC as, what I have reason to believe is a high-level conspiracy, was carried out aggressively by the majority; six of the ten members whose personal and political interest it was to retain the former Administration of Justice. The matter of Article 285 remained pending till the arrival of Justice Adam Mohamed Abdulla on 18 February 2010, when a new task-force of four judges (two from the Commission, and two hand-picked from outside by Justice Mujuthaaz Fahmy) set to work under the efficient direction of the Interim Civil Service Commission Chair, Dr. Mohamed Latheef. In perhaps the most methodical effort in JSC so far, Dr. Latheef had the indicators/standards decided in three days, working an hour and a half each day. The only consideration, it appeared, was to make sure no sitting judge fell outside the standards.

Once “decided”, there was no room for debate at the Commission. MP Dr. Afraasheem Ali, with falsely assumed “authority” declared, speaking in his capacity as MP, that Article 285 ‘symbolic’. Speaker Abdulla Shahid remained silent, choosing to evade the question even when asked pointedly to explain to JSC members the purpose and object of Article 285.

When Justice Mujuthaaz Fahmy took over, all the work done during Justice Abdul Ghani’s time disappeared off the record, including submissions I myself had made in writing. None of it was tabled or shared amongst the members. The “majority”, all of whom stood to gain from a wholesome transfer rather than a transformation of the Judiciary in line with the Constitutional Democracy decided, by mob rule, that all judges would be reconfirmed - for reasons that certainly are not in the best interest of the people, nation, or constitution.

Unfettered by concerns raised by President Mohamed Nasheed, Chair of the Constitution Drafting Committee former MP Ibrahim Ismail, or the public; and with the tacit blessings of the Parliament majority, JSC held the judges under lock and key to ensure, the all judges were re-appointed for life. That is an estimated 30 to 40 years when one considers the average age of judges and the retirement age of 70. No judge may be removed unless JSC recommends, and the Parliament votes a judge out. JSC being a Members Only club, electronically locked within the Department of Judicial Administration premises, and under the parental guidance of the Supreme Court, no one, not a single journalist, judge or member of the public, is privy to the details of what went on at JSC. The records of meetings are not available for public scrutiny, nor are they shared with the media or members of the judiciary. Even members are prevented from accessing audio records of sittings, the written minutes being edited by the Chair where he sees fit.

The fact is that the majority was achieved through pay-offs and “mob rule” rather than rule of law; and upheld self-interest rather than national or public interest . To benefit are:

(i) members of the previous regime holding majority in parliament, some of whom stand accused of serious crimes;

(ii) former Ministers of Justice and former Attorney Generals who appear before the Court as legal counsel for the MPs and other politicians accused of serious crimes;

(iii) the serious criminals who allegedly operate under the protection of certain members of the previous regime, by the assurance that the same cover-ups and abuse of justice would continue; and

(iv) “Chief Judge” Abdulla Mohamed of the Criminal Court who is set to sit comfortably in the Criminal Court for life, i.e. approximately 30 years until retirement at age 70.

The fact is that fully aware of the public discontent, and the fact that at least two of the 10 members of the JSC had expressed concern and publicly criticized JSC’s actions on Article 285 as unconstitutional and downright treacherous; 59 judges, including 11 judges who do not fall under the jurisdiction of Article 285, sat docilely at the orders of the JSC Chair, and took oath under lock and key. Supervising the lifetime appointments was interim Supreme Court Justice who had earlier initiated a Ruling declaring himself The Chief Justice.

What went on in the minds of those taking oath, they would know. What fear led them to submit to such degradation, they would know. To my mind, and to many others who witnessed the scene, it was ample proof there is neither independent judge nor independent judiciary.

Independence begins with an independent mind, and the freedom and power to think for oneself.

In my mind, more questions remain:
Where goes the common individual right to a free and fair trial?
Where goes building public confidence and trust in the judiciary?
Where goes the judges’ right to independence and non-interference?
Where goes the independent judiciary, the backbone of democracy?

(©Velezinee, Aishath, A draft under development, 9 December 2010)
The complete article with Endnotes is available on PDF

About the Author:
Aishath Velezinee is one of only ten persons with privileged information on the [non-]fulfillment of Article 285; as a Member of the Judicial Service Commission of Maldives in its’ first term. First appointed to the JSC by Parliament as Member from the General Public (23 April – 26 July 2009); she was re-appointed as Member appointed by the President on 26 July 2009 when the first full-term JSC was appointed.
She accuses the JSC of unlawfully annulling Article 285 by declaring it a symbolic clause; refusing to check judges; of misinforming judges and public, and of intimidating and threatening staff to cover up what she has publicly called a covert coup: A plot to hold control over the Judiciary through denial of Independence to Judges, miseducation of judges, and obstruction of an Independent Judiciary, in order to retain political influence and control over the Judiciary.
She holds a Diploma in Journalism (IIMC, India; 1988), BA in Government; and in Women’s Studies (University of Queensland, Australia; 2000) and a Masters’ in Development Studies (Institute for Social Studies, Netherlands; 2004).

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Velezinee Aishath  ©  2012