Is Judicial Independence Under Threat in the Maldives[1]

Overview

On 11 November 2008, Mohamed Nasheed was elected to office as President of the Republic, following the very first pluralist democratic election in the country’s history.  The election itself was a major step forward in the country’s march towards a modern democracy.  Earlier in the year, the Maldives had adopted a new Constitution that international observers had described as being on par with the most established democracies in the West.

A key feature of the new Constitution was the adoption of a Presidential System of Governance, with full separation of powers.  The judiciary, of which the highest appellate had previously been the President, was to be headed by a Chief Justice appointed, similarly to the United States. A Supreme Court was founded.  A Judicial Service Commission was established.

Mohamed Nasheed, in the run-up to the election, had promised to uphold the rule of law, and to respect the independence of the judiciary.  However, from the early days of his regime, a catalogue of incidents began unfolding that resulted in widespread skepticism over his willingness to uphold the Constitution, adhere to governing laws, and forge ahead with the democratic process.

The Case of Civil Court Judge Mohamed Hilmy

At around 9pm on the night of 12^th November 2009, Civil Court Judge Mohamed Hilmy visited Hulhumale’ – barely a kilometer from the capital Male’ – to meet with his fiancée Ms Aminath Ali. Ms Aminath Ali – a State Attorney at the Prosecutor General’s Office – is a resident of Hulhumale. From there Judge Hilmy and Ms Ali went for a motorbike ride around the island, and stopped in a brightly-lighted area on the beachfront.

When they were about to leave for home, a group of some five police officers rushed towards them. Without asking them a single question, they handcuffed Justice Hilmy, forcibly pulled down both Justice Hilmy’s and his fiancee’s pants down.  They then beganto beat Justice Hilmy. They abused Justice Hilmy verbally and continued beating him for over 40 minutes, after which they brought a camera and took several photographs of Justice Hilmy and his fiancée.  When Justice Hilmy told them that he was a serving Judge, one of the police man replied “we will show you the consequences of being a Judge”. Justice Hilmy is still recovering from the injuries he sustained during the police assault. ¹

On the very first working day after the incident (15^th November), Justice Hilmy lodged a complaint with the Commissioner of Police and the Judicial Services Commission. On the same day, the Judges’ Association of Maldives lodged complaints with the Police Integrity Commission and the Human Rights Commission.

However, on 19^th November, in one of the fastest ever such investigations, the police submitted the case to the Prosecutor General. Sources within the Prosecutor General’s Office have revealed that the Home Minister and the Commissioner of Police personally met with senior officials at the Prosecutor General’s Office, and demanded for the case to be expedited. Three days later on 23^rd November, the Prosecutor General’s Office charged Justice Hilmy and his fiancée Ms Aminath Ali with public indecency before the Criminal Court. The Prosecutor General’s Office, the Commissioner of Police and the Home Minister did not deem it necessary to wait for the outcome of the investigations by either the Human Rights Commission or the Police Integrity Commission.

The first hearing of the case was held on 7^th December, in which Justice Hilmy and his fiancée Ms Aminath Ali pleaded not guilty.

Justice Hilmy and his fiancée Ms Aminath Ali have married on 24^th November 2009.

Background

1.  The 2008 Constitution paved the way to usher in a fully independent judiciary. Over the past year, Judges in the Maldives have gained much needed confidence in discharging their duties with full independence and without any external pressures.. Various courts, including the country’s highest court – the Supreme Court, had passed a series of judgments that infuriated the first democratically-elected President – President Nasheed and his administration. Unable to operate within the confines of the law, and thereby accept the supremacy of the Constitution and the independence of the judiciary, President Nasheed launched a thinly-veiled campaign to “cut the judiciary in size”. Mr. Hilmy’s case is but one such incident in a growing catalogue ofassaults on the judiciary.

2.  During the first few months of the Nasheed regime, Justice Hilmy had presided over a number of high profile cases.  Some of which are:

1. Former President Gayoom lodged a case against the government, seeking a court order that, under the Constitution, he is not obliged to appear before a Presidential Commission set by President Nasheed to investigate past misdeeds. The Civil Court, presided over by Justice Hilmy, ruled in favour of the Former President.

b.  Justice Hilmy was the presiding judge in a well-publicized defamation case brought by President Nasheed’s Foreign Minister against the President of the Islamic Democratic Party (IDP) and vocal critic of the government, Mr. Umar Naseer. Mr. Naseer alleged that the Foreign Minister had taken some Two million United States Dollars in bribes from a well-known Kosovan businessman-cum-politician for the recognition of Kosovo as an independent state. During the course of the second hearing on this case, Justice Hilmy almost threw out the case on procedural grounds. Now the case will be heard by a different judge.

1. Justice Hilmy presided over a case in which a man claimed to have entitlement over a government apartment on Hulhumale. He produced a letter from the Deputy State Minister for Home Affairs, Mr. Adam Naseer, in which the Minister stated that the claimant’s home was damaged beyond repair during the 2004 Asian Tsunami, and that the land on which the house was build had since been inundated. Inquiries from the Island Office by Justice Hilmy revealed that the Minister had fabricated the whole story. Justice Hilmy noted this in his judgment.

d.  Justice Hilmy presided over a case regarding the disputed resort Herethere Resort located in Addu Atoll.  The dispute arose between the public company with government shareholding, Maldives Tourism Development Corporation (MTDC) and the private company controlled by ex-MP Mr. Abdulla Jabir, Yacht Tours Maldives (YTM). Both Mr. Jabir’s spouse Ms Diyana Saeed had served as Attorney General in the Nasheed regime until she resigned citing President Nasheed’s lack of respect for the Constitution.  Mr. Jabir himself is a strong critic of the present administration. The Government first accused Justice Hilmy of delaying the judgment. When Justice Hilmy passed the judgment on April 28, 2009, the government accused him of delaying the report.² The government also demanded a criminal investigation of the delay in issuing the judgment and the report, called on the Judicial Service Commission (the body empowered by the Constitution to take disciplinary actions against the Judges) to investigate the matter. A press statement issued by the Civil Court on 4^th June 2009 noted the following:

• • • 1. The case was filed on 13^th January 2009.
      2. The first hearing was held on 18^th January 2009.
      3. The judgment was passed down on 28^th April 2009.
      4. Between the filing of the case and the judgment, no less than fourteen hearings were held.
      5. More than five hundred (500) pages of documents, and three-and-a-half hours of video footages were reviewed.
      6. A court-appointed survey team had surveyed the resort.
      7. Considering the above facts, the accusation that the judgment was delayed is unsubstantiated.

1. In a case lodged by R.K.L Group Pvt. Ltd. against Island Transport Pvt Ltd (of which ruling party MP Mr. Mohamed Musthafa is a shareholder), the respondent refused to appear before the Court. The Police ignored repeated Court summons orders and refrained from arresting Mr. Musthafa. Finally, Civil Court Judge Naeem , in August 2009, summoned the Police Commissioner to appear before the Court to explain his actions in failing to comply with the court order against Mr. Musthafa. The Commissioner too defied the Court order. Justice Naeem threatened to issue an arrest warrant against the Police Commissioner. To resolve the matter, a meeting between Civil Court Judges and senior police officials was arranged on the night of 19^th August 2009.  The meeting wasattended by Commissioner of Police Ahmed Faseeh, Deputy Commissioner of Police Ahmed Fayaz and other high-ranking police officials. The Civil Court was represented by Justice Ali Sameer, Justice Aisha Shujune Mohamed, Justice Hathif Hilmy, Justice Ali Naseer, Justice Abdulla Jameel, and Justice Hilmy. During the course of the meeting, Justice Hilmy had asked the Police Commissioner to comply with the court order or to appeal against the court order to the High Court. At this point, one of the police officers attending the meeting had said “we too can do things to show our power. We can lock up a judge up to 24-hours without a charge or arrest warrant. We can them claim that he was brought for an investigation only. No one can ask any question”. With this threat, the police team walked out of the meeting. Immediately, the Civil Court bench met the Chief Justice of the Supreme Court and communicated to him the threat issued by the Police.

3.  Long-established prosecution policies of the Prosecutor General’s Office (and its predecessor the Attorney General’s Office) in identical cases is that the charges would be dropped if the couple thereafter are bound in wedlock. However, in Justice Hilmy’s case, the Prosecutor General has departed from this long established practice, yet again raising serious questions.

Repeated Assaults on the Judiciary

From day one, President Nasheed found it difficult to operate within the Rule of Law. The President could not accept the fact that judiciary could declare government actions illegal and laws contrary to the Constitution as unconstitutional. As a result, the President and his administration were at odds with the judiciary. Below are some examples:

1.  The Judicial Service Commission, since its inception on 4^th September 2008, holds three functions. (1) appointment of lower court judges (2) advice the President on the appointment of Superior Court Judges (3) discipline judges. However, shortly after assuming office, President Nasheed, through his Maldivian Democratic Party’s Parliamentary Group Chair, as well as the President of the Judicial Service Commission, Mr. Hassan Afeef, tried arbitrarily to broaden the mandate of the Commission. The Supreme Court on 2^nd December 2008 declared the action unconstitutional. But President Nasheed’s administration refused to respect the verdict of the country’s highest court.

2.  On 4^th February 2009, the  Chief Judge of the Civil Court, Justice Shuaib was warned, demoted and transferred to the Juvenile Court when he defended the Supreme Court decision in an official meeting with the members of the Judicial Service Commission.³

3.  Article 296 of the 2008 Constitution stipulated that Parliamentary Elections be held before 15^th February 2009. When the Supreme Court ruled that the 15^th February 2009 deadline should be honoured by President Nasheed’s administration, the government disregarded the ruling and MPs from the ruling MDP ridiculed the Supreme Court Justices on the parliamentary floor.  Sessions of Parliament are telecast live by the national broadcaster in the Maldives. The ruling party then went on an extensive smear campaign against the Supreme Court Justices on the government-controlled national broadcaster TVM and VOM.

4.  Having witnessed the government’s harsh and uncompromising words and the violent conduct of ruling party activistsfollowing the supreme court decision, there is widespread fear and apprehension in bringing forward such cases before the supreme court in the future.  Further, such actions undoubtedly exerts undue pressure on the Justices of the Supreme Court, in ensuring that all their rulings are free of external influences, in particular those exerted by the government.

5.   In 2006, the Government had sent eighteen promising students to read law at the International Islamic University Malaysia (IIUM), as part of the democratic reform agenda objective to strengthen the judiciary. They were assured of appointments to the Bench upon completion of their course. However, President Nasheed, through his MDP’s Parliamentary Group Chair and President of the Judicial Service Commission, Mr. Hassan Afeef, appointed locally trained people in favour of these overseas trained legal practitioners.

5.  On the night of 2^nd June 2009, the newly-appointed Attorney General Mr. Husnu-al-Soodh openly criticised the judiciary in an MDP rally held in the capital Male’. And on the very next day, Attorney General Soodh held a live press conference, in which he leveled further criticism at the Justices of the Civil Court, as well as the Chief Justice. On 8^th June 2009, the opposition DRP/PA parliamentary alliance tabled an emergency motion in Parliament to debate the issue.

6.  On 15^th July 2009, the Cabinet instructed, in violation of the Constitution, to conduct an investigation against Criminal Court Chief Judge Justice Addullah. Justice Abdullah was summoned to the police station and his statements were taken. Under the Constitution, the Judicial Service Commission is the sole authority empowered with investigating and questioning members of the judiciary. The government’s actions were triggered by Chief Judge Justice Abdullah’s refusal to issue certain arrest and search warrants demanded by the Police. Later, the police raided a number of premises, includingthe Bank of Maldives and homes and offices of leading opposition figures, without judicial search warrants. This was the first time a sitting judge was arrested and interrogated by police since 1997!

7.  On 5^th November 2009, the Criminal Court had retuned, on procedural grounds, two high profile cases filed by the Prosecutor General involving the Former Speaker of Parliament and Cabinet Minister, Mr. Abdulla Hameed and the Former State Minister of Higher Education and current Deputy Speaker of Parliament, MP Ahmed Nazim.. Instead of complying with the procedural requirements or appealing against the Criminal Court decision, on 16^th November 2009, President Nasheed chose to send a letter to the Judicial Service Commission seeking an investigation into the matter. The President also discussed the matter in Cabinet. Thereafter, the Court accepted the two cases, apparently without any alterations or any attempts to iron out the procedural issues highlighted in the first case.

8.  When the opposition attempted to conduct a parliamentary debate on the arrest of the Criminal Court Chief Judge, members of the President Nasheed’s parliamentary group disrupted parliamentary proceedings. A large number of MDP also gathered outside the Parliament and confronted the Police, while the session was ongoing.  A similar gathering was held outside the Criminal Court, in which threatens of physical harm were issued against Judges and opposition MPs.

9.  President Nasheed, through his Attorney General, has requested the Judicial Service Commission to sack the Criminal Court Chief Judge from office. So far, the Judicial Service Commission has held two hearings on this matter.

10.  Recently, the Government, against the clear orders of the sitting Magistrate and instruction from the Judicial Administration, tried to possess forcibly part of the court room on the Island of Mulhadhoo in Haa Alif Atoll.  The government’s objective was to give the premises to a government-owned company. The Government backed off only after the Magistrate threatened with contempt of court proceedings. However, the Government forcefully took possession of another court building on the island of Ganin Laam Atoll.

11.  The government’s orchestrated campaign to undermine the judiciary was clearly evident when it proposed in its consolidated Budget for 2010 to reduce the budgetary allocation to the judiciary by 48 percent. This reduction comes despite the fact that overall national for 2010 shows little or no change in total figures from the preceding year.

12.  Through explicit threats, the Government has created a culture of fear and apprehension among the members of the judiciary. As a result, some judges are increasingly “parking” politically-sensitive cases, including cases where fundamental rights have been violated and in cases where other constitutional provisions are challenged.¹

13.  The 2008 Constitution requires the Parliament to confirm judges within its two-year transition period. The Government has so far failed to speedup the process, despite repeated calls to do so by the opposition. As a result, some judges have been reluctant to attend cases that may rub the Government the wrong way.

We, therefore, urge the international community:

1. to exert pressure on the government to uphold the Constitution, respect the rule of law at all times, and to uphold judicial independence in the country;

b.  to attend Justice Hilmy’s trial and assist Justice Hilmy in the preparation of his defense; and

1. to attend the hearings of Justice Abdullah and urge the Judicial Service Commission to ensure that he receives and impartial and fair judgment.

The Dhivehi Qaumee Party (DQP) expresses its concern that President Nasheed, who came to power in the name of democracy and with a clear mandate to forge ahead with democratic reforms in the Maldives, is fast departing from democratic norms and principles and adopting dictatorial tendencies. As President Obama had said, he is becoming “ruthless in suppressing the rights of others once in power”.

A Freedom House study clearly shows that:

“In a preponderance of successful transitions, the most dramatic improvements in freedom tend to come quickly – in the first years of a transition, rather than slowly and incrementally over a long period of time.”  How Freedom is Won: From Civic Resistance to Durable Democracy, Freedom House Study (2005), p.  5

[1] This report was prepared by Dr. Hassan Saeed and Dr. Mohamed Jameel Ahmed. Dr. Hassan was the former Attorney General (2003-2007) and Special Advisor to President Nasheed. Dr. Jameel was the former Justice Minister (2005-2007). He also served as the Minister for Civil Aviation and Communication under President Nasheed. Further biographic details can be found at: http://www.raajjechambers.com.mv