Dhivehi Qaumy Party demands reappointment of the Chief Justice and Supreme Court Bench after President’s unconstitutional actions

(Briefing Note from Dr Hassan Saeed – Leader of the Dhivehi Qaumy Party)

Contents

1. 1. Introduction
2. 2. Commentary by Dr Hassan Saeed – Leader of the Dhivehi Qaumy Party
3. 3. Briefing on the threat to the Independence of the Maldives Judiciary
4. 4. For more information

Appendix – Background Note on the Current Maldives Crisis

Introduction

The following document has been produced by the Dhivehi Qaumy Party (DQP), to brief the wider international community of the ongoing situation within the Maldives and in particular the current threat to the independence of the Maldives Judiciary. This reflects an ongoing pattern of behavior by President Nasheed over the last month to weaken the independence of the Legislative and Judicial arms of Government through arrests, threats and intimidation by his MDP party activists and through a show of strength by Police and the Military.

In the last few days, a significant constitutional crisis has occurred in the Maldives. In summary:

• The President has over-ridden the constitution and appointed a temporary Supreme Court of four people, claiming that the present one does not now have legitimacy after the expiry of transitional arrangements in the constitution and has blamed Parliament for not legislating final arrangements.
• However the four proposed justices have resigned, not wishing to be part of the President’s unconstitutional arrangements. His Attorney General has also resigned.
• The opposition secured a victory when a Civil Court, on an appeal by the Prosecutor General, upheld the right of the current Supreme Court to meet. However the Government is now contesting this in the High Court and the Maldives Defense forces refuse to hand over the keys to the Supreme Court to the current Chief Justice.

As you will be aware from previous briefings and through his recent visit to the UK on behalf of all the opposition parties, Dr Hassan Saeed, leader of the DQP, has expressed his deep concern about recent events and the behavior of the President.

President Nasheed came to power carrying the hopes of many people that the Maldives could achieve full democracy. However we now see him threatening the Maldives Judiciary along with its democratically elected Parliament in a way that he would have no doubt similarly criticized his predecessor for. In view of his response, many who previously supported the President will now feel totally let down by his actions.

What you can do?

We believe the international community can continue to play a key role in asking President Nasheed to pull back from the threats he is making, just as it did with his predecessor.

In order to defend democracy in the Maldives you can do the following:

• Call on the Government to restore the Supreme Court bench immediately.

• Call on the President to show respect for the separation of powers as set out in the Maldives Constitution

• Call on the President and the Parliament to expedite the process of confirming the Supreme Court, Chief Justice, and other institutions required to be confirmed or established during the transition period.

This paper comprises some initial commentary by Dr Hassan Saeed as well as a more detailed briefing note on the current crisis regarding the suspension of the Maldives Supreme Court. Finally it also has a background appendix summarizing events in the Maldives over the last month.

Commentary by Dr Hassan Saeed – Leader of the Dhivehi Qaumy Party

Dr Hassan Saaed, Former Maldives Attorney General and Presidential candidate and now leader of the opposition Dhivehi Qaumy Party (DQP), has demanded the Maldives Government restore the Supreme Court bench immediately following a Civil Court judgment rejecting the President’s suspension of the body.  Speaking to DQP members yesterday, Dr Hassan Saeed said:

“This is an extremely serious action. We in the DQP vehemently condemn President Nasheed’s repeated ill treatment of the judges and the judiciary of the Maldives. Removal of the Supreme Court bench and the interim Supreme Court he set up is unconstitutional and illegal and is a mockery of justice, separation of powers and democratic norms and civilized behavior.”

“The President has demonstrated not just unconstitutional and illegal behaviour but has also demonstrated a vast lack of competence through the serious misjudgment of seeking to appoint a temporary Supreme Court, whose members were not even prepared to serve. His own Attorney General has also resigned as well.”

“I am calling on the Government to restore the Supreme Court bench immediately and for Parliament to expedite the process of confirming the Supreme Court, Chief Justice, and other institutions required to be confirmed or established during the transition period.”

“The international community should be judging the President, not just by the words he and his political appointees and supporters make, but also by his actions. With his use of Maldives defense forces to prevent Supreme Court Justices from meeting, his behavior is clearly not one of a democrat committed to a separation of powers between the Executive and Judiciary.

“We urgently need further mediation by the UN and the International Commission of Jurists to help us immediately restore the independence of our Judiciary which has been thoughly compromised through the behaviour of the President.”

1. 1. Briefing on the threat to the Independence of the Maldives Judiciary

Summary

President Nasheed has formed an Interim Supreme Court and tried to appoint 4 persons  to take over the administration of the Court via a presidential decree. The executive’s justification is that the Supreme Court established on 18th September 2008 has dissolved at midnight on 7^th August 2010 at the expiration of the two year transition period prescribed in Article 297 of the Constitution. The Parliament was required to constitute the permanent bench for the Supreme Court, High Court and appoint a Chief Justice within the transition period. However, it failed to do so. President Nasheeds’ formula to overcome the constitutional vacancy, which he claims exists, is through appointment of political appointees to the Supreme Court administration.

The Constitutional Position of the Supreme Court

Arbitrary dismissal of the Supreme Court bench and the establishment of an interim Supreme Court is unconstitutional and illegal for the following reasons:

1-    Article 284 of the Constitution provides that the Interim Supreme Court constituted under Article 282 will continue until such time as the Parliament carries out the due procedure of constituting the Supreme Court as provided under Article 145 of the Constitution.

2-    Article 284 of the Constitution is not tied to any fixed time period, including the two year transition period. This is to ensure that at all times a Supreme Court exists (whether interim or permanent one).

3-    The present Supreme Court bench is a transitional bench and the Constitution does not allow for an appointment of an Interim Supreme Court for a second time.

4-    The current Supreme Court bench was appointed by the Parliament and hence any changes to that should also take place through Parliamentary process, especially when the Parliament is session.

5-    Constitution clearly demarcates between executive and the judicial powers. The only judicial power the President has is to nominate, in consultation with the Judicial Service Commission, the Chief Justice and Members to the Supreme Court bench. Other than that no judicial power is vested in the President. Hence the President cannot assume or exercise any form of judicial powers.

6-    This is not the first time a constitutional vacuum has been created. In fact, the Government and the Parliament have conveniently allowed several constitutionally set deadlines to pass. For example:

1. Presidential election was not completed within the timeframe provided by the constitution and yet no temporary or transitional president was appointed.
2. Parliamentary election also did not take place within the constitutional timeframe and yet no temporary or transitional Parliament was set up.
3. Likewise election for local council also did not take place within the constitutional timeframe. Yet no temporary or transitional council was appointed.

7-    So why worry over a judicial vacuum when executive and legislative vacuums did not matter? Why a temporary or transitional Supreme Court when no such arrangements were made with regards to the executive, legislature and local councils? Why not allow existing Supreme Court to function in the same way the executive and legislature did and local councilors continue to do so?

8-    Constitution envisages the takeover of the executive by the Speaker of the Parliament in the event both the President and the Vice President resigns or dies concurrently. In contrast it does not envisage any situation during which the executive could overtake the legislature or the judiciary; be it during the interim period or post interim period. Hence the Constitution is devoid of recognition of a presidential decree formulated to override and disrupt the basic doctrine of separation of powers which constitute the very basic structure of the Constitution.

9-    Article 274 (a) defines law as follows. “Law shall be laws passed by the Parliament and ratified by the President, and regulations or by laws empowered by and consistent with the said laws.” Presidential decrees do not fall within the ambit of the said definition. The only avenue giving rise to operate presidential decrees can be found under the various powers and responsibilities under Article 115 of the Constitution dealing purely with the smooth running of the executive branch of the Government and does not authorize diffusion of power boundaries.

10- Even if a constitutional vacuum is created with the end of transition period, as argued by the Government, still the Constitution does not authorize the President to fill vacuum. In fact, the separation of power doctrine so clearly entrenched under the Constitution bars the executive from assuming judicial functions.

11-  Neither does a presidential decree to appoint four persons to administer the court replace the parliamentary function or satisfy the lacuna created due to the inexistent laws. Moreover, this notorious remedy does not fill the constitutional vacancy so created as his acts find no fit in the constitutional interpretations or the Rules of the Supreme Court which does not recognize an interim period.

12- Rules of the Supreme Court of Maldives and Bill on Judges and Justices recognize the Registrar of the Supreme Court as the most senior administrator with regard to the administration of the Court. As of now Supreme Court of the Maldives has a Registrar in effect and in force to handle administrative functions. Political appointees appointed outside the legal and legitimate context cannot override the functions and powers of the Registrar of the Supreme Court. The Supreme Court Registrar is not authorized to carry out orders except that which is from a Justice of the Supreme Court or Chief Justice.

Judicial reaction to the President’s Proposals

The four members of the government’s short-lived appellate court resigned on 8 August citing other commitments, but it was widely reported that they did not want to be held responsible for the President’s misjudgment.

The Attorney General also resigned on 8 August, claiming that while he had some responsibility for the ‘constitutional void’, he also blamed Parliament. The President has now appointed a successor.

Also on 8 August, the Civil Court today ruled that the Supreme Court bench remains valid, and that the Maldives National Defense Force (MNDF) was obliged to return the keys to the building to the sitting judges. The government will appeal in the High Court

1. 2. For more information contact:

Dr Hassan Saeed: Phone: +960 778 6500  Skype: drhassansaeed

Jonathan Upton (TCC): Phone: +44 (0)7961 446034  Skype: jonathancampaign

Jonathan Upton of TCC provides strategic communications advice to Hassan Saeed, former Maldives Presidential Candidate and current Leader of the DQP.

Appendix – Background Note on the Current Maldives Crisis

This short summary sets how events have unfolded:

• President Nasheed was elected President from a wide coalition (some of who are now in opposition) as the first democratically elected president. Whilst seen at the time as a campaigner for democracy and indeed seen by some as the “Mandela of the Maldives” having been arrested by his predecessor President Gayoom, Nasheed has become increasingly intolerant and is now beginning to act in similar ways to his predecessor.
• The Parliament is not controlled by any party. It has been fulfilling its scrutiny role – for example, questioning the lease of the airport to an Indian company as well as considering no-confidence motions of some ministers (most recently the Education Minister on grounds of basic incompetence).
• The President pre-empted the decision of Parliament to debate the future of ministers by making his entire cabinet resign (whilst no confidence motions are under consideration it is illegal to arrest Parliamentarians under the constitution).  Thus arrests were made possible and were carried out of MPs (on charges of bribery and corruption) but also implying they were attempting to overthrow the government
• Parliament and the President have been in stand-off over their disagreements, with the Opposition demanding the release of the MP’s. The President has now reappointed his cabinet and claims it does not need parliamentary approval in breach on the constitution. This is now being challenged at Supreme Court level.
• On Monday 12 July, having been pursued through lower courts, the Maldives Supreme Court ordered the release of the two opposition MP’s.
• Police Officers who conducted the arrests were suspended due to their actions.
• Since the decision of the Supreme Court, there is now evidence of government intimidation of the judiciary as well with high-level sources indicating the head of the Supreme Court has been threatened.
• Parliament is now seeking to strengthen the immunities of MP’s from attack from an over-mighty executive. The Parliament has also been seeking to liberalise broadcasting to ensure a wide range of diverse opinions. The President was in favour of that too when he was a campaigner for human rights but is now resisting Parliament’s proposals.
• The Maldives Journalist Association has urged the Government to stop pressurising media organisations under the guise of the current political situation
• On the evening of Wednesday 14 March, the Governing MDP went ahead with a planned rally.  Ministers, State Ministers and senior government officials took part.  Hardcore activists were brought from remote islands. This was followed by a yet another rally later in the evening in which the president himself took part.
• President Nasheed at that rally declared that he will cross [legal] “boundaries”.
• MDP Parliamentary Group Chair Hon. Musa Manik told the crowd that they will ‘lynch the former President Gayoom!’.
• State Minister Mr. Aslam then called the arrest of the Chief of the Criminal Court, along with former Attorney General, Presidential Candidate and opposition DQP Leader Dr Hassan Saaed
• The MDP parliamentary group leader Musa Manik warned that if police don’t arrest Hon. Qasim, Hon. Yamin, Dr. Hassan Saeed they will crash into their home and take things on their own hands. President Mr. Nasheed was seen clapping, laughing and supporting those statements.
• The President’s political advisor said that the government will bypass existing courts and will setup a “public court”. He then threatened to arrest all opposition leaders tonight. The threat was almost immediately carried out when members of armed forces forcefully arrested Member of Parliament Hon. Mr. Abdullhah Yamee. He was then taken to a nearly Island. Access to his lawyers is also denied – a right which even during an emergency should be denied under Article 255(b)(9) of the Constitution. (Earlier the Criminal rejected application for a court order to re-arrest Hon. Mr. Abdullhah Yamee.)
• The Government then tried to forcefully remove Deputy Speaker of the Parliament (who is already appealing against in the Supreme Court his detention order.) However the attempt was failed.
• Members of the MDP then damaged/ransacked residences of the Speaker of the Parliament Hon. Abdullah Shaahid and Hon Yameen.
• On Thursday 15 July the army was again deployed on the streets in a show of strength
• On Thursday 15 July the Chief Justice of Maldives Abdulla Saeed called an emergency meeting of all the judges in Male’. The meeting was following threats to judges by Mr. Mohamed Nasheed’s government. In protest and in fear of violence against judges following the announcements at the rally the  chief justice announced at 9am UK time (approx 1pm Maldives time) the cessation of operation of all courts in the capital Male’.
• The Human Rights Commission of the Maldives expressed concern with the recent political unrest and turmoil in the capital, condemning the damage to private property and physical harm caused to police officers and civilians during clashes that took place on the night of July 14.
• People’s Alliance (PA) leader Abdulla Yameen has told local media outlets that he is being held against his will by the Maldives National Defense Force. The MNDF claimed Yameen sought their protection after the violent clashes of July 14. The MNDF have refused to present Yameen in court, despite an order from the Criminal Court on July 15.
• The sitting of Parliament on Monday 19 July was called off after opposition MPs vocally protested at the Maldives National Defense Force (MNDF) refusal to allow detained MP and opposition People’s Alliance Leader Abdullah Yameen to attend the sitting. Since then Parliament has had a number of other sessions canceled
• The current crisis regarding the independence of Judiciary has been brewing since attacks by MDP activists on the President of the Judicial Services Commission and Senor Justice of the Supreme Court, Hon Justice Mujuthaz Fahmee occurred on 1 August. Further threats were then made by MDP activists against justices.
• On 2 August, without having a court order, riot police shut down the Independent Judicial Services Commission and Department of Justice. The Judicial Services Commission was in the process of appoint/confirming judges to various courts in the country. The Constitution requires this process to be complete within two years (7 August deadline). The Government opposes the process and for several days MDP activists were protesting outside the Judicial Services Commission
• More details of subsequent events are covered in detail in the next briefing note.
• Dr Hassan Saeed visited the UK on behalf of all the opposition parties on 18-23 July to talk to a number of human rights and legal organizations, media outlets and politicians to explain his serious concerns about the current crisis. This visit received coverage in the Maldives and was attacked by the UK Maldives High Commissioner, despite the fact they are meant to be a non-partisan diplomatic representative of the country

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