Time for All Political Parties to Work Together to Reform Judiciary – MDP

Reference No: 10/02/2013
24 February 2013

Time for All Political Parties to Work Together to Reform Judiciary – MDP

The Maldives Democratic Party (MDP) today responded to the preliminary observations of the United Nations Special Rapporteur on the independence of judges and lawyers, Ms. Gabriela Knaul, by stating that the time has now come for all political parties, NGOs and lawyers in the Maldives to work together to urgently reform of the country’s judicial sector. Ms. Knaul’s observations, following her fact-finding mission to the Maldives, are the latest in a long line of reports by eminent international experts and organizations that cast severe doubt over the judiciary’s independence, integrity, impartiality and professionalism.

At the end of her visit, the UN expert confirmed that “many challenges to the independence of judges, prosecutors, court officials and lawyers remain, and these directly affect the delivery of justice. Those challenges should be assessed and addressed as a matter of urgency within the parameters laid down by the Constitution and international human rights standards. In the longer-term, the Maldivian people should consider reforms to the Constitution, with the view to improving the tools and measures at the disposal of the State to ensure the independence of the judiciary and the delivery of fair and impartial justice”.

Mirroring earlier comments by, amongst others, the International Commission of Jurists and the United Nations Human Rights Committee, the Special Rapporteur suggested that not only is the Maldives judiciary not independent or impartial, but rather the entire concept of judicial independence has been perverted by the judicial sector and government. According to Ms. Kaul: “the concept of independence of the judiciary has been misconstrued and misinterpreted in the Maldives, including among judicial actors. The requirement of independence and impartiality does not aim at benefitting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial”.

Following the logic of the Bangalore Principles and the ICJ’s and UN Human Rights Committee’s recent critiques of the Maldives judicial system, the mandate-holder noted that: “Integrity and accountability are essential elements of judicial independence and are intrinsically linked to the implementation of the rule of law”. In this regard, just because the Constitution says the judiciary is independent does not make it so. What is important, rather, is the “establishment of mechanisms of accountability for judges, prosecutors and court staff is imperative. Such mechanisms must guarantee that the investigation of any actor in the judicial system safeguards the person’s right to a fair hearing. Investigations should be based on objective criteria, the process should respect the basic principles of a fair trial and an independent review of all decisions should be available”. In the Maldives, the Judicial Services Commission, dominated by politicians and judges loyal to former President Gayoom, has repeatedly failed in its constitutional duty to uphold judicial integrity and accountability.

The Special Rapporteur also expressed support for the concerns repeatedly raised by Ms. Aishath Velezinee, a former member of the JSC and whistleblower (who, in 2011, was stabbed and almost killed because of her outspoken comments), who said that the very starting point of judicial independence – the post 2008 Constitution system of screening and reappointing judges – was marred by malpractice and corruption. The Special Rapporteur reflected on “serious concerns…regarding the system of appointment of judges. I believe that an appointment body acting independently from both the executive and legislative branches of Government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice…I have heard from numerous sources that the current composition of the Judicial Services Commission, the body in charge of the appointment, transfer, and removal of judges, is inadequate and politicized”. Ms. Ms. Knaul called for urgent reform of the JSC and emphasized that “no political representation [on the body] should be permitted”.

Turning to the problem of selectivity in the judiciary, which has seen hundreds of important cases against allies of former President Gayoom and members of the current government kicked into the legal ‘long grass’, while the Prosecutor-General, the judicial administration authorities and the courts enthusiastically pursue political trials against President Nasheed and other MDP members, the Special Rapporteur noted concerns about “the apparent lack of transparency in the assignment of cases, as well as in the constitution of benches, within all courts, including the Supreme Court. When cases are assigned in a subjective manner, the system becomes much more vulnerable to manipulation, corruption and external pressure. Information on the assignment of cases should be clearly available to the public in order to counter suspicions of malpractice and corruption”.

According to the Special Rapportuer, these deep-seated problems, coupled with moves by the government to intimidate lawyers, have led to a pervasive loss of public confidence in the judicial sector. “I was struck to hear how little trust the public has in the justice system in the Maldives” said Ms. Knaul. “Justice must not merely be done but must also be seen to be done and judges must not only be actually impartial they have to appear impartial to the public. The mind-sets of the public and the authorities, including judicial authorities, have not evolved as quickly as the changes were made to the Constitution and the laws of the Maldives. This [has] created a disconnection between the promises of the 2008 Constitution and people’s expectations, and the reality of how justice is delivered and the separation of powers implemented.

At the same time as welcoming the Special Rapporteur’s important report, the MDP today committed itself to working with other political parties to urgently reform the judiciary and judicial accountability mechanisms such as the JSC. Speaking in support of Ms. Knaul’s conclusions and recommendations, the MDP’s international spokesperson, Hamid Abdul Ghafoor, said: “Establishing a truly independent, professional and widely respected judiciary is central to ending the political turmoil in the Maldives and to consolidating democracy in our country. We have always accepted this. Yet Gayoom, Waheed and others who have benefited and continue to benefit from our current corrupt and biased judiciary never have.

Today, as we digest yet another report by an eminent international body that clearly says our judiciary is not fit for purpose, it is time for all political parties to put aside their differences and work together to urgently reform our justice sector. This means immediately halting the political trials launched against President Nasheed and the hundreds of pro-democracy activists currently facing ‘terrorism’ and other trumped-up charges. It also means establishing a caretaker government to oversee judicial reform and to prepare the ground for genuinely free and fair elections.

The people of the Maldives cannot and should not wait one more day to be guaranteed their constitutional right to impartial justice delivered by a competent and genuinely independent judiciary”.