Category: Guest Contributors

Migrant workers’ voice: illegal and silenced in the Maldives

ExpatriateWorkers

by Mushfique Mohamed

As news of socio-political turmoil forces the world to shift its eyes away from the pristine beaches of its beautiful tropical islands, Maldives is losing its untainted image as a luxury tourist destination with more exposure of its appalling track record on human rights. This article looks closely at the lack of both compassion and adequate law enforcement in the Maldivian society’s (mis)treatment of the South Asian expatriate community. It highlights not just the plight of the many Bangladeshi labourers but also the increasing number of South Asian women who are becoming victims of the corrupt and prejudiced criminal justice system of the country.

In addition to the Maldivian population of approximately 330,000, there are 200,000 expatriate workers living in the country, of which a quarter does not have legal status in the country. The Maldives’ treatment of migrant workers is degrading enough for it to be called ‘modern-day slavery.’ The trade generates over US$ 123 million in illegal profits in the Maldives. Last week two Bangladeshi workers, Shaheen Mia and Kazi Bilal were brutally killed bringing to the fore, in tragic circumstances, the unheard voice of the subaltern in today’s Maldivian society.

The government on 25 March banned a planned protest against the deplorable treatment faced by expatriate workers. The protest was planned to highlight the resurgence in violent crime against the South Asian workers. The government of current President Abdulla Yameen Abdul Gayoom’s brother; Asia’s longest serving leader until August 2008, Maumoon Abdul Gayoom, also criminalised a planned protest following similar racially motivated assaults in August 2007, threatening expatriates with deportation.

In addition to silencing their voices and denying them agency, the criminal justice system, primarily the Criminal Court and law enforcement authorities perpetuate injustices against the marginalised. The violation of their fundamental rights is facilitated through certain judicial actors who are untrained, uneducated and corrupt. These judges do not pay any attention to the Constitution or domestic laws or international legal instruments the Maldives has ratified. Increasingly women are becoming victims of the system.

Malékalyanam: buying brides

RubeenaAn Indian woman was arrested night before last on allegations of infanticide and attempted suicide, raising concerns that she could be subject to the same judicial torture as Rubeena Buruhanudeen who was kept under pre-trial detention for over four years. The New Indian Express reported that Rubeena was part of a procedure known in India as ‘Malékalyanam’ in which impoverished girls from the Indian state of Kerala are married off to Maldivian men. Rubeena, married off to a Maldivian man under this procedure, ended up in pre-trial detention in the Maldives for over four years, accused of killing the child she had with her Maldivian husband.

Fareesha Abdulla, a Maldivian lawyer who took the case in 2012 on a pro-bono basis, emphasised that the investigation and remand hearings were not conducted with interpreters. “She [Rubeena] can’t understand Dhivehi, but the entire investigation was carried out without an interpreter. Maldives’ police wrote down a statement in Dhivehi and she signed it,” said the defence lawyer. “Infanticide is a serious allegation but when she requested legal aid before I took on the case, the Attorney General denied it,” Fareesha Abdulla explained further.

Before Indian Prime Minister Narendra Modi came to power, the Manmohan Singh government’s Minister for External Affairs also urged Maldives to repatriate such detainees. Modi was scheduled to visit the Maldives last month but with international concerns growing over the arrest of former President Mohamed Nasheed on 23 February 2015, took the Maldives off his tour of Indian Ocean island nations. Soon after the diplomatic brushoff, Rubeena was repatriated to India in early March.

Aminath Zara, a Nepalese woman who was fighting for custody of her child with a Maldivian succeeded only after a yearlong legal battle at the Family Court. Zara arrived in the Maldives initially in October 2009 as Tasi Telisa to work at a beauty salon as a beauty therapist. She converted to Islam in 2010. She then left the country in September 2011 and returned after marrying a Maldivian in Sri Lanka in December 2011. When the baby was three, her husband demanded Zara to go back to work; she was the sole breadwinner at times. According to Zara, the marriage came to an end due to her husband’s infidelity while she was away working.

The couple filed for a divorce at the Guraidhoo Magistrate Court in September 2013, but the proceedings and documents were all in Dhivehi, and an interpreter was not offered. The magistrate decided “disobedience” by the wife was sufficient grounds for divorce. As a result Zara became a homeless – and soon to be illegal – single mother. She filed a complaint at the Gender Ministry because her ex-husband was threatening to deport her and gain full custody of the baby. A Maldivian lawyer, Lua Shaheer, who was providing pro-bono legal assistance, said that Zara’s husband repeatedly told her “you are a foreigner, you will have no choice but to leave this country without the child.”

The Gender Ministry provided Zara with temporary accommodation for three months. At the end of the three months she moved back to the island of Guradhoo but could not stand the abuse she was subjected to. With nowhere to live, her former lawyer Lua Shaheer took Zara in to her own home. She is now represented by another lawyer, Fathmath Sama, whose firm took the case on pro-bono.

The husband was represented by Ibrahim Riza, an MP for Gayoom’s Progressive Party of Maldives. The main argument in court was that “the mother is a Buddhist, the mother’s family is Buddhist, and the child would be deprived of a Muslim upbringing.” Zara’s husband also accused her of “abandoning the baby for monetary greed.” Shaheer testified in court that Zara is a practicing Muslim. Even though Zara won custody, the verdict states she cannot leave the country without the ex-husband’s permission if she decides to leave with the baby, effectively leaving her stranded in the Maldives without a place to live.

According to the Indian High Commission in the Maldives, an Indian woman named Manyama Orsu was charged with pre-marital sex and abortion. According to the new penal code, abortions after 120 days of pregnancy are illegal, but a pregnancy caused by rape is an exception to the 120-day rule. Orsu was charged before the new penal code came into effect. The court proceedings against her went on for two and a half years. She confessed to the first charge, and the State dropped abortion charges bringing an end to her arbitrary detention, facilitating her repatriation in late March this year.

DhoonidhooThere are also reports of other foreign women held at Dhoonidhoo Island Detention Centre on allegations of prostitution, abortion and drug trafficking. Some of these women are victims of sex trafficking and trafficking in persons. But without a systematic mechanism to identify victims, or the mentality to view such individuals as victims, Maldives’ authorities exacerbate psychological and physical trauma suffered by human trafficking victims.

Two foreign women identified by police as sex trafficking victims in 2008 were provided temporary shelter before being repatriated with the help of their home country’s diplomatic mission in the capital Malé. Due to the lack of investigative infrastructure based on the problem of Trafficking in Persons, nobody was prosecuted for the crime, and the case was dropped due to “lack of evidence.”

Lack of infrastructure & lack of will

There are other instances where lack of legislation, and lack of enforcement, have hindered any efforts to tackle the problem. In 2009, a Bangladeshi man was chained inside a small room for weeks; the chains were removed only when the man was put to work. The employer was released after merely four months’ imprisonment due to lack of anti-trafficking legislation at the time.

The Maldives’ government passed anti-trafficking legislation only in 2013, motivated only by the fear of threatened international sanctions. The Bill had been in Majlis since 2011. However, expatriate workers from South Asian countries continue to be victimized under forced labour conditions notwithstanding the legislation. The US State Department’s Report on Trafficking in Persons states that ‘the [Maldivian] government does not have procedures in place to identify victims of human trafficking.’ As a result trafficked persons are further victimized by the corrupt criminal justice system. At the same time, the legal system remains highly inaccessible to foreigners, especially in relation to criminal law.

Transparency International’s local chapter provided over 560 expatriate workers with legal aid in 2014, mostly with regard to cases that consist of forced labour indicators. ‘We believe that migrant workers are the most vulnerable community in the Maldives today, they do not have access to the legal system due to the language barrier,’ Transparency Maldives’ Senior Project Coordinator for its Advocacy and Legal Advice Centre, Ahid Rasheed, has said.

‘Maldivian society in general views Bangladeshi expatriates as lower class non-citizens; harassment against them has been completely normalized. The authorities view them as the problem and not victims of discriminatory attacks and human trafficking offences.’ Highlighting a history of institutionalised xenophobia, Rasheed said ‘the latest word from the government we heard – regarding the protest – questions basic rights afforded to migrant workers, similar to how all previous governments neglected migrant workers’ grievances.’

The Maldives enacted the Employment Act in 2008, and as a Member State of the International Labour Organisation (ILO), the Act harmonises domestic law of the Maldives with the principles and standards prescribed by the organisation. Independent institutions such as the Employment Tribunal and Labour Relations Authority were established through this Act. ‘Forced labour’ is prohibited and broadly defined to be any instance where there are elements of undue influence, threat, or intimidation with regards to employment. The Act also addresses discrimination at the work place and ensures both local and foreign employees right to freedom from discrimination based on race, religion, social standing, political beliefs, marital status, gender, or family obligations.

It is a common misconception that ‘human trafficking’ or ‘trafficking in persons’ requires illegal entry, similar to ‘human smuggling.’ Human trafficking sometimes begins as smuggling, can end up as exploitation and trafficking, but not all trafficking involves crossing-borders.The United Nations (UN) defines ‘trafficking in persons’ as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation or the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs.

The South Asian Association for Regional Cooperation (SAARC) Convention on Preventing and Combating Trafficking in Women and Children for Prostitution was ratified by the Maldives in May 2003; a legal instrument recognizing the importance of establishing effective regional cooperation for preventing trafficking for prostitution and for investigation, detection, interdiction, prosecution, and punishment of those responsible for such trafficking.

The ILO defines the following as elements of forced labour: withholding payment and identity documents; abusive working and living conditions; debt bondage; restriction of movement; excessive overtime; deception; isolation; physical and sexual violence; and intimidation and threats. All of which are daily grievances faced by most low-skilled expatriate workers in the Maldives.

A report by the Human Rights Commission of the Maldives (HRCM) in February 2009[8] states that Bangladeshi, Sri Lankan and Indian nationals are detained at the Malé Immigration Detention Center, managed by the Expatriate Monitoring Center under the Department of Immigration and Emigration. Ordinarily detained for not holding a valid passport, visa or work permit. HRCM urged the Maldives to become a member of the International Convention on the Rights of All Migrant Workers (ICRMW). The national human rights committee’s report recommended development and implementation of systematic procedures for government officials to identify victims of trafficking among vulnerable groups such as undocumented migrants and women in prostitution, who are human trafficking victims. It also urged identified victims of trafficking to be provided necessary assistance and not be penalized for unlawful acts committed as a direct result of them being trafficked.

CaptureThe US State Department has consistently raised the issue of increasing debt bondage among South Asian migrant workers under its annual Trafficking in Persons report. According to its most recent report, migrant workers pay agents around US$2,000-4,000 to work in the Maldives. There have been reports that some of the 200 registered agents bring migrant workers to the Maldives under terms of employment that amount to criminal acts of deception or fraud, entangling employees in a vicious cycle of debt. The report also recommends that Maldives accede to the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons.

The government has failed at implementing enacted laws, and it appears to be using the rise in violent crime to militarize the police service, and enact legislations that strip away the protections, freedoms and liberties enshrined under the Constitution that introduced democratization to the Maldives. As the focus remains on suppressing dissent from citizens who oppose the regime, the plight of the subaltern stays at the political periphery. The Maldives has yet to fulfill the minimum standards required to eliminate human trafficking.

Human trafficking victims are regularly penalized for acts that are the result of being trafficked; excluded from the legal system; and viewed as offenders. Maldivian authorities are known to detain such victims under inhumane conditions. The real perpetrators of trafficking such as employers, officials, recruitment agents or firms are rarely brought to justice, giving full impunity to these powerful offenders who have connections to transnational organized crime. The insularity observed among majority of Maldivians is reinforced on an institutional level by denying inalienable rights that are to be afforded to all citizens and non-citizens indiscriminately. Sex trafficking, forced labour, debt bondage and other forms of exploitation do not end with enacting legislations or acceding to treaties in order to be accepted as a member of the international community. A stipulation under law is only powerful to the extent to which it is realized, and for the subaltern – without the qualification to even speak – those rights are continually denied.

Mushfique Mohamed is a practising lawyer at Hisaan, Riffath & Co., and also works as a consultant for Maldivian Democracy Network.

Main Photo: primecollective.com, Rubeena Buruhanudeen, Minivan News

 

Consciousness and the Development Paradigm

Leftover Illustration

Illustration by Ahmed Fauzan

“ No problem can be solved from the same level of consciousness that created It. ” – Albert Einstein 

by Salma Fikry

Here I am traveling in Denmark, in a rickety van, cramped together with people from all around the world trying to learn about sustainable development. From the Freetown of Christiania in Copenhagen to the remote island of Samsoe to the appropriately entitled Friland (Freeland) near Arhus, I found people trying to return to the very roots that they came from.

I try to understand why Pia and Johan have chosen to live in a caravan with their two children for the past three years while their ‘home’ is being built on “The Self-Sufficient Village”, using second-hand material. I try to understand the purposefulness in Mai, the gentle but strong woman with whom I cooked a meal for 70 people for the dinner they have as a community four days a week. She chose to build her own house with her bare hands when she could have got hired help or a construction company to do it. I try to understand why Christiania (Freetown) functions with its community rules and community spirit, even while not having any elected body to oversee those rules or foster that community spirit. I try to comprehend why Soren and Anna, the sophisticated and obviously wealthy couple, chose to built their own home, with recycled material and live in the remoteness of Halingelille. I am amazed at the leadership of Soren Hermanson, an Environment Teacher who mobilized the Samsingers to turn the island of Samso into a model of Renewable Energy, no longer dependant on fuel from the mainland.

Sadly, they are just a few. They are just a handful of people in the Global North, seeking to reverse the harm done. The majority is still driven by ideologies of capitalism and democracy, propagated by institutions and powerful nations that brought ruin to many of our life-systems in the Global South.

In the search for superiority and certainty, the Global North taught us to split subject from object – res cogitans – thinking substance, consciousness was separated from res extensa – matter, the physical universe. Monotheistic religions taught us that Man was superior to all else in the world and everything in the universe was there to satisfy Man. Devoid of soul, the material world was investigated like a machine, vivisected and exploited through colonialism, Newtonian physics, the industrial revolution and more recently through vehicles of globalization. Thus developed our contemporary development paradigm.

We were given engineering and mechanization plans and money for capital-intensive infrastructure development as the key to alleviating poverty. In doing so, we pushed ourselves into the concrete jungles of cities, where clean air and water became a commodity to be bought and sold. We were forced to give up traditional livelihoods and millions were made jobless. In doing so our self-sufficiency was converted to the laws of demand and supply, driven by market forces. We were told that norms should be prescribed into Constitutions and Laws in order to ensure participation of people. In doing so, millions of years of traditions, social norms and social contracts that were sacred and unwritten in the Global South, were eroded.

And here we are now. We now regard the environment and our communities as a problem to be solved. We look for technological and institutional innovations. Few of us stop to ponder that it is neither the environment nor the lack of institutions that is the problem. The problem was and is Us. It is our individual mindsets and habits that have contributed to Collective Ruin. Our level of consciousness is such that we have moved from exploiting resources for human comfort, to trying to develop systems where technology and democracy can revert the degradation that we ourselves have brought to our environment and our once thriving participatory communities. We fail to realize that the environment has its secrets and it will outlast us; it is the fittest in the great scheme of things where we are the weakest link, especially when we are not united by the bonds that make us a community.

As I sit in the community dinners with old and young alike, who come from varied backgrounds, talking about their vision and plans for the community, talking about the chores for the next day, I become nostalgic. I remember how I used to belong to and live under one roof with an extended family. I remember how the neighborhood got together to mark festivals, clean the road, celebrate a birth or mourn a death. It was not so long ago. Life has changed now, although there are a few remnants of what it was like before. I remember how inspired I was working in small communities when people came whole-heartedly to participate in community projects to renovate their school, to build their sea-wall, to clean their roads, to build their water tanks, to do a lot of things that were deemed as ‘collective’– for the service and enjoyment of everyone and not a few. There were no laws subscribed, they did it voluntarily. Ironical that I, who found it so beautiful had wanted to and worked to ‘institutionalize’ this aspect of social capital not knowing that I would be contributing to consolidating ‘power and politics’ into the hands of a few.

I realize painfully, that our mindsets, mine included, and our development paradigm remains at the same level of consciousness as those that crafted this vicious cycle of rootless growth, a few thousand years ago.

It is the level of consciousness that we have made many mistakes, that we need to rectify the harm done and rise above our individual mindsets to develop a new paradigm, a new life system for our world that strikes me in the eco-villages. Perhaps, Pia , Johan, Mai, Soren, Anna and Hermanson reached a new level of consciousness in order to do what they are doing now. Sadly, I have not reached that level of consciousness yet. My mindset is changing but it is not totally there yet…

Salma Fikry advocates decentralised governance and sustainable development through community empowerment. She wrote the above in November 2010, while on a study trip to Denmark. She has a Master’s in Development Management. She is a recipient of the National Award of Recognition for her services towards improving good governance in the Maldives.

If you are worried about the government’s plans to concentrate all development in the ‘Greater Male’ Area’ while ignoring all other parts of the country, sign the Avaaz petition and lobby the government for more sustainable ways that would decrease rather than increase the inequalities that currently exist among the Maldivian population.

Mutiny of the State: Maldives gets away with another coup d’état

VelTwitter

by Aishath Velezinee

A year ago the Supreme Court of the Maldives reigned supreme. The court, and at times the Chief Justice alone, ran wild with “the powers of the Supreme Court” citing Article 145 (c) for Supreme Court interference in all manner of issues. Article 268 on supremacy of the Constitution binds the Supreme Court too. But both the Supreme Court and Parliament majority were willfully blind to this as they got their way, citing the Constitution to justify outrageous breaches of the Constitution.

Few among the general public in a polity with a history of authoritarian rule and unfamiliar with the concept of the rule of law understood contraventions of the Constitution, especially when the breaches were blatantly defended by the Supreme Court. In the absence of a culture of democracy it was often reduced to whatever the “majority” decided, by hook or by crook. To win was the ultimate goal in elections as well as in litigation, no matter how. Reason by the minority was drowned out and, with the Supreme Court politicised and the Parliament majority with the President, an Executive dictatorship reigned in the shadow of the supreme Supreme Court.

The gravity of the situation became visible to the public and the international community during the 2013 presidential elections, when the Supreme Court repeatedly intervened in the election process, often working the graveyard shift and issuing midnight decrees and directives to control the elections. Polls were nullified and voting was repeatedly rescheduled to ensure an election win for Abdulla Yameen Abdul Gayoom, half-brother of the 30-year dictator Maumoon Abdul Gayoom. Why the Supreme Court may have had an interest in seeing Yameen as the president may be seen in Yameen’s statement to the Commission of National Inquiry (CoNI) that decided the 7 February 2012 coup was not a coup

Soon after the presidential elections, the Supreme Court also facilitated a win for President Yameen’s Progressive Party of Maldives (PPM) in parliamentary elections, removing the Elections Commissioner and his deputy in the first suo moto case, suo moto vs Elections Commission of Maldives. The Elections Commissioner was accused of contempt of the Court and undermining the powers of the Supreme Court.

During the election campaign President Yameen, like PPM MPs in their campaigns, pledged to protect the judiciary from interference, condemning the local and international calls for judicial reform as “interference in the judiciary”. The Supreme Court is the highest authority, the bearer of the last word in all matters of law, and none had the power to criticize or demand reform of the judiciary, both the Supreme Court and President Yameen agreed.

Dismissive of all expert reports on the Maldives judiciary, the Supreme Court adopted contempt of court regulations to prohibit media and public criticism and went as far as to initiate court action against the Human Rights Commission of the Maldives (HRCM) in suo moto vs HRCM, charging all members of the HRCM with high treason for their 2014 report to the Universal Periodic Review (UPR) for noting Supreme Court unduly influences and controls the judiciary.

Chief Justice Ahmed Faiz Hussain played his cards to win. From giving oath to Vice President Dr. Mohamed Waheed Hassan Manik without question and legitimising the 7 February 2012 coup d’état to guaranteeing a win for coup-leader Yameen in the 2013 elections, facilitating a PPM majority in Parliament and remaining silent while PPM majority systematically undermined the Constitution and ruled by law instead of upholding the rule of law, Faiz never faltered.

None of these mattered when on Monday, 14 December 2014 when, following an amendment to the Judicature Act which required the Supreme Court bench to be reduced from seven to five justices, the PPM majority in Parliament removed from the bench Chief Justice Faiz and Justice Muthasim Adnan—the only voice of reason, and often only voice of dissent from majority opinion in the court.

PoliceJangiya

Supreme Court Justice and Chief of the Interim Supreme Court Abdulla Saeed who I maintain engineered hijacking of the judiciary in 2010 in what I have since called the silent coup, was rewarded with the title of Chief Justice. Solemnising the historic oath of the new Chief Justice was none other than Supreme Court Justice Ali Hameed whose white underpants made international headlines after the Court ruled against display of white underpants in public protests. The white pants became a protest prop against Justice Ali Hameed after videos of the judge with foreign sex workers in a hotel in Colombo, Sri Lanka, went viral on the internet.

The Final Nail in the Coffin

Amendments to the Judicature Act were passed by the Parliament majority on Wednesday and ratified by President Yameen on Thursday.

Under the new amendments two judges were to be removed from the Supreme Court to reduce the bench from seven to five Justices; and the High Court bench is to be chopped in three equal parts, with three of the nine justices assigned to three geographical regions. A total of 43 MPs voted for the change, all members of PPM the government majority, and errant members of the opposition.

Within hours of ratification, the Judicial Service Commission (JSC) who had staunchly refused to assess or remove a single judge as required for the de facto transition under Constitution Article 285, announced a decision to submit names of Chief Justice Ahmed Faiz Hussain and Justice Muthasim Adnan for removal. No reasons were given as to why or how the JSC reached the decision to remove them. The media was simply told it was a secret decision and that the Commission had decided not to reveal procedure or reason.

On Saturday, while the opposition, senior lawyers, commentators, media, social media activists, CSOs, the public and even the Civil Court declared the amendments to the Judicature Act unconstitutional and illegitimate, politicians “bargained” to win the two-third simple majority required to remove a judge.

On Sunday, the State worked overtime. Sunday morning, while opposition-led protests were kept at a distance by Police barricades around the Parliament building, government MPs with Parliament majority voted to remove Chief Justice Ahmed Faiz Hussain and Justice Muthasim Adnan. MDP issued a three-line whip to reject the dismissal of the justices but with at least five opposition MPs making themselves absent from the proceedings, the required two-third simple majority vote was guaranteed. MDP MPs and some JP MPs raised the matter of the unconstitutionality of the amendment to judicature Act—the fact is that Article 154 of the Constitution, under which the Majlis had scheduled to remove the justices, does not permit the removal of a judge except where the Judicial Service Commission finds the person grossly incompetent, or guilty of gross misconduct.  MPs also noted no such report  from the JSC regarding the two judges who were to be removed had been made available to them nor was it on record with the Parliament. It was noted that the only documentation before Parliament was a three-line note from the JSC seeking the removal of Chief Justice Ahmed Faiz Hussain and Justice Muthasim Adanan, and that this was forced upon the JSC by the Parliament with the unconstitutional amendment to the Judicature Act.

Parliament majority leader of PPM spoke for the government, laughing at opposition claims of unconstitutionality, and citing Constitution Article 70 and the powers of the Parliament therein to, in his interpretation, “make any law on any matter and any manner, whenever and wherever Parliament wish”! That there were limits upon the Parliament, and that the Parliament may not enact a law detrimental to the Constitution was lost upon him.

JangiyaaThe vote was won and, Sunday afternoon, it was reported that JSC had proposed Supreme Court Justice Abdulla Saeed for the post of Chief Justice. Sunday evening, Parliament was back in session and Abdulla Saeed was appointed the new Chief Justice with 55 votes. Before midnight, Abdulla Saeed had taken oath.

Amendment to the Judicature Act, execution of amendment on Supreme Court with the dismissal of Chief Justice and another Supreme Court justice, and appointment of a new Chief Justice, was all over before Monday morning, the earliest when the international community could possibly react.

Corrupting of the Judiciary

In 2010, the JSC, supported by then opposition Parliament majority, refused to execute Article 285, and re-appointed all sitting judges en masse. Further, both JSC and opposition MPs misled the public on JSC’s actions leading up to the collective judges’ oath on 4 August 2010, making false claims on the “procedure” as well as the discussions in the closed sittings of the Commission.

The JSC published what it called the  “legal reasoning on the Article 285 decision” speaking of the “human rights of judges” and citing Constitution section 51 (h) and ICCPR Article 14:2 and UDHR Article 11 on rights of the accused, to explain why no sitting judge may be removed for misconduct or failing to be of good character. “No one can be penalized (dismissed) by a retrospective law,” JSC claimed in 2010, the “law” referred to here by the JSC being the Constitution (2008).

The JSC’s decision stood as few protested against it, and complaints to Parliament oversight Committee, the Anti Corruption Commission and the Human Rights Commission on JSC’s treason were ignored or covered up.

The appointment of the Supreme Court too was a political decision influenced by the existing power balance in the Parliament, and the pressure from the international community for “political negotiation and peace”.

Reports of the International Commission of Jurists who probed the issue following appeals in 2010 and the UN Special Rapporteur on Independence of Lawyers and Judges and FIDH who made inquiries after the February 2012 coup d’état all recognise fundamental mis-conceptualizations in appointment of judges and in the use of concepts like independence of the judiciary and the rule of law in the Maldives.

Rule By Law: Precedents in the Maldives

Removal of Chief Justice Ahmed Faiz Hussain and Justice Muthasim Adnan from the Supreme Court bench through amendment legislation is not a first breach. A number of similar unconstitutional actions where political “majority” power reigned supreme have set the precedent. Some major comparable instances are found in the following:

  • Removal of the Chair of the Judicial Service Commission (JSC), High Court Chief Justice Abdul Ghani Mohamed from the JSC through a High Court decree on 21 January 2010. The decision was taken by three of the five High Court Justices while the fourth was on leave, and, without the knowledge of Abdul Ghani himself. The move contravened democratic principles. The JSC did not investigate the misconduct and abuse of power by the three High Court Judges despite the adoption of a motion to do so, and appointed two of the said three High Court justices to the Supreme Court and appointed the third as Chief Justice of the High Court.
  • The legitimisation of JSC’s breach of Constitution Article 285 by the Judicature Act of 10 August 2010 which brought down the standards and qualifications stipulated in the Constitution for judges.
  • The amendment to the Judicature Act on 10 August 2010, the same day it was passed and ratified, to qualify Dr. Ahmed Abdulla Didi for the Supreme Court bench.
  • The legitimisation of the 7 February 2012 coup d’état by majority power in Parliament.
  • The removal of the Auditor General through amendment to the Auditor General’s Act in 2014.

Another coup d’état?

If a coup d’état is understood as hijacking of State powers, and bringing down of legitimate Constitutional government, and/or the derailment of Constitutional government, the Maldives has once again carried out a coup d’état, this time going full circle to complete what I have called earlier the silent coup.

With Monday’s move all State powers are once again with the President who has got himself Parliament majority with the power to write and rewrite law; and the shamelessness to do so without regard to the Constitution, democratic principles, public outrage or international criticism.

With the Supreme Court secured, Parliament is now on fast track, undoing the Constitutional rights and safeguards. Next step will be the elimination of all opposition including independent voices, all by Court order and verdicts, once again by the powers of the Constitution. Where do the people of Maldives go with this case of the mutiny of the state against its’ own Constitution and people?

Author’s Note: All illustrations and photos used in the article are taken from the public response to the issue on social media