An informed and informative look at the evolution of the Maldivian justice system from the days of monarchy to the present, and the failure of the Maldivian judiciary to reform.
by H Abdulghafoor
When I think about the present reality of the judiciary and justice in the Maldives, I am reminded of the historical punishment known as ‘buree han negun’. This punishment was meted out to ‘the biggest political criminals’ or in Divehi, ‘siyaasee emme bodethi kuvverin’.1
The practice involved stripping the convicted person, laying him on the ground on his stomach, forcibly holding down his head and limbs, and flaying the skin off the back using a cane split in four at the whipping end. This instrument of torture was called a ‘hatharu fah eththeyo’ or ‘four-strip cane’ and was safely housed in the palace, and could only be used at the order of the king.
The administration of the lashes involved two experienced executors positioned on either side of the victim, who would then deliver alternating blows that ran side by side along the person’s back between the waist and upper shoulders. The lashes were administered at the order of a representative of the court who was present at the scene.
Generally, the number of lashes varied from 15 to 29, or as prescribed by the judge. Immediately after the whipping, the ‘big political criminal’ would be put on a waiting boat and banished to a remote island. A clear message indeed, to anyone with dissenting views about the existing political order.
One might think that this barbaric punishment ceased to be used centuries ago, although the historical reality in the Maldives is that it was used as late as the 1950s. ‘Political criminals’ deemed to deserve such punishment were tried in courts of law. How such punishment could be described as ‘justice’ would have been as questionable then as it would be today, depending on who was pondering the question.
With the passage of a few decades, we have entered an age of human rights, and one may think that the intricacies of Maldivian judicial practice, legal principles, reasoning and justifications, and the application of modern human values and a common understanding of ‘justice’ may have somewhat changed over time. But has it? This is a question that must be examined when we think of justice and the judicial system in the Maldives.
How much have our society and system of justice changed since the 1950s? Is it simply a question of the organisational structure of the judicial system that settles the state of justice in a country?
The 1998 Constitution dictated the design of the judicial system in the Maldives as a useful branch of the presidential executive. This Constitution provided that there shall be a High Court, with a Chief Justice appointed by the President and a number of judges ‘as may be determined by the President’.
Eligibility for the position of judge was based on several criteria, among which the following is particularly relevant:
A person shall be qualified to be appointed as the Chief Justice or as a Judge of the High Court if he is a person who in the opinion of the President has the necessary educational qualifications and competence to discharge the duties and responsibilities of the Chief Justice or of a Judge of the High Court [Article 113(e), 1998 Constitution – emphasis added].2
As per the 1998 Constitution, President Maumoon Abdul Gayyoom who was in power from 1978 until 2008, dictated who shall or shall not be a judge, and his opinion dictated whether a person possessed the requisite education or competency to be a judge. The opinion of the President and the delivery of justice were directly linked and firmly fused.
Using his opinion, the President duly appointed a number of judges whose highest qualification was elementary education. There were of course, no women. Justice itself was based essentially on the opinion of the President and by default, his opinion of justice prevailed under his direct supervision through the men he personally appointed as judges.
The President’s benevolence was portrayed through the clemency showed to those who committed ‘crimes’ under this system of justice. Such magnanimity was practiced through a ‘Presidential pardon’, exercised selectively at the discretion of the President.
Effectively, the judicial system was a Presidential monopoly, in a system where he also held a whole spectrum of powers, as the Head of State, including ‘the power to appoint as well as remove from office the Vice-President, Chief Justice, Judges, Speaker and Deputy Speaker of the People’s Majlis, Ministers, Attorney-General, representatives sent abroad with special privileges on behalf of the State, Atoll Chiefs, the Auditor-General and the Commissioner of Elections.’ 3
The President was indeed a powerful man. The system of governance enshrined in the 1998 Constitution created a judicial system that delivered a type of justice that can be illustrated by the following examples:
Fifteen year old Zahid Mohamed was accused of vandalising a campaign banner and was held in an isolation cell in Doonidoo for about 15 days. Given his age he was, he says, ‘in a state of great fear’. After days of questioning he was released without any charge. 4
At the age of 15 or 16, he was taken from his school on suspicion of using drugs, held by the police for several days, prevented from sleeping and told that if he confessed he would be allowed to go home. After succumbing to the pressure to confess to something he had not done, he was tried and convicted to life imprisonment. It was not until years later that he was one of many prisoners released on Presidential pardon after the death of Evan Naseem in 2003. 5
These examples raise (among several others), the following questions.
What kind of justice system puts a 15 year old child, accused of vandalising a political campaign banner, in solitary confinement on an island prison designed for political prisoners?
What kind of justice system sentences a minor to life imprisonment after extracting a forced confession on substance abuse charges, without any evidence?
This was the system of justice facilitated by the 1998 Constitution until the advent of the new Constitution of 2008, which was brought about through a process of democratic reform.
‘Democratic reform’ became a popular buzz-word as a direct consequence of the historic prison disturbances of September 2003 following the torture and murder of 19 year old inmate Evan Naseem. Three other prisoners were killed by the shootings that occurred at the jail on the day after Naseem’s death. Following these events and galvanised by a popular movement for democratic reform, President Gayyoom embarked on a ‘reform agenda’ which became a significant point of reference for the government of that time, culminating in the adoption of a new Constitution.
This new and present Constitution was adopted with much hope on 7 August 2008 with a new governance structure separating the judiciary, the executive, and the legislature. The expectation was that this separation would transform these powers into independent entities, which would bring progressive improvements to the newly democratised Maldives.
However, these expected improvements did not occur, as unfolding events bear witness.
One reason for the lack of progress was perhaps the prevailing social structure of the political establishment. In 2004, the international NGO, National Democratic Institute (NDI), described the existing socio-cultural and governance context in the country as follows:
Patronage relationships are strongly engrained throughout the country, particularly in the public sector. The reach of the government, and individuals connected with the government, affects lives and livelihoods either directly or through family or business arrangements.6
In this context, some basic facts about the existing Maldivian judiciary pre-2008 must be acknowledged. All State power was vested in the President. All judges were appointed by the President. The President’s opinion dictated the qualification and eligibility of judges to the bench. The final arbiter of justice was the President.
Within such a socio-political environment, it would require more than just a new constitution to create an independent judiciary.
As part of the ‘democratic reform’ process from late 2003 onwards, several international experts were invited to assess the state of the Maldivian judicial system. It was scrutinised, studied, analysed, assessed, and commented upon. A host of recommendations were proposed to address the identified issues.
The extent to which these recommendations were implemented is questionable. Professor Paul Robinson was one international judicial expert who summarised the condition of the criminal justice system in his 2004 study, saying that ‘the Maldivian criminal justice system systematically fails to do justice and regularly does injustice‘. [emphasis added] 7
Another international expert, Hon. Justice Einfeld, in 2005 described the judicial system in his report as follows:
The judicial system is in considerable disarray. There is no judicial independence, judges receive little or no legal training and they have minimal expertise. They are lowly paid, do not have to be lawyers and there is no consistency in their conduct of cases or judgments. There is little respect for and trust in the judiciary. [emphasis added] 8
Justice Einfeld described additional shortcomings of the system thus:
Other weaknesses identified in the current legal framework are weak procedural structures and a lack of laws governing legal procedures, the absence of a formal law reporting system which is inhibiting the establishment of a strong doctrine of legal precedent, uncertainty regarding the respective standards of proof in civil and criminal matters, and unclear principles regulating the admission of evidence. [emphasis added]
With regard to the situation of criminal law in the Maldives, Justice Einfeld observed as follows:
… this study points up the anomaly that although this crucial element of the Maldivian legal system is being modernised, it will require a great deal more legal infrastructure to provide the people with a criminal law they can respect in the knowledge that it will protect rather than oppress them. [emphasis added] 9
It is possible to deduce from these findings that the criminal justice system was oppressive, frequently served injustice and the examples given earlier help to clarify and give weight to these observations. A small anecdote provided by Justice Einfeld about court procedure puts into perspective the general blasé nature of existing procedural practices. Einfeld reported that despite the presence of a ‘sophisticated sound system, no transcript of the proceedings is produced’.
This state of affairs would not raise even an eyebrow among most Maldivians. It would not surprise a citizen who lives in this system where other similar examples abound. Justice Einfeld further observed that ‘Every judge does his cases differently and unpredictably’, indicating the random nature of case handling.
Einfeld’s report implies that he was suitably shocked and almost at a loss for words after examining the judiciary in this country. He went on to add in a concluding comment in his report that –
This entire situation needs no words of condemnation from me. It contravenes basic tenets of the rule of law, is completely unsatisfactory and requires urgent change. 10
As citizens seek justice, many are well aware of the urgency for change in the country’s judicial system.
Despite the multiple assessments and proposals for solutions produced in 2004, 2005 and later, one of the most critical pieces of legislation produced as part of the proposed reforms, the Penal Code, remains yet to be passed by the People’s Majlis. There is still no Criminal Procedure Code and there is no Evidence Act worthy of that name. The talk of reform may have made a difference in some areas of governance, but practical change in the judiciary has certainly not been accomplished.
The 2008 Constitution provided a two year window in which to reconfigure the judiciary into a truly independent body, paving the way to complete the constitutionally required systemic change over a fifteen year time frame.
In 2008, an oversight commission for the judiciary was created, called the Judicial Services Commission (JSC), mandated by the 2008 Constitution to ensure the reconfiguration process. The myriad issues concerning the JSC were confronted by the then JSC member Aishath Velezinee, who publicly and forcefully blew the whistle on the way the JSC performed as a State institution mandated to serve the public interest.
Velezinee accused the JSC of conducting a ‘silent coup’ against the 2008 Constitution.11 She remains steadfast in this accusation, and maintains that the JSC’s flouting of article 285 of the Constitution seriously undermined democracy in the Maldives.
Article 285 of the Constitution requires the JSC ensure that judges, after the transitional period, are only those that are qualified for the post, as per the Constitution. However, the JSC is reported to have taken the position that article 285 is ‘symbolic’.
Velezinee explains in her written account of experiences in the JSC that the then president of the JSC chaired a commission meeting to discuss article 285 in February 2010, where he declared that ‘article 285 of the Constitution could not be upheld’.
According to Velezinee, a commission member informed her that during the drafting of the new Constitution, a group of judges including the JSC president in question, had lobbied to undermine article 285 because ‘it might cause dangerous problems in the judiciary, as enough qualified individuals did not exist.’ 12
Having observed and personally experienced the JSC’s performance, Velezinee continues to claim that the dismissal of article 285 as ‘symbolic’ and the JSCs non-compliance with that article of the new Constitution, are at the crux of the disintegration of the democratic governance system in February 2012.
The reconfiguration of the judiciary, as required by the Constitution, is an essential part of reforms for the establishment of democratic governance. It is enormously significant to the delivery of justice in the Maldives, and for upholding the rule of law which safeguards the fundamental rights of citizens.
In February 2011, the following observations were made by a delegation of the International Commission of Jurists (ICJ):
There is no disagreement among stakeholders, including judges, that the majority of magistrates and some higher-level judges lack the education and in-service training opportunities that would enable them to respond to new demands under the 2008 Constitution. The vast majority of trial judges, particularly those posted to island magistrate courts, have only a certificate of judicial training, a minority have a two-year diploma, while there are a negligible number of four-year law graduates. [emphasis added] 13
According to Velezinee, only 40 among approximately 200 judges are graduates, and among those graduates are judges who do not have a law degree. 14 This suggests that many members of the judiciary were fearful of losing their jobs during the two-year transition period. However, this does not negate their individual responsibility to observe their Constitutional mandate, their obligation to follow due legal process, and to serve the interest of their country and society as public officials.
On 4 August 2010, a major event occurred when incumbent judges who had been appointed prior to 2008 were sworn in at a secretly arranged ceremony to become judges for life. The event was exposed by Aishath Velezinee who appealed passionately, unsuccessfully and publicly to stop the event. Her efforts were captured by media sources at the scene.
What this means is that 99% of judges appointed by President Gayyoom prior to 2008 remains as judges today. The hopes for positive and substantive change to the judicial system lie in tatters, alongside article 285 of the Constitution. Maldivians must continue to contend with the same kind of rough justice they have endured historically.
Within days of the judges’ assumption of office, the Peoples’ Majlis, constituting an opposition majority at the time, passed the Judges Act No.13/2010 which came into force on 10 August 2010, which specified the qualifications a judge must have. Thus, the Judges Act specifying the qualifications required for judges came immediately after judges had been sworn in for life.
Article 15 of this Judges Act says that judges in the Supreme Court, High Court and Lower Courts must have a first degree in Islamic Shari’ah and/or Law. Island Court magistrates must have a diploma in the same areas. Yet, the judges who had been sworn in did not have these qualifications, according to available information.
What this highlights is that many public officials, including the judiciary and the People’s Majlis have failed to uphold their Constitutional mandate. This failure has robbed the citizens of the Maldives who have effectively lost the opportunity to establish a judicial system that would serve them justly and uphold the rule of law for the benefit of the whole society.
The findings of Professor Robinson and Justice Einfeld which revealed an oppressive judicial system that was in disarray and frequently serving injustice, were swept aside and ignored by the very public officials entrusted to address the situation. The first step in judicial reform towards judicial independence has been by-passed and the Constitution transgressed.
Influential forces within the People’s Majlis and the judiciary had wilfully neglected to do their civic duty to serve their country and fellow citizens. Through their actions, they have chosen to destroy the hopes of establishing a substantive, independent judicial system that could support social stability and uphold the rights of all citizens, without fear or favour.
How far has the Maldivian justice system really travelled, since the days of ‘buree han negun’?