What case, if there is no Judge Abdulla?
The prosecution of former President Mohamed Nasheed is built upon certain assumptions. One of them being that Abdulla Mohamed is a legitimate judge appointed through due process. What if the assumption is untrue? Aishath Velezinee discusses Abdulla Mohamed and fundamental flaws in the Maldivian judiciary in this article first published in Ceylon Today this morning. It is reproduced here with permission of author.
Former President of Maldives, Mohamed Nasheed, is being prosecuted, accused of using the military to remove ‘Chief Judge of the Maldives Criminal Court.’ Found guilty, he would lose the chance to contest elections and the public would lose the one consistent voice for democratic change for nearly a quarter of a century.
On 17 January 2011, Abdulla Mohamed, who sat as Chief Judge of the Criminal Court, was forcibly ‘removed’ by the military. Political opponents of Nasheed, all once linked to former President Maumoon Abdul Gayoom, quickly screamed foul, praised ‘Top Judge Ablow’, wreaked havoc on Male streets, damaged public property in nightly riots, and by 7 February had co-opted the security forces in a drama that unfolded live on local media.
The Criminal Court, which in fact was the ‘subject’ of the political crisis, had kept the nightly ‘vigil’ for ‘Judge Ablow’, systematically releasing detainees and helping to sustain numbers out on the streets. Those released praised Allah on social media, their release a sign that victory was theirs and God was with them.
To the familiar eye, the crowd of no more than 300 to 400 people, who came out nightly, were easily identifiable. These included leading opposition politicians, MPs, recognized gang activists, and petty criminals. Many had cases before the Criminal Court or had appeared before ‘Judge Ablow’ on some criminal allegation. They were joined by former security personnel ‘retired’ during government transition and a few serving policemen adorned in pink T-shirts. With them were sitting member of Judicial Service Commission, business tycoon, MP and presidential candidate Qasim Ibrahim and Chair of Parliamentary Oversight Committee on JSC, MP Mohamed (Kutti) Nasheed. It certainly was not the ‘public’, as public would be defined in a democratic State.
I watched these unfolding scenes, stunned, as my fears were confirmed.
Free and fair elections
To all outward appearance, however, President Nasheed had faulted. He had, it seemed, interfered in the business of the independent Judiciary, an area strictly forbidden to the Executive.
The international community wary of domestic politics and players is cautious not to be seen as interfering in a matter of rule of law. Due process, while reiterating the importance of free and fair, inclusive elections, is the mantra of the democratic international community.
The sitting government echoes back the words; rule of law, due process. Home Minister
Dr. Mohamed Jameel Ahmed, who served on President Gayoom’s Cabinet as Justice Minister during the transitional years and was personally involved in selecting many of the sitting judges is one of the loudest voices insisting on rule of law. What is not obvious to the casual observer, or understood by distinguished members of the international community is that while the government and the international community voice the same words, they may not have a shared understanding of the concepts so familiar to democracies that they do not even think to question how another may be using or abusing it. What is forgotten, it seems, is that the Maldives never was a democratic State, but is a State in transition.
The Maldives’ Judiciary, unlike in Sri Lanka or even Egypt, had never been independent. The Constitution introduced the concept of an ‘Independent Judiciary’ with requirements upon the State to appoint a new Judiciary within two years, and 15 years transitional provision to develop it.
Hence, the suggestion that Nasheed interfered in the Judiciary holds true only if built upon certain assumptions, such as the assumption that Abdulla Mohamed is a legitimate judge appointed through due process.
If this assumption, the premise for the case against President Nasheed stands, if indeed he had disregarded due process, interfered in the Judiciary, and physically removed Chief Judge of the Criminal Court away from duty, President Nasheed must stand trial. Rule of law must not be disregarded for President Nasheed, Abdulla Mohamed, or myself and must prevail in all instances for democracy to take root.
The ‘what ifs’
Having said that, what if that premise does not hold true? What if Abdulla Mohamed, who had become a household name with frequent reports of his irregularities in the media and public speeches against President Nasheed and his government, was placed as Chief Judge of Criminal Court without due diligence or due process? What if the Judicial Service Commission, backed by President Nasheed’s powerful opposition, had indeed breached the Constitution and corrupted the Judiciary in an elaborate scam to deceive citizen and international community?
What if Abdulla Mohamed is indeed unfit to sit as a judge? What if, apart from the criminal conviction for hate speech and disrupting public order – on record before Abdulla Mohamed was first appointed a judge in 2005 – there is truth to the claims that Abdulla Mohamed systematically works with organized crime, ‘launders’ criminals and is likely being blackmailed? What if there is truth to reports that certain influential MPs are linked to organized crime, and Abdulla Mohamed is kept Chief of Criminal Court by the power and influence of these criminal elements in Parliament?
Of course, none of these questions will rise anew with the trial of President Nasheed had they not existed or been raised before.
Questions on Constitution breach by the Judicial Service Commission, and the constitutionality of Abdulla Mohamed’s reappointment, together with the reappointment of all other men and women sitting as judges prior to ratification of the Constitution, is a matter pending inquiry in Parliament since 2010.
The Parliamentary Oversight Committee for Independent Commissions first summoned the JSC on 2 August 2010, following months of appeal and after I went public with information pointing to high treason in the JSC. The summons from Parliament to JSC clearly stated the inquiry was in relation to complaints filed by myself, leaving no doubt that the Committee was finally ready to inquire into the matter.
However, the Committee sitting, telecast live, turned out to be a farce, a clever cover-up, a signal for the JSC and ‘judges’ to go ahead. The scandalous three-hour sitting centred on allowing then JSC Chair Mujthaaz Fahmy to air his story, a story that he has no evidence to back, and a story that I could easily disprove with the documents and audio evidence I had brought to the Committee.
Not only did the Parliament Committee deem it unnecessary to hear my evidence they decided I was not to speak at all after my initial response to Chair Fahmy’s statement, declaring “all members have equal opportunity to speak,” that is, once. Chair Fahmy and Vice Chair, the late MP Dr. Afraashim Ali, will respond on behalf of the Commission.
That the matter was a disagreement in the JSC, and the fact that I stood against the Commission was irrelevant to the MPs. In fact, DRP and current PPM MPs took the opportunity to ridicule, slander and attack me, and praise JSC Chair and Vice Chairs’ perjury while I sat gagged. The only other member to join me in noting the Chair was committing perjury was member of the general public appointed by Parliament, Sheikh Shuaib Abdul Rahman. Attorney General Husnu Al-Suood, who also sat as a member of JSC, remained silent. MDP MPs were of little help. Not having given time to review the evidence they were either not fluent enough with the subject to see JSC was committing perjury, or not interested in entering a battle where a sure win was far from guaranteed given the balance of power in the Committee and in Parliament.
The JSC session with the Committee ended not with a conclusion on the issue, but having run out of time. Committee rules did not permit a further extension. The Chair quickly closed the sitting as one MP noted the issue of Article 285 was a very serious matter and will be investigated.
The JSC, for its part, fabricated a ‘legal reasoning on Article 285,’ organized a press conference unknown to Sheikh Shuaib Abdul Rahman and myself, and made a statement attacking and defaming me in what was supposedly their legal reasoning.
In 24 hours, the judges took a ceremonial ‘symbolic’ oath without check or scrutiny in a ceremony that shocked the entire nation as unexpected live footage of it appeared. It was a moment that replayed continuously on all local TV stations for the next 72 hours, and has been repeated often since. Video footage that raised serious doubts in public.
Questioned by media immediately after the now infamous oath, Parliament made a statement to the effect that the Article 285 inquiry was pending while Legal Counsel Dr. Ahmed Abdulla Didi reviewed the matter.
However, all was forgotten within the week, as ‘political dialogue’ encouraged by the international community had diffused the situation.
The suspension of the interim Supreme Court ended with the appointment of a politically agreed Supreme Court, the Constitution compromised. On the bench amongst others of dubious integrity sits the said Legal Counsel Dr. Ahmed Abdulla Didi who, despite not qualifying even after an unusual amendment to the Judiciary Act hours after its ratification, was approved by Parliament in the same sitting that amended the Act.
The question of Article 285 was forgotten except for my continued ‘rants.’ Repeated calls for an inquiry went unheeded despite an International Commission of Jurists report, February 2011, noting both substantive and procedural issues in the JSC’s actions on Article 285.
Repeatedly raised concerns on JSC acting against Constitution and State, runaway Judiciary, politicization of judges, and specifically on JSC’s cover-up of Abdulla Mohamed, and his threat to national security reported in communications to Parliament and shared with the military intelligence were ignored. Nor was there any action against me by Parliament or Court, all keeping silent on the subject.
If, there is any substance in what I repeat wherein is rule of law or justice in the trial of President Nasheed?
The real questions in the Maldives case are not about Judge Abdulla Mohamed or the Hulhumale’ Magistrate Court. It is a battle centred on the Constitution; its meaningful execution and State building. It is a tug-of-war between President Nasheed, who attempted judicial reform required by Constitution, and his opposition intent on preventing fulfilment of Article 285 and retaining their handpicked judges. Abdulla Mohamed is a shield.
Today, the future of Maldives’ democracy is more than ever dependent on the goodwill, wisdom and diplomatic skills of the international community. The trial of President Nasheed is a standoff where a domestic resolution is out of the question.
Try President Nasheed, and myself too, but not without trust in the Judiciary and the guarantee of a free and fair trial. Will international community guarantee there is no aberration of justice in the name of democracy, rule of law and justice?
- The writer served on the Maldives’ Judicial Service Commission (April 2009-May 2011) and is the author of The Failed Silent Coup: In Defeat They Reached for the Gun published in August, 2012