Five years ago, on August 4, more than a hundred judges gathered at the Supreme Court to take their oath of office. They were to be appointed for life, despite a majority lacking the basic qualification to sit as a judge. Aishath Velezinee, a member of the judicial watchdog, attempted to block the ceremony, screaming, “Don’t do this!” even as a court official began proceedings.
The chair of the Judicial Services Commission (JSC) at the time, former judge Muhthaz Fahmy, had declared Article 285, a constitutional provision requiring a re-evaluation of all sitting judges, as symbolic. Many judges who had no legal or formal education were to be reappointed. Some 20 judges up for reappointment had criminal records for crimes including sexual abuse, deception, embezzlement and assault.
“There were only a few there who would qualify as a judge even by the most fanciful imagination,” Velezinee recalled.
Despite her fervent pleas, the ceremony went ahead. Some 191 judges across the country swore their oath of office. Only six sitting judges were disqualified.
Five years later, the judiciary remains the main challenge to democratic consolidation in the Maldives. Former President Mohamed Nasheed was jailed for 13 years over the military’s detention of a criminal court chief judge accused of corruption. His flawed trial and imprisonment in March has triggered a political crisis that continues today. Several politicians, including two former defence ministers and a former MP of the ruling party, have also been jailed.
Experts say judicial reform is contingent on training and higher education for judges and an independent JSC to uphold judicial ethics. How has the Maldivian judiciary fared on these two counts in the past five years?
Data published by the JSC show there are now only 14 magistrates who need the required academic qualifications, but critics say judges were given paper qualifications. Meanwhile, the JSC’s performance in investigating complaints against judges remains dismal. Only 39 of 150 complaints reached completion in 2014.
To address the lack of educational qualifications among sitting judges, the 2010 Judges Act gave judges a seven-year period to obtain the necessary qualification – a diploma for magistrates and at least a degree for all judges in the lower and superior courts.
Subsequently, the Department of Judicial Administration (DJA) in association with the College of Islamic Studies set up a special two-year degree course for judges.
According to the JSC’s 2014 annual report, a majority of sitting judges now have the proper education. Of the 182 judges, two hold PHDs, 10 hold masters, 61 hold degrees and 96 hold diplomas. Only 14 magistrates remain who need diplomas.
Several lawyers, all of who wished to remain anonymous for fear of reprisals, said the degree offered by the Islamic College is of the lowest quality. Some lawyers say a majority of the judges must be retired with benefits, and others must be sent for training to countries with reputed judiciaries.
Meanwhile, the JSC’s performance in addressing complaints against judges remains poor. By the end of 2014, some 111 complaints against judges were pending. Investigations proceeded in only 39 cases. Of the pending 111 cases, some 65 cases related to complaints over lack of integrity, 16 regarding unlawful conduct and 12 regarding violations of the law in issuing verdicts.
The 2014 annual report does not provide details on the 39 investigations that have reached completion, or if disciplinary action had been taken. It was in 2014 that the JSC cleared Supreme Court Judge Ali Hameed of charges of misconduct. The commission cited insufficient evidence despite videos that appear to show the judge fornicating with three foreign women.
Hussein Shameem, the former deputy Prosecutor General, in an unpublished 2013 paper, said the JSC had found only one judge guilty of violating ethics. Shameem said former Prosecutor General Ahmed Muizz had confirmed that criminal charges had been pressed against four judges between 2011-2013. But none of documents published by the JSC indicates this fact.
The JSC’s performance is not surprising as reports by international legal experts, including one by the UN Rapporteur for Independence of Judges and Lawyers, Gabriela Knaul, state that Maldivian judges believe judicial independence means they cannot be supervised or accountable to supervisory judges or judicial administration.
What can be done? Political will remains key to reforming the judiciary.
“For a criminal-minded government, an incompetent, black-mailed and corrupt judiciary is crucial. This government has no intention of reforming the judiciary,” said Imthiyaz ‘Inthi’ Fahmy, an MP with the main opposition Maldivian Democratic Party (MDP).
The first step to judicial reform is a parliament faithful to the people, he said. The parliament can then hold the JSC accountable. Institutions can only be strengthened by appointing people with democratic values to influential positions, he added.
Ali Hussein, an MP with the Jumhooree Party (JP), said Maldives needs fresh judges and must revisit Article 285. The life appointment of judges five years ago is where the democratic transition went wrong, he said.
Foreign Minister Dunya Maumoon in a recent UN Human Rights Council agreed on the need for judicial reform, and said the government had compiled a Judicial Sector Strategic Action Plan.
The Attorney General’s Office, despite repeated requests by the Maldives Independent, has declined to share the document, or be interviewed for this article.
“I don’t believe we can move forward without correcting the constitutional breach that has deprived the state of an independent judiciary. It is a lasting harm and everyday now we are seeing the harm the courts are doing,” Velezinee said.
Additional reporting and writing by Zaheena Rasheed