Judicial Services Commission subject to “external influence”: UN Special Rapporteur

As part of a wider review of the Maldives justice system, Knaul claimed that the JSC – mandated with the appointment, transfer and removal of judges – was unable to perform its constitutional duty adequately in its current form.

Her comment was among a number of preliminary observations on the Maldives’ judiciary and wider legal ecosystem, following an eight day fact-finding mission concluded today.

Knaul is an independent expert appointed to deliver recommendations on potential areas of reform to the Maldives’ legal system, at the 23rd session of the UN Human Rights Council in May, 2013.

As well as recommendations to address what she said were minimal levels of public “trust” in the nation’s judicial system, Knaul also addressed matters such as the trial of former President Mohamed Nasheed.

Nasheed is currently facing trial for his detention of Chief Judge of Criminal Court last year, charges he claims are politically motivated to prevent him from contesting presidential elections later this year.

Knaul maintained that the former president, like every other Maldivian citizen, should be guaranteed a free and independent trial.

The three branches of the state should be equal in their importance, with no branch exercising power over any other, Knaul said.

A “power struggle” ensuing from a “lack of understanding in the delimitation of the respective competences” of the executive, legislative and judicial branches of the state had “serious implications on the effective realisation of the rule of law in the Maldives.”

Politics in the JSC

Knaul’s key concerns included the politicisation of the JSC.

The JSC created the Hulhumale Magistrate Court in which former President Mohamed Nasheed is currently being tried, and appointed the three-member panel of judges overseeing the case. JSC head Adam Mohamed – also a Supreme Court judge – cast the deciding vote in a Supreme Court ruling on the court’s legitimacy.

“I have heard from numerous sources that the current composition of the JSC is inadequate and politicised. Because of this politicisation, the Commission has been subjected to all sorts of external influence and consequently has been unable to function properly,” Knaul stated.

Knaul said she believed it best for such a body to be composed of retired or sitting judges. She added that it may be advisable for some representation of the legal profession or academics to be included.

However, she maintained that no political representation at all should be allowed in a commission such as the JSC.

“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,” Knaul added.

The JSC is currently comprised of Supreme Court Judge Adam Mohamed, Speaker of Parliament Abdulla Shahid, High Court Judge Abdulla Hameed, Lower Court Judge Abdulla Didi and MP and government-aligned Jumhooree Party (JP) Leader and presidential candidate Gasim Ibrahim.

Also on the commission is the member appointed from the public, Sheikh Shuaib Abdul Rahman, President’s Appointee Mohamed Saleem, lawyer Ahmed Rasheed and Attorney General Aishath Azima Shukoor.

Judicial independence

Knaul stated that upon conclusion of her mission meetings, she had found that the concept of independence of the judiciary has been “misconstrued and misinterpreted” by all actors, including the judiciary itself, in the Maldives.

“The requirement of independence and impartiality does not aim at benefiting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial,” Knaul stated, while emphasising the important role of integrity and accountability in judicial independence, and hence its role in the implementation of the rule of law.

Stating that it is vital to establish mechanisms of accountability for judges, prosecutors and court staff, Knaul said: “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.”

Transparency and accountability

“When selection criteria [of judges] used by such a body [as the JSC] are objective, clear, based on merit, transparent and well publicised, public understanding of the process and the basis for the appointment of judges increases, and the perception of unfair selection of appointments can be avoided,” Knaul said.

Knaul also spoke of the lack of transparency in the assignment of cases, the constitution of benches in 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,” she observed.

Knaul stated that while transparency is public administration is an obligatory requirement in a democracy, transparency remains a challenge for the Maldivian judiciary.

Furthermore, Knaul highlighted the absence of some fundamental legislation – including the Penal Code, Criminal Procedure Code and the Evidence Act – in the Maldives, adding that this posed huge challenges to upholding the rule of law.

Empowerment of the law community

Knaul spoke of the importance of establishing an independent self-regulating bar association, and of ensuring lawyers remain free from external pressures and influence.

The special rapporteur commented on the practice in the Maldives of the attorney general having the powers of issuing legal practice licenses and of taking disciplinary action against practicing lawyers, terming it “contrary to the basic principles of the independence of lawyers,” and adding that such powers should not rest with the executive branch of the state.

“I further deem that the enforcement of compulsory registration of lawyers to appear before the courts by the courts themselves is unacceptable,” Knaul continued.

“The regulation of disciplinary action against lawyers fall outside the prerogative of the judiciary and contradicts the principle of independence of the legal profession.”

The rapporteur also commented on recent cases of lawyers being charged with ‘contempt of court’ for voicing criticisms, terming this “threats to muzzle the freedom of expression of lawyers.”

“Lawyers, like other citizens, are entitled to freedom of expression, and in particular they shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the protection and promotion of human rights, without suffering professional restrictions.”

Other issues that Knaul highlighted included the relatively low number of sitting female judges, the lack of education and training possibilities for persons in the judicial sector, and the lack of trust the general public has in the country’s judiciary.

“I was struck to hear how little trust the public has in the justice system in the Maldives. 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 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,” she stated.

Knaul is an independent expert who is appointed by the UN Human Rights Council (UNHRC) whose position is pro bono. She reports to, and advises, the UNHRC and the UN General Assembly.

Knaul’s statement in full: