The International Commission of Jurists (ICJ) and South Asians for Human Rights (SAHR) have called on the government to immediately reverse “the politicisation of the country’s judiciary and the erosion of rule of law” in a joint fact-finding report released yesterday.
The 35-page report entitled ‘Justice Adrift: Rule of Law and Political Crisis in the Maldives’ highlighted a “breakdown of the rule of law and human rights protections in the Maldives, exemplified by the arrest and trial of former President Mohamed Nasheed.”
“We documented a serious erosion of the independence, impartiality and integrity of the judiciary, which has resulted in the deterioration in the rule of law in the Maldives and the stalling of the country’s transition toward a more representative government,” said Hina Jilani, SAHR Chairperson and a Commissioner of the ICJ.
“This current crisis in the rule of law risks turning the country back to the authoritarian days of the past that it had so promisingly broken away from in 2008.”
A joint delegation of the ICJ and SAHR conducted the fact-finding mission in May 2015 to assess the human rights record of President Abdulla Yameen’s administration since November 2013. The ICJ is composed of 60 eminent judges and lawyers from across the globe. The SAHR is a democratic regional network focusing on human rights issues in the region.
The report highlighted criminal proceedings against members of the Elections Commission (EC) and Human Rights Commission of Maldives (HRCM) by the Supreme Court, the trials of former President Nasheed and former defence minister Mohamed Nazim, and “instances of serious violations and abuse of fundamental rights of civil society and human rights defenders”.
The ICJ noted in a press statement that Nasheed was “unexpectedly imprisoned again on Monday without a clear legal basis.” The US government, UK Prime Minister David Cameron and the UN human rights chief have since called on the government to release the opposition leader.
The report meanwhile observed that the 2008 constitution established independent democratic institutions, the rule of law, human rights protections and the separation of powers, but stalled institutional and legal reforms have “endangered a backslide to the country’s authoritarian legacy.”
“The political crisis in the Maldives has hurt the country’s human rights situation, and it can only be resolved with the establishment of credible and impartial institutions in the country, particularly the judiciary,” said Nikhil Narayan, ICJ senior legal adviser for South Asia.
“The Maldives should take immediate steps to establish effective and independent government institutions in compliance with its international human rights obligations under Commonwealth and UN standards on judicial independence and separation of powers.”
The arrest of Nasheed and Nazim in February sparked a prolonged political crisis with daily street protests and mass anti-government demonstrations. Nasheed was transferred to house arrest in June amid negotiations between the main opposition Maldivian Democratic Party (MDP) and the government for political reconciliation.
Following Nasheed’s return to jail, the MDP has withdrawn from talks and is planning to restart street protests.
In its recommendations, the ICJ and SAHR delegation said Nasheed and Nazim must be “promptly provided with a fair and transparent appeal hearing before an independent and impartial tribunal, and released on an interim basis, with the appeal hearing leading either to their unconditional release or to the provision of a fair retrial before an independent and impartial court.”
If the appeals fail to remedy due process violations, the report urged President Yameen to pardon the pair “to comply with the Maldives’ international obligations.”
The report also recommended steps to ensure the independence of the judiciary and independent institutions.
The government must also “end the culture of impunity” and conduct independent and impartial investigations into the disappearance of journalist Ahmed Rilwan, the torching of opposition-aligned Raajje TV studios, and threats to media and civil society.
The ICJ recommended constitutional reforms by the parliament to change the composition of the Judicial Service Commission (JSC), the oversight body for the judiciary, suggesting that at least half of JSC members should be judges elected by their peers in the judiciary.
The 10-member commission is presently comprised of three representatives each from the three branches of state and a lawyer elected amongst licensed practitioners.
The Supreme Court must meanwhile “end the practice of requiring lawyers to sign in writing that they will not criticise the court, under penalty of contempt or disbarment, and must not otherwise use threat or use of contempt hearings to arbitrarily or unjustly restrict lawyers’ right of freedom of expression.”
The apex court must also ensure that its suo moto powers to initiate proceedings and pass judgment are exercised “in an impartial manner that is consistent with human rights, due process and the rule of law.”
The report also called on the international community, including the the South Asian Association for Regional Cooperation (SAARC), to “encourage the Maldives authorities to release or, where appropriate, ensure fair retrials with release pending trial of all persons arbitrarily detained, including Mr. Nasheed and Mr. Nazim, to engage in serious dialogue with all major stakeholders in order to restart the democratic consolidation process and to ensure the independence and impartiality of the judiciary and other institutions.”
“The international community should maintain its focus on the situation in the Maldives by ensuring there continues to be discussion at the UN Human Rights Council of the crisis in human rights and the rule of law in Maldives, by continued monitoring through the UN Special Procedures and, where necessary, by providing targeted technical support.”