22 January 2012, Male’;The Minister of Foreign Affairs of the Republic of the Maldives, H.E. Mr. Ahmed Naseem, today wrote to the UN Office of the High Commissioner for Human Rights (OHCHR) requesting that it urgently dispatch a team of senior international jurists to the Maldives to help facilitate a resolution to the ongoing judicial crisis facing the country. The letter is a follow-up to suggestions made late last week during phone calls between the President and senior UN and Commonwealth officials. The Minister made clear in his letter that the team of eminent jurists would be asked to help resolve the immediate issues surrounding the detention of Justice Abdulla Mohamed, the Chief Judge of the Criminal Court, and also the longer-term problems facing the Maldives’ judiciary and the failure of judicial accountability mechanisms under the Constitution.
During the President’s calls, leaders recognized the significant challenges the Maldives faces in establishing an independent and accountable judiciary in-line with international norms including the Bangalore Principles. As those Principles make clear, judicial independence does not mean that judges are above the law and can disregard the law with impunity. Judicial independence is rather a responsibility and a means to ensure that judges are able decide cases based only on the law and facts of the case before them without fear or favour. Judicial independence is therefore a responsibility requiring accountability – a point clearly reflected in the Constitution of the Maldives. This accountability includes a requirement of individual competence and integrity by judges in their proceedings: including issues of actual or perceived bias, prejudice, or conflict of interest; and ethical behaviour outside of office, requiring continuous responsibility to demonstrate high moral character.
Under section 145 of the Constitution of the Maldives, the body mandated to guarantee such responsibility and accountability is the Judicial Services Commission (JSC) which is empowered to take disciplinary action, including dismissal proceedings, against judges for incompetence or gross misconduct. However, since its establishment, the JSC has been unable to fulfill this constitutional mandate. For example, during the whole of 2010, the JSC failed to take action on any of the 143 complaints submitted to it. On the one occasion, in late 2011, when the JSC did find that a judge (Justice Abdulla Mohamed) had failed to comply with the required standard of conduct and had been acting in manner amounting to gross misconduct, the Civil Court issued an order (26 November 2011) preventing the proceedings. With that order, the Civil Court effectively removed the constitutional powers of the JSC. The JSC was made powerless by the very same people (judges) that it is supposed to oversee.
In his letter to the UN’s Office of the High Commissioner for Human Rights, the Foreign Minister stated that this represents a systemic failure of the judicial checks and balances foreseen in the Constitution. This system-failure led directly to the President’s decision, as the ultimate guarantor of the Constitution and of rule of law in the Maldives, to detain Justice Abdulla Mohamed.
Looking forward, the Minister expressed the Government’s determination to resolve the current crisis in an orderly and peaceful manner. In that regard, the Government has invited, via the good offices of the OHCHR and the Commonwealth, a team of senior international jurists to urgently visit the country to help facilitate a resolution both to the immediate impasse and to the deeper structural problems facing the judiciary – namely that the independent judicial oversight mechanism foreseen under the Constitution has failed and must be urgently reformed or replaced.
In this regard, the Minister noted that the Independent Institutions Committee of the People's Majlis has already formed a sub-committee to investigate the failings of the JSC. The sub-committee is in the process of compiling a report which, according to the Chair of the Independent Institutions Committee, Mohamed Nasheed MP (Independent), may include recommendations for reform of the JSC such a changes to its composition and the provision of a stronger oversight mandate. Hon. Nasheed MP also suggested that, as part of the necessary reforms, it may be necessary to invite foreign Muslim judges to sit on Maldives court benches for an interim period – a proposal which the Government has advocated previously.
According to the Minister, the proposed team of eminent international jurists would be able to offer an important substantive contribution to this process of judicial reform.