President Nasheed and the Courts

-->

Many of my friends and colleagues, especially my “twitter friends” have been inquiring me of late, about my view of President Nasheed’s decision to disregard a summons by “Hulhumale’ Court”. I myself have been pondering over it as my initial reaction was that President Nasheed should not have done it. However, when I looked at the issue dispassionately and in the context of many anamolies in the Criminal Justice System of the Maldives, the case does not appear to be so simple. In fact it is rather complex, and adds to the myriad of convoluted issues we are being forced to grapple with.

It is so complex that the 140 meagre characters that twitter gives us is barely enough to expound on this particular problem. At best, it is a unique and delightful academic issue to ponder on. What I write below is not meant to be a legal discourse, but more an academic and intellectual approach to analyze a social problem.

It is not helpful to consider President Nasheed’s decision to ignore the court summons just by itself to fully understand the phenomenon. One needs to consider a host of other issues to grasp the enormity of the situation.

On the face of it, anyone who is summoned by the courts should willingly do so, and anyone disobeying an order by the court should rightfully be held in contempt of court and punished for it. This is necessary for the upholding of the rule of law.

However, one needs to also consider the basic assumptions underlying these powers of the courts and the reasons for granting the courts such powers.

Among many, the following assumptions are made in relation to the courts:

·       The courts will not act outside the jurisdictions granted to them by law, and any ultra vires orders by courts do not constitute a valid order which falls within the concept of contempt of court

·        
    The courts will apply same procedures to all, and are bound by law to do so, and will not be selective in the application of law and procedures

·    
        The courts shall not display any bias in any way towards or against any person, and most importantly will not be seen or perceived to be biased in any way

There are many other such assumptions, but I limit this discussion to the above three assumptions.

Firstly, on the matter of jurisdictions

·       There is huge contention whether Hulhumale’ Court has been granted powers by the law to try ANY case whatsoever. The Constitution says very clearly that trial courts will be defined and created by Law. When Parliament created courts by the Judicature Act, there was no “Hulhumale’ Court” designated as a Magistrates Court. The Supreme Court itself is still sitting on the case of the validity of the Hulhumale’ Court. It was created by the Judicial Service Commission, without authority derived from Law. Therefore the validity of any orders or judgments issued by this court is questionable, and the Constitution says no one has to obey any unlawful orders, i.e, orders which are not derived from law. THEREFORE, PRESIDENT NASHEED’S DECISION TO IGNORE THE SUMMONS HAS MORE THAN REASONABLE LEGAL GROUNDS.

·       The Judicature Act does make some provision for Superior Courts (Criminal Court, Civil Court, Family Court and Juvenile Court ONLY) to appoint a panel of judges for some cases. Such panel has to be decided by the entire bench or Chief Judge of THAT court. In this case, a panel of judges from other courts was appointed by the JSC to Hulhumale’ Court. JSC does not have that authority by Law. If Hulhumale’ Court is legitimate, and is a Magistrate’s court, it would be the only Magistrate Court in Male’, and per the Judicature Act, would not have any other court to tie up to in order to convene a panel of judges. If it is considered part of Kaafu Atoll, then the panel should be convened from among magistrates assigned to Magistrate Courts operating within Kaafu Atoll, and the Chief Magistrate for Kaafu Atoll should convene the panel. The panel of judges convened now was convened by the JSC, and the panel includes judges from other atolls.

·       The Hulhumale’ court issued a travel ban order to President Nasheed, without ever summoning him to court, and in his absence, before any charges had been presented before him. No court has the power to issue such an order under any law. The court could have issued such a bail condition after the first hearing, if there was reasonable justification to believe President Nasheed might flee the country or he might present a security risk for the community through further criminal activity.

On the basis of the above, there is more than ample grounds to contend that the summons was issued by an Unlawful Panel of Judges, sitting in an Unlawful Court, which had already issued an Unconstitutional restraining order which was ultra vires

Secondly on the matter of selective application of procedure

·       Deputy Speaker of the Majlis Ahmed Nazim defied 11 summons and only appeared in court for the 12^th summons. No action was taken against him.

·       An order for Abdulla Hameed (Gayyoom’s brother who now resides in Sri Lanka) to be brought to court was issued by the Criminal Court a long time ago. However the Court has not provided an English translation of the Court Order to be submitted to Interpol. Nor have the Police contacted Sri Lankan authorities to repatriate him under the bilateral agreement which allows that. It should be noted that Sandhaan Ahmed Didi was repatriated from Sri Lanka airport under the same agreement, without even a court order, or charges being laid against him.

·       There are numerous cases of prominent politicians and business tycoons disobeying court summons, and to date no one has been convicted for contempt of court for this offence. This leads to the argument that not appearing before the court on account of a summons is not an offence for which people are prosecuted even though it is a prosecutable offence. By past practice and hence precedent and customary practice, no one has to appear before the court every time a summons is issued.

Based on the above, there is more than ample grounds for President Nasheed to claim that there is no need for him to appear before the Court at the Court’s convenience and his inconvenience. Further, there is a rightful claim that the court has already exercised bias against him and that it is unlikely that he will receive a fair trial. More importantly, the fundamental principal of equal application of law and procedure has been seriously compromised.

Thirdly, on the matter of bias

·       Ample demonstration of bias has been made in the above paragraphs to start with

·       One of the three judges on the bench has wrongfully authorized detention of President Nasheed before, and can be considered as biased against him

·       One other judge already has cases of misconduct being investigated against him by the JSC

·       The third judge is reportedly a classmate of Abdulla Mohamed in the Mauhadh Dhiraasaathul Islamiyya

·       Thus there is a widely held perception that President Nasheed will not be accorded a fair trial. One of the Principles of Natural Justice is that not only should justice be done, but it must be seen to be done too. 

·       When over 2000 cases are waiting to be prosecuted (including murder, rape, child molestation, child abuse and other serious white collar crimes) at the Prosecutor General’s Office, one asks the question why has this case been expedited beyond normal protocol.

Thus there are grounds to argue that a panel of judges who issued ultra vires restraining orders on no demonstrated reasonable grounds cannot be expected to give a fair trial or judgment.

Thus, it would appear to be a reasonable decision on the part of President Nasheed that since he is not being summoned by a legitimate court, by legitimate judges through legitimate procedures, he is unlikely to get justice; and that his appearance before the court will simply whitewash a huge injustice to him, and therefore he will not appear before the court and face the consequences and fight it in his own way.

This is just a very summary description of what I think are some relevant issues surrounding the situation.

The legitimacy of courts and their orders and decisions lie in the courts and their actions being within the framework of the law, which is applied equally to all. An ultra vires decision of the court is no different from a decision by an individual to disobey the decision of the court itself.

Hence my tweet : Impunity can only be matched with impunity.

When legal systems breakdown to the level we are seeing, laws are not worth the paper they are written on. Anarchy rules, which comes from a very primitive instinct within human beings : survive any which way one can. We enact laws and try to uphold the rule of law to move away from this and live in a civilized fashion. For rule of law to be upheld, ALL PUBLIC INSTITUTIONS AND OFFICIALS have to abide by it. It is extremely fragile. If just ONE disregards the rule of law and the issue is not rectified quickly, it spreads rapidly like a cancer and destroys the whole system, paving way for anarchy. I think we are fast approaching that point. The final signs, that of treating human life with impunity on account of difference of opinion is already here. The rest is likely to follow soon.

The outlook is appears to be rather bleak. But from a systems theory perspective, this had to happen. All vestiges which held the faulty system had to break before reformation could take place. There will be chaos. There already is. It may worsen. And then, if we are lucky, out of chaos will emerge order. But what kind of order it will be depends on which paradigm wins. At this point in time, I would tentatively suggest it may be religious extremism.

On A Personal Note.......

I have always accepted that being in the political front line, I am always a target for libel, innuendo and damned outright lies aimed at character assassination.  I have had my fair share of mud slung at me, but none have ever really stuck. As such, I have never felt the need to explain those “creative” claims against me or reply to them. Rather I have taken the attitude that it is “all in a days work”. I know that I have never done wrong, and my morality is intact, and I continue to lead what I believe is an ethical life. Most of the general public, and especially those who support my work have never questioned my integrity, and that was enough. Before I go on, I would like to thank all those thousands of Maldivians who have held my character in high regard, and who at times, have even spoken and acted in my defense. I truly appreciate your support through thick and thin. That is one thing that helps me to keep going. Thank you, indeed for your trust and belief in me.

However there is one accusation which is being repeatedly thrown at me, which, by the sheer number of repetitions, is almost on the verge of “becoming a truth”. You see, sometimes, when even the biggest lie is repeated like a mantra oft enough, people start thinking “there must be some truth in it”. I refer to the claims made by my political opponents that President Nasheed “gave me the MES building without a bidding process” and that he also authorized 3 million rufiyaa from the education fund for me, outside the law. Both are outright lies, and I feel the time has come for me to break the silence on both issues and make public the truth.

Firstly the case of MES building. The government never gave me, or Mandhu College any rights on this building. Both EPSS and MES buildings were initially allocated to those schools for a 10 year period. After the period expired in 2006, a cabinet decision (Qayyoom’s cabinet) was made in 2008 to renew the lease agreement for another 10 years. The lease for the MES building was again signed between the Ministry of Education and Ali Mustafa and Seena Zahir. President Nasheed’s government honoured and executed a Qayyoom cabinet decision made prior to November 2008 by signing this agreement. Subsequently, Mandhu Learning Centre sub-leased the premises from Ali Mustafa and Seena Zahir. So the government never entered into a contract with me or Mandhu College. Just as Billabong School sub-leased the EPSS premises from the proprietors of EPSS school.

Subsequently, a business dispute arose between Ali Mustafa and Mandhu College, which was eventually settled with a transfer of lease agreement. I PAID 4 MILLION RUFIYA TO ALI MUSTAFA to secure that transfer, which was perfectly legal, and did not involve the government. The lawyer advising Ali Mustafa in that transfer agreement was none other than the current Attorney General Azima Shakoor.

Therefore, in essence, President Nasheed’s government, nor President Qayyoom’s government or any other government ever “gave” the MES building for me or Mandhu College, with or without a bid. Allah is my witness on this. I hear on the grapevine that the Ministry of Education and the Attorney General are in earnest discussions now, to find some way of terminating the agreements and kick Mandhu College and its students onto the streets. So be it

Secondly the 3 million rufiyaa loan.  The story goes as follows. In 2009, Mandhu College applied for a loan from the Thauleemee Fund because a great deal of repairs and reconstruction had to be done on the building. After consideration, the Ministry of Education rejected the application. End of story.

Then, in early 2010, when we were preparing to launch a high school, and teachers had been recruited from the UK, Arabiyya School building collapsed and the Ministry of Education couldn’t find a suitable place to house Arabiyya until a new building was constructed. The Minister requested me over the phone to help out, and I agreed on the spot, no strings attached. We put our project on the back burner (where it still remains!) and housed Arabiyya under an agreement, for 2 years. No rent, nothing, All we asked was that they pay their share of the electricity and water bill, and maintain the areas that they use. The agreement has since been extended another year. Our business has been on hold for three years now.

However, the MES building was in poor shape, and for Arabiyya to start using it, a substantial level of repairs had to be done. The building was leaking from the entire west wall, modifications on the higher floors had to be made to make it safe for primary aged children and so on. The government did not have funds for it, and we proposed that if the Ministry would approve the loan we had requested, we would repair the building for Arabiyya, and WE WOULD PAY BACK THE LOAN from OUR funds. It was the Thauleemee fund committee, and NOT President Nasheed, who authorized the loan. And as far as I know, President Nasheed never issued any instruction regarding the authorizing of this loan.  Frankly, none of us had any other choice at the time. The priority was that Arabiyya School should resume operating as soon as possible.

This is the truth behind the MES building lease agreement and the thauleemee fund loan. I don’t think I, or the government did anything wrong here, I would do it all over again without any qualms.

Those of you who have stood by me all these days, I would sincerely request that you help me to clarify the truth about these issues to those who spread the lie unknowingly. As for those who do it deliberately….well let them carry on.

Time to Think and Act

More than a year since I penned anything on the blog, now. Many a times I have thought of sharing a thought, but somehow I never got around to it. And then…the world collapsed, throwing me into utter despair. The pain was so deep. What I saw happening was so fearful it made me speechless. Thrust into a time machine and in the blink of an eye, we are hurtled back 2 decades. Only thing is we remain two decades older and somewhat wiser than then.

I must admit, it has taken sometime to shake off the weariness and pick up the pen again. But I feel I must. I have to. The least I could do was to try and make some sense of what was happening and to put it out for anyone who cared to read.

The last couple of years had made my conviction stronger, that a change of leadership was insufficient to bring in lasting democracy. Readers of my blog would recall that even before the Presidential Election in 2008, I had been advocating that Qayyoom simply epitomized a system and that it was the system which propagated oppression. What became more apparent was that even though Qayyoom himself was ousted from office in the 2008 election, his tentacles which had been bred over a period of thirty years were strongly rooted in the civil service, in the judiciary, various commissions, in the military and the police force. All these elements were working in concert, first to maintain the system which had served their personal interests so well in pecuniary terms as well as privilege and in some cases impunity, and when change became inevitable, with the bedrock of the old system, the Judiciary, coming under direct threat of being reformed, it was time to pull the coup, before all was lost.

Now that I have recovered somewhat from the blow, and the self pity for seeing what I had worked for and sacrificed all my life going down the drain, I can finally start thinking clearly. I must admit the first few weeks since the coup I felt a rage that I had never experienced in my life, and it was difficult to think rationally and clearly. Rage and clear thoughts don’t see eye to eye, I suppose. Anyway, that phase is gone, and now it is time to fight this tyranny again. It should be done with clarity of thought, a cool head and cold logic which is exacting. The enemy must be sprung with what he is least expecting (Old Chinese war philosophy). The vulnerable spots must be identified (and there will be many, I can assure you).

What is heartening is that a great proportion of the general public does not seem to be accepting this atrocity. Compared to 2004 – 2008, there are less people now to be convinced of what has to happen. It appears that the Maldivian public is no longer prepared to timidly accept a dictatorship. Will we have an election this year? I can see no reason to doubt that this will happen. If the public do not relent, the rest of the world will not simply turn a blind eye. Their engagement looks set to get stronger by the day.

The eternal optimist, I believe that much good also has come out of this. We now know who is who and what is what. This will make it much easier for us to complete the work we have started.

Hope and Pray The Dogs Will Be Kind On Us

Not much left to say really. The coup-de-grace is almost complete. Just the trimmings remaining, I suppose. We tried. I tried. Sigh! The rampant corruption, greed, self serving fiascos are almost palpable. A nation wretched for eternity? I am reminded of a parable I read in primary school. I think it was in “Kudakudhinge Bageechaa”. The book, not the park, silly! Anyway, the allegory goes as follows.

One day two cats stole a boakibaa (fish cake?). The two cats tore it into two bits, and one bit was bigger than the other. The cats started quarrelling as to who should get the bigger half. Along came the monkey who offered to adjudicate (the operative word in the current context). The monkey started eating from one bit, and then the other, supposedly trying to get the two bits equal. Eventually the monkey managed to eat the boakibaa down to two tiny bits that were equal. Just when the two cats thought they were finally going to get at least a tiny bit, the monkey claimed that he was entitled to a fee for adjudicating and claimed the remaining bits as the fee.

I am also reminded of a verse from a poem I learnt while in primary school, which goes as follows (if I recall correctly):

“Haama vee reethi manzaru thakey nethi dhanee
Maamalun eyge thaazaa kamey gellenee
Dhaamagun dhuniye hin’gamun miharagen dhanee
AA MAGEH GAI HIN’GEYKAH NETHEY ANGANEE”

Oh! Mother! More of your sons have raped you yet again! How deep will these wounds be? Why do you not desert us and look out for yourself? Of course! You are Mum, after all, silly me! The country has surely gone to the dogs. Let us hope and pray that the dogs will be magnanimous and kind to us all.

Letter to The JSC

On more than one occasion, I have expressed my deep concern about the setting up of the Judiciary under the new constitution and the trends that were emerging in the actions of the Judiciary.

The Judicial Service Commission is charged by the Constitution to oversee the day to day affairs of the Judiciary and to take action against wayward judges. One of the functions of the JSC is the appointment of judges to various benches.

The Constitution envisaged a certain setup for the entire Judiciary, and the JSC has a crucial role to play in this. However, the Constitution makes it plainly clear that the JSC itself would have to follow certain laws which should be passed by Majlis, and the decisions of the JSC would be necessarily constrained by these laws.

However, it appears that the JSC has taken it unto themselves to go ahead and appoint judges for life without laws that direct them on the standards expected of judges, or the number of courts that should be established, the jurisdicitions of various courts, the tenure of judges for the first fifteen years of the new constitution etc.

This move from the JSC comes at a time when the Majlis is totally disfunctional. This is significant when we consider that the Majlis is charged with keeping the JSC in check. Further, I have it on good authority, that a member of the JSC itself has lodged a complaint with the Majlis regarding how the business of the JSC is being conducted, and the Majlis had summoned the JSC to a committee hearing, and this process has not started yet due to the standstill of the Majlis.

We should also remember that the Supreme COurt has been flexing its muscle on taking control of the entire Judiciary and that the current Chair of the JSC is a sitting judge of the Supreme Court. Further, the Judges Association has been complaining constantly that the JSC should comprise of Judges only. According to them, Judges are an exceptional species who can keep themselves in check. I wonder if they have heard of the Principles of Natural Justice?

Anyway, it appears to me that the move started by the Supreme Court when they arbitrarily took control of the Department of Judicial Administration will be almost completed by the appointment of all their cronies to the bench, for life.

I suppose this is what happens when we have a eunuch of a Parliament.

Anyway, out of desperation, I have written to the JSC to appeal to them to stop this madness. In that letter I have outlined in some detail, what the people who wrote the Constitution envisaged for the Judiciary. Most probably, my letter is in the JSC dustbin now. Any way, I will publish this letter on this blog (click on pages above to view letter), so that at least it will be there, available for anyone who cares to know what kind of Judiciary the Constitution hoped to setup, and what was provided for in the Constitution.

The interested reader may refer to my previous ramblings on the Judiciary by clicking the following links:

1. The Power Pendulum
2. Scary
3. The Pendulum is Swinging
4. Judicial Independence? Or Independence of the Judiciary?

Open Letter to Honourable Mujuthaz, MP

Ma. Bougain Villea
Male’.

5 July 2010

Dear Honourable Mujuthaz, MP for Hanimaadhoo Dhaairaa

It is with great alarm that I write this letter to you.

It has come to my notice through the media that the Deputy Speaker of the Majlis has allegedly instructed a certain Hoara Waheed to contact one or more members of the Anti-Corruption Commission to issue a certain statement regarding some matter of the State. It appears that a measure of intimidation was indicated in this directive.

It is most untoward that an Independent Commission may be intimidated in this fashion to subvert the course of governance and justice to further the political ambitions of any person.

As Chair of the Majlis Committee concerning the Independent Commissions, I feel you have a duty to immediately convene this committee and start an investigation into this matter.

I urge you to use all and any available resource to locate this Hoara Waheed and summon him to the Committee. He should be required to reveal everything regarding this matter to the Majlis, and he should be questioned under oath.

You will no doubt know that no person can claim the right to remain silent when questioned by the Majlis, and will have to tell the truth, under oath.

Further, members of the Anti-Corruption Commission should also be summoned to the Majlis and required to reveal all that they know of these matters, and any possible such matters in the past. If they are being intimidated and threatened in any way, they should be accorded the full protection of the State so that they may discharge their duties in accordance with the Constitution and the Law.

The hearings of the Committee with regard to these matters should be open to the public and the media. These are important events in a defining period of our nation, and all citizens have a right to know the truth regarding these matters.

If the Majlis cannot and will not act on these matters, it is time for all MPs to vacate the Majlis and hand it over to the People.

I have every faith in you that you will discharge your duties in a responsible fashion.

If MPs do not discharge these responsibilities, they will truly be creating a huge Void in the nation which will send us over the precipice and into the bottom of nothingness.

Thank you for at least reading this letter from a concerned citizen.

Ibrahim Ismail

Mountain, Mountain, Come to Mohamed!

The recent changes to the Public Finance Act (Maaliyyathaa behey qaanoon) sent my head reeling. That was the Grand Finale in the process of decimating the Executive, once and for all.

True, the Constitution says that the government may not dispose of any state property in any way except in accordance to law passed by the Majlis. But the fundamental fact remains that it is the government which will dispose of any state property, nevertheless. However, it appears that the Majlis has interpreted this provision in the Constitution to be that the Majlis will be the body that will decide on the disposal of all state property, almost on a case by case basis.

Yes, yes, I have vehemently argued for the supremacy of Parliament on many occasions, and I would still vehemently defend it. But the unwritten provision in the constitution says that the Parliament shall also be the Supreme body in terms of Wisdom as well. That the Parliament shall also be bound by the letter and spirit of the Constitution. That the Parliament is required by the constitution to recognize the Executive, its powers and responsibilities as specified in the Constitution. That the Parliament shall show due respect to the people of the country by allowing their elected President and his cabinet to govern the country.

That the passing of the Bill truly annihilates the duly elected government of the people is simply an academic point. What is of more interest is why did Parliament do it? On this more lively point, we can only surmise.

In this surmising, one should think of current events in relation to their precedent event : The Fall of the Qayyoom Regime.

With the change in government, there was trepidation among many that there may be a witch hunt to bring criminals within the former regime to justice. The relative security of the Majlis was sought by many, and some succeeded. After the initial scrambling for personal security, some were emboldened. The bid for real power came next. The old adage, if the Mountain won’t come to Mohamed, then Mohamed will have to go to the Mountain, when turned the other way around, seemed to give a perfect solution to their dilemma. It goes like this: Well, if we can’t get the Presidency, why don’t we bring the Presidency to where we are? Then we can:
1. Nominate and ratify all appointments to the independent commissions
2. Nominate and ratify all Judicial appointments
3. Dictate all government policies
4. Make day to day decisions of running the government
5. Keep all judges in fear of losing their jobs so that they dare not find any of us guilty, no matter what crime we have committed and will commit.

Hey, hey, hey… better still, even though the Constitution requires three quarters majority to amend it, let’s turn the Presidential System into a Parliamentary System without amending a letter in the Constitution. And you know what? We can probably get away with it, because everyone knows that the public in this country is so apathetic, they won’t know anything other than that Brazil lost over Argentina!

Maldives. Paradise on earth (especially for corrupt politicians).