Justice adrift : rule of law and political crisis in the Maldives : a fact-finding mission report

Abstract

EXECUTIVE SUMMARY The promulgation of a new democratic constitution in 2008 heralded a move toward greater democracy in the Maldives after decades of authoritarian rule. The 2008 Constitution enshrined provisions to establish institutions of constitutional democracy, respect for rule of law, robust fundamental rights and the separation of powers. That same year, the country elected its first democratically elected president, followed one year later by the country’s first multi-party parliamentary election. However, after the assumption of power of a new government in 2013, many of these reforms have stalled and are even in danger of sliding back towards authoritarianism. Prompted by concerns regarding the independence of the judiciary and the deteriorating human rights situation in the country, a joint delegation of the South Asians for Human Rights (SAHR) and the International Commission of Jurists (ICJ) conducted a fact-finding mission to the Maldives from 5 to 13 May 2015. The purpose of the mission was to assess the human rights situation in the country after the current government assumed power in 2013; of particular concern was assessing the independence and impartiality of the judiciary and other independent institutions aimed at upholding respect for human rights and the rule of law. The delegation met with a broad cross-section of stakeholders from the Maldivian Government, the Parliament, independent constitutional bodies, the legal community, political parties, civil society, the former Chief Justice of the Maldivian Supreme Court and other former officials from the previous government. The delegation welcomed the commitment expressed uniformly to the delegation by Maldivian government officials to the goal of strengthening the judiciary, rule of law, fundamental rights and the separation of powers in the country. However, the delegation was concerned that, despite some notable progress made, a number of critical institutional and legal reforms called for during the two-year transitional period from 2008 to 2010 in order to consolidate and strengthen independent democratic institutions had yet to take place. The delegation found that this flawed transition contributed to the present deterioration in the rule of law and legitimacy of democratic institutions in the country, marked especially by the crisis in the independence of the judiciary and inadequate protection of human rights. The delegation was particularly concerned by a clear politicization of the judiciary that has eroded the rule of law. Recent high-profile prosecutions and events in the last two years alone have raised concerns regarding the independence and impartiality of the judiciary, judicial accountability and respect for the principle of separation of powers. These concerns were aggravated by a general lack of capacity in the education and training of the judiciary, as well as inadequate procedural legislations to establish standards and regulate judicial conduct. Furthermore, this politicization of the judicial system compromised the integrity of other independent constitutional bodies and undermined the protection of fundamental rights. The delegation was equally concerned by the politicization of independent institutions such as the Human Rights Commission of the Maldives (HRCM), the Judicial Service Commission (JSC), the Electoral Commission and the Office of the Prosecutor General. Biased and otherwise unfair judicial proceedings, as well as undue parliamentary interference in the appointment, removal and functioning of these key constitutional bodies, have undermined their independence and impartiality in carrying out their respective mandates. This in turn has further eroded the rule of law and democratic governance in the country. Strengthening judicial independence, impartiality and accountability are key elements to getting the country back on track towards democratic consolidation. An independent and impartial judicial system is central to upholding the rule of law, protecting human rights and safeguarding the principle of separation of powers. Maldivian authorities must Justice Adrift: Rule of Law and Political Crisis in the Maldives 3 therefore take all necessary steps to support and strengthen the independence and impartiality of the judiciary, both at an institutional and individual level, in order to uphold the rule of law, accountability and human rights. Likewise, independent institutions play a central oversight role in ensuring the rule of law, protecting and promoting human rights and strengthening democratic governance. Maldivian authorities must take all necessary steps to safeguard and strengthen the genuine independence and impartiality of these institutions in their appointments, removal and ability to effectively carry out their respective constitutional functions free of undue interference. To advance these goals, the mission makes the following key recommendations (a more comprehensive list of recommendations is included at the conclusion of this report): Maldivian Government (President and Executive Branch) • Given the serious doubts raised about the fairness of the trials, Mr. Nasheed and Mr. Nazim must both 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 ensure fairness and impartiality in either case and there exists no other remedy under Maldives law, the President must exercise his authority under the Clemency Act to pardon the defendants to comply with the Maldives’ international obligations. • The Government must strengthen the independence and impartiality of the judiciary by reforming the JSC appointment process and ensuring the integrity of appointments to the Supreme Court. • The Government must ensure the integrity and impartiality of appointments to independent constitutional bodies and must not interfere in the exercise of their respective mandates. • The Government must end the climate of impunity and ensure accountability for violations of fundamental human rights by carrying out prompt, thorough, impartial and independent investigations of suspected violations. • The Government must take necessary steps to eliminate gender discrimination and increase women’s representation in the judiciary and the legal profession at all levels of seniority. Maldivian Parliament (People’s Majlis) • Parliament must expedite the passage of important long-pending draft laws aimed at strengthening the rule of law and the justice system, including a criminal procedure code, civil procedure code, evidence code and a legal professions bill. • Parliament must implement constitutional reforms to strengthen the appointment process, the composition and the independent functioning of the JSC. At least half of its members should be judges elected by their peers within the judiciary. The JSC must be equipped to carry out, and to implement effectively in practice, its mandate to hold the judiciary to account for breaches of judicial ethics. • Parliament must respect and ensure the independence of the HRCM as well as other constitutional commissions, to carry out their respective mandates without arbitrary or otherwise undue interference or intimidation. • Parliament must initiate constitutional amendments to remove any discriminatory criteria for appointment of judges, including particularly on grounds of religion. Justice Adrift: Rule of Law and Political Crisis in the Maldives 4 Maldivian Supreme Court • The Supreme Court must adopt clear and transparent rules governing how cases are selected, and how the composition of the bench to hear a case is selected. • The Supreme Court must respect the role and mandate of independent constitutional commissions, particularly the JSC and the HRCM, and allow them to fulfill their constitutional functions without undue or unlawful interference. • Any exercise of the Court’s suo motu power must be undertaken in an impartial manner that is consistent with human rights, due process and the rule of law. • The Court must support adequate training and continuing legal education for judges and lawyers on substantive legal developments, constitutional and judicial procedure, judicial ethics, gender sensitivity and protection of human rights under both Maldivian and international law. International Community including SAARC ● The international community (other states, UN and other international and regional intergovernmental organisations, and international civil society), including the South Asian Association for Regional Cooperation (SAARC) – a regional intergovernmental body of which the Maldives is a member State – should support Maldivian authorities in capacity-building for judges, lawyers, police and other stakeholders in the justice system, including on human rights. ● 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 the Maldives, by continued monitoring through the UN Special Procedures and, where necessary, by providing targeted technical support.