Male is a remarkable place. The island is barely a mile square, but teems with motor cycles and other vehicles in the heat of the day, through streets lined with tightly packed concrete buildings. It is here that all the organs of this tiny state are located, including the Parliament and a supreme court housed in a much grander building than our own.
And on this island an extraordinary legal drama is playing out. The ex-President, Mohammed Nasheed, is on trial for arresting, when he was in power in 2011, a criminal court judge. If he is convicted then he will almost certainly go to prison for more than a year – which will rule him out of the Presidential elections set for 2013.
Nasheed’s ascent to the Presidency
The back story to the current situation is fascinating. In November 2008 Mohammed Nasheed became the first democractically elected President of the Maldives under a new constitution, a product of a coalition of progressive parties which combined to defeat the incumbent President Maumoon Abdul Gayoom, who had been in power for over 30 years. Amnesty International and others had widely attacked the old regime’s human rights record. Nasheed himself had been arrested and detained no fewer than 16 times by the old regime. He was named an Amnesty “prisoner of conscience” in 1991.
In power, Nasheed became globally recognised through his high profile climate change policy work on behalf of the Maldives. No part of the country is more than 2.4 metres above sea-level, and he declared an intention for it to be the first carbon neutral country in the world. Nasheed, educated in the UK, was described by David Cameron as “my new best friend” in an interview in November 2011.
But although popular abroad, at home things were more difficult. Although Nasheed was able to bring in a number of social welfare reforms, one particularly intractable problem was that of judicial reform. Hundreds of judges hold jobs for life in the Maldives. Many have no legal training and many are badly educated. Many have little work to do. Reform of the judiciary was seen as such an important task that it was included in the new 2008 constitution, which also established an independent judiciary for the first time in the Maldives.
The Judicial Services Commission
A Judicial Services Commission (JSC) was set up by the constitution with the aim of introducing new standards for the judiciary which each judge had to meet before having his or her post renewed. However, the JSC failed to bring in any standards in the two years allowed and in August 2010 almost all judges, good and bad, were re-instated in post. A report by the International Commission of Jurists (ICJ) in February 2011 expressed concern about the failure of the JSC “to fill its constitutional mandate of proper vetting and reappointing the judges.”
The JSC (made up of politicians, lawyers and judges) was also ineffective in its other role of overseeing complaints about judges. Complaints about the worst judges built up and were not investigated. A large number of complaints were made about the head of the criminal court, Judge Abdulla Mohammed. A local newspaper quoted the then Home Minister as accusing the judge of “deliberately” holding up cases involving opposition figures, barring media from corruption trials, ordering the release of suspects detained for serious crimes “without a single hearing”, and maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes. The JSC did uphold one complaint against Judge Abdulla, but the judge responded by obtaining a civil court injunction against the JSC to prevent any action being taken.
Nasheed loses power
Frustrated by an inability to remove allegedly bad judges, Nasheed (or one of his ministers, it is still not entirely clear) ordered the detention of Judge Abdulla on 16 January 2012. He was taken to an island and kept there for almost three weeks, despite the protests of lawyers and judges. It does not seem that he was badly treated, and the government emphasised the lack of other effective powers to justify its actions.
The detention of the judge brought about protests and, in February 2012, President Nasheed lost power in controversial circumstances. During a particular period of civil unrest on 7 February, President Nasheed signed a document resigning his office. He later claimed he had been forced to do so, and that he had been removed in what was effectively a coup. Within hours the vice-president Dr Waaed had been sworn in as the new President, and many of the Gayoom regime supporters have returned as ministers.
Maldivans have been bitterly divided as to whether the transfer of power was legitimate or whether Nasheed had been a victim of undemocratic forces. Nasheed’s biographer, Mark Seddon, described it as a “violent coup organised by the Gayoom clan in an unholy alliance of tourist resort owners and hard line Islamists”. A Commonwealth-backed Commission of National Inquiry (CONI) was set up to look at the events which led to a transfer of power, and reported in August last year. The CONI concluded that Nasheed had voluntarily ceded power. The CONI report, though, has itself been heavily criticised for accepting the present government’s version of events, and not giving sufficient weight to the realities facing Nasheed.
Things have got worse for Nasheed, though. He was arrested and charged with abusing his powers by detaining Judge Abdulla. He is subject to what is essentially “island” arrest. A failure (inadvertent, he said) to answer one summons led to a very heavy handed arrest (which can be seen on youtube). A July 2012 report of the UN Human Rights Committee also suggests a regression of human rights observance with “incidents of torture in the Maldives...both systematic and systemic”.
Observing the case
I visited the Maldives on behalf of the Bar Human Rights Committee to observe at what would have been the first day of Nasheed’s trial on 4 November last year. However, Nasheed’s legal team raised a technical issue about jurisdiction of the magistrates’ court in which the case was due to heard. It was not a court provided for by the constitution (and allegedly had only been set up to provide a job for an MP’s wife). So on the morning of 4 November, the Maldivan high court adjourned the criminal case to hear argument on the jurisdictional issue. A further hearing was set for 8 November 2012, but by that time the Supreme Court had effectively taken over the issue (as it seems to have the power to do), and the whole process has now ground to a halt.
During my stay I was able to talk to a range of Maldivan lawyers (including the prosecutor general), politicians, and activists. Almost all criticised the failure of the JSC to bring about reform of the judiciary in the way expected by the new constitution. Opinion was split between those who thought there was no option but to prosecute Nasheed, and those who wanted the wider context to be taken into account by the prosecutor. There was a strong feeling amongst some that the politicians of the old regime had escaped prosecution for much worse abuses of power. Nightly protests were organised against the prosecution. The foreign government representatives I spoke to clearly saw Nasheed as a force for good in the region and desperately want a solution to the current proceedings which will allow him to stand in the election next year.
Nasheed’s legal team is petitioning the prosecutor general to consider again whether the case against Nasheed is in the public interest. A range of defences will be advanced when the trial proceeds next year.
The underlying narrative
The first instinct of lawyers, rightly, is to be alarmed when judges are arrested and detained. It may be that Nasheed’s actions (or those of his ministers) were badly thought through, and certainly unlikely to elicit support from foreign governments and the Commonwealth. But what is clear from my few days in the Maldives is that this is not a simple story of abuse of power. Rather the underlying narrative is that of a president desperate to bring change to a new democracy after decades of oppression, and finding himself thwarted by the inability of the organs of state set up by the constitution to deliver much needed reform. How the Maldivans deal with this trial may well decide the course of its government for years to come.
Stephen Cragg’s full report on his visit can be found on the BHRC website at http://www.barhumanrights.org.uk/bhrc-trial-observation-report-maldives.
Stephen Cragg, Doughty Street Chambers