Dr. S. Chandrasekharan.
A serious constitutional crisis has arisen in Maldives over the arrest of the Chief Criminal Judge Abdulla Mohamed in a joint operation of Police and the MNDF on the 16th of January.
There is no doubt that the judiciary in Maldives is in a mess with many unqualified and incompetent people having made it into the judiciary in the void created during the transition period.
The ICJ report of July 2010 pointed out the legacy of an authoritarian past in which the President was the supreme judicial architect that has tested the transition.
Another factor which inhibited proper selection was that the Judicial Service Commission failed to fulfill the constitutional mandate of properly vetting and reappointing the judges. Even the composition of the commission was questionable. Imagine Gasim Ibrahim being a member- He is a politician and leader of one of the active political parties. He has extensive business interests and there will be an unavoidable clash of interests.
A media report that has not been challenged had this to say-
“ Here, we have a judge whom most agree is corrupt – or at the very least unfit to sit in so high an office; we have a judge who is blatantly politically biased and admits as much on national television; we have a judge who has released criminals including rapists and drug dealers and who has been seen cavorting with defendants after his rulings; and yet we as a nation and people are powerless to remove him from the office which he so flagrantly disgraces. Can there be a constitutional failing that is more evident than the one embodied in this man?”
The person referred to in the last line is none other than Abdulla Mohamad, the Chief Criminal Judge of the country.
In the year 2005, the then Attorney General and now a leader of the DQP has himself reported against the judge and the allegations included misogyny, sexual deviance, throwing out an assault case despite the confession of the accused. The Judicial Commission took its own time to enquire into the allegations and meanwhile the judge approached the civil court and stopped the enquiry!
The judge would have got away with all this but what triggered the anger of the government was that he issued orders for immediate release of two persons from custody – Dr. Jameel, the Vice President of DQP and Sandhaanu Didi for asserting in a private broadcasting station that the government was working with the Jews and Christian priests and encouraging vice. Didi went further and made personal attacks against President saying that the President was a madman and a Christian!
Confronted by the Police, the two were not able to substantiate the allegations and were therefore taken into custody under 125 of penal code which said that a “ person can be punished for making a fabricated statement or repeats a statement whose basis cannot be provided . . . ”
The Chief Judge of the Criminal Court Abdulla Mohamed ordered the immediate release of the accused and the Police with the help of the MNDF in turn arrested the judge of the criminal court.
Police Sources say that the Judge was arrested for unethical conduct in obstructing the Police in exercising their responsibilities to preserve law and order in the society.
The High Court ordered the release of the judge stating that the arrest was illegal.
The Chief Justice Ahmad Faiz and the Prosecutor General also issued orders for the immediate release of the judge.
The JSC ( Judicial Service Commission) also issued a press note that it is not in the jurisdiction of the armed forces or the Police to take action against the judge.
The Vice President has in his blog has said that the arrest is against article 319 of the “Universal Declaration of Human Rights. Further it is against the international covenant of civil and political rights and international convention for the protection of all persons from enforced disappearance. He suggested that the judge should be released and then make the JSC fulfill its responsibilities.
The Secretary General of SAARC and a former attorney General Fathimath Dhiyana Saeed, the youngest and the first female Secretary General, condemned the arrest in a television programme and said that it is a “violation of individual human rights, a violation of independence of the judiciary and a violation of the constitution.” She has put in her resignation papers after the broadcast.
A team of lawyers filed a case against MNDF in the High Court over the illegal arrest of the judge. A case has also been filed in the International Court of Justice over the arrest.
President Nasheed appears to be unrelenting and has justified the arrest. He has separately approached the UN for help in cleaning up the judiciary- immediate issues and the long term issues that includes the failure of the judicial accountability mechanism in the constitution.
It looks that President Nasheed has over reached himself in firstly arresting and in refusing to release the judge when the overwhelming public opinion is against taking such a drastic action. He should have taken this strong stand last year during the transition when some of the judges appointed by the previous regime were found not having “high moral character, educational qualifications or competence.”
One of the charges against the judge now arrested was that in 2005 he was alleged to have requested the under age victim of molestation to re enact her abuse in court. The charge could not be enquired into by the judicial service commission as the judge got a stay order from the civil court.
By this one act of arrest, President Nasheed is likely to antagonise all his admirers and sympathisers. Earlier it is undone, better it would be for all concerned.