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Maldives: Military Arrests and Detains Criminal Court Judge

(Jan. 30, 2012) On January 16, 2012, the Maldives National Defense Force (MNDF) took the unprecedented step of arresting and detaining Abdulla Mohamed, Chief Judge of the country's criminal court, on charges of corruption. The MNDF, with government backing, took action after the judge issued a ruling in favor of the release of a government critic and also after the judge had reportedly tried to block a High Court police summons containing allegations that he was corrupt and politically biased in his professional conduct. (Jamie Reese, Maldives Seeks UN Help to Resolve Detention of Senior Judge, PAPER CHASE NEWSBURST (Jan. 23, 2012); Dan Tagliogli, Maldives Lawyers Seek ICC Intervention over Detained Judge, PAPER CHASE NEWSBURST (Jan. 25, 2012).)

The MNDF has thus far failed to comply with High and Supreme Court orders to release Mohamed. It has also ignored a High Court order to produce the judge, issued on January 26. (Eleanor Johnstone, Lawyers Forward Chief Judge's Case to International Criminal Court, MINIVAN NEWS (Jan. 23, 2012); Ahmed Nazeer, MNDF Dismiss High Court Order to Produce Judge Abdulla Mohamed, MINIVAN NEWS (Jan. 26, 2012).)

Requests for International Assistance

The Minister of Foreign Affairs of Maldives, Ahmed Naseem, sought United Nations assistance on January 22, 2012, in resolving the crisis. (Reese, supra.) Naseem requested that the U.N. Office of the High Commissioner for Human Rights (OHCHR) “urgently dispatch a team of senior international jurists to the Maldives,” to resolve not only the immediate crisis of the Chief Judge's detention but the “systemic failure” of the judicial system as a whole, including “the judicial checks and balances foreseen in the Constitution.” (Foreign Minister Asks UN to Dispatch Delegation of Eminent International Jurists to Help Resolve Judicial Crisis, Ministry of Foreign Affairs of the Republic of Maldives website (Jan. 22, 2012).)

On January 28, a spokeswoman for the the OHCHR stated that U.N. officials are still considering how to respond to the request, but that Abdulla “should either be treated with due process, meaning he should be properly charged moved from military detention, and brought before a court, or released.” (Krishan Francis, UN Says Maldives Must Release Judge from Military Custody or Charge Him with Crime, THE ASSOCIATED PRESS (Jan. 28, 2012).)

In addition, a group of Maldives lawyers, who contest the conditions of the MNDF arrest and detention of the Chief Judge, also contend that the continued detention is in violation of the International Convention on the Protection of All Persons Against Enforced Disappearance and have submitted his case to the International Criminal Court (ICC). (Tagliogli, supra; International Convention on the Protection of all Persons against Enforced Disappearance (in force on Dec. 20, 2006), Office of the United Nations Commissioner for Human Rights website (last visited Jan. 26, 2012).)

Abdul Rasheed Nafiz, a member of the Progressive Party of the Maldives, supports ICC involvement in the case, stating:

Right now, this is a legal argument. The opposition says the military cannot arrest judges, and the President says he has the authority as commander-in-chief. The Supreme Court tried to resolve the matter but it has had some problems. We need a mediator, and now it's time for the international community to get involved … . (Johnstone, supra.)

The Maldives government argues that the arrest was lawful and that the invocation by the lawyers and others of the term “crime against humanity” to bring the case before the ICC “is only a political strategy.” (Id.) On the other hand, aside from the issue of whether or not a crime against humanity is involved, one of the criteria for the ICC's taking up the case “is doubtful willingness and capacity of the country's own judiciary to handle the case in question.” (Id.)

Relevant Provisions of the Maldivian Constitution

The Constitution of the Maldives prescribes under section 154:

A judge may be removed from office only if the Judicial Service Commission finds that the person is grossly incompetent, or that the Judge is guilty of gross misconduct, and submits to the People's Majlis a resolution supporting the removal of the Judge, which is passed by a two thirds majority of the members of the People's Majlis present and voting. (Functional Translation of the Constitution of the Republic of Maldives 2008; text of Constitution in Maldivian (both last visited Jan. 26, 2012).)

Chapter VII, articles 157-166, of the Constitution set forth the composition and powers of the Judicial Service Commission (JSC). The JSC is defined as “an impartial and independent institution” (art. 157(a)). However, according to the Ministry of Foreign Affairs, “since its establishment, the JSC has been unable to fulfill this constitutional mandate”; it failed to take action in more than 140 complaints submitted to it in 2010, and, in 2011, when it found that a judge's actions had amounted to gross misconduct, it was blocked from instituting proceedings by a Civil Court order that “effectively removed” its constitutional powers. (Foreign Minister Asks UN to Dispatch Delegation of Eminent International Jurists to Help Resolve Judicial Crisis, supra.)

In connection with the shortcomings of the JSC, a sub-committee of the parliamentary committee responsible for independent institutions has been formed and is compiling a report on the subject. Recommended reforms may include changes in its composition, provision of a stronger mandate of oversight, and interim reliance on invited foreign Muslim judges to sit on Maldives court benches. (Id.)

Reactions to the Arrest by the Judiciary, the Government, and the Populace

The Prosecutor General's Office of the Maldives has stated that, according to the Constitution, a judge can be arrested only on the basis of a Supreme Court decision. That Office, the Supreme Court, and the JSC “have all issued statements calling the arrest illegal and requesting Mohamed's release.” (Reese, supra.)

The government has not addressed the constitutional issues in connection with the arrest; it has commented only on the JSC's ineffective handling of complaints against the Chief Judge's conduct. (Tagliolo, supra.) A government source described the allegations against Mohamed as “of serious concern to the Maldivian government and community” and indicated that it had evidence of the Chief Judge's “gross misconduct, in particular, the exercise of “'undue influence'… over at least one member of the Civil Court.” (Johnstone, supra.)

The arrest of the Chief Judge gave rise to violent anti-government protests and clashes between anti- and pro-government elements, in which several demonstrators have been injured and a journalist badly beaten. The country's courts have also boycotted sessions to protest the MNDF's action against the Chief Judge. (Tagliolo, supra; Journalist Beaten During Protesters Clash, HAVEERU.COM (Jan. 24, 2012); Maldives Courts Boycott Sessions to Protest Chief Justice's Arrest, THE GUARDIAN (Jan. 17, 2012).)