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The Maldives: challenges to ensure independence of judiciary

The Maldives: UN expert warns of major challenges ahead to ensure independence of the judiciary

Malé / Geneva, 26 February 2013 – The United Nations Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, urged the Government of the Maldives to address a number of challenges still hampering the functioning of the justice system after the democratic transition and the adoption of the new Constitution in 2008.

“One major challenge for the fair, impartial and consistent delivery of justice is the lack of some basic pieces of legislation, such as the Penal Code, the Criminal Procedure Code, the Civil Procedure Code, or the Evidence Act,” Ms. Knaul said at the end of an official visit to the Maldives. “As a result, judges have had to rely on laws and acts that were passed before the Constitution of 2008 and may contradict it, as well as on principles of Islamic Shari’ah, which is not codified and may be subject to different interpretations.”

“A uniform legal system respecting the principles enshrined in the Constitution is necessary to create consistency in the administration of justice,” the expert stressed, calling on the Maldivian Government and the People’s Majlis to move forward by developing and adopting essential legislation, and ensuring that their contents are in line with the promotion and protection of human rights.

“All branches of the State are equally important and none should be above the other,” the Special Rapporteur underscored. “All institutions have a role to play and responsibilities regarding the consolidation of democracy.”

Ms. Knaul commended the Maldives’ efforts in establishing a democracy based on the rule of law and the principle of separation of powers, but noted that many challenges still remain to the independence of judges, prosecutors, court officials and lawyers, which affect the delivery of justice. “Those challenges should be assessed and addressed as a matter of urgency within the parameters laid down by the Constitution and international human rights standards,” she said.

For the rights expert, the concept of independence of the judiciary has been misconstrued and misinterpreted in the country, including among judicial actors. “The requirement of independence and impartiality does not aim at benefitting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial,” she underscored. “Integrity and accountability are essential elements of judicial independence and are intrinsically linked to the implementation of the rule of law.”

The Special Rapporteur also stressed that there are serious concerns in the country regarding the system of appointment of judges. “I believe that an appointment body acting independently from both the executive and legislative branches of Government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice,” she said.

“The current composition of the Judicial Services Commission, the body in charge of the appointment, transfer, and removal of judges, is inadequate and politicized,” the expert warned. “Because of this politicization, the Commission has been subjected to all sorts of external influence and consequently has been unable to function properly.”

Finally, Ms. Knaul called on the international community, “to strengthen their engagement in the Maldives and continue contributing to the consolidation of the justice sector and the independence of the judiciary and the legal profession with concrete and sustainable programmes, whose implementation can be monitored and assessed.”

During her eight-day visit to Malé and Addu city, Ms. Knaul met President Mohamed Waheed, the Minister of Foreign Affairs, as well as other Government officials, including the Attorney General. She also held meetings with the Chief Justice, the Supreme Court, a number of judges from superior and magistrates’ courts, the Prosecutor General, members of the legal profession, members of the People’s Majlis, as well as representatives from various political parties, non-governmental organizations and UN agencies.

Based on the information collected during the visit, the Special Rapporteur will prepare a report to be presented to the Human Rights Council later this year.

Gabriela Knaul took up her functions as UN Special Rapporteur on the independence of judges and lawyers on 1 August 2009. In that capacity, she acts independently from any Government or organization. Ms. Knaul has a long-standing experience as a judge in Brazil and is an expert in criminal justice and the administration of judicial systems.
Learn more, log on to: http://www.ohchr.org/EN/Issues/Judiciary/Pages/IDPIndex.aspx

OHCHR Country page – Maldives: http://www.ohchr.org/EN/Countries/AsiaRegion/Pages/MVIndex.aspx

Check the UN Basic Principles on the Independence of the Judiciary: http://www2.ohchr.org/english/law/indjudiciary.htm

ENDS

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