The following is a document submitted to the President yesterday, by Dr. Hassan Saeed, Dr. Ahmed Shaheed and Mohamed Jameel.Summary
• Without implementing the reforms listed below, the elections to be held in 2008 cannot be free, fair or inclusive or enable the people of Maldives to choose a leader for the future. If the promise of a liberal democratic Maldives is not to be a fairy tale, then the following pathways must be pursued now to attain democracy
1) Strengthen the independence of the judiciary:
a. Divest the Chief Justice of non-judicial functions
b. Follow emerging practice and appoint a Chief Justice with the advice and consent of the parliament
c. Increase transparency and public confidence in the highest court of appeal by holding public hearings as pledged by the President on 11 November 2005
2) Undertake urgent reform of the Criminal Justice System by revising current administrative guidelines to incorporate standards which are contained in proposed reform legislation and are consistent with human rights obligations
3) Reconstitute the Police Integrity Commission to make it an effective watchdog
4) Entrench media freedom by establishing the right to information
5) Strengthen anti-corruption measures immediately:
a) Free prosecution decisions from executive approval
b) Honour commitments under the UN anti-corruption convention
c) Require that public office-bearers declare their assets and interests
6) Implement the Civil Service Act without further delay and dismantle the patronage system as required under the Act
7) Strengthen the independence of the Elections Commissioner and invite international monitors now
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How to deliver democracy before it is too late for Maldives
Three years since the government promised liberal democracy, Maldives continues to resemble a police state more than a democracy. Whilst international pressure has produced some reforms, the people of Maldives continue to live in fear and without the most fundamental safeguards against arbitrary government. Frustration over the slow pace of reforms has seen the resignation of key reformist ministers from the Cabinet recently. Corruption has become rampant as national assets are being auctioned off to raise revenue for a bloated re-election budget. Lawlessness and religious extremism are growing unchecked as law enforcement resources target opposition political activities rather than crime. The Government must accelerate the implementation of the reform agenda if Maldives is to see long-term stability, peace and prosperity, instead of insinuating that democracy and human rights protection beget religious extremism and instability. Without implementing the reforms listed below, the elections to be held in 2008 cannot be free, fair or inclusive or enable the people of Maldives to choose a leader for the future who can save the country from creeping extremism and rampant corruption and strengthen democracy.
In June 2004, President Gayoom promised to make Maldives a liberal democracy, and promised to establish an independent judiciary, implement a two-term limitation on the office of the presidency, remove his control over the parliament and the elections commissioner, strengthen government accountability and human rights protection, and allow multiparty elections. These measures were outlined as a 31-point proposal to revise the Constitution, a task to be completed by the end of 2005. Having missed that deadline without any meaningful progress in writing a new Constitution, in March 2006, in response to strident criticism that the government was not serious about implementing the proposed reforms, the President announced a detailed Roadmap which provided time-frames for the implementation of the reform programme.
The Reform Agenda, as detailed in the Roadmap, included the 31-point proposals announced by the President in June 2004, the 5-Year Criminal Justice Action Plan published in 2004 by the Attorney-General, specific commitments to embrace international norms and practices in human rights protection and anti-corruption measures advocated by the Foreign Office, and actions designed to promote civil society and civic education. In addition to revising the Constitution, the Roadmap also identified primary legislation and executive actions to ensure that legal, administrative and political frameworks were in place to ensure that the elections in 2008 would be free, fair and democratic.
18 months on, the Reform Agenda has failed to deliver crucial reforms that could lay the groundwork for the litmus test of making the elections free, fair and inclusive. Public confidence in the sincerity of the government’s commitment to the Reform Agenda has been dealt a severe blow by the President’s announcement that he would run for a 7th consecutive term as president in the elections due in 2008, despite having voluntarily offered a two-term limitation in his 31-point proposal. His claim that he requires more time to complete the Reform Agenda is at best an admission of the failure of the Roadmap and at worst an outright rejection of the Roadmap. The government and the ruling party are either heedless or unaware of the potential for instability and chaos that reneging on the promises for reform could create for Maldives. Failure to resuscitate the Reform Agenda and honour the pledges made by the President in 2004, can only increase distrust, polarization and instability in the community and lead to a showdown between the forces of reform and those of reaction.
The results of the public referendum held on 18 August 2007, to choose between a presidential or Westminster-style government, are being misconstrued as an endorsement of the present government. Far from it, the people voted for change—for the separation of powers and term limitation on the presidency, demands which have been consistently made for a number of years. Needless to say, public frustration is running high, especially as the government has shown no sign of abiding by the Roadmap.
The Failure of the Roadmap
The Roadmap pledged the implementation of reforms on three tracks. These were reforms to be effected by the People’s Special Majlis (Constitutional Assembly), the People’s Majlis (Parliament), and the Executive.
• The Constitution was to be completed by 31 May 2007, but the date lapsed without a single chapter being completed. Even where the Assembly has voted for clear departures from current practices, the government has either ignored them or acted contrary to those measures. While the government is technically not bound to implement these decisions until they are passed in the form of a Constitution, the government can demonstrate good faith by acting in accordance with the spirit of the decisions reached by the Assembly.
• While the Roadmap proposed 22 separate pieces of legislation, only three have been passed. These are namely the Audit Bill, the Civil Service Bill and the Bill Amending the Human Rights Act. Even in these cases, the Audit Act has not been implemented.
• The government pledged in the Roadmap to carry out a number of executive actions to advance reform, but little has been done. These promises include accession to international human rights instruments, implementation of civic education programmes, proclamation of a regulatory framework on public assembly, formation of a Police Integrity Commission, establishment of a supreme court and an ombudsman’s office, and holding local elections. While human rights instruments have been acceded to, they are not being implemented; the regulation on public assembly falls short of the international norm; and the Police Integrity Commission is a lapdog rather than a watchdog of the Home Minister. But nothing is more worrying than the failure to strengthen the independence of the judiciary.
Is there a commitment to reform?
The sense of frustration of pro-democracy elements is reinforced by their perception that the government has deliberately sought to delay and derail the Reform Agenda. They point out to a number of actions that demonstrate lack of good faith.
• It was the government who pulled out of the Westminster House process in October 2006 by refusing to nominate its contact group to sit down with MDP to speed up the Reform Agenda.
• It was the DRP who pulled out of the talks with MDP in February 2007 when a plan had been agreed with MDP to form a three member Panel, including the constitutional expert deputed by the UN, to draw up a mutually agreeable text of the Constitution.
• The Police Integrity Commission was handpicked by the Police Commissioner and was deliberately made a toothless body, which was still-born.
• The regulation on public assembly, which does not meet the international norm on the right to peaceful assembly, was issued without the concurrence of the Attorney-General and therefore unconstitutionally intruded on the rights of citizens.
• The decision by the Cabinet in 2005 to make the Judiciary independent was not implemented by the President. There is no judicial independence and the government has virtually ignored the recommendations of UN Special Rapporteur on the Independence of Lawyers and Judges.
• The pledge made by the government to provide, by April 2007, a legal framework to ensure right to information has not been honoured.
• Although the government has acceded to the UN Convention against Corruption, it has not honoured a pledge to table a bill to strengthen anti-corruption measures.
• The announcement by the President that he would contest elections in 2008 reneges his pledge on two-term limitation for the presidency. President Gayoom’s candidature makes it doubly imperative that the Reform Agenda must be speeded up, rather than frozen, pending the completion of the work on the new Constitution. Democracy is not a document, but a set of ideas and values and the government must demonstrate its commitment to democratic ideals.
Reviving the Reform Agenda: Pathways to Democracy
With the intention of reviving the reform agenda and ensuring that the multiparty democracy is made a reality in 2008, we propose that the President undertake the actions outlined below in 7 key areas.
1) Strengthen the independence of the judiciary
The Roadmap pledged the creation of a Supreme Court by August 2007 and to institute other measures to enhance the independence of the judiciary. The actions of the government over the past 18 months have ignored these promises. It is imperative that the people of the country have recourse to a judge who is not answerable to the executive.
a) Divest the Chief Justice of non-judicial functions
The current Chief Justice, in addition to being a presidential appointee, also holds a post in the executive branch, namely, President of the Supreme Council on Islamic Affairs. This dual role must come to an end. The Attorney General had, in January 2007, publicly called for the divestment of the non-judicial functions of the current Chief Justice.
b) Follow emerging practice and appoint a Chief Justice with the advice and consent of the parliament
In the referendum of 18 August 2007, the people have resoundingly endorsed the principle of separation of powers. The Constitutional Assembly has already resolved that under the new constitution the Chief Justice would be hired and fired by the President on the advice of the Parliament. Also Parliament has recently set up precedents for the appointment and dismissal of head of independent institutions with the advice and consent of the parliament—namely, the Auditor General (Audit Act 2007), members of the Civil Service Commission (Civil Service Act 2007), members of the Human Rights Commission (Human Rights Act 2006), and Governor and Deputy Governor of Maldives Monetary Authority (Maldives Monetary Authority (Amendment) Act 2007). Therefore, without waiting for any specific law to come into force, the President should demonstrate good faith and enhance the independence of the judiciary by appointing a Chief Justice with the advice and consent of the parliament. It is an anomaly that the judiciary not enjoy the independence enjoyed by lesser institutions.
c) Increase transparency and public confidence in the highest court of appeal by holding public hearings as pledged by the President on 11 November 2005
Currently the proceedings of the highest judicial body in the country, i.e. the Council which advises the President on judicial matters, take place behind closed-doors. Lawyers are not allowed to appear and argue before the Council. Its judgments are based on written submissions only. Further its judgments are not accessible to litigants, lawyers or the public. On 11 November 2005 President Gayoom, announced that proceedings of the Council would be made public in order to enhance transparency of the judiciary. However, to date no action has been taken despite repeated demands by the Attorney General.
2) Undertake urgent reform of the Criminal Justice System by revising current administrative guidelines to incorporate standards which are contained in proposed reform legislation and are consistent with human rights obligations
As part of the government’s effort to overhaul country’s criminal justice system, the government has, among others, submitted the following Bills to the Parliament.
• Criminal Procedure Code (Presented to the Parliament)
• National Security Service Bill (Presented to the Parliament)
• Police Bill (Presented to the Parliament)
• Prison and Parole Bill. (The government continues to hold back this Bill despite repeated requests by the Attorney General to present it to parliament).
Without waiting for the Parliament to pass these Bills, the government could issue Presidential Decrees incorporating these Bills. Even at the present, these areas are governed by administrative regulations and guidelines. Therefore, there is no reason why the government cannot issue Presidential Decrees to revise those guidelines to reflect the practices proposed in the new legislation and honour commitments made by the government under international human rights treaties.
3) Reconstitute the Police Integrity Commission to make it an effective watchdog
The Government failed to establish an independent Police Integrity Commission, in accordance with the Roadmap. According to the Roadmap the Commission was to be established on 31 August 2006. As part of the Westminster House negotiations, the government and MDP agreed that members of the Commission must be agreeable to both sides. This was not honoured by the Government. Members of the Commission (yet to be established fully) were handpicked by the Commissioner of Police Mr. Adam Zahir himself which was a mockery of the Roadmap’s letter and spirit as the very objective of the Commission was to check abuse of power by the Police Commissioner himself.
4) Entrench media freedom by establishing the right to information
In the past three years the country has experienced unprecedented level of freedom of expression and press. The reasons for this new found freedom are: refusal of the Attorney General to prosecute under the current penal code and other related laws; liberal policies adopted by the Ministry of Information, Arts and Culture; and international pressure exerted through the Foreign Ministry. However, there has been no change made to any law or regulation which had previously suppressed media freedom. Therefore, the new found media freedom could easily be compromised with a simple change in prosecution policies or changes within the Ministry of Information. To strengthen this fundamental right further, the government has submitted the followings Bills to the Parliament.
• Media Freedom Bill
• Freedom of Information Bill
• Registration of Newspapers and Magazines Bill
• Broadcasting Bill
• Cable Television Service Provision Bill
Judging from the current slow pace of the Parliament it might take several months, if not years, to pass these laws. Therefore, without waiting for the Parliament, the government could promulgate these Bills in the form of Presidential Decrees. In fact, in January 2007, the government promised the proclamation of a decree establishing the right to information when it introduced anti-defamation provisions. Such a decree has been awaiting Presidential authorization since April.
5) Strengthen anti-corruption measures immediately
a) Free prosecution decisions from executive approval
Current practice of the Anti-corruption Board (ACB) is to submit its investigative findings to the President’s office. Only after approval from the President’s Office can cases be referred to the Attorney General’s Office for prosecution. The government should discontinue this practice immediately.
b) Honour commitments made under the UN anti-corruption convention
The Constitutional Assembly has resolved that the ACB would be a fully autonomous body under the new Constitution. The government has also acceded to the UN anti-corruption convention. Therefore, the government should take steps to ensure the ACB is a fully autonomous body. This would include revision of the procedure for the appointment of the Board members, and provision of job security, for instance.
c) Require that public office-bearers declare their assets and interests
Corruption seems to be most rampant at higher levels of government. Therefore, the government should require the President, ministers, deputy ministers, and other political office bearers to declare their assets and interests.
6) Implement the Civil Service Act without further delay and dismantle the patronage system as required under the Act
The government continues to give unjustified promotion to civil servants who are supporters, activists of the governing DRP while denying even justified promotions to those who are sympathetic to the Opposition or those who failed to support the DRP. The Government should immediately discontinue this practice. Also the government should stop dragging civil servants into politics. Further the government should expedite the establishment of Civil Service Commission and enforce the Civil Service Law in its entirety well before the next elections.
7) Strengthen the independence of the Elections Commissioner and invite international monitors now
In addition to making the Elections Commissioner independent, the government must also implement the recommendations made by the Commonwealth Election Observer team of 2005 and of the Assessment Team of 2007. In order to ensure that there will be credible international observers to the next election, the government must invite the Electoral Affairs Division of the UN Department of Political Affairs to send their assessment mission to Maldives.
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