The Judicial Service Commission’s (JSC) decision yesterday to reappoint all sitting judges unless they have been convicted of either a crime with a punishment prescribed in the Qur’an, criminal breach of trust or bribery was “nothing less than treason to rob the people of an honest judiciary”, claims Aishath Velezinee, the president’s member on the commission.
The decision was approved with five votes in favour, two against and one abstention.
Writing in her personal blog, Velezinee warns that the new standard for judges’ conduct could give tenure to 19 judges with either prior convictions or allegations of gross misconduct.
If the decision is validated, she writes, the country “stands to inherit” seven judges found guilty of criminal breach of trust by the relevant authorities but not convicted in court; five judges with allegations of criminal breach of trust; two judges who face prosecution for criminal breach of trust; one judge on trial for sexual misconduct; two judges found guilty of sexual misconduct but not tried at court; one judge guilty of a crime with a punishment prescribed in the Quran; and one judge guilty of sexual misconduct and accused of criminal breach of trust.
“It is indeed a sad state of affairs, and an insult to all those honest judges whose integrity and good name is compromised by today’s decision,” writes Velezinee.
Confidence in the judiciary
Velezine told Minivan News today that the JSC decision could lead to eroding public confidence in the judiciary.
Article 285 of the constitution stipulates that the JSC shall determine before 7 August 2010 whether or not the judges on the bench posses the qualifications specified by article 149.
The criteria in the constitution requires that he or she “must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, and must be of high moral character”.
The JSC’s decision went “against the purpose” of the constitutional provision, said Velezinie: “I believe this was a decision taken by four men raising their hands. It is a matter of national interest as public perception will be affected if people can’t trust the honesty of judges.”
Moreover, it was of the utmost importance to inspire public trust in the judiciary “to avoid democracy failing because of a weak judiciary”.
Velezinie said official records show that some judges “have convictions from other institutions” such as the former Anti-Corruption Board.
“As you know, in the past we did not have a culture where everything was decided by the courts,” she said, adding that the judgments were passed in accordance with the old constitution.
After delaying and “failing in its primary task” of reappointing judges until August last year, a subcommittee chaired by Civil Service Commission President Dr Mohamed Latheef was formed to draft guidelines for the standards.
But, she added, the final report of the committee comprised of “four judges and Dr Latheef” was only presented last Sunday.
Abuse of power
Both Velezinee and Attorney General Husnu Suood have accused Supreme Court Justice Mujthaz Fahmy, president of the JSC, of “abusing the authority of his position” to delay and obstruct the reappointment process.
While Velezinee said Mujthaz Fahmy was among the 19 judges with prior records, Suood accused Fahmy of holding up the promotion of rival judges for “personal reasons”.
Suood said the judges on the commission were “not cooperating” with the task of reappointing judges.
However, Judge Fahmy has denied the allegations: “Velezinee is lying if she really said that. That’s incorrect information.”
Fahmy stressed that the process of screening judges for reappointment had not yet begun and yesterday’s meeting was to “discuss the guidelines drafted by the subcommittee”.
The commission will go through old records and judges with prior convictions in court would be “disqualified”, he said.
Fahmy said he had “complete confidence” that the process could be completed by the August 7 deadline.
Apart from reappointment, he added, the commission has been active with hearing complaints, evaluating judges for promotion and formulating regulations and a code of ethics.
On the allegations of abuse of power, Fahmy said he doubted Suood would have accused him of it as the commission’s proceedings take place in accordance with the regulations and all members have an equal say.
“I wouldn’t say that judges have an undue influence in the commission as we don’t have a majority,” he said. “There are three judges on the ten-member commission”.
“Runaway judiciary”
Meanwhile, Ibrahim Ismail “Ibra”, former MP for Male’ and chairman of the drafting committee of the Special Majlis, the assembly that revised the constitution, said the substance of the criteria in article 149 was not limited to convictions.
“The assumption is that judges will have a higher than average standard of conduct,” he said. “Judges should be exemplary figures. So even if they have not been convicted of a crime, it does not mean they automatically have the code of conduct expected from a judge. They are expected to exhibit moral standing.”
He added that the JSC’s decision was tantamount to “the lowering of the standard expected from judges”.
Moreover, he said, the JSC was not empowered to “set standards by themselves” as the constitution grants that power to the People’s Majlis.
The parliamentary committee on independent institutions could order the commission to overturn its decision, Ibra continued, or establish standards and criteria for judges’ qualifications in the Judicature Act.
Ibra predicted that the decision will lead to escalating tension between the executive and the judiciary, which would have “very negative consequences”.
“Sadly, because of the actions of some judges who want to subvert the constitution for their own purpose, the credibility of the entire judiciary will be diminished,” he said.
While the Supreme Court was making “some headway” in reforming the judiciary, the courts did not inspire “a great deal of confidence from the public”.
Ibra speculated that judges understood “a divided Majlis cannot not hold the judiciary accountable” as the “comics in there can’t agree on anything”.
In the absence of effective oversight, he ventured, the judiciary was “having its heyday”.
Parliament exercising its authority to set minimum standards for judges would not be a solution either, Ibra argued: “Because the JSC is dominated by judges and the old guard, they will disregard it and even strike down laws.”
Judicial independence
In June last year, the Judges Association called for a constitutional review to change the composition of the JSC to allow only members of the judiciary on the commission.
The procedure for the removal of judges laid out in article 154 requires the JSC to find that the judge is grossly incompetent and submit a resolution to parliament for the removal of the judge.
A judge could only be dismissed if a two-thirds majority of MPs present and voting support the resolution.
Ibra said some judges were misinterpreting the “independence of the judiciary” to mean that “judges were above the law”.
“What I see happening is that some people are arguing that no organ of the state can influence or dictate anything to the judiciary,” he said. “That is not independence. That is putting them above the law.”
After two years of the JSC, he added, most people would agree on “the wisdom of the Special Majlis” in constituting the commission.
According to Article 158 of the constitution, the JSC shall consist of the speaker of parliament, an MP and a member of the general public appointed by parliament; three judges each elected from the Supreme Court, High Court and the trial courts and a private lawyer elected among licensed lawyers; the Chair of the Civil Service Commission, a person appointed by the president and the attorney general.
“In retrospect if I could change anything in the constitution, I would argue that the time has not yet come to keep any judges on the commission,” Ibra said.
Moreover, he said, the current judiciary faced an acute lack of qualified professionals with an “adequate” grasp of the constitution and the laws of the country.
“What I see is a runaway judiciary that will become increasingly tyrannical, that will pass judgment on people and no one can hold them accountable.”
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I agree with Ibra's comments a 110%
It is a clear conflict of interest when judges are present on the Judicial Service Commission, to make decisions on themselves.
At best, they should have been given non-voting seats for the sake of inclusiveness and participation. After all any decision the Judicial Service Commission makes will impact judges.
Maldives is the only country in the world which has a judicial service commission that is dominated by non-judicial members.
The reason being that a Judicial Service Commission that has 7 politically appointed/elected members results in a very biased political influence on the judiciary.
The only reason we have such a Judicial Service Commission is because we had highly ignorant people such as Ibrahim Ismail in the Majlis drafting committee.
It actually is a joke to have the speaker of parliament at the judicial service commission,
1. Should we have judicial members sitting in the parliament? to check if they are working fine?
2. Should we have judicial members sitting in the cabinet to check if the cabinet is deliberating well enough?
NO! thats not how it should be, judicial members should be in the judiciary and political members should be in the political arena, its when everything is mixed up by inexperienced ignorant fools like ibra, that this constitution is so unclear and leads to tyranny no matter which branch of the state you are in.
I am quite surprised that Ibra disregarded best practice when constituting the judicial service commission and opened the judiciary to political control
But he could not include one of the most basic clauses such as a disciplinary procedure for parliament members, currently even if the parliamentarians beat each other, or do anything criminal they cant be removed, there is no removal process in the constitution they will still be there for the next 5 years.
I would have hoped that minivannews get opinions of lawyers rather than a man who is being bombarded with cases and sits half the time at the court and who was voted out of the parliamentary race for his gross incompetency.
On one side, people are shouting about all sorts of rights and social justice.
On the other, so-called 'judges' who are appointed to deliver justice do not seem to have a clue what a right is, so how on earth can they be expected to uphold anything ?
The stories about the extremely poor 'human' quality of our judges abound.
While this article tries to protect the majority of judges as 'honest' and highlights the cases of the significant minority who are seriously unfit for the position, it is hard to accept whether the rest are up to the mark either!
We put the future welfare of abused women and children in the incompetent hands of these so-called judges whose 'judgements' only serve to re-victimise the vulnerable.
Battered women who suffer years of abuse are told to go and 'reconcile' with the perpetrator again and again.
Abused children are sent back to live with the abusers.
Perpetrators of abuse are allowed to become predators in the community because of supposed lack of 'evidence' and such predators are thus empowered to continue destroying other lives.
These common stories reflect not just the incompetence of a long neglected legislative system but also the utter failure of appointed judges.
In this country, judges have helped to debase and disgrace this society. Judges have played an active role in not serving justice.
How can there be public confidence in a bunch of incompetent and ignorant men who have no record of displaying moral substance to deliver justice? How can there be public confidence in a group of people known to make judgements on whim and fancy and work to serve personal interests rather than the public interest?
In a country where individual and personal accountabiity has become virtually non-existent, I suppose it is a tall order to expect the judges to be anything but bent and crooked themselves!
And it is an indication of the poor 'human' quality of the men in positions of power that members of the JSC have chosen to retain unfit human specimens to deliver justice in our society.
As someone once said 'this is a sick society'. And it's sickness is evident in the poor decisions being made by the people who are required to have 'high moral character', a degree of self respect and know the meaning of professional integrity - but clearly do not.
But of course, the quality of human specimens on offer in this country's judicial landscape is seriously unfit for purpose and it looks like those in power are happy to keep them there. No doubt it is in their personal interest to do so ?
Ibra is wrong to get this country going and even to hold the judiciary accountable we need to change the constitution as it was before during Gayooms "heyoverikan" Here are few things we need to do as soon as possible to rectify your mistakes as you are the sole person responsible for the current problems face by this goverment:-
1.We need to go into a coolition with the "alleged robbers " of the country as they have the economic know how to lead us from the current finacial and economic plight.
2.Take away all our civil liberties
3.Appoint judges as crooked as they were before but will bent before the governments demands
4.Give president and also the parliament the right to pardon convicted criminals as they see fit.
5.Give police the right to hold alleged and suspected criminals indefinitely, take away our right to remain silent and all those things that keep police in check.
6.give away all the islands to anyone willing to to anu project for the betterment of the people. when we need to switch to larger sewrage pipes we will just lease the sea or lagoon.
7.anyone who either is corrupt or a criminal if he joins MDPjust keep your mouth shut and let him go through our washing machine.
8. for one just agree that Maldives will never be ready for a democracy as practiced by humane people. We need things done as we are sleeping and we want state to provide everything for us be it even a wife/husband.
every time something goes wrong its either the constitution or the judiciary or the opposition.Every time some one commends the constitution its Mariya and MDP that gave it to the Maldivian people.
With the justice system so corrupt, it will be next to impossible to actually reap the benefits of democracy... or even sustain it.
And in most likelihood due to the weakness in our justice system, the hard core Sharia advocates, who seem to only see the death penalty, cutting of hands, stoning women as the solution will eventually gain strength... and then, my dear country men/women...we will be doomed...cos extremism is not easily gotten rid of...
First, this Ibra is a person rejected by the people and thrown out of the majlis and still he has this big mouth? second, when will the "Yellow" learn to respect the decisions of the majority?
we will never give up.
We just need good people. No system and rules and regulations is going to get Maldivian justice system sorted out. We just need a few good people. Is it too much to ask for?
@ HassanK
Cannot agree more.
We need a few good people. We do not need a whole bunch of crooks.
The sad thing is, even though the government HAS more than a few good people who are willing to work to make things better, we do not see things getting better.
Why?
Why do we always hear complaints?
Is the government really making blunder after blunder?
If this is how it is going to be for the next three years, I think President Nasheed should go ahead with the mid-term elections.
People are slowly getting frustrated. Maldivians may not be as educated as some others but we are not dumb either.
You cannot blame the judicial system or the constitution for everything.
Great information! I’ve been looking for something like this for a while now. Thanks!
Come on Velezini, whats the big deal in Maldives, if some one is convicted for something? Even President Nasheed was convicted for burglary and theft, but he is the head of state today.I mean to say Maldives kangaroo courts any one can be convicted for anything. Havent you read lately all these coming from courts on favor of Lolly Jabir to give him Kuda Villingili. God bless Maldives and its judiciary.
This is no different to Islamic Ministry making decisions on all issues to do with religion.
Self-regulation does not work in dishonest societies.
If they have been found guilty by the anti-corruption board does that make them guilty by the court? How does the system work? Do they have criminal records or not? if they do then why are they part of the JSC?