The Judicial Service Commission (JSC) – the state watch-dog of the judiciary – has today (December 12) decided to disregard the letter sent to the commission by the Chief Justice Ahmed Faiz Hussain objecting to its decision to transfer judges between Superior Courts.
The letter, sent by Chief Justice Faiz on Tuesday to JSC Chair and fellow Supreme Court Justice Adam Mohamed, stated that the commission’s decision to shuffle superior court judges was not valid as the commission did not have the necessary legal authority.
JSC member MP Ahmed Hamza – the parliament’s representative to the commission – told local media today that the commission members had discussed the letter sent by the chief justice, but the majority held the view that the objections towards the decision lacked any legal grounds.
“Even under the constitution and the JSC Act, the commission is vested with the power to transfer the judges,” Hamza told local newspaper Haveeru.
Speaking to Minivan News, JSC Member Sheikh Shuaib Abdul Rahman confirmed that such the decision.
However, the Secretary General of JSC Abu Bakuru told Minivan News that “although the matter had been discussed by the commission members, the JSC has not yet formally made the decision”.
Chief Justice Faiz in his letter to JSC claimed that, although Article 159(a) gives the JSC the authority to appoint, promote or transfer judges other than those from the Supreme Court, it “must not be interpreted as an absolute right”.
Faiz also contended that the Judges’ Act mandated that any transfer of a judge from his appointed court can only be carried out following deliberation with the Judicial Council – the seven-member bench of the Supreme Court .
List of Transferees
The JSC had earlier decided to shuffle nine judges from the superior courts based in the capital Male’, including the Chief Judge of Criminal Court Abdulla Mohamed who was to be transferred to the Drug Court.
Judge Abdulla Mohamed has previously been under investigation from the JSC, for allegations of ethical misconduct and obstruction of corruption investigations among others.
Apart from Judge Abdulla Mohamed, the JSC had also planned to transfer Criminal Court Judge Muhuthaaz Fahmy and the Acting Chief Judge of Juvenile Court Mohamed Naeem to the Drug Court.
Meanwhile, Drug Court Judges Mohamed Easa Fulhu and Zubair Mohamed and the Family Court Judge Ibrahim Ali were to be transferred to the Criminal Court.
The JSC also decided to transfer Family Court Judge Hassan Shafeeu to the Civil Court and Criminal Court Judge Abdul Baaree Yoosuf – currently serving an indefinite suspension by the JSC following a case of sexually assaulting a female state prosecutor – was set to be transferred to the Juvenile Court.
Article 159(a) of the Maldives Constitution states that, “The Judicial Services Commission is entrusted with the responsibility and power to appoint, promote and transfer Judges other the Chief Justice and Judges of the Supreme Court, and to make recommendations to the President on the appointment of the Chief Justice and Judges of the Supreme Court”.
Meanwhile Section 49 of the Judges’ Act 2010 refers to temporary transfer of judges from one court to another and states, “Temporary appointment of a Judge to preside over cases in a court will be decided upon by the Judicial Services Commission under the advice of the Judicial Council”.
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This is the right direction, finally. Next, reform the Supreme Court bench!
The right direction would be reforming the JSC. Public confidence in the institution would be restored if it included qualified former judges and respected and experienced legal experts.
Currently a political institution made up of individuals whose main task is furthering the interests of their respective parties is not going to help reform the judiciary.
A decision to transfer a judge should be made;
1) At his own request;
2) Due to a lack of skills and competency;
3) In order to help develop another court which lacks judges with the proper qualifications.
The basis of the transfer should be made public. The judiciary itself should also be consulted. Politicians punishing judges at whim is not the judicial independence we tried to introduce with a new Constitution. Imagine if the JSC is controlled in the future by politicians whom you oppose. What if they "transfer" a judge to a non-court such as the Drug Court for ruling against a crony or party affiliate? Is that then judicial independence?
I don't think so.
Oh hello tsk tsk you have an opinion about the JSC?
@Shafeea:
I have consistently criticized the setup of the JSC.
Although politicians in the JSC have tried to present the recent transfer of judges as a refreshment exercise, the reality is that in some cases it is a punishment.
Consider the case of a former Chief Justice or Acting Chief Justice who is transferred to another court as a regular Judge. There would be a drop in salary and status.
Consider Criminal Court/Civil Court judges who are on average paid higher than Drug Court/Family Court judges being transferred from the former to the latter. There would be a drop on salary and status.
Consider a Criminal Court Judge who is elevated to the position of Chief Justice of that Court. There would be a rise in pay and status.
Consider a Drug Court/Family Court Judge who is transferred from those courts to the Civil Court/Criminal Court. There would be an increase in wages and standing.
So the enrichment provided or punishment effected by those transfers needs to be justified and based on objective criteria. It cannot be purely done on whim. Then it cannot be seen as anything but a political gift paid out to cronies and associates. I don't know why the ACC never takes the initiative to look into these measures (possibly because it is a deal between the two most powerful political parties in the country).
In addition to the raise and reduction in status and pay for the parties concerned think about the impact on the public as a result of the transfers.
Drug Court/Criminal Court Judges deal with criminal cases so they are experienced in criminal law. For this reason they are sometimes chosen from a pool that consists of lawyers from the PGO (in the case of the Drug Court) and Shariah-trained graduates of Arab Islamic countries or the Kulliyya (in the case of the Criminal Court). If those individuals are transferred to the Civil Court, how can we expect them to rule on contractual/business/property/Human Rights/Administrative Law-related matters? What training are they subjected to? How much time are they given to prepare before they start handling complex civil law matters without the proper background?
These are all matters of public concern. But by all means shall we all look at this issue as some kind of prize fight between two wrestlers.
JSC v Supreme Court - place your bets y'all.