The Judicial Service Commission (JSC) has told the Civil Court it removed the former Chief Magistrate of Thinadhoo in Gaafu Dhaalu Atoll, Ahmed Shareef, from the bench because of a previous conviction for having an affair.
In court for the third time this year facing allegations of unconstitutional behaviour, the JSC defended its decision to remove Shareef from the bench in August 2010 by providing the court with a detailed account of Shareef’s previous conviction dating back over a decade.
According to the records, Shareef was sentenced to two months under house arrest on July 30 2001, for having an affair. Shareef and the other person had been engaged in a “connection of love” prior to the case being brought to court in 1998, the records state.
The Criminal Court, which handled the case, was in possession of a photograph taken in Shareef’s house where the pair were alone on a bed. The sentencing judge said the court had determined the image depicted a sexual offence. Initial documents submitted to the court by the JSC to the labelled the other party in the affair as male, however the JSC has since claimed the party was female and that this was a typo.
As Shareef was a first time offender the judge suspended Shareef’s sentence for a period of three years. Which means, Shareef has argued, he did not fail the moral standards required of a judge by the Constitution as was wrongfully determined by the JSC.
Shareef is also alleging that there were a total of 37 judges, including himself, with previous convictions. The JSC removed only six of them from the bench, meaning that there are still 31 individuals with criminal convictions on the judiciary’s benches across the country.
In the Civil Court yesterday Shareef’s lawyer Ahmed Zaheen Adam said he is seeking from the JSC a list of all the judges currently on the bench who have criminal convictions to their name.
He also wants the JSC to furnish to the court details of the said convictions as well as the manner in which the JSC considered details of the offences prior to making the decision to allow them to remain on the bench.
According to papers filed by Shareef, the convicted offenders on the bench were – or are – involved in offences relating to misconduct, fraud, bribery and other crimes.
Shareef wants the JSC to explain the criteria it used to determine who should go and who should stay on the bench in what was intended to be the biggest clean-up in the history of the judiciary last August, required by the 2008 Constitution.
Shareef is alleging that the JSC did not, in fact, have a standardised and pre-determined methodology for deciding which judges were qualified to stay on the bench.
Similar to the allegations made recently against the JSC by two failed applicants to the High Court bench, Shareef has accused the JSC of allowing personal opinion and interest to influence its decisions regarding the fate of members of the judiciary.
Shareef alleges that the JSC paid scant regard to the Constitution or statutory law in dismissing him.
The Judges Act, he has argued, states that a member of the judiciary will be seen as failing to meet the required ethical and moral standards if they had served a sentence for a criminal offence in the seven years previous to his appointment.
Shareef’s conviction was 11 years old when he was removed from the bench on August 5, 2010, and his sentence had been suspended.
The Judges Act was being debated in the Majlis at the time of Shareef’s removal, and was passed five days later, on 10 August 2010.
The 2008 Constitution created and mandated the JSC with bringing the judiciary in line with its new standards designed to meet the values ascribed to by a functioning democracy within two years of the Constitution coming into affect. The deadline expired on 7 August 2010.
Had the passage of the Act taken less time in the Majlis, the JSC would have been in possession of detailed guidelines on if, how and when a member of the judiciary can be removed from the bench, the court heard.
Shareef alleges the JSC deliberately decided not to wait for the legislation to be passed by the Majlis and, in fact, expedited the dismissals to suit members’ own personal opinions and interests.
“Speaker of the Parliament Abdulla Shahid is a member of the JSC, and so is Dr Afraasheem Ali, another MP. How can the JSC in all honesty tell this court that it was unaware of the contents of the impending legislation?” Shareef’s lawyer Zaheen asked.
“It is a shame if lawmakers do not know the contents of their own laws,” Zaneen said.
The JSC pointed out that the Judges Act post-dates its decision to remove Shareef from the bench and argued that it cannot be expected to rely on legislation that did not exist. Nor can it be expected, it said, to pay heed to impending legislation.
Shareef is asking the court to reinstate him on the bench and to order the JSC to reimburse his “full salary and privileges” from August 2010 till now. He is also claiming to have suffered great emotional and financial distress as a result of the dismissal and is also seeking compensation for psychological damages.
The case will resume at the Civil Court within the next 10 days, on a date yet to be confirmed.
Correction: Documents provided by the JSC to the court mistakenly labelled the other party in the affair for which Magistrate Shareef was convicted as another male. The party was female and the JSC has since claimed this was a typo. Minivan has corrected the error for this story.
Is the law community finally getting ready to stand up to the JSC?
On Saturday night, as Earth Hour plunged the world into darkness, the Judicial Service Commission (JSC) quietly went about swearing in its controversial five new High Court appointments.
The ceremony, held at the JSC premises in the former Presidential Palace, marks the second time in less than a year that the JSC has sworn in judges under circumstances that are legally dubious and highly challenging for democratic consolidation.
The first occasion was in August 2010 when the JSC disregarded Article 285 of the Constitution relating to the educational and other qualifications of the bench and arranged for close to 200 judges to re-take their oaths, regardless of their professional or ethical qualifications.
160 of the judges had been originally appointed by the previous regime, and over a quarter of them possessed criminal records. Many more failed to meet the required educational qualifications by a long shot, having only attended primary school – an establishment that is yet to be known as a bastion of legal education.
Although the JSC had then decided to treat Article 285 as nothing more than ‘symbolic’, its Annual Report 2010 published this month lists a total of 191 judges as having been sworn in last year ‘under Article 285 (c)’.
The implication is clear, and clearly false – the judges were reappointed to fulfil the stipulations of Article 285.
According to the JSC – except for President’s Member Aishath Velezinee who launched an emotive appeal against the procedure as the judges prepared to re-take their oaths – such a ceremony adequately met the constitution’s ‘symbolic’ requirement for judicial reform.
None of the sitting judges, nor any other member of the law community, mounted any significant objections to JSC’s dismissal of the Constitution as ‘symbolic’ and proceeded to re-take their oaths, implicitly legitimising JSC’s approach.
JSC’s ‘winning’ streak
Until now, this initial tacit complicity of the law community in the JSC’s actions had remained largely unchanged as lawyers and judges all appeared to turn the other cheek as the number of allegations of unconstitutional policies and activities in the JSC continued to mount.
Indeed, none of the cases brought against the JSC have so far been successful. This state of affairs is even more remarkable when it is taken into account the JSC’s ‘wins’ have been due to technicalities rather than reasoned argument or skilled interpretations of the law.
In January last, for instance, the Civil Court threw out a lawsuit brought against the JSC by Treasure Island Limited, which alleged that the Commission had been deliberately negligent in its constitutional duty to investigate all complaints of judicial misconduct.
Despite an admission by the JSC during the hearings that it did not have a standardised procedure for dealing with complaints – or anything else for that matter – the Civil Court threw out the case when the plaintiff was late for what was to be the penultimate hearing.
The dismissal meant that the JSC’s complaints procedure – or lack thereof – eluded legal and public scrutiny despite clear indications that such an examination was necessary in light of JSC’s methods for dealing with complaints, which were at best ad hoc by its own admission.
Last Thursday, it was on almost exactly the same grounds that the Supreme Court dismissed Criminal Court Judge Abdul Bari Yousuf’s lawsuit against the JSC alleging that the policy adopted by the JSC to select candidates for the high Court bench was discriminatory and therefore unconstitutional.
Judge Abdul Bari, the Supreme Court ruled on Thursday, had violated court regulations by taking leave without giving prior notice to the court as is required of all claimants in an ongoing case. On these grounds the case was thrown out.
The Supreme Court’s decision to dismiss the case becomes all the more confounding when seen in light of the force and speed with which it moved to acquire the files from the Civil Court where Judge Bari first lodged it.
Citing ‘public interest’, and the magnitude of its importance to the Constitution, the Supreme Court on 21 January used an unprecedented Writ of Prohibition to force the Civil Court to hand over the case files.
Shortly after, the Supreme Court ruled that given the gravity of the matter, only the Supreme Court had jurisdiction over the case. The Civil Court, it said, did not have the authority to decide constitutional matters or matters relating to a higher court.
No need for a lawyer
After two sittings, in which JSC member Dr Afraasheem Ali – appointed as JSC’s representative to the Supreme Court after some frantic self-lobbying over the ‘big telephone in the JSC’ – denied all wrongdoing, the Supreme Court threw out the case.
Despite having been officially made aware of a leaked audio which provides evidence of the unorthodox – if not illegal – methods by which Dr Afraasheem managed to confirm himself as the JSC’s legal representative, the Supreme Court did not raise any objections to his new role as ‘defence counsel’.
Although the JSC is composed overwhelmingly of judges or other legal professionals Dr Afraasheem is not one of them. In fact, despite the growing number of lawsuits against it, the JSC is yet to hire a professional lawyer – hence the need for members to moonlight as defence counsel, qualified or not.
As it turned out, not much training or skills were called for as the Supreme Court threw out the case on 24 March without addressing the issues that the Court itself had deemed as highly important.
The Supreme Court decision, delivered after 4:00pm on Thursday, freed the JSC to swear in its new appointees. It did not waste any time, quickly arranging for the ceremony to take place not much more than 24 hours later.
Although Supreme Court regulations provide a seven-day period in which a claimant can appeal a ruling, JSC’s expedited oath-taking ceremony effectively pre-empted any such action by Judge Bari.
The Supreme Court’s decision to dismiss the case also means that the concerns raised by Family Court Chief Judge Hassan Saeed alleging similar violations of the Constitution by the JSC in its High Court appointments were not addressed either.
By the time he lodged his case, also at the Civil Court, the Supreme Court had ruled that only it had jurisdiction over the matter. His case, too, was then transferred to the higher court to be heard with Judge Abdul Bari’s case.
Personal interest versus public interest
Unlike the oath-taking ceremony in August last year, there appears to be less appetite among members of the judiciary to swallow whole the JSC’s interpretation of the Constitution this time around.
Back then none of the judges stood to make a personal loss in re-taking the oath. The negative impact of such an action would have been, and has been, on the public’s faith in the independence of the judiciary.
In the current dispute, however, the JSC’s appointment criteria as well as the Supreme Court’s dismissal of any alleged wrongdoing on the part of the JSC have cost the appellants – and other unsuccessful candidates – a seat on the High Court bench.
The personal cost appears to have galvanised the law community into action in ways that the JSC’s dismissal of the Constitution in August 2010 did not.
Judge Hassan Saeed, for instance, wrote to President Nasheed on Saturday, asking him to apply the powers vested in the executive by Article 115 of the Constitution, which accords the president both the right and the duty to intervene in furtherance of the rule of law.
Judge Hassan Saeed’s appeal to President Nasheed to use his executive powers to bring the JSC in line marks not only a potential turning point in the law community’s attitude towards the JSC and the role of the courts in supporting it; it also signals a u-turn in the judiciary’s perception of the executive’s relationship with the judiciary.
When President Nasheed criticised the JSC in June 2010, when it first decided to disregard Article 285 of the constitution, the Judges Association of Maldives (JAM) was scathing in its response.
In a press release, JAM described President Nasheed’s condemnations of the JSC’s actions at the time as ‘disrespectful towards the honour and dignity of judges’, and said his criticisms were indicative of the ‘negative view he holds of the judiciary’.
The Judges Association also accused the president of attempting to unduly influence the JSC, which it said, would ‘render separation of powers obsolete’.
It is not known yet whether President Nasheed has responded to Judge Hassan Saeed’s letter, a copy of which Minivan News has obtained.
If the president does heed the call to intervene in the matter, the law community’s reaction would tell whether or not it has arrived at a point where it is willing to stand up to threats to judicial independence – perceived or real.
As Pakistan’s law community demonstrated in 2007, the strongest ability to establish and protect the independence of the judiciary lies within itself and not outside of it.
The Parliament (Majlis) today resumes the debate on amending the Clemency Act to bring back capital punishment. Although the constitution allows the death penalty, the Maldives is abolitionist in practice.
The last time the Maldivian state put a person to death was in 1953. Depending on whether or not a majority of MPs agree to send the proposed amendment to the committee stages, today begins the process of reversing this tacit understanding of the death penalty as a form of cruel, degrading and inhuman punishment.
The amendment was proposed by MDP MP Ahmed Rasheed (Hoarafushi) after an urgent motion he introduced earlier in the Majlis session of March 8 to discuss the recent escalation of violent crime. It came on the foot of a savage altercation between members of rival gangs on March 4 in which three men were injured and a member of the public was forced at knife-point to hand over his motorcycle to one of the perpetrators. Blood was spilt in broad daylight, at the Artificial Beach, a public place frequented by families. Clearly, it is an issue that requires the immediate attention of the Majlis.
The debate that ensued, however, appeared to focus less on practical measures that can be taken to address the problem and more on finding a scapegoat with the meatiest political flesh for rival MPs to bite into.
Several MPs rushed to point the finger of blame at anyone else except the legislature itself: the security apparatus was acting with impunity in its refusal to be answerable to the Majlis; the criminal court was not doing its job properly; the president had been too lenient with members of the old regime who committed acts of torture and embezzled state funds; and the president had neglected to give due importance to the matter in his inaugural address of the Majlis on March 3, allegedly discouraging members from pursuing the matter with the required urgency.
People in glasshouses
“I was arrested on July 7 last year in allegations of planning to attack a politician with a sharp implement. They kicked in the door of my house. That was how it happened with me. But people who kill others on the street walk free,” Deputy Speaker of the Parliament and MP of the opposition-aligned People’s Alliance (PA) Ahmed Nazim said, joining the debate on March 8.
“And when I was under house arrest, confined within my own four walls, there were people throwing stones at my house, shattering the glass. They, too, are out there somewhere, walking free,” he continued. He was, Nazim said, “one of the few people in the Majlis with personal experience” of gang warfare and violent crime.
The ‘personal experience’ factor was significant in the debate. In addition to Nazim, MP ‘Reeko’ Moosa Manik (MDP) and independent MP Ahmed Amir, relayed similar narratives of up close and personal encounters with violent crime. “I, too, was imprisoned,” Moosa said.
Having made allegations of torture against former President Maumoon Abdul Gayoom, his proposed solution to the problem was to imprison Gayoom himself. “As long as Gayoom walks free, there will never be an end to this problem”. MP Amir relayed his own woes of being “hit in the back while an MP”, and updated the Majlis on the fact that nothing has been done since, leaving him with a feeling of diminished equality.
MP Ahmed Rasheed, had a similar personal narrative underlying his push for implementing the death penalty. Based on “one case in which I was personally involved in”, he generalised for the Majlis the woeful inadequacies of the current criminal justice system.
“The lawyers that the Prosecutor General send to the court to represent the state are usually young children, with no experience”, he said. “With an hour, half an hour or twenty minutes to go before the court sits, these children are handed hefty case files, and told: “Here, young lady, take the file”. They are, of course, trounced by the more experienced lawyers for the defendant”, he said.
MP Rasheed’s blatantly sexist hymn sheet was shared by Deputy Speaker Nazim, who also referred to the “young 18-19 year-old girls” who represent the Prosecutor General in court, and are allegedly posing a threat to national security. Neither MPs mentioned that the more educated members of the judiciary are to be found among the country’s youth and not among the ‘experienced judges’ most of whom have had very little legal training despite having been on the bench for long periods of time.
Putting the death penalty in an Islamic frame
The deeply personal nature of the Majlis’ debate on an issue of such national importance is extremely troubling. So too is the quality of the debate so far that has put the death penalty within the framework of Islam and Shar’ia. Very few MPs have displayed any knowledge of either the long and incessant international debate surrounding the death penalty, nor the rich Islamic jurisprudence on capital punishment. Nor did they demonstrate an understanding that the matter of gangs and rising crime cannot be solved by personal opinions but may need proper study and expert advice across the board on the criminal justice system.
One MP, Ahmed Saleem, for instance, declared all legislation as irrelevant and unnecessary given the completeness of the Qur’an. To clarify his claim, he presented MPs with a hypothetical scenario: “What if”, he said, “someone like Dr Shaheed [former Foreign Minister] were to say that there is nothing in the Qur’an on how to run a foreign ministry.” Such a claim can only be made out of ignorance, for the Qur’an does give guidance on foreign policy, he said.
“God created tribes, countries and states so as each can introduce themselves to the other… Had God made only one country, there would be no need for a Foreign Ministry.” Bang went the Treaty of Westphalia, centuries of diplomacy, and the concept of social constructs, all shot down to nothing with one sweeping statement.
Reducing the death penalty in Shari’a to mere advocacy to “kill the killer” is to reduce the rich and complex debate surrounding the death penalty in Shari’a to mere revenge. Such reductionism is a practice more often associated with those who criticise Islam from the outside than with those who speak in its praise from within.
Although all Muslims accept the permissibility of the death penalty because it is addressed in the Qur’an, its application is varied ranging from those who impose it to a short list of crimes to those who call for a moratorium on it altogether. Capital punishment in Islamic law, as reputed Islamic scholars have highlighted, has its own dhawabit (checks and balances). It is not imposed until due process has been observed, and all extenuating circumstances fully considered. Those who are calling for the death penalty ‘as per Sharia’ would also do well to remember, or to find out, that the state only has the power of execution – imposing it is not a power of the state.
Arguing against the death penalty in the United States from an Islamic perspective, Dr Azizah Y al-Hibri, professor at the T. C. Williams School of Law at Richmond University for example, has pointed out that in Shari’a it is the victim’s family alone that has the right to seek qisas (a form of retributive punishment) against the murderer. It is the majority view of Islamic scholars that if the victim’s family does not seek qisas in court, the state cannot do so on its initiative – unlike the common law system.
The state does have the power, however, to protect the public through other less retributive punishments such as confinement or exile: what the Maldivian state has opted to do for almost six decades. This restriction on the state is one of the most important – and relevant – aspects of the Shari’a to the current debate. It, or any other jurisprudence, has yet to be included in the discussions.
The importance of Shari’a’s restrictions on the state lies in the status of the judiciary as a branch of the state. Even in countries where the independence of the judiciary has been proven beyond reasonable doubt, restricting the power of the state to take away the life of its citizens is a crucial element of justice. When the state is authoritarian, when the judiciary is biased, or when other branches of the state exercise undue influence over the judiciary, it becomes essential for ensuring that life is not taken away arbitrarily.
Punishment without justice
Herein lies the crux of the matter. Questions over the independence of the Maldivian judiciary have now been at the forefront of public discourse for the better part of a year.
The International Commission of Jurists (ICJ) recently published the results of its fact-finding mission to the Maldives in September last year. The report found the Maldivian courts to be failing in their duty to serve the public impartially and laid a lion’s share of the responsibility on the Judicial Service Commission (JSC), charged with imposing and maintaining ethical and professional standards of the Maldivian judiciary.
The JSC has dismissed the ICJ report as “irresponsible” and the Constitutional stipulation to remove all unqualified and ethically questionable judges from the bench as “symbolic” with the result that a large number of the judiciary comprise of convicted felons and the morally dubious.
In 2010, the JSC received over 140 complaints against the judiciary, none of which have been investigated. Currently there a total of 115 complaints pending investigation at the JSC, accumulated from 2008 onwards till the present. Questions have been raised over the JSC’s fairness in its recent appointments to the High Court, and it is due to appear before the Supreme Court on the same issue.
Several other failures of the JSC have been equally blatant, but there appears no authority capable, or willing, to hold the JSC accountable. There is no agitation for reform or independence coming from within the law community itself. The Majlis, and its oversight committee supervising the conduct of independent commissions, is the only authority that can bring the JSC to account. So far, it has not done so in any meaningful way.
It should be noted, however, that at the end of last year, the Majlis committee did instigate an enquiry of sorts – one that raises more questions than answers them. The committee, whittled down from 11 to three members for unexplained reasons – all three of whom are lawyers – have been summoning individual JSC members for questioning. The matter raised in these enquiries, unusual both in the fact that it is summoning individual members to answer questions over the conduct of the Commission as a whole and in its closed nature, are secret and banned from media coverage. So far as is known, the enquiries have been of an administrative nature – who attended meetings when and such – rather than of an investigative nature probing the JSC’s refusal to carry out its constitutional duties.
The investigated and the investigators – where is the dividing line?
One of the characteristics of the debate on March 8, which brought the death penalty to the fore, was the determination of some MPs to blame the security forces of the country.
If only they were to be made answerable to the Majlis Oversight Committee on National Security, things would change, went the argument. Problem is, at the helm of the National Security Committee is Abdulla Yameen taken into ‘protective custody’ by the Maldives National Defence Forces (MNDF) in July 2010 and held on the island of Aarah, the Presidential Retreat, for nine days.
The police arrested Yameen on corruption charges earlier that month, but after about six hours in custody, the Criminal Court, in an extraordinary sitting held at midnight, ruled that Yameen should be released into ‘house arrest’. When supporters of the ruling Maldives Democratic Party (MDP) gathered outside his house, MNDF took him into what they called ‘protective custody’.
Yameen, claimed, however, that MNDF had detained him against his will. The Supreme Court found MNDF’s actions to have been in breach of the Constitution; the ICJ report was highly critical of the executive’s involvement in the actions. Currently Yameen is back at Court claiming millions of Rufiyaa in damages for his detention.
In the immediate aftermath of the debacle, the National Security Committee began to summon senior members of the MNDF and other members of the security apparatus before it. MDP MP Reeko Moosa Manik claimed the Committee’s actions were instigated as a form of revenge by Yameen against MNDF and called for his resignation from the Committee. It did not materialise.
In addition to the history of personal involvement between the security forces and Yameen, there is also the more recent spectre of allegations of corruption worth over US$800 million against Yameen published in various South Asian media outlets from India to Burma and the Maldives.
Yameen has denied the accusations, first published in Indian current affairs magazine, The Week on February 11, alleging that the scheme involved blackmarket oil deals between the State Trading Organisation (STO), when it was headed by Yameen, and the Burmese military junta.
More recently, the Democratic Voice of Burma, an independent Burmese news outlet, has connected the same oil-scam to the explosion of heroin in the Maldives in the early 2000s. The heroin addiction of a whole generation of Maldivian youth and its current problems with violence and drugs has been well documented, and its effects clear to see.
Even if the allegations are untrue, it is clearly in the public and national interest that any state figure of authority implicated in such serious offences, to declare a conflict of interest and distance themselves from holding sway over investigations with even the remotest of links to them personally.
There was no reference made to the personal history between Yameen, the president of the National Security Committee, when his fellow People’s Alliance (PA) party member, Deputy Speaker Nazim, so fervently proposed cooperation between the security forces as the solution to the country’s escalating problem of gang violence.
Own backyard
There are currently five bills crucial to the maintenance to law and order, security and crime reduction pending members’ attention at the Majlis. Chief among these, and pending the longest, is the Penal Code.
Submitted in October 2009, it has now been in the ‘committee stages’ for exactly 17 months to the day. Awaiting attention is also the Evidence Bill, submitted in just a month after the Penal Code, in November 2009.
The Narcotics Bill was submitted in March 2010, almost a year ago; and the Bill on Special Measures to Combat Crime was proposed a month later. Neither has passed the ‘committee stages’.
More recently submitted is the Jails and Parole Bill, pending since October last. Also awaiting Members’ deliberation is an amendment to the Police Act submitted in June 2010, and the Private Security Bill submitted the same month.
As a majority of the Majlis remains preoccupied with long recesses, extending their own privileges, boycotts and deadlocks, these vital pieces of legislation – without which even an unbiased judiciary would find it difficult to perform its duties – gathers to itself the dust of neglect.
MP Mohamed Musthafa, who proposed the Bill on Special Measures to Combat Crime in April 2010, accused members of the opposition of deliberately stalling its passage through the parliament. “If you push that Bill through, the credit will go to the government, there will be no advantage in that for us,” Musthafa said he was told by some opposition MPs. “Intoxication with politics is leading this country to its ruin,” he said.
As the issue opens up for debate at the Majlis again today, it remains to be seen whether any MP who calls for the imposition of the death penalty in order to fulfil its ‘Islamic duties’ refer to the manner in which the Qur’an urges the victim’s family to move forward and to forgive (Qur’an 2:178, 42:40) even as it provides for the right to demand qisas.
It also remains to be seen whether the same MPs would remind fellow members of the instances in which the Qur’an favours forgiveness over revenge or punishment and extols its virtues in many other contexts (Qur’an 42:40; 5:45; 2:237; 24:22; 2:109).
It will also be interesting to see, whether any of the debate calls on existing empirical evidence that reveals no direct link between capital punishment and deterrence of crime. Amnesty International has found, for example, that in the United States crime is lower in states where capital punishment is not practised compared to the states where it is.
Its conclusion was that: “The threat of execution at some future date is unlikely to enter the minds of those acting under the influence of drugs and/or alcohol, those who are in the grip of fear or rage, those who are panicking while committing another crime (such as a robbery), or those who suffer from mental illness or mental retardation and do not fully understand the gravity of their crime.”
Whatever the quality or outcome of the debate, the result will be a strong indicator as to how far the politicisation of life has travelled in the two years since the Maldives became a democracy. If it has come so far as to be able to impose its will beyond life to death, there is little hope that this government is capable, or willing, to resuscitate the increasingly moribund Maldivian democracy.
Supreme Court rulings were far superior under “supposedly uneducated judges” during the interim period compared to those delivered by the current bench, some members of the JSC have said.
JSC members MP Afraasheem Ali, High Court Chief Judge Abdul Ghanee Mohamed, Judge Abdullah Didi and Lawyer Ahmed Rasheed also agree that arbitrary powers of the Supreme Court have increased while the standards of its rulings have fallen since the interim period ended.
The JSC members’ scandalous criticism of the country’s highest court comes at a time when it is facing legal action in the Supreme Court over its handling of recent appointments to the High Court.
The remarks were made at a secret meeting on February 6 to discuss who should represent JSC at the Supreme Court, and came to light after an audio recording of the meeting was leaked to the public via YouTube by a source calling itself ‘dhikileaks‘.
Discussing recent Supreme Court rulings during the lead up to the local council elections, Rasheed, who represents the law community at the JSC, said some of the actions would not have been possible “even under the Blue Constitution” of the “former President”.
“Not even then was such a thing [as the Supreme Court ruling on Addu City] possible,” Justice Ghanee is heard saying to general laughter among the men.
MP Afraasheem, agreeing with Justice Ghanee, is heard responding that, “One very prominent judge has told me that things have reached an embarrassing state.”
“The court’s jurisdiction has changed now with the Justice Act”, Rasheed says. MP Afraasheem agrees, “They are stronger… it is always the voice of the Supreme Court now, isn’t it?”
“When these five judges get together, anything goes,” Rasheed is heard replying. MP Afraasheem is heard pointing out that two dissenting opinions were expressed in the particular Supreme Court ruling they were discussing.
“Yes, but this type of powers…” Justice Ghanee is heard saying. The decision, he adds, was made by “consensus of the majority.” Something, he further adds, “Cannot even be seen in Arabic, an Arab nation”.
Laughing, MP Afraasheem is heard responding, “If it’s a majority decision it means there was no consensus… majority is always unanimous… things that are said!”
“That is just to make things as confusing as possible”, Rasheed adds to Abdullah Didi’s agreement.
He also says that, “during the transition period, when it was being said that judges on the bench did not have an education –the rulings they made were far superior.”
“Mujey [Interim Supreme Court Justice and former JSC Chair Mujthaz Fahmy] and them, their rulings were far superior,” Rasheed continues. MP Afraasheem Ali is heard agreeing with him, laughing, and adding that “Yes, things are far more odd now.”
Colluding to commit perjury
Throughout the conversation, the men – with the help of Acting Secretary General Abdul Faththah Abdul Ghafoor – are heard making phone calls to certain members of the JSC to solicit their approval for appointing MP Afraasheem as the JSC’s official representative at the Supreme Court.
MP Afraasheem, who is the Deputy Chair of the JSC, is successful in ringing JSC Public Member Shu’aib Abdul Rahman and Mohamed Fahmy Hassan and getting their approval to appoint him as JSC’s representative to the Supreme Court.
“The Commission majority is not present here … see the way we arrange things on the phone when that happens?” MP Afraasheem is heard saying on the phone to Shu’aib. Shu’aib confirms that he knows of this procedure, and consents to give his approval.
MP Afraasheem expresses his gratitude, and tells Shu’aib the Commission will send a written copy of the decision for him to sign.
“You don’t have a problem with that, Usthaz Shu’aib. That’s okay?” Afraasheem asks. “Yes, yes, yes”, Shu’aib is heard replying.
Once the phone call to Shu’aib is over, Afraasheem, Ghanee and Rasheed are heard discussing whom they should phone next. Ghanee is heard rejecting a suggestion by one of the men to phone Attorney General Sawad, “That will not be so good.”
The careful selection of which JSC members to phone suggests the calls were being made only to those perceived as likely to approve Afraasheem’s appointment; and to those who were unlikely to object to granting their approval on the phone – an act that directly contravenes the Constitution and JSC regulations.
Article 163 of the Constitution states that any meeting of the JSC should be attended by a majority of its 10 members, and that any decision taken by JSC should be by a majority vote cast by members present.
JSC interim Secretary General Abdul Faththah has told Minivan News that while there “should be quorum”, in time-sensitive matters such as court summons members sometimes had to make decisions outside formal meetings, with the approval of other members.
“This is not a matter so important to take a decision with the discussion of the members,” he said.
Forging documents for the Supreme Court
The JSC sent a letter to the Supreme Court, with the same date, saying that “a majority decision had been taken by members who participated in the meeting on February 6” to appoint MP Afraasheem as JSC’s representative to the higher courts.
There are six signatures on the document – that of the four men supposedly present at the meeting, and the two men – Shua’ib and Fahmy – who were absent at the meeting, but had agreed on the phone to Afraasheem’s proposal.
The document is misleading, and represents the decision as having been made by six members who were present at the meeting.
Minivan News can also confirm that the four members present at the meeting had engineered it in such a way that one of its members, Aishath Velezinee, was deliberately excluded from the meeting despite having presented herself at the scheduled time.
Velezinee, who has been the most outspoken and vocal critic of what she has called “machinations of deliberate deceit” at the JSC, had arrived for the meeting as scheduled at 7:30p.m.
After 15 minutes, when the required six members failed to attend, the meeting was cancelled as is required by JSC regulations and Constitutional stipulations. Velezinee left the meeting room, the three men and Acting Secretary General – JSC’s third appointment to the post in five months – remained behind.
Suspecting “something was amiss”, Velezinee stayed within JSC premises after the meeting was called off. The four men were still in the meeting room when she returned to check a quarter of an hour later.
She asked them what they were up to, and was told they were just wrapping things up before leaving. She left. It was after her departure that the three men began making the phone calls. The fourth, Judge Abdulla Didi, had joined some time after she left around 8.00pm, says Velezinee.
The contents of the leaked audiotape supports Velezinee’s version of events as Judge Abdulla Didi is heard saying that the meeting “was cancelled” and “we can’t order for a cancelled meeting”, when MP Afraasheem Ali asks if anyone wants refreshments.
Premeditated plan of deception
In the audio recording of the meeting the four men are also heard discussing not just which members to phone but also what should be said in order to attain the approval they were seeking.
MP Afraasheem, for instance, discusses his phone call with Shu’aib asking if had “said the right things”. Abdul Ghanee replies that it was “perfect”, and disagrees with MP Afraasheem that perhaps he should have “made things a bit shorter”.
Laughing, Ghanee says, “No, no, that is just about right.” The men also discuss whether they should first send text messages to their targeted members, and whether it is best to ring them on the Secretariat mobile phones first as they would be more likely to pick up then.
After Shu’aib, Afraasheem’s next call is to Mohamed Fahmy Hassan whom he tells he is “calling from that big phone” at the JSC.
Inquiring after how things went “during the campaign”, he laughingly tells Fahmy that “Usthaz Ghanee, Usthaz Ahmed Rasheed and Usthaz Didi” were all listening.
Afraasheem is heard requesting Fahmy’s approval to appoint him as JSC’s legal representative to the Supreme Court, and also informs him that Shu’aib had already said yes.
“If you want, Afraasheem…”, Fahmy is heard saying.
“What you are saying is that if I have no objections to the appointment, you have none. Is that so?” Afraasheem says. “Yes, yes”, Fahmy says. Afraasheem also tells Fahmy that Ghanee had suggested appointing Fahmy himself as the representative.
“No, no. Keep me at a bit of a distance”, Fahmy demurs. “In that case”, replies Afraasheem, “I will send you the decision for you to sign.” Fahmy agrees.
Fahmy has previously told Minivan News he had no comment on matters relating to the JSC.
The men also appear to be aware of the underhanded nature of their actions, saying such tactics would have been harder had the JSC Chair Adam Mohamed been present.
“It would not have been this easy to do this if Adam was here”, Justice Ghanee is heard saying referring to Adam Mohamed’s lengthy pronunciations. Abdulla Didi agrees, “Yes, that’s the problem with Adam, isn’t it?”
Adam was abroad at the time of the meeting.
Once Fahmy gave his approval, Afraasheem hangs up the phone, and is heard declaring, “This is fun!”
He continues, “Tension. Able to get rid of the tension! We have six now, don’t we?” he says, referring to the six signatures that are needed for a JSC decision to be valid and binding.
“Six,” Rasheed is heard confirming.
“We have six”, Faththah says. The audio recording ends with some muffled voices in which one of the voices, which cannot be identified, says, “So lets get this signed and done with.”
JSC’s efforts to resist judiciary reform
JSC’s criticism of the Supreme Court bench, and the broad agreement among the men that the Court functioned better during the interim period reflects a general attitude observed among some JSC members to resist bringing the judiciary in line with the 2008 Constitution.
MP Afraasheem has been at the forefront of the resistance. He has, for example, dismissed as “symbolic” Article 285 of the Constitution, which demands that all judges who do not meet its newly stipulated qualifications be dismissed after two years of it coming into force.
The two years were up in August 2010, and the JSC has failed to take the required steps to remove or replace unqualified judges, instead deciding to re-appoint the whole bench having declared it “a violation of their human rights” to remove them under a retrospective law – meaning the new Constitution.
Moreover, in December of last year, MP Afraasheem successfully sought Majlis approval for legislation that granted a lifetime pension of Rf 600,000 (US$46,700) a year to former Interim Supreme Court Justice Mujthaz Fahmy.
Fahmy was on the bench of the Interim Supreme Court, which was dissolved on 10 August, 2010. When the new Supreme Court proper was established he was not re-appointed to the bench.
Records seen by Minivan News show that Fahmy is nowhere near meeting the educational qualifications required of a judge in any court, let alone the Supreme Court, and had also been found guilty of embezzling State funds.
Fahmy lacks a basic law degree, trained a total of 217 days in the 29 years he spent in the judiciary, and possesses a ‘sentencing certificate’ obtained as his only claim to an education in law.
Some of the 217 days Fahmy spent in ‘professional training’ included time spent acquiring the skills to use a computer.
MP Afraasheem told an approving Majlis that awarding the extraordinarily generous pension to Fahmy would strengthen the country’s judiciary and ensure its honesty and integrity.
JSC and a legal black hole
Alleged irregularities in its recent High Court appointments are not the only reasons for which the JSC has been recently summoned to the courts. In January this year, Civil Court Judge Mariyam Nihayath threw out a professional negligence case against the JSC.
Treasure Island Limited had brought the civil suit against the JSC alleging that it had failed to carry out its constitutional duties by arbitrarily dismissing its complaints of misconduct against two judges in a case involving millions of US Dollars and prominent members of the tourism industry.
Although the JSC failed to satisfy Judge Nihayath that it did have a proper procedure for dealing with complaints against the judiciary, she threw out the case against it when Treasure Island was late for the court on what was to be the penultimate hearing of the case.
Shortly after, the JSC launched its process for the High Court appointments. Judge Nihayath was one of the unsuccessful candidates, and is also among three candidates who have written to the JSC requesting further details on the selection criteria.
Although Nihayath and two other judges have written to the JSC seeking clarification of the procedures for making High Court appointments, and despite the fact that the High Court is virtually suspended while the case remains pending at the Supreme Court, the JSC does not appear to be treating the matter with any real importance or urgency.
It tabled the three judges’ requests for discussion on 16 February. It was the second last matter to be discussed – before the matter of the retirement procedure for judges who are over 70 years of age, and after four other items including the matter of what legal action to take against Velezinee.
Velezinee’s alleged removal of JSC’s official documents from its premises appears to be the matter to which the JSC is according most importance, ahead of a properly functioning judicial system.
The contents of the dhikileaks audio tape has been available to the public, and broadcast in the national media, from last week onwards. The JSC is yet to pay any attention to it, despite the evidence it provides of members colluding to submit a forged document to the Supreme Court, committing perjury.
The International Commission of Jurists (ICJ) conducted a fact-finding mission in September of last year, and is due to publish its findings tomorrow.
The Judicial Service Commission (JSC) has appointed a special three-member team to decide on the best course of action against JSC member Aishath Velezinee, for removing official documents from the Commission’s premises.
The JSC, which is yet to adopt a Standards of Procedure a year after the 26 January 2010 deadline, earlier this month passed new secrecy regulations that make it an offence for members to reveal any Commission business to the public without prior authorisation.
The regulations were passed at a meeting on 17 January at which Velezinee was not present, and the agenda of which, seen by Minivan News, did not indicate any plans or proposals for new secrecy restrictions.
On 24 January, days after passing the new regulations, the JSC set up a special committee comprising Vice Chair Afraasheem Ali, Member Abdullahi Didi, and Deputy Legal Representative Abdul Faththah to discuss how best to apply the new regulations against Velezinee, who it alleges removed a documents file from the presmises on that day.
It is the first time in the history of the new democratic government that a member of an independent Commission, set up by the 2008 Constitution, is being subjected to an internal investigation.
The unprecedented move by JSC is made all the more surprising by the inclusion among the three special investigators a member of the Commission’s staff.
It is rare, if not unknown, for a junior staff member to be placed in a position of deciding disciplinary action against a state official they have been appointed to serve.
Velezinee, an outspoken critic of the JSC’s refusal to adopt a Standards of Procedure as required by the Constitution, earlier this month accused several fellow members of corruption and treason.
She has published a large cache of JSC documents, including audio recordings of Commission meetings, on her personal website as evidence, she says, to support her accusations.
Velezinee also runs a Facebook page dedicated to Article 285 of the Constitution, which regularly carries electronic copies of various official documents from the Commission.
She maintains that the JSC, unlike other independent Commissions set up by the Constitution, should conduct its business publicly. She has lobbied for media access to JSC meetings, a proposal that has not met with unanimous support from other members.
She has also called for an open inquiry into her allegations against the JSC, and has repeatedly challenged Commission Member Abdulla Shahid to respond to her charges of treason against him.
According to Velezinee, Shahid, also Speaker of the Majlis, while straddling two of the democracy’s three separated powers, is gradually executing plans – through the JSC and the Majlis – to take over the third.
Shahid, who has defended himself in the media against other allegations of corruption such as those related to the privatisation of Male’ International Airport, has remained silent on the charges made by Velezinee.
Speaker Shahid is currently travelling the country on a political campaign with opposition Dhivehi Rayyithunge Party (DRP) leader MP Ahmed Thasmeen Ali, and could not be contacted for comment.
Notably, the JSC’s investigation into Velezinee’s decision to remove Commission documents does not make any reference to her publication of JSC internal documents on the internet.
If the JSC were to refer to Velezinee’s publication of the documents, it would be forced to acknowledge her accusations against Speaker Shahid, and itself.
According to a JSC internal memo, also made public by Velezinee, the three investigators will focus their deliberations on what course of action to take against her for removing the documents.
What an offending member does with the documents is not up for regulation or deliberation, as of yet.
Meanwhile, as the JSC considers disciplinary action against one of its own for retrospective infringement of newly-passed secrecy regulations, the Anti Corruption Commission and the police are investigating the JSC.
It is also currently facing allegations of bias in its recent High Court appointments made by two failed candidates, a Civil Court judge and a Family Court judge.
The case is now at the Supreme Court. JSC Chair Justice Adam Mohamed Abdulla, who is on the Supreme Court bench, is yet to recuse himself from the case despite the possibility of a conflict of interest.
This is the second time in less than six months that the JSC has had to face allegations of bias in a court of law. Earlier this month, the Civil Court threw out a professional negligence case against the JSC where it stood accused of not performing its Constitutional duty to investigate judiciary misconduct.
Judge Mariyam Nihayath dismissed the case on a technicality – slovenly time keeping by the plaintiff – but not before the JSC admitted it did not have a standard system in place for dealing with complaints of judicial misconduct.
It also became known during the hearings that the JSC received and failed to investigate over 100 complaints received last year.
The International Commission of Jurists (ICJ) visited Male’ on a fact finding mission related to the independence of the country’s judiciary last year. Although the mission was reported as having been completed in September last, its findings are yet to be made public.
The Judicial Service Commission (JSC) will decide January 18 the candidates for the High Court bench, to be appointed the following week January 23.
The JSC has interviewed a total of 18 candidates – four women and 14 men – after disqualifying three applicants for failing to meet one or more of the standards required. One candidate withdrew his application after JSCs integrity was publicly questioned, advising JSC members to act responsibly.
The High Court appointments – which would confirm the bench for the next 30 to 40 years, given the average age of applicants – has been question following allegations that the JSC has failed to uphold the standards required of a judge under the 2008 Constitution.
Article 149(a) of the 2008 Constitution requires judges to be of ‘high moral character’ in addition to meeting educational qualifications and other competencies. Article 149 (b) 3 requires that appointments must not be convicted for any hadd offence, criminal breach of trust or bribery.
The Judges Act, legislation passed by the Majlis on 10 August 2010 to implement the Constitutional stipulations, however limited the length of time for which a judicial candidate can be held responsible for criminal offences.
It also set a low threshold for what could be considered as evidence of ‘high moral character’ in a judicial candidate.
As provided for by the Act, for example, convicted felons – even those found guilty of “sexual offences or terrorism” – may be appointed to the bench and deemed as meeting the Constitutional requirement of ‘high moral character’, provided the sentence had been fully served seven years prior to their judicial appointment.
The only other measurement for deciding whether or not a judicial candidate is of high moral character, as stipulated in the Act, is that any debt valid debt owed by the candidate has been, or is being, properly paid back.
The provisions of the Act demand far lower standards of ethical and moral conduct from the judiciary than is required by the Judicial Code of Conduct as passed by the JSC itself on 30 December 2009, and by accepted democratic international norms.
The Judicial Appointment Commission (JAC) of UK, for example, is likely to immediately disqualify any judicial candidate with a previous sentence for imprisonment.
A criminal conviction without a prison sentence is also likely to disqualify the candidate even though “minor convictions maybe disregarded”.
The JAC’s “Good Character Guidance” further states that “depending on their seriousness” other offences can also be disregarded after twenty years, provided there had been no repeat offending.
The JAC stipulations that any prison sentence whether minor or major is likely to disqualify any judicial candidate, and that even after twenty years a previous criminal conviction can only be disregarded after considering the seriousness of the crime, are in sharp contrast to the Judicial Act’s provision that however serious a judge’s crime, it can be disregarded after six years.
The JSC’s own Principles for Judicial Conduct is an almost verbatim translation of the Bangalore Principles 2002, which sets the international principles for judicial conduct.
JSC’s adaptation of the Principles, however, excludes the proclamations that a judge’s propriety is essential for performing all activities of a judge; and that a judge should willingly and freely accept more personal restrictions than expected of an ordinary citizen.
In interviewing potential High Court appointees, the JSC adopted the narrower definitions of the Judges Act instead of the broader interpretations allowed for by the Constitution and its own published principles of conduct.
The only dissenting opinion expressed publicly has been that of JSC Member Aishath Velezinee, who boycotted the interview panel on Sunday, on grounds that it was unconstitutional.
Velezinee, who has also filed treason charges against three members of the Commission, and who also lobbied the High Court candidates to stand against the unconstitutionality of the interview procedures, was violently stabbed earlier this month in what several international NGOs have condemned as potentially a politically motivated attack.
The JSC, which is also currently being investigated by the Anti-Corruption Commission over allegations of embezzlement, was set up by the 2008 Constitution to oversee the ethical standards of the judiciary.
Until the last week, the JSC was also being sued for neglecting its Constitutional duties by Treasure Island Limited, which alleged that the JSC had arbitrarily and unfairly dismissed its complaints against two judges whom it accuses of misconduct.
Presiding Civil Court Judge Mariyam Nihayath dismissed the case last week when the appellant, Treasure Island Limited’s Ali Hussein Manik, arrived half an hour later for the hearing, Sun FM reported.
During one of the many hearings of the case held over three months, JSC Legal Representative Abdul Faththah complained to Judge Nihayath that her habitual lateness was causing problems with his work schedule. On many occasions the case had started over half an hour late due to her late arrival.
Another hearing, scheduled for 22 December last, was cancelled when Faththah said Judge Nihayath’s lateness had made it impossible for him to continue the case that day.
On 13 January, Judge Nihayath agreed to the JSC’s request to throw the case out when Manik did not arrive for the hearing on time.
Judge Nihayath is among the 18 candidates shortlisted for the High Court bench and was interviewed by the JSC on Sunday.
The deadline for High Court applications closed on 26 October 2010, but the matter was delayed as JSC, embroiled in internal conflict, re-organised the High Court bench twice.
At least three members of JSC have questioned JSC’s integrity and raised concerns of corruption in relation to the High Court appointments, according to information available on Velezinee’s website. The other two members to raise concern are MP Dr.Afraasheem Ali and Criminal Court Judge Abdulla Didi.
The Majlis yesterday amended the Judges’ Act (13/2010) to award a Rf 53,250 monthly retirement package to former Interim-Supreme Court Justice Mujthaz Fahmy, who was found to have embezzled state funds in 1996.
Former Justice Fahmy claimed, by fraudulent means, Rf900 in overtime pay while working as a judge at former Court No.2 in 1996. A development that casts doubt over his moral character and according to the principle of hadd offences, whether he met the constitutionally-stipulated Islamic qualifications required for the bench.
According to a letter seen by Minivan News that was sent to the Justice Ministry by the Anti-Corruption Board in June 2009, former Justice Fahmy and another judge were said to have deliberately omitted their working hours from attendance records to carry out the deception, and to fraudulently obtain pay for work they had not done.
None of the 77 MPs who were present when the retirement package was passed yesterday raised the question of former Justice Fhamy’s fraud record, despite some MPs openly admitting the package was being introduced especially for the former Justice.
Dismissing any objections to the extraordinary circumstance where the nation’s legislative body passes a law designed for a specific person, Vilufushi MP Riyaz Rasheed said, “Even though it may appear today that this is an amendment proposed for one person only, it is something that we have to do for the future.”
MP Rasheed also pointed out that the People’s Majlis passing a law for the benefit of one particular person is not without precedent. He asked members to recall another similar legislation passed with former President Maumoon Abdul Gayoom in mind.
MP Afraasheem Ali, who had introduced one of the amendments, also made it clear that it was a purpose-built package for former Justice Fahmy.
“I believe that it will enhance the strength of the country’s judiciary immensely if we were to award these benefits, as we have proposed in the amendments, to Mr Mujthaz, the judge who recently left the Supreme Court”, MP Afraasheem Ali said.
MP Afraasheem said judges are awarded high salaries and benefits to ensure their ethical and disciplinary standards, and that it is essential for them to continue to be able to uphold their dignity and impeccable ethical standards even after they leave office.
“If a retired Justice were forced to wheel a cart on the street after leaving the bench, it will not give them the respect and the love that they received in office, and still deserve”. That is why, he said, it was essential for Mujthaz – who was specifically named in the Majlis – to be awarded the package.
Constitutional requirements
Article 149 of the 2008 Constitution requires that only those who possess the stipulated educational qualifications and competence, in addition to a “high moral character”, are eligible for the bench.
It also stipulates that only those who “have not been convicted of an offence for which a hadd is prescribed in Islam, criminal breach of trust, or bribery” should be allowed on the bench.
Theft, big or small, is one of the hadd offences prescribed in Islam.
A judge’s required professional qualifications, as stipulated under the Constitution, requires education in Islamic Shari’ah or law in addition to a minimum of seven years experience.
Former Justice Fahmy’s education qualifications, although a matter of public interest, are not publicly available. Documents seen by Minivan News show that in addition to the “Sentencing Certificate” with which former Justice Fahmy first sat on the bench, he has undergone four other training programmes in the last 29 years.
In 1985, he attended a two-month “Training for Island Court Judges”; a four-month “Training to Upgrade Judges” in 1996 – the same year in which he was found to have made fraudulent claims for overtime; a month long “Computer Course conducted by CPL” in 1998; and a four-day training programme conducted for Maldivian Judges and Court Administrators in Singapore in October 2007.
According to these records, Justice Fahmy spent a combined total of roughly eight months –217 days – spread over a period of 26 years training for his career in the judiciary, which ultimately put him on the Interim-Supreme Court bench and has now provided him with the lifetime retirement package of Rf600,000.
The above total does not include the unspecified number of days it took him to acquire the initial “Sentencing Certificate”, but includes the month in 1998 which he took to learn how to use a computer.
There is no record of whether or not former Justice Fahmy had any formal education before acquiring his sentencing ‘sanadh’ or certificate.
A law degree takes an average of four years to obtain, and has higher entry requirements than most other faculties in the humanities.
Article 285 of the Constitution required that the Judicial Service Commission – established to oversee the professional, ethical and disciplinary standards of the judiciary – remove from the bench by August 2010 any sitting judge who did not fit the criteria stipulated in Article 149.
Former Justice Fahmy himself was the Vice Chair of the Judicial Service Commission from 2008 to 2010. He was removed on 7 August 2010, when the Interim Supreme Court was abolished and the Supreme Court proper established in its place. He also lost his seat in the JSC as a result.
MP Afraasheem, who introduced part of the amendments to reward former Justice Fahmy the retirement package, is also on the Judicial Service Commission and was a colleague of former Justice Fahmy.
MP Afraasheem is on record as having said that Article 285 is “symbolic”, suggesting that he does not regard the Constitutional stipulations concerning a judge’s qualifications and moral character as legally binding.
Fonadhoo MP Abdul Raheem Abdulla, who introduced the amendments at Majlis yesterday, is in the Parliamentary Oversight Committee for Independent Commissions, with oversight of the Judicial Service Commission.
Speaker Abdulla Shahid is also a member of the JSC.
MP Afraasheem also proposed to the Majlis yesterday that the benefits package for retired Supreme Court Judges should begin from 7 August 2010. It was the day on which former Justice Fahmy was ousted from the two positions he held – the Interim-Supreme Court bench and the JSC seat.
Job benefits
Minivan News has also learnt that despite Justice Fahmy not having been a member of the judiciary for the last four months, he has continued to receive full salary and benefits “pending a decision by the Majlis”.
The salary for a Supreme Court Justice is Rf51,000, plus Rf20,000 in living allowances.
A “Special Car”, or “Kaaru Kolhu” as well as medical insurance worth Rf12,000 is also part of the monthly remunerations.
The amendments approved by Majlis yesterday also entitles a Supreme Court Justice who retires after 20-25 years of service to two thirds of a serving Supreme Court Justice’s salary.
If the retirement is after 25 years of service, they are entitled to three fourths of the salary. Benefits and other living expenses as well as state protection, and the status of a dignitary are also included in the package.
It will become law if President Nasheed ratifies the amendments within fifteen days of receiving them from the Majlis.
The Judicial Service Commission (JSC), an independent body constitutionally mandated to oversee the ethical standards of the country’s judiciary, yesterday failed to convince the Civil Court that it had any form of standardised procedure for dealing with complaints against judges.
The JSC is currently defending itself against allegations of allowing bias and favouritism to influence its decisions on complaints of judiciary misconduct and was yesterday required to provide documentary evidence to the court proving the contrary. However, the evidence may have opened up more questions about its operations in the court.
The current case relates to action being taken by Treasure Island Limited, which is suing the JSC over allegations that the body had dismissed three complaints of misconduct it made against Interim-Supreme Court Justice Mujthaz Fahmy and Judge Ali Naseer for reasons of favour and bias towards the judges.
Civil Court Judge Mariyam Nihayath said that the documents submitted by JSC did not clarify for her – as had been claimed they would – that a standard operations procedure was in place to prevent arbitrary decision-making on complaints of judiciary misconduct. She added instead that the documents submitted to court by JSC as evidence had raised questions of whether the commission had any procedure at all for dealing with complaints.
Judge Nihayath said in addition that it appeared that any member of the Commission had been free to individually decide that a complaint did not need further investigation, despite having claimed otherwise.
The JSC, set up by the 2008 Constitution, is required to get a majority or consensus vote from members in all complaints-related decisions. It is also required to keep records of how each member voted for a specific decision to be reached.
At the behest of Treasure Island, the court had asked to see records of meetings at which Commission members agreed not to look into the company’s allegations any further. The JSC failed to locate the documents after conducting a “thorough search”.
Last week, the JSC admitted that some complaints procedures did not conform to either constitutional stipulations or its own regulations, though the commission maintained that it did have a specific method in place nonetheless.
This method, as explained by the JSC in the court, involved a process of “administrative screening”, whereby the Chair pre-selected which complaints were about judiciary misconduct and therefore worthy of deliberation and decision by members.
The rest were responded to by a letter, signed by the Chair, informing the complainant that a decision had been made not to investigate the matter any further. Treasure Island had received two such responses to its complaints.
This ‘administrative’ method, the JSC said, was far less time-consuming than that stipulated in the Constitution and saved members time to attend to their constitutional duties.
Of the three randomly selected such responses submitted to court by the JSC yesterday, Judge Nihayath noted that they were not signed by the Chair – only one of them was found to have been signed by the Vice Chair and another by a member.
Furthermore, she said, two of the letters included the words “the Commission has decided”, allowing the inference to be made that the decision not to investigate had been taken by the JSC and not the signatory acting alone.
JSC Legal Representative Abdul Faththah said he could not explain why the decisions had been conveyed by the three different figures instead of the Chair alone, as in the “administrative screening” process he outlined last week.
The phrase “the Commission has decided” being included in the responses, Faththah explained, was not about the individual decision itself, but related to a decision taken in November 2008 in which the ‘administrative” alternative to the Constitution had been agreed upon.
Judge Nihayath also asked Faththah why it was that two of the letters had been signed by the then JSC Chair and Vice-Chair respectively, yet a member with no other authority, Hassan Afeef, could also write to a complainant dismissing their claims.
“I don’t really know why that happened on that day”, Faththah said. “Perhaps, I said in the last submission that the procedure was for the Chair to sign the responses’, but, he said, that did not seem to be the case.
Fathah added that he had randomly selected the letters shown during the case from a file especially kept for responses to complaints dealt with by the “administrative screening process” of the JSC as opposed to its Constitutional stipulations.
Judge Nihayath will also hear Treasure Island’s response to JSC evidence on January 5, when she will also rule on whether or not to summon witnesses that have been requested by both sides.
She has scheduled the last hearing for 19 January 2010 when both sides are expected to make their closing submissions.
The Judicial Service Commission (JSC) has been asked by Civil Court to provide examples of its use of a self-modified procedure for investigating complaints against the judiciary as an alternative to Constitutional stipulations, in defence against allegations of negligence.
The JSC is currently defending itself against allegations of professional negligence made by Treasure Island Limited, which accuses the Commission of failing in its Constitutional duty to uphold ethical and disciplinary standards of the judiciary.
Judge Nihayath, who is overseeing the case, asked the JSC yesterday to submit “two or three” examples to Civil Court in order to demonstrate how a proposed alternative to Constitutional procedure was being used to deal with complaints.
Judge Nihayath has not yet received an answer from the JSC to her inquiry about the number of complaints the commission has received and agreed to cancel a hearing scheduled for this morning until December 27, 2010.
The negligence case focuses on three separate complaints made to the JSC last year, which Treasure Island alleges related to misconduct by a number of judges, including some prominent figures of the tourism industry, over a sum of money amounting to over a million US dollars.
JSC legal representative Abdul Faththah told the court at last week’s sitting that Constitutional stipulations regarding how the JSC dealt with complaints were very “time-consuming”, leading to new procedures being adopted.
At the time of the complaints in 2009, he said, the Commission was experiencing a lot of housekeeping problems and Members’ time was valuable.
As an independent body set up by the 2008 Constitution with the mandate to maintain the ethical and disciplinary standards of the judiciary, the JSC is required to put any decision regarding a complaint against the judiciary to a members vote.
Article 163 stipulates that it is only by consensus or, failing that, a majority decision of the 10 member Commission, that any such decision can be taken. It is also required to maintain a record of every such decision, and how each member voted.
Instead, the JSC revealed last week that it had set up an alternative mechanism that Faththah described as a process of “administrative screening”.
The alternative process is said to have constituted all complaints being “administratively” pre-screened by the JSC Chair who, acting on his own, decided whether or not they contained allegations of judiciary misconduct.
Only complaints hand-picked by the JSC Chair were passed on to members for their deliberation or decision.
Valuable time was saved by the modified procedure, Faththah told the court. He also told Judge Nihayath that existence of the “administrative screening” process was proof that JSC did not have a specific mechanism in place for dealing with complaints, as had been alleged by Treasure Island.
Treasure Island has accused the JSC of arbitrarily dismissing its complaints of misconduct against two judges, therefore failing in its Constitutional duty to uphold the ethical and disciplinary standards of the country.
The court earlier agreed to Treasure Island’s submission that JSC be made to produce documentary evidence of having followed proper procedures in dismissing its complaints of misconduct against Interim Supreme Court Justice Mujthaz Fahmy and Civil Court Judge Ali Naseer.
JSC was asked to provide the court with the minutes and agendas of the meetings where the decisions were put to a members’ vote, and also the records of how they voted.
JSC was unable to provide the evidence at last week’s hearing. Faththah told the court of an alternative system of “administrative screening” instead.
Judge Nihayath asked the JSC yesterday to submit to court a sample amount of “two or three” other complaints dealt with according to the extra-constitutional procedure.
An answer from the JSC to her inquiry about the number of complaints the commission has received was not made available as of this morning.
Judge Nihayath was expected to rule today on whether or not to summon as witnesses the Speaker of Parliament, Abdulla Shahid, former Attorney General Husnu al-Suood, former Civil Service Commission Chair Dr Mohamed Latheef, and High Court Chief Judge Abdul Ghani Mohamed.
The decision was deferred to the next hearing on 27 December after Judge Nihayath acceded to Faththah’s request to cancel today’s hearing.
Faththah said the Judge’s 40-minute delay in starting the procedures meant he would be late for a funeral prayer at noon. The hearing had been scheduled for 11am.
Treasure Island had also asked the court to summon Member Aishath Velezinee as a witness; a request that was rejected outright on grounds that she had been present at all preceding hearings.
Judge Nihayath had also rejected an earlier application by Velezinee for Third Party entry to provide information she alleged the JSC was withholding from the court.
The JSC rejected 122 complaints in 2009. Of over 140 complaints received since the beginning of the year, none have been investigated.
The JSC also faces allegations that it has failed to adopt a standard of procedure by which its behaviour is bound, an issue that has caused deep internal division with the Commission. The JSC Act required the standards of procedure to have been adopted by last January.
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