Chief Justice Ahmed Faiz Hussain has accused the Judicial Service Commission (JSC) of being inept, stating that challenges faced by the country’s judiciary would have been resolved had the judicial watchdog undertaken its duties “properly”.
The Chief Justice made the remark speaking to media after concluding a ceremony held on Monday to open a new building for the Drug Court.
Hussain acknowledged that he could not say that every piece of work carried out by JSC was not done properly since he was not a member of the JSC himself.
“The JSC is an institution formed under the constitution to serve the judiciary. They have a huge responsibility to deal with issues surrounding the judges, so if the JSC carries out its responsibilities, I would say the challenges faced by the judiciary would have been resolved through that institution,” the Chief Justice said.
Hussain also said that he had on several forums highlighted that changes need to be brought to the current mechanism of JSC,noting that the local judicial watchdog had “differences” compared to similar institutions in other countries.
“But still, I believe even under the current mechanism of JSC, and without needing to bring modifications to it, some changes can still be brought to the works it carries out,” he added.
During the media briefing, the Chief justice also spoke about the ongoing case of Hulhumale’ Magistrate Court, the legitimacy of which is being contested in the courts by the former President Mohamed Nasheed’s legal team.
He said that the case concerning the legitimacy of the Hulhumale Magistrate Court currently in Supreme Court had not been addressed, because the JSC had not filed the case.
“When a case was filed in Civil Court contesting the legitimacy of Hulhumale Magistrate Court, the JSC sent a letter to [Supreme Court] arguing that the Civil Court did not have the jurisdiction to look into the case. We then asked the JSC to file a case as per the procedure and they only filed the case just a few days ago,” he explained.
Following the filing of the case, the Supreme Court took over the case from the Civil Court.
The Chief Justice added that the Supreme Court will be considering the case as a “high priority” case.
Spokesperson for the Department of Judicial Administration (DJA), Latheefa Gasim, was not responding to calls at time of press.
Earlier in October, former President Mohamed Nasheed’s legal team’s challenged the legitimacy of the Hulhumale Magistrate Court, and its summoning of Nasheed in connection to the detention of Chief Judge of Criminal Court.
The High Court at the time stated that the case had previously been looked at by the Supreme Court, there the court could not proceed with the case.
However earlier this month the High Court granted an injunction temporarily suspending the trial of former President after his legal team appealed a ruling on procedural points by the Hulhumale’ Magistrate Court in the trial.
During the hearing, JSC lawyer Abdul Fahthah stated that the JSC had lodged a case at the Supreme Court the same morning, asking the court to look into the matter of the legality of the Hulhumale’ Magistrate Court.
Following the proceedings of the case, Hulhumale’ Magistrate Court announced that it had suspended all ongoing cases following an injunction issued by the High Court on Sunday, including Nasheed’s trial.
The Hulhumale Magistrate Court said in its announcement that it had suspended proceedings on cases involving marriage, divorce, guardianship, family matters, property lawsuits, civil cases, criminal cases involving extension of detention periods as well as other matters that could be affected by the questions raised over its legal status.
Two days later, the Supreme Court ordered High Court to halt its proceedings on the appeal by Nasheed’s legal team, and ordered the Hulhumale Magistrate Court to resume its proceedings.
Question of legitimacy
Writing in his personal blog on the issue, lawyer and Independent MP Mohamed ‘Kutti’ Nasheed explained that a magistrate court could not legally be established at Hulhumale’.
The Judicature Act states that magistrate courts should be set up in inhabited islands aside from Male’ without a division of the trial courts (Criminal Court, Civil Court, Family Court and Juvenile Court).
According to appendix two of the constitution, Hulhumale’ is a district or ward of Male’ and not a separate inhabited island. The former magistrate court at Hulhumale’ – controversially set up by the JSC before the enactment of the Judicature Act in October 2010 – should therefore have been dissolved when the Judicature Act was ratified, he argued.
Former Chairman of the Constitutional Drafting Committee of the Special Majlis, Ibrahim ‘Ibra’ Ismail, has also published an article on his personal blog stating the reasons why the Hulhumale’ Magistrate Court cannot be considered a legal entity.
“When Parliament created courts by the Judicature Act, there was no ‘Hulhumale’ Court’ designated as a Magistrates Court,” he wrote.
“The Supreme Court itself is still sitting on the case of the validity of the [Hulhumale’ Magistrate Court]. It was created by the Judicial Service Commission (JSC), without authority derived from law. Therefore the validity of any orders or judgments issued by this court is questionable, and the Constitution says no one has to obey any unlawful orders, ie, orders which are not derived from law,” he explained.
He also cast doubts on the legitimacy of the JSC’s decision to appoint a panel of judges to look into the case.
“The Judicature Act does make some provision for Superior Courts (Criminal Court, Civil Court, Family Court and Juvenile Court only) to appoint a panel of judges for some cases. Such panel has to be decided by the entire bench or Chief Judge of THAT court. In this case, a panel of judges from other courts was appointed by the JSC to [Hulhumale’ Magistrate Court]. The JSC does not have that authority by Law,” he contended.
“There is more than ample grounds to contend that the summons was issued by an unlawful panel of judges, sitting in an unlawful court, which had already issued an unconstitutional restraining order which was ultra vires,” he added.