The Civil Court has given the Judicial Service Commission (JSC) a week to locate ‘missing’ evidence it claims will exonerate it from accusations of bias and unconstitutional conduct.
JSC, the independent body constitutionally mandated to maintain ethical and disciplinary standards of the judiciary, is facing charges of professional negligence arising from its decision not to investigate complaints of serious misconduct made against two judges by Treasure Island Limited in 2009.
Treasure Island alleges that JSC decisions to dismiss his complaints against former Supreme Court Justice Mujthaz Fahmy and Judge Ali Naseer were taken arbitrarily and in breach of the Constitution. At the time Treasure Island made the complaints to the JSC, Justice Fahmy was the Commission’s deputy chair.
The JSC has denied any wrongdoing and, since the case began in early October last, has maintained that proper procedure was followed in responding to the complaints.
JSC regulations, and the Constitution, require that any decision or action it takes regarding a complaint against the judiciary must have the majority support of its ten members. The regulations also require that records be kept of the members present and how they voted when the decision was taken.
On Sunday Judge Mariyam Nihayath acceded to Treasure Island’s repeated requests for the court to demand that JSC provide documentary evidence to support its claims of having observed proper procedure.
JSC legal representative, Abdul Faththah, admitted in court yesterday that despite his many valiant efforts he had been unable to locate any such evidence – “yet”.
The court also noted that JSC had responded to one of the complaints by Treasure Island saying it was beyond the Commission’s duties to review the ruling of a judge. The letter sent, in August 2009, was signed by then Chair of JSC, High Court Chief Justice Ghani.
Faththah admitted in court yesterday that there was no evidence to prove the letter was based on a majority decision taken by Commission members as is required.
He told Judge Nihayath, however, that he had consulted with Ghani on the matter, and had been advised that circumstances do exist in which the JSC Chair has the legitimate authority to deal with a complaint without a majority vote by members.
Proof of when and how the JSC chair can exercise the said discretionary power, however, have not been located “yet”, Faththah said.
Judge Nihayath told Faththah the court could not wait indefinitely for the proof to turn up, and ruled that JSC provide the court with the documents when the case resumes on 14 December 2010.
She will also decide then, she said, whether to agree to Treasure Island’s request to summon as witnesses some current and former members of the JSC to verify their involvement – or lack thereof – in a majority decision not to investigate the company’ complaints.
The JSC has been increasingly riven with conflict. Some members have accused current Chair Supreme Court Justice Adam Mohamed Abdulla – in association with several others – to have deliberately and systematically avoided adopting a Standard Operating Procedure according to which it should be run.
Tensions escalated further last week when one of its members, Aishath Velezinee, accused Justice Abdulla of being mentally unfit to hold office. She has also accused certain members of the JSC of abusing their powers and using the JSC to sabotage all efforts to consolidate the new Maldivian democracy.
The JSC was required to have adopted a Standard Operating Procedure by 26 January last, but has so far failed to do so. By October this year there were over a 100 complaints against the judiciary the JSC had not attended to.
It also failed to meet the deadline for appointing an interview panel to approve judges to the High Court bench, almost two months after the deadline for applications elapsed.