Comment: Appointment of Supreme Court bench a grave blunder

This article recounts the appointment of the Supreme Court bench on August 10, 2013, and was first published on Dhivehi Sitee. Republished with permission.

On 7 August 2010, the two-year Constitutional period for transition and the setting up of first-ever democratic State ended without a Supreme Court, Chief Justice or Civil Service Commission in place. The Human Rights Commission, too, was up for reappointment.

The Judicial Service Commission continued, technically, with some members still being valid, but remained in suspension without leadership or full membership.  The JSC Secretariat, which often carried out functions of the Commission as directed by the Chair, without knowledge or advice of the Commission, carried on as usual. It was fashioned upon the dissolved Ministry of Justice by the first Chair of JSC and former Minister of Justice, Seena Ahmed Zahir, and continued to handle- the Courts and administration of justice much like it did prior to the 2008 Constitution.

The Secretary General at JSC, Muna Mohamed, had resigned on 2 August 2010. Muna left after it became known that she had, at the urging of JSC Chair Mujthaz Fahmy and members Criminal Court Judge Abdulla Didi and MP (DRP) Dr. Afraashim Ali, altered records on Article 285 proceedings at JSC forwarded to the Parliamentary oversight Committee.

Interim Supreme Court, which was to be dissolved with the appointment of the first Supreme Court remained in office, with no Supreme Court yet appointed. The nomination of Ahmed Faiz Hussain for Chief Justice remained pending in parliament, the Speaker refusing to table the matter as a stand alone appointment, and parliament majority insisting on full bench being approved en masse.

The President was insisting on parliament deciding numbers on bench for nominations to be made. The Judicial Service Commission embroiled in the battle against Article 285, had not had time to discuss names for the Supreme Court despite the topic being frequently raised by the judges on the Commission. The judges had names they wanted to forward to the President.

Did locking the Supreme Court prevent a coup?

On 7 August 2010, President Mohamed Nasheed ordered the Maldives National Defence Force (MNDF) to lock up the Supreme Court. At 6pm, they did. There was no Supreme Court appointed.

I do not know on what information or what basis President Nasheed acted, and I have my own opinion on what ensued, but still I would defend the the lock up of the Supreme Court on 7 August 2010 was a pre-emptive act; and, I have good reason to believe, it successfully prevented the final act of the silent coup, at least for then.

If “intelligence” I had from the inside is correct, the Interim Supreme Court had drafted a ruling, and the plan was for the bench to convene that evening to declare themselves permanent by the power of their self-declared permanency earlier and by virtue of sitting on the bench at the end of the Constitutional two-year period. Concurrently, I was informed, the newly self-appointed Supreme Court would also declare President Nasheed unconstitutional for his failure to appoint the Supreme Court in the period provided. I cannot explain the reasoning, nor confirm the information as 100 percent accurate. I can only relate here the information I had from sources I found reliable. What I know for a fact is the Interim Supreme Court had been busy, lights often burning well into early hours of the morning.

As with the “lock up” of Abdulla Mohamed in January 2012, no one probed why the Supreme Court was locked up.

The Prosecutor General (PG), having listened to interim Chief Justice Abdulla Saeed appealed to the Civil Court to order MNDF/President Nasheed to unlock the Supreme Court. My request to meet the PG was swept aside with an “I will call you.” It did not happen. We were too familiar with each other as former colleagues and friends. Despite my constant reminders that I spoke to him as a sitting JSC member, he could not see me as any other but his “friend Vel”.

The sleeping Law Society, too, roused itself. The Secretary, Dheena Hussain, issued a public statement condemning the “president’s interference in the Judiciary”. Dheena Hussain had worked on the Constitution drafting Committee and is noted as the translator of the Constitution (2008) from Dhivehi to English. What schocked me is the fact that neither Dheena nor Law Society President Shaheen Hameed, who had been a member of the Constitutional Assembly, spoke up on JSC’s politics and high treason or the loss of an Independent Judiciary. I had personally shared all related documentation forwarded to President Nasheed with the Law Society, which has since been dissolved. It was the only professional organization of lawyers in existence.

The country was tense.

The international community, as wary as it is of domestic politics, urged a peaceful resolution through political talks. The fact that the Maldives was in a Constitutional crisis without a domestic remedy given that it was the judiciary in question; it was the the Judicial Service Commission  committing acts against the Constitution and State; and it was the parliament that stood accused of a cover-up, all went unobserved, or was deliberately ignored.

The pressure was on for a quick resolution, and President Nasheed was in a corner.

Appointing the Supreme Court

On the morning of 10 August 2010, I received an SMS from the President’s Office. President Nasheed wanted to meet the Judicial Service Commission (JSC) at a meeting to be held in his office at 1:00pm. On the agenda was the Supreme Court.

Parliament, meanwhile, was at work, adopting the Judges Bill and Judicature Bill which had been left out of agenda for months of political bickering. That morning, it had adopted a proposal by DRP member Abdul Raheem to grant a 7-year period for judges not meeting required educational qualifications to get their degrees.

I was the first to arrive for the meeting with President Nasheed. As I sat down in the waiting lounge, Speaker Abdulla Shahid, who also doubles as ex-officio member of the JSC under Constitution Article 158(a) walked in. Shahid tensed upon seeing me and protested against my “naming him” in an interview to Minivan News. I responded I couldn’t help who is named. Shahid then announced to me that the amendment proposed to the Judges’ Act by MP Abdul Raheem that morning was a proposal he made.

I did not comment. Both he and I knew it contradicted a Constitutional provision and was in fact a political move to alter the Constitution and manipulate the courts without changing a single letter of the constitution. The same modus operandi, majority by any means (with the majority decision standing above Constitution) had effectively nullified Article 285. Article 8 on the supremacy of the constitution leaves no room for majority decisions. When objections were raised, the majority drowned it in the collective claim that democracy works on majority. Respect of constitution, due procedure and rule of law were all to be by majority agreement.

The Judicial Service Commission: Who were they?

By 1:00pm, all sitting JSC members except for member elected by the lower Courts, Judge Abdulla Didi of Criminal Court, had arrived.  Member appointed from the general public, Sheikh Shuaib Abdul Rahman was on leave, gone on Umrah.

Seat of JSC Member 158(i), the Attorney General, was vacant. Husnu Al-Suood resigned on 8 August 2010 immediately after the “end of transition”. Media reported Suood saying he’d resigned to take responsibility for State’s failure to take responsibility.

I resigned… There are a lot pending matters. I believe that all state bodies have failed (to take their responsibilities). So I believe that at least someone should take the responsibility,’ Suood said in an interview with Haveeru. “Suood said he resigned to take responsibility of the constitutional void triggered after the transition period deadline.”

Seats of Member 158(b) from Supreme Court and 158(g) President of the Civil Service Commission were vacant following the dissolution of both those bodies with the end of the interim period on 7 August 2010.

It can be argued that the JSC as a legal body, did not exist on 10 August 2010 for the President to consult. Neither had the JSC discussed the Supreme Court prior to it going defunct on 7 August 2010.

The JSC was bereft of a Chair or Vice Chair when interim Supreme Court judge Mujthaaz Fahmy lost his seat on 7 August 2010. Mujthaz, the Vice Chair, took over as Chair after High Court Chief Judge Abdul Ghani was stripped of his JSC membership in the High Court mutiny of 21 January 2010. Mujthaz had refused to agenda elections until 11 March 2010 when he elected himself Chair and refused to elect anyone to the Vice Chair post he had just vacated. From 11 March 2010 till Mujthaz Fahmy was forced to depart on 7 August 2010, he remained Chair, and never allowed the appointment of a Vice Chair thaty would have allowed for the Commission to continue.

Meeting President Nasheed were six individual members of the Commission, giving the 50 plus 1 majority quorum required for a JSC sitting:

  1. Member  158(a), Speaker Abdulla Shahid (DRP)
  2. Member 158(c), Judge Adam Mohamed Abdulla of the High Court of Maldives
  3. Member 158(d), Judge Abdulla Didi of the Criminal Court
  4. Member 158(e), MP Dr. Afraasheem Ali (DRP)
  5. Myself, Member 158(h) Aishath Velezinee, and
  6. Member 158(j), Lawyer Ahmed Rasheed.

President Nasheed chaired. No one except for the six members of the Judicial Service Commission, the President and his Secretary, Rugiyya Ahmed Didi (who was taking notes) was present in the closed meeting. Before us was a dossier prepared by the JSC earlier for the selection of the Chief Justice, listing 17 names and giving their curriculum vitae and other records.

A name for the Chief Justice had been been decided by President Nasheed following a similar exercise carried out earlier in July. President Nasheed had invited the JSC, and in a meeting chaired by himself consulted the JSC, asking members to inform if there was any reason any one whose name was on the list must not sit on the Supreme Court bench. Much was told by JSC members, each member drawing upon their long-time and in-depth knowledge of the individuals to relate stories and anecdotes.  Then Attorney General Husnu Al-Suood who knew the interim Chief Judge Abdulla Saeed, as well as having had the long experience of working with the Courts as a lawyer, was adamant Abdulla Saeed was not to continue.

A significant difference between these two meetings, the first to nominate a Chief Justice and this one to nominate full Supreme Court bench was, that unlike on 10 August 2010, the JSC was then a functional body with an elected Chair. Further, JSC had had a preparatory meeting before meeting with the President when selecting a Chief Justice.

The nomination of Ahmed Faiz Hussain for the post of Chief Justice was submitted for Parliamentary approval before the 7 August 2010 deadline but remained unattended, neglected in a parliamentary tug of war.  The Speaker refused to agenda approval of the Chief Justice in isolation, and Parliament majority demanded names for the full bench before tabling the matter.

Naming mames

President Nasheed began the meeting of 10 August 2010, explaining the purpose of the meeting was to consult the JSC on the appointment of the Supreme Court and requested names. He then invited JSC members to speak.

Article 148(a) of the Constitution states:

The President as the Head of State shall appoint the Judges of the Supreme Court, after consulting the Judicial Service Commission and confirmation of the appointees by a majority of the members of the People’s Majlis present and voting.

This was the first step.

If I recall correctly, Member 158(c) Adam Mohamed Abdulla of the High Court was the first to speak. He declared his concerns about being in the sitting when his name is discussed.  I cannot sit when you’re discussing my name, he raised his concern noting  the meeting would lose quorum were he to leave the room. No one had yet mentioned any names.

MP Dr. Afraashim Ali protested at President Nasheed chairing the meeting, but only for the record, as the same protests had been made and dismissed earlier, on the day a nominee for Chief Justice was discussed.

Member 158(a), Speaker Abdulla Shahid intervened, and inquired of Chair President Nasheed if names proposed were to be limited to the list. President Nasheed responded in the negative, and repeated it was up to the Commission.

Abdulla Shahid, having given the opening to name names, nominated Muththasim Adnan for the Supreme Court. It was a name included in the dossier before us.

Member 158(e) MP Dr. Afraashim Ali immediately followed with a list of names he recommended, some outside the dossier. They  included Parliament Secretary General Ahmed Mohamed; Parliament Legal Counsel Dr. Ahmed Abdulla Didi;  Interim Supreme Court Justice and former JSC Chair Mujuthaz Fahmy;  self-declared Chief Justice, head of interim Supreme Court, Abdulla Saeed;  High Court Justices Ali Hameed and Adam Mohamed Abdulla and other “old friends”.  I do not recall today the full list of names he proposed.

Dr. Afraashim immediately added an apology for having proposed two names from Parliament, and gave his reasons for their nomination.

They are good people. I know them both very well. Because I am in Parliament, and work very closely, I am very familiar with both Usthaaz Ahmed Mohamed and Usthaaz Dr. Ahmed Abdulla Didi; very suitable people for Supreme Court.

Afraashim also gave eloquent speeches praising former JSC Chair and interim Supreme Court Justice Mujthaz Fahmy, and urged his nomination to the Supreme Court.

In my turn, I noted the task before us was to appoint the Supreme Court of the country, and that it was important to include a woman on the bench as the Supreme Court bench would sit for life, and appointment of another Supreme Court judge may not happen for the next 30 years.

Further, I objected to JSC members nominating friends, colleagues and acquaintances to the bench just because the member is familiar with them and knows them to be ‘perfect for the Supreme Court’. None of us knew all eligible candidates for the Supreme Court. In my opinion, it was abuse of office to give an unfair advantage to our friends by naming them for Supreme Court. Many, more worthy candidates, may miss out just because none of us sitting JSC members know them personally.  Then, I raised my objections to some names floated.

Mujuthaz Fahmy did not have the educational qualifications nor the good character required. Further, the Anti Corruption Board had found him guilty of embezzling State funds in 1998. And there were other allegations against him pending investigation. Mujthaz Fahmy was not fit to sit Judge.

Abdulla Saeed, though having the required educational qualifications, had lost all moral authority to sit.  He made a public spectacle of himself and in an interview on DhiTV following the lock-up of interim Supreme Court on 7 August 2010. He publicly demonstrated then that he does not possess the good character required of a Judge.  We all watched him scream, plea, threaten and cajole, calling for the return of “Supreme Court powers”.

Earlier in the year, Abdulla Saeed had taken advantage of political fighting between the parliament and executive to declare himself Chief Justice, and the interim Supreme Court the permanent bench. He abused trust and attempted to usurp for himself the constitutional powers vested in the president and parliament to appoint the Supreme Court. While this was a silent coup in itself, a betrayal of trust, and an attempt by trusted caretakers at the interim Supreme Court to take over the Supreme Court, neither the parliament nor president held the interim Supreme Court to account.

The JSC, headed then by interim Supreme Court Justice Mujthaz Fahmy, ignored and denied repeated requests to agenda the matter of interim Supreme Court’s self declared permanency in the Commission as a matter of serious breach and misconduct. Media reported on Interim Chief Justice Abdulla Saeed’s letter but failed to do follow-ups, allowing the matter to remain buried. Neither State nor the law community noted anything amiss.

I also stated that Ali Hameed and Adam Mohamed Abdulla of the High Court were signatories to the High Court declaration of 21 Jan 2010 and that their misconduct was pending investigation in the JSC. So was the complaint of misconduct against Abdul Ghani Mohamed, Chief Judge of the High Court, based on allegations publicly raised by three of the five High Court justices on 21 January 2010.

While at the meeting I received information, via SMS, that Dr. Ahmed Abdulla Didi did not meet the qualifications required of a Supreme Court judge. I raised the concern, and noted no one had checked Dr. Ahmed Abdulla Didi’s qualifications. I, a member JSC, had never seen even a CV of his.

President Nasheed himself spoke of Abdulla Saeed as unfit, giving good reason why he was not fit to sit judge.  Former Attorney General, Husnu Al-Suood had earlier, on the day of deciding a nominee for Chief Justice, shared till then unknown information and anecdotes on Abdulla Saeed’s character. This included information about how he divorced his wife in a rage one Ramazan for not having his shirt ironed and ready when he wanted. All of this was known fully to the President and the Commission.

The meeting ended on the dot, at 1:00pm, without further happening. It was a one-hour meeting and President Nasheed is excellent at time management. JSC never finishes a sitting in the allotted one hour, thirty minutes. Often, sitting time has to be extended before the Commission even reaches items on the agenda.

As we stood up and were taking leave, I heard Shahid request a word with President Nasheed. As I walked out of the room, I saw President Nasheed in the corner of the room, Shahid before him.

Parliament approves full bench without question

Rumour round town was that Parliament would reconvene at 2:00pm the same day to approve the Supreme Court. People waited in anticipation but nothing happened at 2pm. Parliament was delayed as committees worked and parties talked behind closed doors. After another delay at 4:00pm the Majlis finally sat that evening.

The list of nominees for the Supreme Court, when it was announced in Parliament, came personally as a shock to me. I had heard President Nasheed’s objections to Abdulla Saeed’s name, with good reason. It was very clear that Saeed was not fit to sit on the bench. Yet, his name was on the list. Also included were Ali Hameed and Adam Mohamed Abdulla, both with serious misconduct allegations uninvestigated at JSC.

In another unusual development, perhaps unprecedented in parliamentary history anywhere in the world, Parliament amended the Judges’ Act just before the names were approved. The amendment specified that the 7-years experience required to qualify for a judge may include legal experience outside the Maldives, a redundant change as nothing elsewhere prevented the interpretation of the clause to include outside experience. Clearly, it was meant to mislead the public and cover the fact that Dr. Ahmed Abdulla Didi did not meet required experience.

The Supreme Court bench was approved without question or query. No one noticed anything amiss.

I observed it all closely, from my seat on the Judicial service Commission, said what I must, and kept silent. This wasn’t just the Judicial Service Commission in breach. The President, Parliament and the proposed bench for the Supreme Court were all violating the Constitution, all in the name of peace and national security. The international community, ignorant of the realities or not interested in domestic politics, were urging political negotiations, ignoring the fact that negotiations between unequal parties invariably turns out skewed. Not only was MDP (Maldivian Democratic Party) the minority  in Parliament, MDP itself did not have agreement within the Party leadership on executing the Constitution and building a democratic State. Individual MPs had their own notions and interests which preceded the Constitution, an independent Judiciary, or democratic government. Of utmost importance to certain influential MPs was control. Control information. Control dissent. Control judges. Control verdicts.

Of course, for some, it is nothing but madness to suggest the whole State is entangled in a web of deception. But that is the fact of the matter.  Maldives lost an independent judiciary, and with it the constitution and democratic government, by the failure of us all to watch the politics and respect the Constitution.

Not even President Nasheed’s own announcement that the Supreme Court is in fact a political deal is taken note of.  Still, even today, the goal is a political deal to reorganise the bench when it is very clear that there is no legitimate Supreme Court. The politicians, Party leaders and MPs are, understandably reluctant to own up to a deal gone bad. At stake, is the Constitution, democracy and justice the people of Maldives  stood up for.

Maldives must respect the Constitution and re-appoint the judiciary across all three tiers if it is to free the judges of suspicion and begin anew on the path of constitutional democracy.

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