High Court claims “no jurisdiction” in Supreme Court bench reduction challenge

The High Court on Tuesday threw out a challenge to Judicature Act amendments that reduced the seven-member Supreme Court bench to five judges and resulted in the sudden removal of Chief Justice Ahmed Faiz and Justice Muthasim Adnan.

High Court Registrar Mariyam Afsha said the complaint’s original jurisdiction lay with the Supreme Court, and not the High Court.

The case lodged by Lawyers Shaheen Hameed, Hassan Ma’az Shareef and Mohamed Faisal, contended the revisions to the Judicature Act were unconstitutional as they forced the removal of sitting Supreme Court judges without due process.

Critics have pointed out the High Court registrar’s decision effectively means only the Supreme Court can now hear the challenge and have pointed to a Supreme Court’s conflict of interest in the matter.

According to Article 11 of the Judicature Act, the Supreme Court has original jurisdiction in controversies that may lead to a constitutional void, cases where two branches of the state or two institutions of the state disagree on interpreting the constitution, and in constitutional matters that affect public interest.

Article 37 of the Judicature Act gives the High Court original jurisdiction in controversies where a law or part of a law is unconstitutional or where regulations or part of a regulation is against laws and the constitution.

Removal of judges

According to Article 154 of the Constitution, a judge, once appointed, can only be removed if the watchdog Judicial Services Commission (JSC) found the judge guilty of gross misconduct and incompetence, and if the Majlis subsequently removed the judge by a two-thirds majority of MPs present and voting.

Within hours of the amendment’s ratification on Thursday (December 11), the JSC in an emergency meeting recommended the two judges unfit for the position.

However, the JSC’s reasons were not made available to the public or MPs when the vote to dismiss the two judges proceeded on Sunday.

Shaheen, also President Yameen’s nephew, told local media that the JSC had failed to afford Faiz and Muthasim the opportunity to speak in their defense.

“[The JSC] is saying that it is alright to dismiss these first two judges by flouting all procedures, but that due process must be followed in dismissing other judges. This is gross violation of equality before the law,” he said.

The MDP had also lodged a challenge to the JSC decision with the Civil Court, but the Supreme Court took control of the case on Sunday minutes after the first hearing started.

The Supreme Court’s writ of prohibition ordered the Civil Court to “to hand over case files, with all relevant documents, to the Supreme Court before 20:45 tonight, 14 December 2014, and to immediately annul any action that may have been taken on the matter.”

The decision followed a declaration by Civil Court Chief Judge Ali Rasheed Hussein, and Judges Aisha Shujoon, Jameel Moosa, Hathif Hilmy, Mariyam Nihayath, Huseein Mazeed, and Farhad Rasheed in which they declared the move to dismiss the two judges to be against principles of natural justice and several international conventions, and could “destroy judicial independence” in the Maldives.

“We believe we are obliged to comment on the issue for the sake of the democratic and judicial history of the Maldives, and we believe keeping silent at this juncture amounts to negligence” the bench said.

The Judicature Act amendments will also divide the nine-member High Court into three branches, with three members each.

The two regional branches in the North and South will only be allowed to hear appeals in magistrate court verdicts. Only the Malé branch will be allowed to hear challenges to laws and regulations.

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