Parliament’s Independent Institutions Committee voted yesterday to replace Mohamed Fahmy Hassan at the Civil Service Commission (CSC) following Thursday’s Supreme Court ruling reversing parliament’s removal of the CSC chair over allegations of sexual harassment.
The proposal to appoint a replacement for Fahmy by Maldivian Democratic Party (MDP) MP Ahmed Sameer was passed with five votes in favour and none against.
Dhivehi Qaumee Party (DQP) MP Riyaz Rasheed attempted to disrupt the committee meeting on Monday afternoon and did not participate in the vote. Other government-aligned MPs did not attend the meeting.
Riyaz contended that yesterday’s meeting was called in violation of parliamentary rules of procedure and insisted at length that parliament could not challenge Supreme Court rulings.
Monday’s sitting of parliament was meanwhile called off after MDP MPs objected to the Supreme Court ruling on the grounds that the apex court overstepped its constitutional authority.
Speaking to Minivan News, MDP Spokesperson Hamid Abdul Ghafoor stated that the MDP did not believe Fahmy should hold his position in the CSC, accusing him of having an “issue of integrity”.
“The committee decided today that he [Fahmy] should go and we should continue looking for another person.
“Effectively we are ignoring the Supreme Court’s decision. The MDP will continue to raise this issue in parliament, it is a policy and it is legally non-negotiable. We cannot compromise on that.”
The sitting was first adjourned at 10:00am when MDP MPs raised points of order after Deputy Speaker Ahmed Nazim announced the Supreme Court’s decision.
In regard to the morning announcement, Ghafoor said Nazim did not make the “right call” when informing parliament of the court’s decision.
“He [Nazim] informed us of the three issues to do with the Supreme Court in a language that essentially showed an acceptance of those verdicts. We didn’t like this,” he said.
After the sitting resumed at 1:00pm, Nazim announced the cancellation as the issue was to be taken up at a meeting of the Independent Institutions Committee.
Fahmy however contested the dismissal at the Supreme Court, which ruled 6-1 on Thursday night that his removal was unconstitutional. The majority opinion contended that the Independent Institutions Committee violated due process and criminal justice procedures in its inquiry.
The majority opinion held that Fahmy would receive two punishments for the same crime if he was convicted at court following his dismissal by parliament (double jeopardy). The CSC chief returned to work on Sunday.
“Fundamental, revolutionary change”
Writing in his personal blog following the Supreme Court judgment, MP Mohamed ‘Kutti’ Nasheed – chair of the Independent Institutions Committee – argued that the Supreme Court judgment established a legal precedent that would bring “a fundamental, revolutionary change” to employment termination.
On the Supreme Court’s argument that Fahmy was accused of committing a criminal offence, Nasheed noted that sexual harassment at the workplace was not specified as a crime in Maldivian law. Legislation on sexual harassment is however currently before parliament.
In the absence of a law prohibiting the offence, Nasheed wrote, a person could not be prosecuted for sexual harassment.
Fahmy’s dismissal by parliament was therefore a disciplinary action taken by the institution with oversight powers over the CSC, Nasheed explained.
Under article 187(a) of the constitution, a member of the CSC can be removed “on the ground of misconduct, incapacity or incompetence.”
Article 187(b) states, “a finding to that effect by a committee of the People’s Majlis pursuant to article (a), and upon the approval of such finding by the People’s Majlis by a majority of those present and voting, calling for the member’s removal from office, such member shall be deemed removed from office.”
As the process to be followed by parliament was clearly specified in the constitution and parliamentary rules of procedure, Nasheed argued that the Supreme Court could not require parliament to adhere to “new conditions and new procedures”.
“While parliament has the power to remove members of the Civil Service Commission and the process to exercise that power is specified in the constitution, the problem that has risen is that the [Supreme Court] has determined that Majlis cannot use that power even in accordance with the procedure laid out in the constitution and law,” Nasheed wrote.
Nasheed further argued that parliament’s removal of former Auditor General Ibrahim Naeem in March 2010 has now been thrown into question in the wake of the Supreme Court ruling. Naeem was dismissed after the Finance Committee investigated allegations that he used an office credit card for personal benefit.
The ruling has also raised doubts over the legal status of current Auditor General Niyaz Ibrahim, Nasheed wrote.
Nasheed also criticised the Supreme Court’s interpretation of “double jeopardy” in Fahmy’s case. According to the Supreme Court ruling, a person could not be removed from his or her post as a disciplinary action unless he or she was convicted of a crime.
If an employee is accused of a criminal offence, he added, employers would no longer have the right to fire the accused before he or she was found guilty.
“If that is the case, questions have been raised over the dismissal of all police officers, army officer, civil servants and employees of other institutions over cases of misconduct or breach of ethical rules that involves allegations of a criminal offence,” Nasheed explained.
Double jeopardy does not preclude civil, disciplinary or administrative action before or after criminal prosecution, he added.
However, Nasheed argued, the Supreme Court ruling has effectively prohibited employment termination as a disciplinary action as the judgment considered such action “a punishment.”
As a result of the legal precedent established by the Supreme Court, Nasheed wrote, it was “very likely” that most people dismissed from their posts since the adoption of the new constitution in August 2008 would have to be reinstated.
“That is, considering their cases individually, it is certain that no state institution would have adhered to the standard set in this Supreme Court judgment. The standards are that high,” he explained.
Nasheed however stressed at the beginning of his post that he was obliged to accept the Supreme Court ruling as it was the highest court of appeal.