JSC appeals Civil Court injunction to halt appointment process

The Judicial Service Commission (JSC) has appealed a Civil Court injunction issued on September 8 to halt the appointment of judges to superior courts pending a ruling on the legitimacy of the process.

A group of lawyers had filed a case contesting the legality of the JSC’s evaluation criteria – contained in a regulation drafted by the commission – on the grounds that it conflicted with both the constitution and the Judges Act. The lawyers requested the Civil Court to abolish the regulations and declare the commission’s shortlist void.

The final interviews of 17 shortlisted candidates were due to place on September 10, two days before the injunction or staying order was delivered.

The lawyers also claimed that two shortlisted candidates had close ties – as a spouse and a business partner – with two members of the commission, suggesting a clear conflict of interest as neither had recused themselves from voting in the JSC panel.

At today’s first hearing of the appeal at the High Court, JSC Lawyer Mohamed Waheed Ibrahim argued that according to article 143(a) of the constitution the Civil Court did not have jurisdiction to rule on the constitutional validity of “any statute or part thereof enacted by the People’s Majlis.”

In addition, Waheed contended the Civil Court order violated articles 144(a) and 145(c) of the constitution as well as articles, 20(a) and (b), 36 and 37 of the Judicature Act.

Waheed further argued that the Supreme Court had set a judicial precedent by transferring a Civil Court case regarding the appointment of five judges to the High Court bench.

In January this year, Criminal Court Judge Abdul Bari Yoosuf at the Civil Court claiming to show procedural and legal issues in the JSC vetting process. Bari’s case was later entered into by Family Court Chief Judge Hassan Saeed as a third party.

On January 20 – three days before the judges were due to be sworn in – the Civil Court issued a temporary staying order halting the appointments pending a final ruling.

The Supreme Court however transferred the case from the lower court a day later and conducted two hearings before dismissing it without issuing a verdict.

Waheed also claimed that the JSC was not offered enough time to prepare a defence as the Civil Court issued its injunction or temporary staying order on the night the case was filed.

The JSC requested the High Court to overrule the Civil Court order and declare that the trial court did not have the jurisdiction to rule on constitutional matters.

In response, Husnu Suood, former Attorney General representing the group of lawyers, contended that the case filed at Civil Court was not exclusively about the constitutional validity of the JSC regulations.

Suood explained that the issue was “problems in ranking certificates” in the JSC evaluation criteria, which the lawyers argued unfairly favoured graduates of the Islamic College of Maldives (Kulliya). The case also alleged conflict of interest on the part of two members, Suood added.

Moreover, Suood continued, a November 2008 Supreme Court ruling established a precedent that it did not have “exclusive jurisdiction on constitutional matters”, referring to a case filed by eight MPs appointed by former President Maumoon Abdul Gayoom contesting their dismissal by President Mohamed Nasheed.

The Supreme Court had ruled that the case should have been filed at a lower court.

On the issue of the High Court appointments, Suood noted that there was no judicial precedent set as the Supreme Court had not issued a verdict before dismissing the case on a technicality.

Disputing the JSC’s claim that the Civil Court had informed the commission of its hearing after office hours, Suood noted that the JSC had issued press statements between 4:00pm and 8:00pm on September 8.

In addition, the lawyers now claim that based on statements by the JSC at the Civil Court hearing, the regulations were not valid as they were not published in the government gazette.

The High Court panel consisting of three judges adjourned today’s hearing after informing the lawyers that a second hearing would be held if there were further matters to clarify.

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