The Judicial Service Commission’s (JSC) decision to clear Supreme Court Judge Ali Hameed of misconduct in a sex tape scandal is “an insult to Islam,” and against principles of Islamic jurisprudence, critics have said.
The judicial watchdog yesterday ruled Hameed innocent, claiming it can only take disciplinary action if there is sufficient evidence to indict Hameed in a court as per the Islamic Shariah and Maldivian law.
The JSC justified its ruling on a police decision to close investigations after failing to gain new evidence.
The JSC member representing the public Sheikh Shuaib Abdul Rahman said the JSC had contravened Islamic principles in its decision.
“This is a misconduct case. Not a criminal case. Under Islamic fiqh (jurisprudence), misconduct complaints require less evidence than criminal and civil complaints. Judges can be dismissed if there’s too many public complaints against him,” he said.
“I believe there is enough evidence to take action,” he added.
Meanwhile, former JSC member and whistleblower Aishath Velezinee characterized the JSC decision as “the ultimate insult to Islam and Maldivian society.”
“This is a judiciary that sentences underage rape victims to be flogged. When they decide a Supreme Court judge, after being seen in a video that has gone viral, having illicit sex with multiple women, is not guilty of misconduct, what more can we say?”
Velezinee called on the public to protest, stating the decision shows the judiciary does not understand the law or the Shariah. Public silence on the matter will only allow the judiciary to “make a scandal of justice,” she added.
“To allow the Supreme Court, without protest, to decide any matter that affects you is to accept Ali Hameed has a right to judge for you. Protest!”
Several lawyers have echoed Shuaib’s concerns arguing the JSC does not have to follow the stringent standards used in a criminal trial in a case of misconduct.
“The JSC inquiry is not a criminal trial. They do not have to prove it by the standards employed in criminal proceedings. Their task is not to see if a judge is guilty beyond reasonable doubt. The JSC inquiry is about misconduct, it is a disciplinary issue,” lawyer and former Minister of Youth and Sports Hassan Latheef said.
UN Special Rapporteur on Independence of Judges and Lawyers, Gabriela Knaul, in a 2013 report, also said disciplinary or administrative investigations entail different penalties than those arising from criminal procedures.
“Judges and magistrates, as well as other actors of the justice system are criminally accountable for their actions. Criminal actions entail consequences and penalties that are different from those resulting from disciplinary or administrative investigations,” said Knaul.
Latheef said judges must have public confidence, and Ali Hameed should have voluntarily resigned when the tapes were first leaked on social media in 2013.
“Islamic Sharia says all judges must have public confidence. Anyone who is perceived otherwise, cannot be a judge. A judge cannot be open to blackmail,” he added.
Latheef also called on the police to continue with investigations and said the police’s decision to file the case must be looked into.
According to local media, the investigation had stalled after the Criminal Court refused to provide a warrant to obtain a facial photograph of Ali Hameed and another to search his residence.
Former Attorney General Husnu Al Suood also said the JSC had not complied with procedures in its conclusion and accused the commission of political bias.
Suood was appointed to a JSC subcommittee to investigate the case in December, but was expelled in January after the Supreme Court called for his removal after finding him guilty of contempt of court.
“I don’t think JSC has complied with existing procedures when they concluded this matter. This is a decision that needs to be revisited when the JSC is free from executive and judicial influence,” he said.
“JSC is under the full control of the executive. It doesn’t function independently, as envisaged in the constitution,” he added.
In Knaul’s report, she stated there was near unanimous consensus during her visit that the composition of the JSC – which draws members from sources outside the judiciary, such as the parliament, lawyers, and civil service commission – was “inadequate and politicized.”
“Because of this politicization, the commission has allegedly been subjected to all sorts of external influence and has consequently been unable to function properly,” said Knaul.
Suood claimed President Abdulla Yameen is at present working to fix the JSC membership in the coming term.
Opposition MP Ahmed Hamza was removed from the JSC in January after he announced his decision to run for the March parliamentary polls.
Meanwhile, the Supreme Court this week ruled any individual licensed as a lawyer, including judges and MPs, can vote to elect a member from the lawyer community to the commission.
Lawyers have spoken against the matter, arguing the decision compromised the independence of the legal profession.