JSC to show Civil Court samples of its extra-constitutional complaints procedure

The Judicial Service Commission (JSC) has been asked by Civil Court to provide examples of its use of a self-modified procedure for investigating complaints against the judiciary as an alternative to Constitutional stipulations, in defence against allegations of negligence.

The JSC is currently defending itself against allegations of professional negligence made by Treasure Island Limited, which accuses the Commission of failing in its Constitutional duty to uphold ethical and disciplinary standards of the judiciary.

Judge Nihayath, who is overseeing the case, asked the JSC yesterday to submit “two or three” examples to Civil Court in order to demonstrate how a proposed alternative to Constitutional procedure was being used to deal with complaints.

Judge Nihayath has not yet received an answer from the JSC to her inquiry about the number of complaints the commission has received and agreed to cancel a hearing scheduled for this morning until December 27, 2010.

The negligence case focuses on three separate complaints made to the JSC last year, which Treasure Island alleges related to misconduct by a number of judges, including some prominent figures of the tourism industry, over a sum of money amounting to over a million US dollars.

JSC legal representative Abdul Faththah told the court at last week’s sitting that Constitutional stipulations regarding how the JSC dealt with complaints were very “time-consuming”, leading to new procedures being adopted.

At the time of the complaints in 2009, he said, the Commission was experiencing a lot of housekeeping problems and Members’ time was valuable.

As an independent body set up by the 2008 Constitution with the mandate to maintain the ethical and disciplinary standards of the judiciary, the JSC is required to put any decision regarding a complaint against the judiciary to a members vote.

Article 163 stipulates that it is only by consensus or, failing that, a majority decision of the 10 member Commission, that any such decision can be taken. It is also required to maintain a record of every such decision, and how each member voted.

Instead, the JSC revealed last week that it had set up an alternative mechanism that Faththah described as a process of “administrative screening”.

The alternative process is said to have constituted all complaints being “administratively” pre-screened by the JSC Chair who, acting on his own, decided whether or not they contained allegations of judiciary misconduct.

Only complaints hand-picked by the JSC Chair were passed on to members for their deliberation or decision.

Valuable time was saved by the modified procedure, Faththah told the court. He also told Judge Nihayath that existence of the “administrative screening” process was proof that JSC did not have a specific mechanism in place for dealing with complaints, as had been alleged by Treasure Island.

Treasure Island has accused the JSC of arbitrarily dismissing its complaints of misconduct against two judges, therefore failing in its Constitutional duty to uphold the ethical and disciplinary standards of the country.

The court earlier agreed to Treasure Island’s submission that JSC be made to produce documentary evidence of having followed proper procedures in dismissing its complaints of misconduct against Interim Supreme Court Justice Mujthaz Fahmy and Civil Court Judge Ali Naseer.

JSC was asked to provide the court with the minutes and agendas of the meetings where the decisions were put to a members’ vote, and also the records of how they voted.

JSC was unable to provide the evidence at last week’s hearing. Faththah told the court of an alternative system of “administrative screening” instead.

Judge Nihayath asked the JSC yesterday to submit to court a sample amount of “two or three” other complaints dealt with according to the extra-constitutional procedure.

An answer from the JSC to her inquiry about the number of complaints the commission has received was not made available as of this morning.

Judge Nihayath was expected to rule today on whether or not to summon as witnesses the Speaker of Parliament, Abdulla Shahid, former Attorney General Husnu al-Suood, former Civil Service Commission Chair Dr Mohamed Latheef, and High Court Chief Judge Abdul Ghani Mohamed.

The decision was deferred to the next hearing on 27 December after Judge Nihayath acceded to Faththah’s request to cancel today’s hearing.

Faththah said the Judge’s 40-minute delay in starting the procedures meant he would be late for a funeral prayer at noon. The hearing had been scheduled for 11am.

Treasure Island had also asked the court to summon Member Aishath Velezinee as a witness; a request that was rejected outright on grounds that she had been present at all preceding hearings.

Judge Nihayath had also rejected an earlier application by Velezinee for Third Party entry to provide information she alleged the JSC was withholding from the court.

The JSC rejected 122 complaints in 2009. Of over 140 complaints received since the beginning of the year, none have been investigated.

The JSC also faces allegations that it has failed to adopt a standard of procedure by which its behaviour is bound, an issue that has caused deep internal division with the Commission. The JSC Act required the standards of procedure to have been adopted by last January.