Chief Justice Ahmed Faiz Hussain has stated the Judicial Service Commission (JSC)’s transfer of superior court judges to other courts is unlawful.
Following the JSC’s decision to transfer Judge Abdulla Mohamed from his post as Criminal Court Chief Judge to the same position in the Drug Court on Monday, Faiz sent a letter to the president of the judicial watchdog Adam Mohamed on Tuesday stating that the commission did not have the legal authority to carry out such transfers.
Faiz subsequently deemed such decisions made by JSC to be “unlawful”.
The letter states that although Article 159(a) gives the JSC the authority to appoint, promote or transfer judges other than those from the Supreme Court, it “must not be interpreted as an absolute right”.
He then stated that the Judges’ Act mandates any transfer of a judge from his appointed court can only be carried out following deliberation with the Judicial Council.
The Judicial Council, meanwhile, is compiled of the seven judges sitting on the Supreme Court bench. Faiz stated in his letter that no judge should be transferred without consulting the Supreme Court first.
The Senior Legal and Complaints Officer Hassan Faheem Ibrahim – acting head at the JSC – confirmed to Minivan News that the commission had received the letter today.
“Since it is the Chief Justice who has sent this letter, we will not have any views on it or comments to make about it. It is the commission who will decide after they have deliberated on the matter. No meetings for the matter have been scheduled yet,” Faheem said.
Article 159(a) of the Maldives Constitution states that “The Judicial Services Commission is entrusted with the responsibility and power to appoint, promote and transfer Judges other the Chief Justice and Judges of the Supreme Court, and to make recommendations to the President on the appointment of the Chief Justice and Judges of the Supreme Court.
Article 49 of the Judges’ Act refers to temporary transfer of judges from one court to another and states “Temporary appointment of a Judge to preside over cases in a court will be decided upon by the Judicial Services Commission under the advice of the Judicial Council”.
Speaking to Minivan News on Monday, appointee from the Parliament to the JSC, Maldivian Democratic Party MP Ahmed Hamza said that about eight judges have so far been transferred from the courts they previously presided over. He added that the decision to transfer Judge Abdulla Mohamed was made to strengthen the courts by transferring experienced judges to different courts so as to spread knowledge and expertise.
Judge Abdulla Mohamed has previously been under investigation from the JSC, for allegations of ethical misconduct and obstruction of corruption investigations among others.
The decision of President Mohamed Nasheed to detain Mohamed in January 2012 fuelled a series of protests by then-opposition political parties, eventually leading to a police and military mutiny and Nasheed’s resignation.