The sudden removal of former Chief Justice Ahmed Faiz and Justice Muthasim Adnan has “severely jeopardised” the independence of the Maldives judiciary and the rule of law, three Commonwealth bodies have said.
The Commonwealth Lawyers Association (CLA), the Commonwealth Legal Education Association (CLEA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) in a statement on Tuesday said the judges’ removal was unconstitutional and constituted a clear breach of the Commonwealth Principles to which the government of Maldives has subscribed.
Faiz and Muthasim were removed by a two-third majority of MPs present and voting at an extraordinary session on Sunday following amendments to the Judicature Act that reduced the seven-member Supreme Court bench to five judges.
Expressing concern, the CLA, CLEA and CMJA said the removal contravened Article 154 of the Maldives Constitution that says a judge can only be removed if the watchdog Judicial Services Commission (JSC) find the judge guilty of gross misconduct or incompetence.
The JSC did in fact rule the two judges unfit, but the ruling has not been made available to MPs or the public, despite repeated requests by opposition MPs.
In passing the revisions to the Judicature Act and removing the two senior judges, the Government of Maldives have breached the Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government (2003), said the statement.
“As a result the independence of the judiciary and the Rule of Law have been severely jeopardized”.
The Principles state that “Judges should be subject to suspension or removal only for reasons of incapacity or misbehavior that clearly renders them unfit to discharge their duties.”
They further state that disciplinary procedures must be fairly and objectively administered and should include appropriate safeguards to ensure fairness.
“The Associations urge the Government and Parliament of the Maldives to respect the independence of the judiciary and to comply with the relevant constitutional provisions, Commonwealth Principles and other relevant international standards,” the statement urged.
President Abdulla Yameen appointed Justice Abdulla Saeed as the new Chief Justice on Sunday. Faiz has condemned the Majlis vote as unconstitutional, and said the move raises doubts over the separation of powers and the continuation of judicial independence in the Maldives
Three lawyers mounted a challenge to the Judicature Act’s amendment at the High Court on Sunday, but the court’s registrar has thrown the case out claiming it has no jurisdiction over the matter.
Acting registrar Mariyam Afsha said the complaint’s original jurisdiction lay with the Supreme Court.
Critics have pointed out the High Court registrar’s decision effectively means only the Supreme Court can now hear the challenge and have pointed to a Supreme Court’s conflict of interest in the case.
The opposition Maldivian Democratic Party had also lodged a complaint with the Civil Court challenging the legality of the JSC ruling, but the Supreme Court on Sunday took control of the case minutes after the first hearing began.
The Supreme Court’s writ of prohibition ordered the Civil Court to “to hand over case files, with all relevant documents, to the Supreme Court before 20:45 tonight, 14 December 2014, and to immediately annul any action that may have been taken on the matter.”
The decision followed a declaration by Civil Court Chief Judge Ali Rasheed Hussein, and Judges Aisha Shujoon, Jameel Moosa, Hathif Hilmy, Mariyam Nihayath, Huseein Mazeed, and Farhad Rasheed in which they declared the move to dismiss the two judges to be against principles of natural justice and several international conventions, and could “destroy judicial independence” in the Maldives.
“We believe we are obliged to comment on the issue for the sake of the democratic and judicial history of the Maldives, and we believe keeping silent at this juncture amounts to negligence” the bench said.
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