Judicial Service Commission sued for negligence, says its decisions “affect only judges”

Judicial Service Commission (JSC), the constitutionally mandated body responsible for ensuring the standards of the nation’s judiciary, has said its decisions have a direct effect only on judges.

The JSC was defending against allegations of professional negligence made by Treasure Island Limited at a Civil Court hearing today.

“Treasure Island is not directly affected by the JSC decision not to investigate the complaints it made against the judges, and therefore, does not have any legal right whatsoever to bring a case against the Commission”, the legal representative for JSC, Abdul Faththah, told Judge Mariyam Nihayath.

Treasure Island has alleged that the JSC failed to execute its responsibilities by neglecting to investigate three complaints submitted in 2009. The JSC has a special sub-committee of five members, set up specifically to investigate complaints against the judiciary.

The complaints of misconduct concern two judges – Judge Ali Naseer and former Supreme Court Justice Mujthaz Fahmy, also former head of JSC. At the time Treasure Island made the complaints to the JSC, Justice Fahmy was the Comission’s deputy chair.

The cases in which Treasure Island complained of misconduct by judges involve some prominent members of the tourism industry, including the Ministry of Tourism, and a sum of money amounting to over a million US dollars.

Treasure Island complained to the JSC that Judge Ali Naseer wrongfully excluded the company’s evidence from a 2008 case in order to rule against it.

It told the JSC that at another hearing, then chief Civil Court Judge Fahmy threw out a Treasure Island case by calling an emergency sitting at 9:00pm on the evening of 14 May 2008.

Treasure Island complained that although it was summoned to the hearing, the defendants were not present when Judge Fahmy dismissed the case.

The JSC argued at today’s hearing that the constitutional right of every person, group or member of a community directly affected by administrative action to take the matter to court did not apply to Treasure Island.

“It is only the judge against whom the Commission takes disciplinary action that will be affected by the action and not Treasure Island,” Faththah argued. “Therefore, Treasure Island does not have any legal right to bring the matter to court”.

The JSC also denied the allegation that it had refused to investigate the complaints made by Treasure Island, and submitted to court a copy of its reply to the company’s first complaint. The one line response dated 28 July 2009 stated: “This is to inform you that we do not see anything in your letter to which this commission needs to respond.”

The JSC’s response to the second complaint, in August 2009, was to say that it was neither its responsibility nor within the mandate of the JSC to investigate the ruling of a judge, and reminded the complainant of appeal mechanisms available to anyone dissatisfied with a decision of the court.

In today’s hearing, the JSC’s Legal Officer, Faththah told the court that both the constitution and the JSC regulations state unequivocally that it has the choice to ignore any complaints that it does not see as valid or genuine.

The criteria for what constitutes a valid or genuine complaint is not defined in either document, and is left to the discretion of JSC members.

“To describe the commission’s decision to exercise a legally sanctioned choice as illegal is an allegation with no basis in law,” he told Judge Nihayath.

Article 163 of the Constitution also stipulates that any decision of the JSC “shall be taken by a majority of the members present and voting”. The JSC’s submission to court today did not refer to the stipulation, nor did its responses to Treasure Island make it clear that the decision not to investigate the complaints were made in the required manner.

Minivan has learned that 118 complaints against the conduct of judges have been made at the Complaints Committee of the JSC this year alone. Not one of the complaints have been investigated.

A meeting of the Committee was scheduled for 6 October 2010, a day ahead of the Treasure Island hearing in court. The meeting could not go ahead as planned, however, as only two members attended. Three members are required to attend before a meeting can be held.

Minivan has also learned that yesterday’s meeting was the first one scheduled by the Complaints Committee in the last five months despite the large number of complaints pending.

Treasure Island today refused an offer of an out of court settlement made by the JSC. Director Ali Hussein Manik told Judge Nihayath that he was tired of “going again and again to the JSC” and that he wanted a decision of the court.

Judge Nihayath adjourned the case until 17 October 2010, agreeing to a request by Manik to give him time to consider JSC’s submissions today.

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