Lawyers contest legality of JSC appointment process

A group of lawyers filed a case at the Civil Court today contesting the legality of the Judicial Service Commission’s (JSC) evaluation criteria for selection of judges to superior courts, requesting a court order to halt the appointment process.

On August 29, the JSC announced that 17 shortlisted candidates have been invited for interviews on Saturday (September 10).

The group of lawyers, represented by Ali Hussein and Ismail Visham, contend that regulations drafted by the JSC containing the evaluation criteria conflicted with both the constitution and article 15 of the Judges Act. The lawyers requested that the regulations be abolished and the shortlist be cancelled.

In addition, the lawyers claimed that two shortlisted candidates had close ties – as a spouse and a business partner – with two members of the commission, suggesting a clear conflict of interest as neither had recused themselves from voting in the JSC panel.

Briefing press today, Ali Hussein argued that the evaluation criteria formulated by the JSC unfairly favoured graduates of the College of Islamic Education (Kulliya).

While article 15 of the Judges Act stipulate that candidates for superior courts must possess a first degree in “either Shariah or law,” Ali Hussein explained that under the regulations drafted by the JSC, a candidate with a masters degree and a graduate of Kulliya both receive 25 marks for educational qualification.

“We are saying this is not fair,” he said. “We especially note that the Faculty of Sharia and Law teaches shariah subjects to the same extent as Kulliya [Islamic College], but graduates of the faculty receive 20 marks while students from Kulliya receive 25 marks.”

Kulliya graduates also received higher marks than graduates of the Islamic University of Malaysia, he said.

As 25 marks are to be awarded for the interview, Hussein noted, candidates who were not shortlisted would not receive any marks: “They should also have the chance to receive those 25 marks,” he said.

Moreover, he continued, the JSC criteria also conflicted with the academic rankings of the Maldives Qualification Authority (MQA), formerly the accreditation board, which places Kulliya certificates below those of overseas institutions.

The lawyers noted that shortcomings of the judiciary and lack of public confidence were tied to the lack of qualified judges on the bench.

“One of the main points of concern is that the JSC is the independent statutory body with a legal mandate to develop and improve the judiciary,” said co-counsel Ismail Visham. “But their actions so far suggest that they are trying to service the existing judiciary instead of introducing foreign elements or trying to develop the judiciary.”

As judges are appointed for life, said Visham, “they should be screened better” to ensure necessary academic qualifications, integrity and competency.

The eight claimants against the JSC include Abdul Hameed Abdul Kareem, Hassan Fiyaz, Mohamed Fareed, Husnu Suood (former Attorney General), Anas Abdul Sattar, Mohamed Nizam, Mohamed Iyaz and Ahmed Abdulla Hameed.

In March this year, two senior judges accused the Supreme Court of violating due process and unfairly dismissing a case challenging the legitimacy of the JSC’s appointment of five judges to the High Court.

Criminal Court Judge Abdul Bari Yousuf – an applicant for the bench – filed a case at the Civil Court in January claiming procedural violations in the JSC vetting process.

The Supreme Court however transferred the case from the lower court a day later and conducted two hearings before dismissing it without issuing a verdict. The highest court of appeal had announced on January 21 that it was taking over the case as it involved “a matter of public interest”.

In a letter sent to President Mohamed Nasheed at the time, Chief Judge of the Family Court, Hassan Saaed, claimed that “the fact that the case was dismissed in violation of legal principles and procedures came as a shock to the judiciary.”

Saeed added that as a result of the incident, “the growing confidence that I and ordinary citizens had in the judiciary is lost,” urging the President to “stop this process continuing unlawfully.”

President Nasheed meanwhile appointed former MP Hussein Ibrahim as the President’s member on the JSC yesterday.

In August 2010, the JSC’s controversial reappointment of judges – the majority of whom were appointed by former President Maumoon Abdul Gayoom, who was the highest authority on justice under the old constitution – was characterised by the President’s former representative on the commission, Aishath Velezinee, as “nothing less than treason to rob the nation of an honest judiciary.”

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