Supreme Court rulings were far superior under “supposedly uneducated judges” during the interim period compared to those delivered by the current bench, some members of the JSC have said.
JSC members MP Afraasheem Ali, High Court Chief Judge Abdul Ghanee Mohamed, Judge Abdullah Didi and Lawyer Ahmed Rasheed also agree that arbitrary powers of the Supreme Court have increased while the standards of its rulings have fallen since the interim period ended.
The JSC members’ scandalous criticism of the country’s highest court comes at a time when it is facing legal action in the Supreme Court over its handling of recent appointments to the High Court.
The remarks were made at a secret meeting on February 6 to discuss who should represent JSC at the Supreme Court, and came to light after an audio recording of the meeting was leaked to the public via YouTube by a source calling itself ‘dhikileaks‘.
Discussing recent Supreme Court rulings during the lead up to the local council elections, Rasheed, who represents the law community at the JSC, said some of the actions would not have been possible “even under the Blue Constitution” of the “former President”.
“Not even then was such a thing [as the Supreme Court ruling on Addu City] possible,” Justice Ghanee is heard saying to general laughter among the men.
MP Afraasheem, agreeing with Justice Ghanee, is heard responding that, “One very prominent judge has told me that things have reached an embarrassing state.”
“The court’s jurisdiction has changed now with the Justice Act”, Rasheed says. MP Afraasheem agrees, “They are stronger… it is always the voice of the Supreme Court now, isn’t it?”
“When these five judges get together, anything goes,” Rasheed is heard replying. MP Afraasheem is heard pointing out that two dissenting opinions were expressed in the particular Supreme Court ruling they were discussing.
“Yes, but this type of powers…” Justice Ghanee is heard saying. The decision, he adds, was made by “consensus of the majority.” Something, he further adds, “Cannot even be seen in Arabic, an Arab nation”.
Laughing, MP Afraasheem is heard responding, “If it’s a majority decision it means there was no consensus… majority is always unanimous… things that are said!”
“That is just to make things as confusing as possible”, Rasheed adds to Abdullah Didi’s agreement.
He also says that, “during the transition period, when it was being said that judges on the bench did not have an education –the rulings they made were far superior.”
“Mujey [Interim Supreme Court Justice and former JSC Chair Mujthaz Fahmy] and them, their rulings were far superior,” Rasheed continues. MP Afraasheem Ali is heard agreeing with him, laughing, and adding that “Yes, things are far more odd now.”
Colluding to commit perjury
Throughout the conversation, the men – with the help of Acting Secretary General Abdul Faththah Abdul Ghafoor – are heard making phone calls to certain members of the JSC to solicit their approval for appointing MP Afraasheem as the JSC’s official representative at the Supreme Court.
MP Afraasheem, who is the Deputy Chair of the JSC, is successful in ringing JSC Public Member Shu’aib Abdul Rahman and Mohamed Fahmy Hassan and getting their approval to appoint him as JSC’s representative to the Supreme Court.
“The Commission majority is not present here … see the way we arrange things on the phone when that happens?” MP Afraasheem is heard saying on the phone to Shu’aib. Shu’aib confirms that he knows of this procedure, and consents to give his approval.
MP Afraasheem expresses his gratitude, and tells Shu’aib the Commission will send a written copy of the decision for him to sign.
“You don’t have a problem with that, Usthaz Shu’aib. That’s okay?” Afraasheem asks. “Yes, yes, yes”, Shu’aib is heard replying.
Once the phone call to Shu’aib is over, Afraasheem, Ghanee and Rasheed are heard discussing whom they should phone next. Ghanee is heard rejecting a suggestion by one of the men to phone Attorney General Sawad, “That will not be so good.”
The careful selection of which JSC members to phone suggests the calls were being made only to those perceived as likely to approve Afraasheem’s appointment; and to those who were unlikely to object to granting their approval on the phone – an act that directly contravenes the Constitution and JSC regulations.
Article 163 of the Constitution states that any meeting of the JSC should be attended by a majority of its 10 members, and that any decision taken by JSC should be by a majority vote cast by members present.
Only five members of the JSC had signed in as present at the meeting on February 6.
JSC interim Secretary General Abdul Faththah has told Minivan News that while there “should be quorum”, in time-sensitive matters such as court summons members sometimes had to make decisions outside formal meetings, with the approval of other members.
“This is not a matter so important to take a decision with the discussion of the members,” he said.
Forging documents for the Supreme Court
The JSC sent a letter to the Supreme Court, with the same date, saying that “a majority decision had been taken by members who participated in the meeting on February 6” to appoint MP Afraasheem as JSC’s representative to the higher courts.
There are six signatures on the document – that of the four men supposedly present at the meeting, and the two men – Shua’ib and Fahmy – who were absent at the meeting, but had agreed on the phone to Afraasheem’s proposal.
The document is misleading, and represents the decision as having been made by six members who were present at the meeting.
Minivan News can also confirm that the four members present at the meeting had engineered it in such a way that one of its members, Aishath Velezinee, was deliberately excluded from the meeting despite having presented herself at the scheduled time.
Velezinee, who has been the most outspoken and vocal critic of what she has called “machinations of deliberate deceit” at the JSC, had arrived for the meeting as scheduled at 7:30p.m.
After 15 minutes, when the required six members failed to attend, the meeting was cancelled as is required by JSC regulations and Constitutional stipulations. Velezinee left the meeting room, the three men and Acting Secretary General – JSC’s third appointment to the post in five months – remained behind.
Suspecting “something was amiss”, Velezinee stayed within JSC premises after the meeting was called off. The four men were still in the meeting room when she returned to check a quarter of an hour later.
She asked them what they were up to, and was told they were just wrapping things up before leaving. She left. It was after her departure that the three men began making the phone calls. The fourth, Judge Abdulla Didi, had joined some time after she left around 8.00pm, says Velezinee.
The contents of the leaked audiotape supports Velezinee’s version of events as Judge Abdulla Didi is heard saying that the meeting “was cancelled” and “we can’t order for a cancelled meeting”, when MP Afraasheem Ali asks if anyone wants refreshments.
Premeditated plan of deception
In the audio recording of the meeting the four men are also heard discussing not just which members to phone but also what should be said in order to attain the approval they were seeking.
MP Afraasheem, for instance, discusses his phone call with Shu’aib asking if had “said the right things”. Abdul Ghanee replies that it was “perfect”, and disagrees with MP Afraasheem that perhaps he should have “made things a bit shorter”.
Laughing, Ghanee says, “No, no, that is just about right.” The men also discuss whether they should first send text messages to their targeted members, and whether it is best to ring them on the Secretariat mobile phones first as they would be more likely to pick up then.
After Shu’aib, Afraasheem’s next call is to Mohamed Fahmy Hassan whom he tells he is “calling from that big phone” at the JSC.
Inquiring after how things went “during the campaign”, he laughingly tells Fahmy that “Usthaz Ghanee, Usthaz Ahmed Rasheed and Usthaz Didi” were all listening.
Afraasheem is heard requesting Fahmy’s approval to appoint him as JSC’s legal representative to the Supreme Court, and also informs him that Shu’aib had already said yes.
“If you want, Afraasheem…”, Fahmy is heard saying.
“What you are saying is that if I have no objections to the appointment, you have none. Is that so?” Afraasheem says. “Yes, yes”, Fahmy says. Afraasheem also tells Fahmy that Ghanee had suggested appointing Fahmy himself as the representative.
“No, no. Keep me at a bit of a distance”, Fahmy demurs. “In that case”, replies Afraasheem, “I will send you the decision for you to sign.” Fahmy agrees.
Fahmy has previously told Minivan News he had no comment on matters relating to the JSC.
The men also appear to be aware of the underhanded nature of their actions, saying such tactics would have been harder had the JSC Chair Adam Mohamed been present.
“It would not have been this easy to do this if Adam was here”, Justice Ghanee is heard saying referring to Adam Mohamed’s lengthy pronunciations. Abdulla Didi agrees, “Yes, that’s the problem with Adam, isn’t it?”
Adam was abroad at the time of the meeting.
Once Fahmy gave his approval, Afraasheem hangs up the phone, and is heard declaring, “This is fun!”
He continues, “Tension. Able to get rid of the tension! We have six now, don’t we?” he says, referring to the six signatures that are needed for a JSC decision to be valid and binding.
“Six,” Rasheed is heard confirming.
“We have six”, Faththah says. The audio recording ends with some muffled voices in which one of the voices, which cannot be identified, says, “So lets get this signed and done with.”
JSC’s efforts to resist judiciary reform
JSC’s criticism of the Supreme Court bench, and the broad agreement among the men that the Court functioned better during the interim period reflects a general attitude observed among some JSC members to resist bringing the judiciary in line with the 2008 Constitution.
MP Afraasheem has been at the forefront of the resistance. He has, for example, dismissed as “symbolic” Article 285 of the Constitution, which demands that all judges who do not meet its newly stipulated qualifications be dismissed after two years of it coming into force.
The two years were up in August 2010, and the JSC has failed to take the required steps to remove or replace unqualified judges, instead deciding to re-appoint the whole bench having declared it “a violation of their human rights” to remove them under a retrospective law – meaning the new Constitution.
Moreover, in December of last year, MP Afraasheem successfully sought Majlis approval for legislation that granted a lifetime pension of Rf 600,000 (US$46,700) a year to former Interim Supreme Court Justice Mujthaz Fahmy.
Fahmy was on the bench of the Interim Supreme Court, which was dissolved on 10 August, 2010. When the new Supreme Court proper was established he was not re-appointed to the bench.
Records seen by Minivan News show that Fahmy is nowhere near meeting the educational qualifications required of a judge in any court, let alone the Supreme Court, and had also been found guilty of embezzling State funds.
Fahmy lacks a basic law degree, trained a total of 217 days in the 29 years he spent in the judiciary, and possesses a ‘sentencing certificate’ obtained as his only claim to an education in law.
Some of the 217 days Fahmy spent in ‘professional training’ included time spent acquiring the skills to use a computer.
MP Afraasheem told an approving Majlis that awarding the extraordinarily generous pension to Fahmy would strengthen the country’s judiciary and ensure its honesty and integrity.
JSC and a legal black hole
Alleged irregularities in its recent High Court appointments are not the only reasons for which the JSC has been recently summoned to the courts. In January this year, Civil Court Judge Mariyam Nihayath threw out a professional negligence case against the JSC.
Treasure Island Limited had brought the civil suit against the JSC alleging that it had failed to carry out its constitutional duties by arbitrarily dismissing its complaints of misconduct against two judges in a case involving millions of US Dollars and prominent members of the tourism industry.
Although the JSC failed to satisfy Judge Nihayath that it did have a proper procedure for dealing with complaints against the judiciary, she threw out the case against it when Treasure Island was late for the court on what was to be the penultimate hearing of the case.
Shortly after, the JSC launched its process for the High Court appointments. Judge Nihayath was one of the unsuccessful candidates, and is also among three candidates who have written to the JSC requesting further details on the selection criteria.
Although Nihayath and two other judges have written to the JSC seeking clarification of the procedures for making High Court appointments, and despite the fact that the High Court is virtually suspended while the case remains pending at the Supreme Court, the JSC does not appear to be treating the matter with any real importance or urgency.
It tabled the three judges’ requests for discussion on 16 February. It was the second last matter to be discussed – before the matter of the retirement procedure for judges who are over 70 years of age, and after four other items including the matter of what legal action to take against Velezinee.
Velezinee’s alleged removal of JSC’s official documents from its premises appears to be the matter to which the JSC is according most importance, ahead of a properly functioning judicial system.
The contents of the dhikileaks audio tape has been available to the public, and broadcast in the national media, from last week onwards. The JSC is yet to pay any attention to it, despite the evidence it provides of members colluding to submit a forged document to the Supreme Court, committing perjury.
The International Commission of Jurists (ICJ) conducted a fact-finding mission in September of last year, and is due to publish its findings tomorrow.