Supreme Court orders JSC to halt transfer of judges

Supreme Court has released a mandamus order on Monday halting the judicial oversight body’s decision to shuffle ten superior court judges.

The order states the Judicial Services Commission (JSC) does not have absolute powers to transfer and promote judges.

Unless a court is liquidated no judge can be transferred to another court unless by the explicit decision of the Judicial Council, the Supreme Court said.

The Supreme Court has previously annulled the Judicial Council and taken over the council’s powers. The JSC has been notified of the move and hence is mandated to discuss any shuffle of judges with the Supreme Court, the order said.

“The Judicial Service Commission’s decision dated December 9, 2013 – where without any contribution of the Supreme Court – the JSC decided to transfer judges of the Civil Court, Criminal Court, Family Court, Drug Court and Juvenile Court from one court to another from January 1, 2014 is hereby overturned, and we notify Judicial Services Commission, concerned courts and other concerned authorities that it cannot be acted upon,” the order signed by Chief Justice Ahmed Faiz Hussain reads.

JSC disregarded Chief Justice’s objections

Earlier in December, the Chief Justice sent a letter to the JSC objecting to the transfer, presenting the same arguments as in Monday’s mandamus order.

The JSC had at the time decided to disregard the objections, saying it lacked legal grounds.

“Even under the constitution and the JSC Act, the commission is vested with the power to transfer the judges,” JSC representative from the parliament Ahmed Hamza said at the time.

“Order is baseless but will abide by it”

Hamza stated that the JSC still maintains that its decision is a legally justified one.

“When the next term of parliament begins, we will work on this matter from within the parliament. Meanwhile, the JSC’s position is clear: we maintain our stand that our decision to transfer judges is legal and within our powers,” Hamza told Minivan News today.

“By releasing this order, the Supreme Court has undermined the powers vested in the JSC by the constitution. I do not accept that the Supreme Court has the power to do so,” he continued.

“The Supreme Court usually overrules things when someone files a case there, not of their own initiative as in this instance. It is very surprising how this has come about.”

However, Hamza stated that as the objection has come in the form of a Supreme Court order, the JSC will have to follow it.

JSC Member appointed from the public Sheikh Shuaib Abdul Rahman stated that while the order held the same reasoning as the letter previously sent by Faiz, the JSC will abide by it as it has now come in the form of an apex court order.

However, commenting further in private capacity, Shuaib described the Supreme Court’s reasoning as “irrational”.

“The reasoning presented in the order itself is irrational, and off the topic. The only legal connection that they can show is Article 47 of the Judges Act. The thing is they are talking about the Judicial Council, which has been made void. How can they refer to something that has already been made void? The articles that the Supreme Court have pointed out in the order have nothing to do with the JSC,” Shuaib said.

Shuaib said that he does not accept the Supreme Court can adopt the duties of the Judicial Council after the council itself has been ruled void.


3 thoughts on “Supreme Court orders JSC to halt transfer of judges”

  1. A bunch of wrongs can never make a right.

    Wrong#1 - The Supreme Court repealing parts of the Judicature Act out of fear that the Judicial Council would undermine their authority over the judges of lower courts.

    Wrong#2 - The Supreme Court's assertion that the powers of the Judicial Council would now be vested in them. This amounts to encroachment on the powers of Parliament. The courts do not legislate - they interpret.

    Wrong#3 - The JSC's arbitrary and vindictive transfer of superior court Judges in a bid to exert political influence over the judiciary. Judges must feel secure in their posts and have no fear of being dismissed or punished for their rulings.

    Wrong#4 - The continued use of state-funded institutions Kulliyyaa and MNU to churn out substandard/unqualified "judges" and "lawyers" who will forever remain ignorant in their field and therefore subservient to political interests in order to remain in their posts.

    What we see is that the Maldives is still not ready or willing to reform the judiciary. All political parties see the institution as a tool to further their own ends. This has led to a situation where even "lawyers" are created by political parties influencing their puppets within the judiciary to rule in favor of those lawyers.

    The only ray of light is the publication of court rulings and the technical expertise possessed by a few of the judges working within the judiciary. The hope is that through greater transparency and academic criticism of court rulings, the law would develop to the point that opportunists and party activists will no longer be able to parade themselves as trained in the law. Then the State would be forced to either shut down Kulliyyaa and MNU's Faculty of Shariah and Law or reform both as well.

    Judicial reform must start at the very root. However as indicated above, the impetus for the change must come from the top.

  2. tsk, tsk, your point #4 is the glaring hole in the whole process. For centuries, Maldives has churned ill qualified people to work in the legal profession except for a very select few. As you rightly say, this did and continues to serve the purpose of the ruling class. The game plan was to keep the legal process murky and shrouded in mystery using the age old principle of "a little knowledge is a dangerous thing".

    I don't think it's true to say that every political party is unwilling to reform this mess. However, it's absolutely clear that the current coalition government has no intention of doing anything to the status quo.

    Indeed, to move forward, substandard madhrasaas such as Kulliyyaa and MNU (yes MNU is no more than a madhrasaa dressed as a university) should not have any part in training legal professionals. If there was a willingness to reform the seriously ill judiciary, the 100 day program of the new government should have set priorities to train future legal minds to international standards in reputable institutions with a view to completely replace the current lot.


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