Civil Court may summon High Court Chief Justice and Majlis Speaker as witnesses in JSC negligence case

The Civil Court is considering whether or not to summon High Court Chief Justice Abdul Ghani Mohamed and Majlis Speaker Abdull Shahid to give evidence in the ongoing professional negligence case against the Judicial Service Commission (JSC).

The Civil Court may also summon Interim Civil Service Commission Chair, Dr Mohamed Latheef and former Attorney General Husnu Suood in relation to the same matter.

The request to have Chief Justice Ghani summoned to give evidence in court came from the JSC. It wants the court to accept Chief Justice Ghani’s oral testimony in place of the written evidence it was required, but failed, to submit to court today.

The remaining potential witnesses, Speaker of the Majlis Abdulla Shahid, Interim Civil Service Commission Chair, Dr Mohamed Latheef and former Attorney General Husnu Suood may be summoned at the behest of Treasure Island Limited, which is suing the JSC for professional negligence.

Civil Court Judge Mariyam Nihayath had given JSC until today to provide documentary evidence to show that it followed proper procedures in deciding not investigate three complaints made by Treasure Island against former Supreme Court Justice Mujthaz Fahmy and Judge Ali Naseer.

JSC Legal Representative Andul Faththah told the court today that he could not find the required documents. He asked the court to accept instead the oral testimony of Chief Justice Ghani, then Chair of the JSC.

The Constitution and JSC regulations both require that any decision regarding complaints of misconduct against the judiciary has the support of the majority of its ten members. The JSC is also required to keep a record of the members present and how they voted at the meeting.

Treasure Island has alleged that this procedure was not followed by the JSC in dealing with its complaints. Arbitrary and partial decision-making processes, it alleges, prevents the JSC from performing its constitutional duty to ensure “equal justice for all”.

A letter dated August 2009 and signed by Chief Justice Abdul Ghani, then JSC Chair, said in reply to one of Treasure Island’s complaints that the allegations were beyond the remit of the JSC and required no further investigation.

Judge Nihayath asked the JSC for the agenda and minutes of the meeting at which the decision was taken not to investigate the Treasure Island complaints any further.

JSC Legal Representative Abdul Faththah said today there was no such evidence to give to the court. This did not mean, however, he said, that no procedure was followed at all. “It was a different procedure then.”

The “different procedure” he explained, was one in which the JSC Chair pre-screened all the complaints from “an administrative perspective” to verify whether they were complaints that fit within the remit of the JSC.

“If the complaints were more to do with administration – such as a complaint against a long delay in cases being heard or listed”, Faththah said, “the matter would not be taken any further”.

The “administrative decision” taken by the Chair, he said, “saved time, and allowed members to concentrate on the important matters, and their constitutional duties.”

Chief Justice Ghani’s oral testimony will prove to the court the JSC did have a procedure in place, Faththah said. It would, he also said, negate the allegations that JSC made arbitrary decisions regarding complaints it received.

Judge Nihayath said she will decide at the next hearing on 21 December 2010 whether or not any or all of the potential witnesses would be required by the court.

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