JSC fails to convince Civil Court of its misconduct complaints procedure

The Judicial Service Commission (JSC), an independent body constitutionally mandated to oversee the ethical standards of the country’s judiciary, yesterday failed to convince the Civil Court that it had any form of standardised procedure for dealing with complaints against judges.

The JSC is currently defending itself against allegations of allowing bias and favouritism to influence its decisions on complaints of judiciary misconduct and was yesterday required to provide documentary evidence to the court proving the contrary. However, the evidence may have opened up more questions about its operations in the court.

The current case relates to action being taken by Treasure Island Limited, which is suing the JSC over allegations that the body had dismissed three complaints of misconduct it made against Interim-Supreme Court Justice Mujthaz Fahmy and Judge Ali Naseer for reasons of favour and bias towards the judges.

Civil Court Judge Mariyam Nihayath said that the documents submitted by JSC did not clarify for her – as had been claimed they would – that a standard operations procedure was in place to prevent arbitrary decision-making on complaints of judiciary misconduct. She added instead that the documents submitted to court by JSC as evidence had raised questions of whether the commission had any procedure at all for dealing with complaints.

Judge Nihayath said in addition that it appeared that any member of the Commission had been free to individually decide that a complaint did not need further investigation, despite having claimed otherwise.

The JSC, set up by the 2008 Constitution, is required to get a majority or consensus vote from members in all complaints-related decisions. It is also required to keep records of how each member voted for a specific decision to be reached.

At the behest of Treasure Island, the court had asked to see records of meetings at which Commission members agreed not to look into the company’s allegations any further. The JSC failed to locate the documents after conducting a “thorough search”.

Last week, the JSC admitted that some complaints procedures did not conform to either constitutional stipulations or its own regulations, though the commission maintained that it did have a specific method in place nonetheless.

This method, as explained by the JSC in the court, involved a process of “administrative screening”, whereby the Chair pre-selected which complaints were about judiciary misconduct and therefore worthy of deliberation and decision by members.

The rest were responded to by a letter, signed by the Chair, informing the complainant that a decision had been made not to investigate the matter any further. Treasure Island had received two such responses to its complaints.

This ‘administrative’ method, the JSC said, was far less time-consuming than that stipulated in the Constitution and saved members time to attend to their constitutional duties.

Of the three randomly selected such responses submitted to court by the JSC yesterday, Judge Nihayath noted that they were not signed by the Chair – only one of them was found to have been signed by the Vice Chair and another by a member.

Furthermore, she said, two of the letters included the words “the Commission has decided”, allowing the inference to be made that the decision not to investigate had been taken by the JSC and not the signatory acting alone.

JSC Legal Representative Abdul Faththah said he could not explain why the decisions had been conveyed by the three different figures instead of the Chair alone, as in the “administrative screening” process he outlined last week.

The phrase “the Commission has decided” being included in the responses, Faththah explained, was not about the individual decision itself, but related to a decision taken in November 2008 in which the ‘administrative” alternative to the Constitution had been agreed upon.

Judge Nihayath also asked Faththah why it was that two of the letters had been signed by the then JSC Chair and Vice-Chair respectively, yet a member with no other authority, Hassan Afeef, could also write to a complainant dismissing their claims.

“I don’t really know why that happened on that day”, Faththah said. “Perhaps, I said in the last submission that the procedure was for the Chair to sign the responses’, but, he said, that did not seem to be the case.

Fathah added that he had randomly selected the letters shown during the case from a file especially kept for responses to complaints dealt with by the “administrative screening process” of the JSC as opposed to its Constitutional stipulations.

Judge Nihayath will also hear Treasure Island’s response to JSC evidence on January 5, when she will also rule on whether or not to summon witnesses that have been requested by both sides.

She has scheduled the last hearing for 19 January 2010 when both sides are expected to make their closing submissions.

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