The Judicial Service Commission (JSC) is reviewing its earlier decision not to investigate allegations of misconduct against three judges made by Treasure Island Private Limited.
The Treasure Island case against the JSC, which began in early October this year, implicates three judges in miscarriages of justice against the company.
Treasure Island alleges that the JSC neglected its Constitutional responsibilities in failing to investigate the company’s subsequent complaints against the judges.
Now Supreme Court Justice Ali Hameed, Interim Supreme Court Justice Mujthaz Fahmy, High Court Justice Ahmed Shareef Ali and Senior Magistrate Ali Naseer, alleges Treasure Island Chief Ali Hussein Manik, abused the justice system to wrongfully take, and pass the ownership on to someone else, a resort island belonging to him.
He names influential figures in the tourism sector during the previous government as having been involved in the case.
The three judges he named, Manik alleged, abused the law to rule against Treasure Island in its civil case against the parties he alleges wrongfully took the island from him.
Responding to the allegations of professional negligence, the JSC initially told the court in October that two of the complaints were not within its Constitutional mandate for ensuring the ethical standards and principles of the judiciary.
The third complaint, it said, was pending a decision at the time the case was filed.
Faththah said today, however, that the JSC had decided to use existing legal mechanisms to review its earlier decisions not to investigate the complaints and to re-assess whether or not the complaints should be investigated.
“What the company asked the court for is a legal mechanism under which to review the JSC decision not to investigate its complaints. We have now provided that mechanism by beginning the process to review our earlier decision”, Faththah said.
Deciding to re-open complaints against members of the judiciary represents a shift in the JSC’s earlier stance which suggested that allegations of misconduct by some members of the judiciary could be outside of its Constitutional mandate.
The JSC said today that it does not need a court ruling to make it perform its Constitutional duties, and stated that it will examine every complaint of misconduct made against every member of the judiciary without a court having to make such an order.
“Since the Commission is reviewing every complaint received by the appellant, the Commission does not feel that a court ruling is necessary any more,” Faththah said.
What Treasure Island wants from the JSC, it was already providing, he said. A court ruling was both obsolete and irrelevant, he said asking for dismissal.
Treasure Island Limited, however, insisted on court intervention.
It’s chief Manik, who had earlier told the court he did not have any trust in the JSC, said he wanted the court to make an order allowing him to see the agenda of the meeting in which JSC members decided not to investigate allegations against the three judges.
Treasure Island had asked the court for the same ruling on 17 October 2010, when the court last sat on the issue.
What the JSC told the court today is that since Treasure Island is asking specifically for the court to order JSC to provide the documents as evidence, in the absence of such an order by the court, the JSC was not obliged to provide the documents.
The Constitution requires any decision taken by the JSC to be one reached by a majority vote at a meeting in which more than six of its ten members are present.
If Judge Nihayath orders that Treasure Island should be allowed to see minutes of the meeting, it would be able to verify whether or not the JSC followed proper procedure in making the decision, twice, not to further investigate the complaints made by Treasure Island.
The JSC is yet to adopt a Standards of Procedure according to which all its duties would be performed, leading to dissent and tension among its members, and between members and the Secretariat.
In the last few weeks, a rift has appeared in the JSC between members who want the JSC to adopt its Standards of Procedure as a matter of urgency and allege that the Chair of the Commission is systematically evading the issue.
Two weeks ago JSC Chair Supreme Court Justice Adam Mohamed walked out of a meeting when four members demanded that he table adopting the Standards of Procedure at the Commission’s next meeting.
The four member group pushing for adoption of the Standards include the Attorney General, the President’s Member, Member of the Public, member of the law community and member of the High Court.
A day-long meeting to adopt the Standards of Procedure scheduled to be held outside of Male’ on Saturday, the next time when the matter was put on the agenda, was cancelled as various members excused themselves citing other commitments.
Three meetings of the JSC have since been held but none included discussion of the Standards.
Although it is a group of the same members who happen to be unavailable for any discussions on the Standards of Procedure, none of the members have publicly declared whether or why there is a reluctance on their part to adopting the Standards.
The Secretariat of the JSC, meanwhile, is also in a state of chaos after Chair Justice Mohamed reportedly intimidated the Interim Secretary General Moomina Umar and other members of staff over their decision to speak to the media without prior approval from the Chair.
The claim by Justice Mohamed is inaccurate as the JSC unanimously adopted a declaration on 2 September, authorising three members of the Secretariat, including Moomina to speak to the media.
Taking over from his lawyer to represent himself, Manik appealed to Judge Nihayath for the court’s intervention as he did not trust the JSC to do its duties.
“Without an honest JSC, we, the people of this country cannot have our right to justice,” Manik said.
Judge Nihayath adjourned the case to 5 December 2010.