Legal limbo leads MNDF to confiscate Supreme Court keys, after Majlis cancels last session of interim period

The Maldives National Defence Force (MNDF) confiscated the keys to the Supreme Court on Saturday afternoon pending the conclusion of the interim period of the Constitution.

Press Secretary Mohamed Zuhair said the President had ordered the move “to prevent entry until the Majlis (parliament) reaches a consensus [on appointing the new Supreme Court judges].”

Zuhair explained the decision to confiscate the keys was made “to avoid unforeseen circumstances, because right now there is a difference of opinion as to what will happen should the Majlis fail to reach a decision by tonight.”

The current Supreme Court judges have previously declared themselves permanent in a letter sent to President Mohamed Nasheed, although the President’s member on the Judicial Services Commission (JSC), Aishath Velezinee, claims this was unconstitutional “and no one has recognised or even mentioned it.”

According to the constitution, the president is required to nominate the new Supreme Court judges following consultation with the Judicial Services Commission (JSC), and then present the names to parliament to approve in a vote.

Nasheed has already nominated Supreme Court Judge Uz Ahmed Faiz Hussain for the position of Chief Justice, however “he has not been able nominate [the rest of the bench] because parliament has not yet passed the Bill on Judges that stipulates the number required,” Velezinee said.

The constitution obligates parliament to resolve the matter before the end of today, however scheduled sessions were postponed to 8pm and then eventually cancelled in a statement issued by the Speaker, opposition DRP MP Abdulla Shahid, on the grounds that both sides were unable to decide the matter.

The Majlis was also to approve nominations for the Human Rights Commission of the Maldives (HRCM) and the Civil Service Commission (CSC).

Under the constitution, the cancellation effectively leaves the country in a legal ‘limbo’ period as of midnight, without several institutions functioning legitimately including the country’s highest court – “as of midnight there are no Supreme Court judges”, Zuhair noted.

Parliament has also yet to approve the reinstated cabinet ministers.

A senior government official told Minivan News that “rather than leave the country without a legitimate judiciary on conclusion of the interim period, the President will decree at midnight that the trial courts [the Criminal and High Courts] will continue to function, while an interim body of credible judges of high reputation will serve as an appellate court, under advisory of the Commonwealth.”

Appellate courts have been used in countries like the United States, and are typically limited to reviewing decisions made by lower courts rather than hearing new evidence.

Foreign Minister Dr Ahmed Shaheed confirmed the President had proposed to decree that the two trial courts continue to function after midnight, “to give parliament time to pass the necessary legislation.”

However Dr Shaheed said the President would not re-mandate the current Supreme Court bench, “because that would be a de-facto extension and could go on forever.”

“Parliament has failed to complete legislation that would give legitimacy to the Supreme Court [under the new Constitution],” Dr Shaheed said.

He also said that while the government had asked the Commonwealth for assistance running the interim appellate court, it had not yet received an answer. The government had also briefed the UN Resident Coordinator, Andrew Cox, he said.

“It’s not just tonight’s cancellation [of parliament],” Dr Shaheed said. “Parliament has had two years to do these things. It baffles me why they would put the country in this situation – tonight people should be asking who they should blame.”

Minivan News was still waiting for a response from Attorney General Husnu Suood at time of press, following the announcement of the appellate court.

Suood had previously told newspaper Haveeru that parliament had the option of extending the transition period for another one to two months with a two-thirds majority vote, or by appointing a new chief justice before midnight.

“Questionable matters will arise when this state is over,” Suood told Haveeru.

Velezinee told Minivan News that the country was now “in a vacuum”, and the JSC had been asked to be on call to meet with the President and suggest names should parliament reach a decision.

She noted that the JSC now consisted of eight members, as the Supreme Court’s member and head of the commission Mujthaz Fahmy and ex-officio member of the Civil Service Commission (CSC) Dr Mohamed Latheef no longer retained their positions on conclusion of the interim period, until reappointed.

“I have asked the Secretary General to call the police if they try and enter the building,” she added.