MDP demands Supreme Court bench be replaced, inclusion of educated foreign judges

The Maldivian Democratic Party (MDP)’s National Council has passed a motion calling on its parliamentary group to seek to abolish the existing Supreme Court bench and replace it with a new panel of judges, including foreign judges.

The call was made following the Supreme Court’s controversial rulings on Thursday overturning decisions made by parliament.

The Supreme Court had overturned parliament’s removal of Civil Service Commission (CSC) Chair Mohamed Fahmy Hassan on sexual harassment charges, and a decision to conduct no-confidence votes through secret ballot.

During an emergency national council meeting held on Sunday evening, the proposal by MDP national council member Mohamed ‘Sanco’ Shareef received unanimous support from all attending members, including former President Mohamed Nasheed.

“The Supreme Court is acting in such a fashion that it has now begun overtaking the powers of the parliament and in the process undermining the constitution of this country. [Therefore] this motion calls on MDP’s parliamentary group to make formal requests to parliament to immediately abolish the current bench of Supreme Court and establish a new bench that consists of honest judges.

“Also as the Maldives Constitution does not bar the Supreme Court having foreign judges, [this motion also calls] to seek qualified and educated judges from abroad,” read the motion (Dhivehi).

During the debate on the motion, MDP’s Parliamentary Group and Parliament’s Majority Leader Ibrahim Mohamed Solih described the day of the verdicts as the darkest day of Maldives’ 80 year long parliamentary history.

Solih said the Supreme Court had significantly undermined the legislative power of the state by openly challenging parliament’s power to decide on its own affairs and the bills passed by the parliament.

The Hinnavaru Constituency MP assured the council that the party’s parliamentary group under his leadership would do everything at its hand to ensure the dissolution of the existing Supreme Court bench.

“Shocking verdicts”

Speaking during the debate, former President Mohamed Nasheed expressed his support for the motion claiming that it was time to change the Supreme Court bench, as it was delivering “shocking” verdicts.

Nasheed recalled several controversial decisions made by the Supreme Court, such as its decision that eight of former President Gayoom’s political appointees be paid MVR 500,000 (US$32,425) each in compensation after Nasheed replaced them.

The Supreme Court also ruled in favour of the legitimacy of Hulhumale Magistrate Court, created by the Judicial Services Commission (JSC), after the JSC’s head – Supreme Court Judge Adam Mohamed – made the casting vote.

“It is more important that we have justice established in this country rather than myself being elected as the President. To reform the judiciary and bring the justice system of this country into the right course is something I must do,” he said.

“We will come out to the streets, we will protest. I will not take a single step back until the bench is replaced with better judges,” Nasheed vowed.

Nasheed claimed that Supreme Court had attempted to silence lawyers, by forcing them to sign a declaration which requires them to not to comment on court rulings if they want to keep their licenses to practice law.

The former President also alleged the Supreme Court was employing deceitful tactics by tempering its own verdicts before these were being made available to public.

“We know how they issue the verdict and we know how different it is on the paper to that which is made available to the public. The two versions of the verdict differ significantly. This is something I am very concerned about,” he said.

Nasheed – who has written books on the country’s history – said that Maldives had followed a “tradition” in which “the people come out to sort the problems within the court when judges go out of line in sentencing”.

Spokespersons for the government-aligned Progressive Party of Maldives (PPM) and Dhivehi Rayyithunge Party (DRP) were not responding to calls at time of press.

Controversial rulings

On Thursday, the Supreme Court ruled 6-1 that Fahmy would receive two punishments for the same crime if he was convicted at court following his dismissal by parliament (double jeopardy). Following the judgment, Fahmy would be reinstated and compensated for lost wages since December 2012.

Delivering the judgment, Supreme Court Justice Abdulla Saeed said that a person should be considered innocent unless proven guilty in a court of law and was entitled to protect his reputation and dignity.

Fahmy was alleged to have to have said to a female CSC employee that “it is not appealing when unmarried girls like you get fat”, whilst touching her on the stomach.

In November last year, parliament voted 38 – 32 to remove the CSC chair after the Independent Institutions Committee investigated a complaint of sexual harassment lodged by a female employee of the CSC.

On Thursday in its ruling on the secret ballot, the majority of the judges contended that the move contravened article 85 of the constitution as well as parliamentary principles and norms of free and democratic societies.

Article 85 stipulates that meetings of the Parliament and its committees must be open to the public.

Dissenting opinion

Meanwhile, Justice Ahmed Muthasim Adnan – the only Supreme Court justice with a background in common law – issued dissenting opinions in both cases.

On the constitutionality of the secret ballot, Justice Adnan noted that article 101(f) of the constitution states that “the regulations governing the functioning of the People’s Majlis shall specify the principles and procedures concerning a resolution to remove the President or Vice President from office as provided in this Constitution.”

Unless a clause added to the regulation was explicitly in violation of the constitution, Justice Adnan said that he believed it “could not be challenged in any court in the Maldives.”

He further noted that while article 85 of the constitution requires parliamentary proceedings to be open to the public, 85(b) states that a majority of MPs present and voting could decide to exclude the public or press “if there is a compelling need to do so in the interest of public order or national security.”

Moreover, article 85(c) states, “Article (b) does not prevent the People’s Majlis from specifying additional reasons for excluding the public from all or any part of a committee meeting of the People’s Majlis.”

He added that the secret ballot would be taken at a sitting open to the public.

In the case submitted by Fahmy contesting his dismissal, Justice Adnan’s dissenting opinion noted that article 187(a) of the constitution authorised parliament to remove members of the CSC “on the ground of misconduct, incapacity or incompetence.”

Article 187(b) meanwhile states, “a finding to that effect by a committee of the People’s Majlis pursuant to article (a), and upon the approval of such finding by the People’s Majlis by a majority of those present and voting, calling for the member’s removal from office, such member shall be deemed removed from office.”

Justice Adnan argued that an inquiry by a parliamentary committee into alleged misconduct would not be a criminal investigation. Therefore, he added, the oversight committee would not be required to prove guilt to the extent required at trial before making a decision.

He further noted that parliament’s dismissal under the authority of article 187 and a possible conviction at a late date could not be considered meting out two punishments for the same offence.


Supreme Court schedules hearings against key parliamentary decisions for next week

The Supreme Court will hear two separate cases filed against decisions taken within parliament next week.

According to the Supreme Court’s official website, a case lodged by former Civil Services Commission (CSC) Chair Mohamed Fahmy Hassan against parliament’s decision to impeach him over allegations of sexual harassment is scheduled for January 14.

A separate case will then be held two days later on January 16 concerning the Majlis’ decision to hold no-confidence votes against President Dr Mohamed Waheed Hassan Manik and other senior government figures through a secret ballot.

The two cases have been criticised within the People’s Majlis, with some MPs claiming the Supreme Court did not have the jurisdiction to look into matters approved by parliament.

Right to justice

Speaking to Minivan News today, opposition Maldivian Democratic Party (MDP) MP Hamid Abdul Ghafoor accused the Supreme Court of being grossly negligent in carrying out its duties as the country has switched from an autocratic system of governance to a democratic one in 2008.

Ghafoor contended that the Supreme Court’s conduct had been contrary to keeping the powers of the state both independent and separate.

“Due to this negligence, it has allowed incompetent, insincere judges to take over all the ranks of the judiciary, disregarding the article 285 of the constitution. Now, the validity of both Supreme Court and High Court is limited and restricted due to its failure to establish a proper legitimate judiciary,” he said.

“We don’t see justice being served, to be honest, the people of this country have lost their right to justice. I don’t see true justice being established in the country, not as long as they are here.”

The Henveiru South constituency MP also accused the Supreme Court of failing to specify its reasons behind decisions taken on constitutional matters.

“They are failing to grasp the intentions of the constitutional assembly that drafted the constitution. Why are they failing to refer to the meeting minutes of the assembly to understand their intentions as a tool to interpret the constitution? This is what happens when you don’t have a competent judiciary, they fail to grasp the spirit of the constitution,” he claimed.

The Supreme Court last month issued two separate injunctions ordering parliament to  withhold selection of a CSC president to replace Fahmy and to halt scheduling impeachment votes against President Dr Mohamed Waheed Hassan Manik and Home Minister Mohamed Jameel Ahmed.

The Supreme Court in both injunctions claimed that it needed to review the legality of the concerned issues in line with “necessary constitutional and legal principles” that had to be followed.

Exclusive cognizance

Responding to the injunctions issued by the Supreme Court, Independent MP Mohamed ‘Kutti’ Nasheed has said in a personal press video that the powers stated in article 88 of the constitution were given to parliament to execute its duties. Nasheed added that the powers outlined in the article should not be restricted by the country’s courts.

“The article 88 (b) of the constitution is a power given to the parliament to execute its duties. It should not be confused with the recently passed privileges bill. What article 88(b) states that no court of law can question the decisions reached by the parliament,” he said.

“The Article 88(b) of the constitution states – ‘Unless otherwise specified in this Constitution, the validity of any proceedings in the People’s Majlis (Parliament) shall not be questioned in any court of law.’  It is for a reason that this clause was included in the constitution. This is a principle adopted by parliaments across the world. I don’t know the Arabic word for that, but in English it is known as ‘Exclusive Cognizance,’” he explained.

Nasheed contended that article 88 (b) outlined powers that should be exclusive to parliament and all courts of law should respect the legislature.  He claimed that a failure to respect parliament could mean every decision reached in the Majlis would be challenged.

“For example, even in a football game, though a team may be very upset by a decision of the referee, the play continues. They don’t go to court and seek an injunction so that match would be halted until a court decides on the matter. Neither is the decision overruled. The game continues,” Nasheed argued.

“What is happening right now could mean that if a player is shown a red card or a yellow card, the team who is unhappy about the referee would stop playing and go to court and seek an injunction to hold the play until the court reaches a verdict. Imagine what will happen if such practice takes hold.”

Parliament decisions

Former CSC Chair Fahmy was impeached from parliament in June last year over allegations of sexual harassment against an employee. The decision was reached after a debate on the report, which was produced by Parliament’s Committee on Independent Institutions.

Following much debate in parliament, Nasheed stated that the Committee on Independent Institutions had mandate over the CSC and it did not need to conduct a criminal investigation to remove Fahmy from his post.

“What we applied are widely accepted civil standards. Based on our findings, 7 out of the 10 committee members decided that it was more likely that Fahmy had committed this act than that he did not. And that is enough to remove him from his post,” Nasheed said.

The subsequent no-confidence vote to remove Fahmy passed by a majority of 38 to 32 votes. However, Fahmy filed a case at Supreme Court contending that he was removed from his position unlawfully.

Back in October meanwhile, the MDP proposed a no-confidence motion against President Waheed claiming that the police and the military had “brutalised” its supporters on February 8 under direct orders from the president himself.

The MDP also alleged that President Waheed had destroyed the sensitive economy of the nation and adversely impacted investor confidence in the Maldives.

Other reasons, the MDP alleged, included the failure of President Waheed’s administration to curb gang violence in the country, as well as his government taking a loan worth MVR 300 million (US$19.5 million) from the Bank of Maldives (BML) without prior approval from parliament – a violation of Public Finance Act and Public Finance Regulation.

The MDP subsequently proposed the amendment to parliamentary regulation which would pave the way for a secret ballot in the vote to impeach President Waheed. However, the first attempt, despite approval from parliament’s General Affairs Committee was defeated in parliament by 39 to 34 votes.

Parliament last month passed the amendment when it was again re-submitted and approved with a 41 to 34 majority. The approval was backed by two government aligned parties, the Jumhoree Party (JP) and Dhivehi Rayyithunge Party (DRP).

The amendment was also later challenged in the Supreme Court.