The Judicial Service Commission (JSC) will decide January 18 the candidates for the High Court bench, to be appointed the following week January 23.
The JSC has interviewed a total of 18 candidates – four women and 14 men – after disqualifying three applicants for failing to meet one or more of the standards required. One candidate withdrew his application after JSCs integrity was publicly questioned, advising JSC members to act responsibly.
The High Court appointments – which would confirm the bench for the next 30 to 40 years, given the average age of applicants – has been question following allegations that the JSC has failed to uphold the standards required of a judge under the 2008 Constitution.
Article 149(a) of the 2008 Constitution requires judges to be of ‘high moral character’ in addition to meeting educational qualifications and other competencies. Article 149 (b) 3 requires that appointments must not be convicted for any hadd offence, criminal breach of trust or bribery.
The Judges Act, legislation passed by the Majlis on 10 August 2010 to implement the Constitutional stipulations, however limited the length of time for which a judicial candidate can be held responsible for criminal offences.
It also set a low threshold for what could be considered as evidence of ‘high moral character’ in a judicial candidate.
As provided for by the Act, for example, convicted felons – even those found guilty of “sexual offences or terrorism” – may be appointed to the bench and deemed as meeting the Constitutional requirement of ‘high moral character’, provided the sentence had been fully served seven years prior to their judicial appointment.
The only other measurement for deciding whether or not a judicial candidate is of high moral character, as stipulated in the Act, is that any debt valid debt owed by the candidate has been, or is being, properly paid back.
The provisions of the Act demand far lower standards of ethical and moral conduct from the judiciary than is required by the Judicial Code of Conduct as passed by the JSC itself on 30 December 2009, and by accepted democratic international norms.
The Judicial Appointment Commission (JAC) of UK, for example, is likely to immediately disqualify any judicial candidate with a previous sentence for imprisonment.
A criminal conviction without a prison sentence is also likely to disqualify the candidate even though “minor convictions maybe disregarded”.
The JAC’s “Good Character Guidance” further states that “depending on their seriousness” other offences can also be disregarded after twenty years, provided there had been no repeat offending.
The JAC stipulations that any prison sentence whether minor or major is likely to disqualify any judicial candidate, and that even after twenty years a previous criminal conviction can only be disregarded after considering the seriousness of the crime, are in sharp contrast to the Judicial Act’s provision that however serious a judge’s crime, it can be disregarded after six years.
The JSC’s own Principles for Judicial Conduct is an almost verbatim translation of the Bangalore Principles 2002, which sets the international principles for judicial conduct.
JSC’s adaptation of the Principles, however, excludes the proclamations that a judge’s propriety is essential for performing all activities of a judge; and that a judge should willingly and freely accept more personal restrictions than expected of an ordinary citizen.
In interviewing potential High Court appointees, the JSC adopted the narrower definitions of the Judges Act instead of the broader interpretations allowed for by the Constitution and its own published principles of conduct.
The only dissenting opinion expressed publicly has been that of JSC Member Aishath Velezinee, who boycotted the interview panel on Sunday, on grounds that it was unconstitutional.
Velezinee, who has also filed treason charges against three members of the Commission, and who also lobbied the High Court candidates to stand against the unconstitutionality of the interview procedures, was violently stabbed earlier this month in what several international NGOs have condemned as potentially a politically motivated attack.
The JSC, which is also currently being investigated by the Anti-Corruption Commission over allegations of embezzlement, was set up by the 2008 Constitution to oversee the ethical standards of the judiciary.
Until the last week, the JSC was also being sued for neglecting its Constitutional duties by Treasure Island Limited, which alleged that the JSC had arbitrarily and unfairly dismissed its complaints against two judges whom it accuses of misconduct.
Presiding Civil Court Judge Mariyam Nihayath dismissed the case last week when the appellant, Treasure Island Limited’s Ali Hussein Manik, arrived half an hour later for the hearing, Sun FM reported.
During one of the many hearings of the case held over three months, JSC Legal Representative Abdul Faththah complained to Judge Nihayath that her habitual lateness was causing problems with his work schedule. On many occasions the case had started over half an hour late due to her late arrival.
Another hearing, scheduled for 22 December last, was cancelled when Faththah said Judge Nihayath’s lateness had made it impossible for him to continue the case that day.
On 13 January, Judge Nihayath agreed to the JSC’s request to throw the case out when Manik did not arrive for the hearing on time.
Judge Nihayath is among the 18 candidates shortlisted for the High Court bench and was interviewed by the JSC on Sunday.
The deadline for High Court applications closed on 26 October 2010, but the matter was delayed as JSC, embroiled in internal conflict, re-organised the High Court bench twice.
At least three members of JSC have questioned JSC’s integrity and raised concerns of corruption in relation to the High Court appointments, according to information available on Velezinee’s website. The other two members to raise concern are MP Dr.Afraasheem Ali and Criminal Court Judge Abdulla Didi.
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