Independent Institutions Committee – Minivan News

Majlis approves Criminal Court Judge Muhthaz Muhsin for prosecutor general post

The People’s Majlis has today approved Criminal Court Judge Muhthaz Muhsin for the post of prosecutor general (PG).

Muhsin’s nomination for the role – vacant since November – received 62 votes in favour, and seven votes against, while 12 MPs abstained.

President Abdulla Yameen had nominated Muhsin and his nephew Maumoon Hameed for parliamentary approval on June 2. As Muhsin’s name was put to a vote first and approved, Speaker Abdulla Maseeh Mohamed did not call a vote for Hameed.

Thirteen MPs of the opposition Maldivian Democratic Party (MDP) also voted in favour of Muhsin.

They were Addu Meedhoo MP Rozaina Adam, Felidhoo MP Ahmed Marzooq, Hithadhoo South MP Ali Nizar, mid-Hithadhoo MP Ibrahim Mohamed Didi, Hulhuhenveiru MP ‘Reeko’ Moosa Manik, Komandoo MP Ahmed Nashid, Kulhudhufushi North MP Abdul Gafoor Moosa, Kurendhoo MP Abdul Bari Abdulla, Addu Maradhoo MP Ibrahim Shareef, mid-Henveiru MP Ali Azim, Mulaku MP Ibrahim Naseer, Vaikaradhoo MP Mohamed Nazim, and Velidhoo MP Abdulla Yameen.

While the Jumhooree Party (JP) decided today that its 12 MPs would abstain in the vote, JP MP for Kendhoo Ali Hussain voted in favour of Muhsin.

MDP MP for Alifushi, Mohamed Rasheed Hussain ‘Bigey’, joined the remaining 11 JP MPs in abstaining while all seven MPs who voted against Muhsin belonged to the opposition MDP.

The MDP parliamentary group had reportedly decided last night to issue a three-line whip against Hameed and to give its 23 MPs a free whip to vote as they chose for Muhsin.

With 20 MPs in attendance at parliamentary group meeting last night, the proposal by Deputy Speaker Moosa Manik was passed with 13 votes in favour.

Meanwhile, at a parliamentary group meeting on Saturday (July 19), MPs of the Progressive Party of Maldives (PPM) decided to endorse Muhsin despite the party’s leader, former President Maumoon Abdul Gayoom, urging ruling party MPs to vote for his nephew Maumoon Hameed.

Majority Leader MP Ahmed Nihan confirmed to Minivan News that a three-line whip was also issued for PPM MPs to vote for Muhsin.

All PPM MPs in attendance along with MPs of coalition partner Maldives Development Alliance (MDA) voted in favour of approving Muhsin as the new PG.

“Puppet”

Maumoon Hameed has meanwhile criticised the PPM MPs’ decision on his Facebook page.

“The reasoning behind the decision of the PPM parliamentary group this afternoon apparently went something like this: ‘He won’t do as he’s told!'” he wrote.

“Given this reasoning, and the evident desire to install a puppet instead of someone who will uphold the law without fear or favour, I applaud the decision to endorse someone (anyone!) other than me.”

Responding to the post, former MP Mohamed ‘Colonel’ Nasheed alleged that PPM MPs on the independent institutions oversight committee were instructed to award zero percent to Hameed and 100 percent to Muhsin during the vetting process.

Following evaluation of the nominees at a closed session based on academic qualifications, experience, and competence, the oversight committee awarded Hameed 33 percent and Muhsin 67 percent and decided against recommending either nominee for approval.

In a letter to PPM Parliamentary Group Leader Nihan demanding an explanation of the PPM-majority committee’s decision, Gayoom had contended that the committee meeting where the nominees were interviewed was conducted in violation of parliamentary rules.

In the wake of the PPM parliamentary group’s decision to vote for Muhsin, MDP MP Rozaina Adam meanwhile tweeted, “Could President Yameen publicly humiliate President Gayoom more than this? Yameen’s choice is very clear.”

Vacant PG post

Rozaina also alleged that Yameen had conspired for the previous parliament to reject Maumoon Hameed in April by ensuring that several PPM MPs would be absent for the vote.

Several pro-government MPs – including Nihan who was with President Yameen in Japan and MDA Leader Ahmed Siyam – were conspicuously absent at the sitting, which saw Hameed fail to garner the required 39 votes after falling just three votes short.

According to Article 221 of the Constitution, “The President shall appoint as Prosecutor General a person approved by a majority of the total membership of the People’s Majlis from the names submitted to the People’s Majlis as provided for in law.”

Following the previous parliament’s rejection of Hameed, President Yameen refused to submit a new nominee and opened up a third call for applicants, announcing his intention to nominate Hameed for a second time to the newly elected 18th People’s Majlis.

The PG’s post has been vacant since November 25 following the resignation of Ahmed Muiz ahead of a scheduled no-confidence motion in parliament.

Meanwhile, Acting PG Hussein Shameem’s resignation in early May brought the criminal justice system to a halt after state prosecutors went on strike, citing concerns of a lack of accountability in the absence of a PG.

However, the Supreme Court ordered prosecutors to resume work “without any further excuse” and ordered the seniormost official at the PG office to assume the PG’s responsibilities.

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Criminal Court refusing to accept serious cases, Deputy PG tells MPs

Deputy Prosecutor General (PG) Hussain Shameem has told MPs on parliament’s independent institutions committee that serious cases are pending at the PG office due to Criminal Court’s procedure on accepting cases.

Serious cases of corruption, drugs and child sex abuse had not reached trial because the Criminal Court was refusing to accept the cases, he said.

The court was informing the PG office that cases should be filed at the magistrate court on the home island of the accused, Shameem explained, noting that magistrate courts could not hear drug cases and that in most cases the suspect was residing in the capital.

The Criminal Court in December last year suspended all ongoing cases and decided not to accept new cases filed by the PG office, claiming the court cannot proceed with trials in the absence of a PG.

In February this year, the Criminal Court started accepting new cases after the Supreme Court issued a second ruling ordering the court to uphold the rule of law.

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Committee approves no-confidence motion against Prosecutor General

Parliament’s Independent Institutions Committee has approved a no-confidence motion against Prosecutor General Ahmed Muiz with four votes in favour and three against.

Following today’s committee decision, the motion will be put to a vote at the People’s Majlis floor.

At the committee’s previous meeting on Monday (November 4), Muiz was asked to submit a response in writing after the meeting was disrupted by MPs of the government-aligned Progressive Party of Maldives, Jumhooree Party, and Dhivehi Qaumee Party.

The no-confidence motion against Muiz was filed by the opposition Maldivian Democratic Party last month claiming that the PG had failed to prosecute police officers who mutinied against the former government and assaulted protesters. The party has accused the PG of “selectively” pursuing cases against its members while ignoring “human rights abuses” committed by police in the wake of the controversial transfer of presidential power on February 7, 2012.

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MBC audio cable severed during parliament committee meeting

An audio cable of the Maldives Broadcasting Company (MBC) was severed during a meeting of parliament’s Independent Institutions Committee yesterday (November 4).

The meeting held to hear Prosecutor General Ahmed Muiz’s response to a no-confidence motion was disrupted by MPs of the government-aligned Progressive Party of Maldives, Jumhooree Party (JP), and Dhivehi Qaumee Party.

According to a statement by the parliament secretariat, the Maldives National Defence Force (MNDF) has been asked to investigate the incident.

Following the cancellation of a parliament sitting on September 23 amidst chaos in the chamber, opposition-aligned Raajje TV showed video footage of JP MP Ilham Ahmed, also the party’s deputy leader, take out what appeared to be a plier from his pocket and cut a cable.

A cable of the state broadcaster was also severed during a live telecast of a committee meeting in January 2012, briefly interrupting the live coverage.

Following the incident, MP Ilham was accused of cutting the cable by MPs of the Maldivian Democratic Party.

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Prosecutor General asked to submit response in writing after havoc in committee meeting

A meeting of parliament’s Independent Institutions Committee held today for the Prosecutor General (PG) to respond to a no-confidence motion was called off after disorderly conduct from MPs of the government-aligned Progressive Party of Maldives, Jumhooree Party (JP), and Dhivehi Qaumee Party.

A motion was passed with the support of Maldivian Democratic Party (MDP) and Dhivehi Rayyithunge Party MPs to ask PG Ahmed Muiz to submit his defence in writing by 9pm tonight.

The pro-government MPs contended that the proceedings were in violation of parliamentary rules and harangued Chair MP Ahmed Sameer. MPs Riyaz Rasheed, Ilham Ahmed, Ali Arif, Abdul Muhsin Hameed and Ahmed Amir banged saucers and cups on the table and raised their voices.

JP Deputy Leader Ilham played music on his phone and held it up to a mic.

The MDP filed a no-confidence motion against Muiz last month claiming that the PG had failed to prosecute police officers who mutinied against the former government and assaulted protesters.

Today’s meeting was held after Muiz asked for more time to respond to the charges last week saying he had been on his annual leave when he received the summons to attend the committee.

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Elections Commission consults with government over re-scheduled presidential election

Elections Commission (EC) members met with the government today in compliance with the Supreme Court’s order to consult relevant authorities within 72 hours of its verdict, regarding the re-scheduling fresh presidential elections by its October 20 deadline.

The Supreme Court late last night annulled the first round of the election in a 4:3 decision. Citing a secret police report on alleged electoral irregularities, the court ordered fresh elections by October 20 with enhanced police and government involvement.

After the Majlis meeting today, Independent Institutions Committee member Hamid Abdul Ghafoor described the verdict as “incomprehensible”, and as “technically and logistically not possible”.

The Supreme Court verdict was issued despite unanimous positive assessment of the polling by more than a thousand local and international election observers, while the police report on which it was supposedly based has not been made public and was not shown to the EC’s defence lawyers.

The EC was forced to postpone the presidential election’s second round, citing a lack of state cooperation that prevented the commission from holding a “free and fair vote without intimidation, aggression, undue influence or corruption” on September 28.

The announcement was made September 27, shortly before the EC secretariat was surrounded by Special Operations police with orders from Police Commissioner Abdulla Riyaz to take over the building and ballot papers should it proceed with election preparations.

Parliament

EC officials met with parliament’s Independent Institutions Committee at 12:30pm today, Maldivian Democratic Party (MDP) MP Ghafoor told Minivan News today.

Although committee meetings are normally closed to the public, with the EC’s consent the committee agreed to talk to the media openly about today’s proceedings, Ghafoor explained.

“EC officials refused to leave the Supreme Court last night until they were given a copy of the verdict, which wasn’t provided until 1:30am,” said Ghafoor.

“The Supreme Court totally changed the EC’s mandate in their verdict,” he continued. “They have created a mandate that is totally different from what the law requires.”

Ghafoor highlighted some of the inconsistencies and “constitutional contradictions” within the verdict.

“It requires one new staff member to be hired for each ballot box to conduct ‘new functions’, although it’s not clear what those functions will be,” explained Ghafoor. “That’s 470 new people that have to be hired and trained in the next 12 days.”

“Additionally, the constitution stipulates the final voter list is the EC’s responsibility, but the Supreme Court verdict requires that the commission consider the list provided by the Department of National Registration (DNR) as their primary source,” said Ghafoor.

“The problem with the DNR is that because of bad management there are various errors with their list, which is why the EC should be the final arbiter of the voter registry. The sole authority of the list is up to them according to the constitution,” he continued. “The Supreme Court verdict contradicts the constitution.”

By law it is up to the EC to decide election dates, however the constitutionally-mandated timeline “has been squashed”, noted Ghafoor. “The Supreme Court did not consult with the EC about the new timeline prior to issuing the verdict.”

In a previous meeting with the Independent Institutions Committee, the EC had said that the commission would require 19 to 21 days to conduct the election in a matter that was satisfactory and does justice to free and fair elections, Ghafoor explained.

“The more sinister aspect of this forced timeline, is that it opens up the process to corruption and vote rigging,” he highlighted.

The Supreme Court has made “a right royal mess of this”, he lamented.

The EC also told the parliamentary committee that they had requested to meet Supreme Court Chief Justice Ahmed Faiz Hussain today, as they wanted to consult all three branches of government, the executive, legislature, and judiciary, Ghafoor explained.

However, the Chief Justice instead agreed to meet the EC at his convenience tomorrow (October 9) at 9:00am.

“They are very professional in their approach, doing it by the book,” said Ghafoor. “We are very happy to have such a strong Elections Commission.”

State-funded programs to be sacrificed for elections

Meanwhile, Minister of Finance and Treasury Abdulla Jihad told local media today that the department was “legally obligated” to provide election funds, despite the lack of these available.

“We will arrange the funds even if it is from the contingency budget. But it will be an extremely difficult process. But we will provide funds for the elections. However, sacrifices will have to be made. We will have to stop some state-funded programs,” said Jihad.

He noted that the EC had not yet discussed the budget needed to re-hold the presidential election with the Finance Ministry.

In a previous interview with Minivan News, when asked what the EC would do if the Supreme Court annulled the first round results, EC Chair Fuwad Thowfeek noted: “The government has spent over MVR30 million (US$1,949,310) on the first round, there is no budget remaining [to hold both rounds again].”

“If it’s difficult for the government to provide the additional budget for the second round, there will be so many difficulties if the [results are annulled and] voting rounds are held again,” said Thowfeek.

The estimated cost of the presidential election was MVR96 million (US$6,213,600) – the now-annulled first round cost MVR69 million (US$4,466,025) and MVR27 million (US$1,747,575) was allotted for the second round, according to local media.

However, re-holding the election has reportedly increased the total estimated cost to over MVR 100million (US$6,472,500).

The government is currently relying on short-term treasury bills (T-bills) to “roll over” debts on a monthly basis to address the budgetary shortfall, as recurrent expenditures for 2013 were exceeded in April.

To supplement the state budget President Dr Mohamed Waheed has been seeking to secure multi-million dollar foreign loans from financial authorities in Sri Lanka, Saudi Arabia, India and China.

President’s Office

Thowfeek and EC Vice Chair Ahmed Fayaz met with President Waheed this morning (October 8 ) in the President’s Office. Local media reported that Vice President Mohamed Waheed Deen and Attorney General Azima Shakoor also attended.

During the meeting, President Waheed called upon the EC to carry out the Supreme Court’s order to hold the presidential election’s first round in accordance with the verdict.

Waheed assured the commissioners that the government would “give all its support and cooperation” to the EC, including budgetary, security, human resources and infrastructure assistance as required.

“It is especially important that the integrity of the entire elections process is enhanced and maintained,” Waheed emphasised.

He noted that ensuring the presidential election is held in a smooth and peaceful manner is the government’s priority and that it is important “everyone puts forward national interests ahead of everything else”.

The government is meanwhile preparing to shut down for the Eid al-Adha holidays, which commence on October 11 through to October 19, a day before the Supreme Court’s election deadline.

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Maldives’ media in spotlight as election fallout continues

The rising trend of death threats being sent via telecommunications devices has prompted the Communication Authority of the Maldives (CAM) to request police investigate and take action against offenders.

CAM’s statement comes a day after ongoing death threats received by the Elections Commission (EC)’s permanent staff and polling station officials prompted the commission to file a report with the Maldives Police Service (MPS).

CAM highlighted that intimidating threats and death threats are criminal offences and the institution called on all Maldivians to refrain from using telecommunications devices to commit such criminal acts.

The government agency called on everyone receiving threats to report the incident(s) to police.

CAM also emphasized that offenders would have their telecommunications services terminated without further notice.

Media council “lost faith” in broadcasting commission

Meanwhile, the Maldives Media Council (MMC) will file a no-confidence motion against Maldives Broadcasting Commission (MBC) members via Parliament’s Independent Institutions Committee, reported local media.

MMC believes the broadcasting commission has failed to fulfill its mandate to create a healthy broadcast media environment, instead creating fear and discomfort, is unable to uniformly treat media agencies equitably, and is unable to fulfil the Broadcasting Act’s mandates.

The media council has also called on MBC to “stop any action that might affect freedom of media” including creating fear and threatening media agencies.

“MBC was threatening media organizations [and] was failing to establish equality in implementing regulations…and therefore MMC has lost faith in the current members of MBC,” MMC President Husham Mohamed told local media.

MMC decided to file the case in Parliament after MBC issued a “warning” on Friday night (September 27), saying that broadcasting licenses would be revoked from any outlet transmitting content which “threatens national security”, Husham explained.

MBC said it would file legal proceedings against any media organisation it believed had broadcast such materials in violation of the Broadcasting Act.

Another factor prompting the MMC to take action against the broadcasting commission was MBC’s call on Thursday (September 26) that broadcasters to “refrain from airing photos of members of independent institutions – Supreme Court judges and Elections Commission members – in a derogatory manner which could jeopardize national harmony, until the Commission concludes adjudication of the related complaints”.

Seven of 11 MMC members voted in favor of the action against MBC members during the extra-ordinary meeting held on Saturday (September 28).

Last week the Broadcasting Commission ruled that the Maldives Broadcasting Corporation’s televising of the Jamiyyathul Salaf’ ‘Al Andhalus’ preacher Sheikh Adam Shameem Ibrahim did not violate any regulations.

The decision came after the Broadcasting Corporation’s chairman Ibrahim Umar Manik along with MBC members were summoned before Parliament’s Independent Institutions Committee, following complaints by Maldivian Democratic Party (MDP) MPs that the sermon infringed the rights of the party’s presidential candidate.

MMC Elections Commission complaint

The MMC has also called on the Elections Commission to “refrain from discriminating between media organizations when sharing information regarding the presidential elections”.

“I haven’t heard that complaint [officially from the Maldives Media Council],” EC Chair Fuwad Thowfeek told Minivan News yesterday (September 29).

“I have respected calls from various media [outlets, however] what I say is not properly addressed in reports, so I’m private as possible,” Thowfeek explained. “I give interviews to people I can trust to write what I say [accurately].”

“Also it depends on the time I have, [for example] if I’m in a meeting I can’t speak to anyone, but once I have free time I do,” he continued.

“If I believe the journalist will give [my] message accurately then I will give [that person] reports,” he emphasised.

MBC recently launched an investigation into Villa TV (VTV) – owned by resort tycoon, former Judicial Services Commission member, and Jumhooree Party Presidential Candidate Gasim Ibrahim – broadcasting unsubstantiated content to incite hatred against the Elections Commission in violation of the broadcasting code of practice.

Local media broadcasting unsubstantiated information about the Elections Commission and electoral process catalyzed unrest throughout the Maldives.

Confusion over the presidential election’s first round voting figures was created by local media reports not matching those of the EC during counting, with sluggish EC figures supplemented by differing poll results, depending on the outlet chosen.

Media misrepresentation

Inaccurate local media reporting was also highlighted as a problem by Maldivian Democratic Party (MDP) Chairperson ‘Reeko’ Moosa Manik during an press conference held today (September 30).

“My comments made in public on Friday have been changed a lot [in local media reports],” said Manik.

“I want all Maldivians to know this. I work against brutality. I specifically said if any of the police officers here hit me, I will tell my wife to go and tell his wife not to brutalize us,” he emphasised.

Police are currently investigating Manik for threatening police and their families.

Meanwhile, the Police Integrity Commission (PIC) has ruled that it had not come across any substantial evidence supporting the claims of Manik being attacked by Corporal Mohamed Atheef during the brutal police crackdown on February 8, 2012.

UN human rights encouragement

In light of these local media issues, the Maldives’ United Nations Resident Coordinator’s Office has encouraged journalists to leverage the UN human rights system to collectively advocate for freedom of opinion and expression to be upheld.

“As media professionals, I would encourage you to build your awareness and knowledge of international human rights standards, and reflect on how you could use the UN human rights system to, especially collectively, advocate for the respect and protection of freedom of opinion and expression in the Maldives, including the protection of journalists,” said UN Human Rights Adviser Safir Syed.

“I cannot emphasise enough that it really is in your interests,” he added.

The UN Human Rights Committee’s General Comment on freedom of opinion and expression was attached to an email sent to various local media outlets yesterday (September 29).

“A free, uncensored and unhindered press or other media is essential in any society to ensure freedom of opinion and expression and the enjoyment of other Covenant rights. It constitutes one of the cornerstones of a democratic society,” Syed quoted from the General Comment document.

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Parliament accepts bill seeking to abolish Hulhumale’ Magistrate Court

Parliament today accepted amendments to the Judicature Act submitted by Independent MP Mohamed ‘Kutti’ Nasheed to abolish the magistrate court in Hulhumale’.

The legislation (Dhivehi) was narrowly accepted for consideration with 32 votes in favour, 31 against as well as one abstention and sent to the Independent Institutions Committee for review.

The Independent MP for Kulhudhufushi South proposed the amendments in December 2012, following a controversial 4-3 Supreme Court ruling declaring the Hulhumale’ Magistrate Court legitimate.

The judgment cleared the way for the magistrate court to proceed with the trial of former President Mohamed Nasheed on charges of illegally detaining Criminal Court Chief Judge Abdulla Mohamed in January 2012.

Nasheed’s formerly ruling Maldivian Democratic Party (MDP) disputes the legitimacy of the magistrate court, contending that it was created by the Judicial Service Commission (JSC) in violation of the Judicature Act.

Writing in his personal blog after submitting the amendments, MP Nasheed explained that he would have accepted the apex court’s decision as final and incontrovertible if Supreme Court Justice Adam Mohamed Abdulla – chair of the JSC – had recused himself.

“The [Hulhumale’] court was formed by the commission. The vote on forming the court was called at a meeting of the commission chaired by [Justice Adam Mohamed]. The case requesting the Supreme Court to declare the court legitimate was submitted by the commission chaired by the justice,” Nasheed wrote.

Justice Adam Mohamed “created the court, filed the case, and decided the case in his favour,” Nasheed wrote.

Echoing the criticism, former Attorney General Husnu Suood, who argued the case at the Supreme Court, described the decision at the time as “a case of actual bias because JSC would [have] lost the case without the vote of JSC president: 3 for 3 against, [tie-breaking] vote by JSC [president].”

Chief Justice Ahmed Faiz Hussain, Justice Abdulla Areef and Justice Muthasim Adnan had delivered the dissenting opinion ruling that the magistrate court was not established in accordance with the Judicature Act.

MP Nasheed’s amendments would meanwhile see the magistrate court abolished and its cases transferred to the superior courts (Criminal Court, Civil Court, Family Court, Juvenile Court and Drug Court) in Male’.

Moreover, an article would be added to the Judicature Act explicitly stating that the islands of Hulhumale’ and Vilimale’ should be considered part of Male’ City.

Vili-Maafanu and Hulhu-Henveiru are both electoral districts or constituencies in the capital with elected MPs and city councillors.

Legitimacy

In a blogpost in October 2012, Nasheed observed that the Judicature Act stipulates that magistrate courts should be set up in inhabited islands aside from Male’ without a division of the trial courts (Criminal Court, Civil Court, Family Court, Drug Court and Juvenile Court).

According to appendix two of the constitution, Hulhumale’ is a district or ward of Male’ and not a separate inhabited island.

The former magistrate court at Hulhumale’ – controversially set up by the JSC before the enactment of the Judicature Act in October 2010 – should therefore have been dissolved when the Judicature Act was ratified, Nasheed contended.

In the latter blogpost on amending the law governing courts, Nasheed explained that the purpose of amending the Judicature Act was to “clarify the Majlis’ intent as the [Supreme Court] has made a decision that conflicts with the intent of the Majlis in passing the law.”

If a Supreme Court interpretation of an article or provision in an act of parliament was “not the outcome intended by lawmakers,” Nasheed suggested that the remedy was amending the law to ensure the desired effect.

If the amendments are passed and signed into law, Nasheed wrote, a magistrate court could not be set up in the capital Male’ on the pretext of “two or three articles in the Judicature Act”.

Hulhumale’ Magistrate Court

During the first hearing of former President Nasheed’s trial at the magistrate court, the ex-president’s lawyers raised procedural points challenging the legitimacy of the court, which were summarily dismissed by the three magistrates on the bench.

Nasheed’s legal team then appealed the magistrate court’s ruling on the procedural points at the High Court.

On November 4, 2012, the High Court granted a stay or an injunction temporarily suspending the trial pending a ruling on procedural points.

The injunction prompted the Hulhumale’ Magistrate Court to announce that it had suspended all ongoing cases as they could be affected by the questions raised over the court’s legal status.

However, before the High Court could issue a ruling on the appeal, the JSC filed a case in Supreme Court requesting a decision to declare the magistrate court legitimate.

On November 8, 2012, the Supreme Court instructed the High Court to halt its hearings on the former President’s appeal.

The Supreme Court also ordered the Civil Court to send over all files and documents on a case submitted over a year ago by lawyer Ismail Visham, which challenged the legitimacy of the Hulhumale’ Magistrate Court.

The Supreme Court issued a writ of mandamus ordering the lower court to suspend its hearings and took over the case.

Meanwhile, a week before the Supreme Court delivered its 4-3 judgment declaring the magistrate court legitimate, parliament’s Independent Institutions Committee voted not to recognise the legitimacy of the Hulhumale’ court.

The oversight committee, chaired by MP Nasheed, decided that there were no “legal and constitutional grounds” to support the court’s legal status.

However, in an unprecedented move, the Supreme Court issued an order (No. 2012/SC-SJ/05) invalidating the committee’s decision.

The Supreme Court declared that no institution should meddle with the business of the courts, claiming that it held parental authority over “constitutional and legal affairs” and would not allow such “interference” to take place.

“Any action or a decision taken by an institution of the state that may impact the outcome of a matter that is being heard in a court of law, and prior to a decision by the courts on that matter, shall be deemed invalid, and [the Supreme Court] hereby orders that these acts must not be carried out,” the order read.

Meanwhile, earlier this month, the High Court granted a second injunction or stay halting former President Nasheed’s trial at the Hulhumale’ Magistrate Court.

The trial was suspended pending a ruling by the High Court on the legitimacy of the three-magistrate bench appointed by the JSC to preside over Nasheed’s trial.

The injunction followed testimony by members of the JSC to the Independent Institutions Committee claiming that the three magistrates chosen by JSC were appointed arbitrarily.

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Independent Institutions Committee votes to replace Fahmy in CSC

Parliament’s Independent Institutions Committee voted yesterday to replace Mohamed Fahmy Hassan at the Civil Service Commission (CSC) following Thursday’s Supreme Court ruling reversing parliament’s removal of the CSC chair over allegations of sexual harassment.

The proposal to appoint a replacement for Fahmy by Maldivian Democratic Party (MDP) MP Ahmed Sameer was passed with five votes in favour and none against.

Dhivehi Qaumee Party (DQP) MP Riyaz Rasheed attempted to disrupt the committee meeting on Monday afternoon and did not participate in the vote. Other government-aligned MPs did not attend the meeting.

Riyaz contended that yesterday’s meeting was called in violation of parliamentary rules of procedure and insisted at length that parliament could not challenge Supreme Court rulings.

Monday’s sitting of parliament was meanwhile called off after MDP MPs objected to the Supreme Court ruling on the grounds that the apex court overstepped its constitutional authority.

Speaking to Minivan News, MDP Spokesperson Hamid Abdul Ghafoor stated that the MDP did not believe Fahmy should hold his position in the CSC, accusing him of having an “issue of integrity”.

“The committee decided today that he [Fahmy] should go and we should continue looking for another person.

“Effectively we are ignoring the Supreme Court’s decision. The MDP will continue to raise this issue in parliament, it is a policy and it is legally non-negotiable. We cannot compromise on that.”

The sitting was first adjourned at 10:00am when MDP MPs raised points of order after Deputy Speaker Ahmed Nazim announced the Supreme Court’s decision.

In regard to the morning announcement, Ghafoor said Nazim did not make the “right call” when informing parliament of the court’s decision.

“He [Nazim] informed us of the three issues to do with the Supreme Court in a language that essentially showed an acceptance of those verdicts. We didn’t like this,” he said.

After the sitting resumed at 1:00pm, Nazim announced the cancellation as the issue was to be taken up at a meeting of the Independent Institutions Committee.

On November 20, 2012, parliament dismissed Fahmy in a 38-32 vote after the Independent Institutions Committee looked into a complaint of sexual harassment by a female employee of the CSC.

Fahmy however contested the dismissal at the Supreme Court, which ruled 6-1 on Thursday night that his removal was unconstitutional. The majority opinion contended that the Independent Institutions Committee violated due process and criminal justice procedures in its inquiry.

The majority opinion held that Fahmy would receive two punishments for the same crime if he was convicted at court following his dismissal by parliament (double jeopardy). The CSC chief returned to work on Sunday.

“Fundamental, revolutionary change”

Writing in his personal blog following the Supreme Court judgment, MP Mohamed ‘Kutti’ Nasheed – chair of the Independent Institutions Committee – argued that the Supreme Court judgment established a legal precedent that would bring “a fundamental, revolutionary change” to employment termination.

On the Supreme Court’s argument that Fahmy was accused of committing a criminal offence, Nasheed noted that sexual harassment at the workplace was not specified as a crime in Maldivian law. Legislation on sexual harassment is however currently before parliament.

In the absence of a law prohibiting the offence, Nasheed wrote, a person could not be prosecuted for sexual harassment.

Fahmy’s dismissal by parliament was therefore a disciplinary action taken by the institution with oversight powers over the CSC, Nasheed explained.

Under article 187(a) of the constitution, a member of the CSC can be removed “on the ground of misconduct, incapacity or incompetence.”

Article 187(b) 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.”

As the process to be followed by parliament was clearly specified in the constitution and parliamentary rules of procedure, Nasheed argued that the Supreme Court could not require parliament to adhere to “new conditions and new procedures”.

“While parliament has the power to remove members of the Civil Service Commission and the process to exercise that power is specified in the constitution, the problem that has risen is that the [Supreme Court] has determined that Majlis cannot use that power even in accordance with the procedure laid out in the constitution and law,” Nasheed wrote.

Nasheed further argued that parliament’s removal of former Auditor General Ibrahim Naeem in March 2010 has now been thrown into question in the wake of the Supreme Court ruling. Naeem was dismissed after the Finance Committee investigated allegations that he used an office credit card for personal benefit.

The ruling has also raised doubts over the legal status of current Auditor General Niyaz Ibrahim, Nasheed wrote.

Nasheed also criticised the Supreme Court’s interpretation of “double jeopardy” in Fahmy’s case. According to the Supreme Court ruling, a person could not be removed from his or her post as a disciplinary action unless he or she was convicted of a crime.

If an employee is accused of a criminal offence, he added, employers would no longer have the right to fire the accused before he or she was found guilty.

“If that is the case, questions have been raised over the dismissal of all police officers, army officer, civil servants and employees of other institutions over cases of misconduct or breach of ethical rules that involves allegations of a criminal offence,” Nasheed explained.

Double jeopardy does not preclude civil, disciplinary or administrative action before or after criminal prosecution, he added.

However, Nasheed argued, the Supreme Court ruling has effectively prohibited employment termination as a disciplinary action as the judgment considered such action “a punishment.”

As a result of the legal precedent established by the Supreme Court, Nasheed wrote, it was “very likely” that most people dismissed from their posts since the adoption of the new constitution in August 2008 would have to be reinstated.

“That is, considering their cases individually, it is certain that no state institution would have adhered to the standard set in this Supreme Court judgment. The standards are that high,” he explained.

Nasheed however stressed at the beginning of his post that he was obliged to accept the Supreme Court ruling as it was the highest court of appeal.

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