Tag: International Commission of Jurists

ICJ says Majlis has “decapitated the country’s judiciary”

The International Commission of Jurists (ICJ) has called this week’s removal of two Supreme Court judges an assault on the independence of the judiciary.

“The Maldivian parliament and executive have effectively decapitated the country’s judiciary and trampled on the fundamental principles of the rule of law and separation of powers in a democratic State,” said Sam Zarifi, ICJ’s Director for Asia and the Pacific.

Zarifi went on to call for the reinstatement of Chief Justice Ahmed Faiz and Justice Muthasim Adnan, labelling their removal by the People’s Majlis “astonishingly arbitrary”.

The two judges were removed following amendments to the Judicature Act passed last week, requiring a reduction of judges on the Supreme Court bench from seven to five.

After the Majlis approved the changes, the Judicial Services Commission (JSC) recommended the following day (December 11) that Faiz and Adnan be removed. The reasons for the decision have yet to be made known to either the public or the Majlis, which nevertheless voted to remove the judges on Sunday (December 14).

Article 154 of the 2008 Constitution says a judge can only be removed if the JSC finds them guilty of gross incompetence or misconduct.

Established in 1952, the ICJ is formed of 60 judges from around the world who utilise their legal expertise to develop and strengthen national and international justice systems.

“The superficial legislative and administrative maneuvers used to get rid of them [the judges] were grossly unfair and in flagrant violation of the Maldivian Constitution, UN and Commonwealth standards on independence of the judiciary, and the obligations of the Maldives under international law,” read today’s ICJ statement.

Both the Civil Court and private lawyers have unsuccessfully attempted to block the judges’ removal, with the Civil Court saying that the “unconstitutional” decision had the potential to “destroy judicial independence” in the Maldives.

While the Supreme Court ordered that the Civil Court hand over any files related to the opposition Maldivian Democratic Party’s complaint, the High Court has told private lawyers that it does not have the jurisdiction to rule on the matter.

Meanwhile, Commonwealth institutions have released a statement saying that judicial independence and the rule of law had been “severely jeopardised” by the decision.

Locally, the Maldivian Democracy Network has called the decision “a travesty in the guise of upholding the Constitution”, while Transparency Maldives also expressed concern:

“The impartiality and independence of the Supreme Court is not solely decided by the number of Supreme Court Justices but rather by the upholding of judicial integrity and principles,” said the anti-corruption NGO.

Immediately following his dismissal, Faiz – previously a stern critic of international commentators on judicial reform – said the move raises doubts over the separation of powers and the continuation of judicial independence in the Maldives.

“Today will be written down as a black day in the constitutional history of the Maldives. I state this is a black day for the constitution. Taking such a vote against the constitution is, I believe, disrespectful to the constitution,” he told local media.

The ruling coalition maintains the amendments – which include the breaking up of the High Court into regional bodies – will strengthen the judiciary and facilitate judicial reform.


Related to this story

Majlis removes Chief Justice Ahmed Faiz, Justice Muthasim Adnan from Supreme Court

Judicial independence, rule of law “severely jeopardised” in the Maldives, says Commonwealth organisations

Civil Court condemns move to dismiss Chief Justice Faiz and Justice Adnan

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AG appeals Criminal Court ruling on arrest of Gassan Maumoon

The Attorney General’s (AG) Office has appealed the Criminal Court’s ruling that the arrest of Gassan Maumoon was unconstitutional.

The AG’s Office told local media that it appealed because the court’s ruling contained “legal issues” and was delivered in a case that the police had not filed.

Gassan Maumoon, son of former president Maumoon Abdul Gayoom, was arrested on Monday, October 23 for allegedly throwing a wooden plank that struck and critically injured a 17-year-old boy during a protest outside of the family’s household, Endherimaage.

The protest was held by the ruling Maldivian Democratic Party (MDP) on October 20. Gassan was subsequently summoned twice by police, and later taken to Dhoonidhoo prison for further enquiry.

The Criminal Court however released Gassan under the claim that his arrest violated procedures established by the Supreme Court for operating article 46 of the constitution.

The ruling came after Gassan’s lawyers applied for a writ of ‘habeas corpus’, or release from unlawful detention. They argued that due process was violated as the circumstances of his arrest did not fall under exceptions provided for in the constitution where police could arrest suspects without an arrest warrant.

Article 46 states that, “No person shall be arrested or detained for an offence unless the arresting officer observes the offence being committed, or has reasonable and probable grounds or evidence to believe the person has committed an offence or is about to commit an offence, or under the authority of an arrest warrant issued by the court.”

President’s Office Press Secretary Mohamed Zuhair added that the court had cited a precedent set by the Supreme Court on a similar case, stating that a suspect should be arrested at the scene of the crime. Otherwise, said Zuhair, a suspect should be arrested at the scene where evidence is found.

Zuhair observed that the court’s policy on article 46 restricts the due course of justice.

“The police had investigated the case and detained Gassan when they thought they had enough evidence. They submitted the evidence to the court and followed the procedures in place. What other procedures should they use, especially in a time-sensitive case such as a case of violence?” he said.

Zuhair added that if the court’s claim against the police’s arrest procedures went undisputed, all individuals arrested during the protest would have to be released.

Police Superintendent Mohamed Jinah insisted at the time of the court’s ruling that the arrest was lawful as police had reasonable grounds to suspect Gassan had committed a crime and were prepared to submit early evidence.

If Gassan’s arrest was unlawful, said Jinah, “everyone police have arrested and brought before the court [for extension of detention] was arrested in violation of the constitution.”

On October 26, police released 11 suspects who had been arrested without a warrant on suspicion of having committed an offence.

When asked if the appeal was expected to overturn the court’s ruling against the police. Zuhair was optimistic.

There are two key points of argument, he said. “How was a private member of Gayoom’s family able to launch a case in the Criminal Court without first going through the Civil Court, as is the usual course of action, and secondly, how else were the police supposed to submit their evidence, other than the procedure in place, which they used?”

Gassan’s case involves another first: after the police were allegedly summoned to and “thrown out” of the Prosecutor General’s (PG) office, the PG publicly stated that it was seeking legal advice from the Supreme Court. “This is unprecedented, usually these cases are appealed to the High Court,” Zuhair said.

“I hope this is resolved quickly because there is a growing concern among a wide section of society over the impartiality of the judiciary,” he concluded.

Recently, MDP requested international assistance in overcoming the “increasingly blatant collusion between politicians loyal to the former autocratic President, Maumoon Abdul Gayoom, and senior members of the judiciary.”

The request was made in relation to a Supreme Court case in which Gassan has contested MP Mohamed Musthafa’s election to parliament in May 2009.

“The Supreme Court case is the latest installment of an ongoing attempt by Gayoom to secure a parliamentary seat for his son, Gassan Maumoon,” a statement sent by MDP and subsequently forwarded to diplomatic missions and United Nations offices by the Foreign Ministry alleged.

Recent actions in the judicial system have indicated a deep and tangled history of politically biased judicial rulings.

The Judicial Services Commission (JSC), the watchdog body charged with overseeing the judiciary, abolished its Complaints Committee citing “efficiency”, with complaints against judges subsequently forwarded for review by the legal section and Chair Adam Mohamed Abdulla, a Supreme Court Justice.

Last year the JSC received 143 complaints concerning the conduct of judges. By its own statistics none were tabled in the commission, and only five were ever replied to.

Chair of the former complaints commission, Aishath Velezinee, was meanwhile stabbed in the street in January this year.

The JSC also failed to table or even acknowledge receipt of a report on the judiciary produced by the International Commission of Jurists (ICJ), which questioned whether the JSC possessed the technical ability and knowledge to investigate complaints and hold the judiciary accountable, as well as its independence.

In the wake of these developments, Zuhair said lawyers have begun forums to openly discuss allegations against the judicial system. “They are active and getting a fair amount of media coverage, I think they may formulate reforms for two laws concerning judges and the judiciary,” he said.

The laws involve the process of appointing judges to the Supreme Court, and the qualifications required of a Supreme Court judge.

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JSC President deserts emergency meeting, refuses to adopt House Rules

The Chair of the Judicial Service Commission (JSC) deserted an emergency meeting of the JSC Thursday night, refusing to meet members’ demands for adoption of the Commission’s House Rules as a matter of high priority.

The JSC’s deadline for adopting House Rules, as stipulated in Article 40 of the Judicial Service Commission Act, expired ten months ago on 26 January of this year.

Without House Rules, the Commission’s work has no set standards of procedure according to which to carry out its responsibilities, allowing for Commission business to be conducted on an ad hoc basis, and according to the discretion of the Chair himself.

JSC is the independent body Constitutionally mandated with oversight of the country’s judiciary. It is responsible for maintaining the standards, principles, ethics and discipline of members of the judiciary.

Chair of the JSC Supreme Court Justice Adam Abdulla convened Thursday’s emergency meeting, which he later deserted, to discuss the impending departure of three Chief Judges who are travelling abroad to finesse their English Language skills.

The JSC is required to appoint substitute Chief Judges to replace any that leave their post on a temporary or permanent basis.

Four members of the JSC, however, refused to discuss the substitutes’ appointments unless Justice Abdulla acceded to their requests to put House Rules adoption at the top of the Commission’s agenda when it meets later today.

Justice Abdulla refused the demand of the dissenting members who included the Attorney General Ali Sawad, JSC Lawyer Ahmed Rasheed, Member of the General Public, and President’s Member Aishath Velezinee. He chose to abandon the meeting instead.

Criminal Court Chief Judge Abdullah Didi, one of the three judges scheduled to travel to India yesterday to brush up their English Language skills, joined Justice Abdulla in the walkout.

In a leaked audio recording of Thursday’s meeting listened to by Minivan, Chief Judge Didi is heard urging Justice Abdulla to leave saying, “Let’s go. Nothing can be done in this place. Let’s leave, Adam”.

The two men then walked out of the meeting. Both the matter of the House Rules and the matter of appointing substitute judges to stand in for those taking English lessons remain yet to be addressed.

Minivan has learned this morning that Criminal Court Chief Judge Abdulla Mohamed remained in Male’, foregoing the English language training after the JSC’s failure to appoint his substitute.

The two jurisdictions without a magistrate, however, could remain a legal limbo until the JSC appoints substitutes.

Chief Judge of the Criminal Court Abdulla Mohamed is one of the six judges under official investigation by the JSC for alleged misconduct

So far the Investigating Committee of the JSC appointed to look into allegations against Judge Didi has spent over a Rf100,000 solely on reimbursing its members for their attendance. The Investigating Committee, too, is yet to adopt any House Rules.

Before deserting the meeting Justice Abdulla told the dissenting members of the Commission that nobody had the authority to impose conditions on him, as stated in a press release issued by the JSC on Thursday night.

JSC regulations state that any matter which the Commission, or any member of the Commission, wishes to include in the agenda of its meeting should be duly included in the agenda.

When contacted by the media subsequent to the JSC press release, Justice Abdulla said he walked out because he could not tolerate what he described as “the vulgar behaviour of Velezinee”.

Justice Abdullah did not mention that three members of the JSC other than Velezinee, including the Attorney General, had joined together in demanding the adoption of House Rules as a matter of urgency.

Placing the blame squarely on Velezinee’s behaviour, he told the media she had “belittled the importance of the meeting” and accused her of being a disruptive force in the Commission’s work.

“Yes, I do try and disrupt the ‘work’ that they do”, Velezinee said. “They are not carrying out the responsibilities as required by the Constitution. It is my duty, and the obligation of every member of the JSC, to ensure that the JSC performs its proper functions.”

Velezinee said certain members of the JSC appear to have a false perception of the Commission as “a welfare organisation for members of the judiciary with the oversight to ensure their individual and collective well being”.

Justice Abdulla’s claims that Velezinee’s behaviour forced him to leave the proceedings contradict the press release by JSC, and also the proceedings as heard in the leaked audiotape.

When referred to the the JSC press release, which had been issued after his desertion and of which he was not aware until contacted by the media, Justice Abdulla told Haveeru that it was not a valid document as it had been issued without a required approval of the majority.

After the recent controversy over Article 285 of the Constitution and the re-assembling of JSC at the end of August, however, JSC had approved three senior Secretariat staff as media spokespersons with the authority to brief the media.

Dismissing Justice Abdulla’s claims as a frequently used strategy of “character assassination to deflect attention from the JSC’s sustained negligence of its Constitutional responsibilities”, Velezinee listed a variety of issues deliberately left out of the JSC agenda.

“Adopting the House Rules and other regulations required of the Commission under the JSC Act, appointing Justices to the High Court, and appointing a Secretary General to JSC”, she said, are vitally important issues that are yet to receive any attention.

Velezinee said that without House Rules the JSC has not been able to perform some of its chief responsibilities such as preventing impunity among judges and building public confidence in the judiciary.

The Complaints Commission of the JSC, mandated to examine complaints against members of the Judiciary, for instance, has met only once in the last five months despite having over a hundred complaints awaiting its examination.

To date JSC has not settled a single complaint it has received regarding the conduct of a judge.

Minivan has also learnt that Judge Abdulla ignored requests by the US Embassy and Commonwealth delegations to meet with the Commission, and failed to inform Commission members of such requests.

The 10-member JSC voted Justice Abdulla as Chair with five votes, while waiting to decide whether or not to investigate his involvement in the High Court Declaration of 21 January 2010.

The Declaration removed High Court Chief Justice Abdul Ghani from JSC accusing him of misconduct and installed Justice Abdulla as head of JSC.

Meanwhile, Justice Abdulla moved up to the Supreme Court, vacating the High Court seat in the JSC. To the seat was returned Chief Justice Abdul Ghani, who had been removed from the JSC by the High Court Declaration only months previously.

The allegations of misconduct against Chief Justice Abdul Ghani have not come to the fore since his re-instalment at the JSC.

A report of the International Commission of Jurists (ICJ) is due out soon, revealing the findings of its visit to the Maldives last month. The ICJ delegation was lead by former UN Special Rapporteur on the Independence of Judges and Lawyers, Dr Leandor Despuoy.

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