Tag: JSC

High Court overrules Civil Court injunction ordering JSC to halt appointment process

The High Court has overruled a Civil Court injunction issued on September 8 ordering the Judicial Service Commission (JSC) to halt its appointment of judges to superior courts pending a ruling on the constitutionality of the process.

The temporary injunction was appealed by the JSC at the High Court, which ruled today that the Civil Court did not have jurisdiction to rule on the constitutionality of laws and regulations.

A group of lawyers had filed a case at the Civil Court contesting that regulations drafted by the JSC – containing evaluation criteria for selecting judges to superior courts – conflicted with both the constitution and the Judges Act. The lawyers requested the court abolish the regulations and declare the commission’s shortlist void.

The final interviews of 17 shortlisted candidates were due to place on September 10, two days before the injunction or staying order was delivered.

In its verdict today, the  three-judge panel unanimously ruled that the Civil Court did not have jurisdiction to hear the case, citing article 143 of the constitution as well as provisions of the Judicature Act.

Briefing press after filing the case at Civil Court, lawyers Ali Hussein and Ismail Visham argued that the evaluation criteria formulated by the JSC unfairly favoured graduates of the College of Islamic Education (Kulliya).

Ali Hussein explained that under the regulations drafted by the JSC, a candidate with a masters degree and a graduate of Kulliya both receive 25 marks for educational qualification.

“We are saying this is not fair,” he said. “We especially note that the Faculty of Sharia and Law teaches shariah subjects to the same extent as Kulliya [Islamic College], but graduates of the faculty receive 20 marks while students from Kulliya receive 25 marks.”

Kulliya graduates also received higher marks than graduates of the Islamic University of Malaysia, he said.

The lawyers also claimed that two shortlisted candidates had close ties – as a spouse and a business partner – with two members of the commission, suggesting a clear conflict of interest as neither had recused themselves from voting in the JSC panel.

Moreover, the lawyers observed that the JSC criteria also conflicted with the academic rankings of the Maldives Qualification Authority (MQA), formerly the accreditation board, which places Kulliya certificates below those of overseas institutions.

Following today’s ruling, the lawyers are preparing to file their case at the High Court.

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Comment: Is the President serious about reforming the judiciary?

Has Anni given up the fight for an independent judiciary?

“We will reform the JSC”, President Nasheed said in May.

“When the powers were separated and the Maldivian Democratic Party (MDP) became the executive we came into a situation where the previous regime had a majority in the parliament.

“But in many minds the situation with the judiciary was far more worrying. Nothing had changed – we had exactly the same people, the same judges, the same manner of thinking and of dispensing justice.”

On Wednesday he appointed as his member at the Judicial Services Commission (JSC) Kurendhoo Hussein Ibrahim, a man who first came to public attention during the drafting of the 2008 Constitution as someone vigorously apposed to gender equality.

As a member of the Special Majlis, Hussein Ibrahim was vociferously opposed to the appointment of women as judges, and was particularly vitriolic in his comments against changing the Constitution to allow women to run for office of the President.

“He was very clear about where women should be in society – in a place where they have no say in the running of public affairs,” a senior member of the law community, who wishes to remain anonymous, told Minivan News.

“To be honest, I am very surprised that the President would appoint such an individual as Velezinee’s replacement,” he said.

Aishath Velezinee was the President’s Member at the JSC until 19 May this year, when she was unceremoniously removed from the position. Although there were unconfirmed reports, including in this newspaper, about a backroom deal that made her removal politically advantageous for MDP, neither President Nasheed nor Velezinee have so far spoken publicly about the reasons for her removal.

Hussein Ibrahim’s views are diametrically opposed not just to Velezinee’s, but also that of a President who frequently espouses his commitment to the democratic ideal of equality and non-discrimination.

The President’s Press Secretary, Mohamed Zuhair, said Hussein Ibrahim might have distanced himself from such hard-line views since he sat on the Special Majlis for redrafting the Constitution.

“It is quite possible that he has changed,” Zuhair said. Pressed on the question of whether he knew this for a fact, Zuhair said, “We believe that in accepting the position as the President’s Member, he is entering into a ‘social pact’.”

“It is our hope”, Zuhair said, “that he will work towards the realisation of the President’s goals and to further his views in his new job.”

Even if Hussein Ibrahim, seemingly appointed on a wing and prayer, does show himself capable of leaving behind his misogyny, there is still the question of his professional ability to push a reform agenda.

A misogynist with a sentencing certificate

Hussein Ibrahim has no formal qualifications and is one of the many ‘lawyers’ allowed to sit on the bench on the basis of a Sentencing Certificate – a legacy of the Gayoom era. Having served as a magistrate in two different lower courts, he later did a stint as an ‘Islam Soa’ at Aminiya School.

In other words, he is a member of the very same brigade of “exactly the same people, the same judges, the same manner of thinking and of dispensing justice” President Nasheed said he wanted removed from the judiciary.

Removing unqualified judges was a Constitutional requirement, stipulated by Article 285. Put in charge of carrying out the task, however, the JSC dismissed Article 285 as “symbolic” and allowed all but a handful of the unqualified judges to remain in the judiciary. The President has now appointed just such a man to represent him at the JSC.

Hussein Ibrahim’s presence at the JSC means that female members of the judiciary, few in number but who as a group represent the most qualified judges in the country, now have another man overseeing them who not only thinks they are biologically and intellectually inferior to him, but also knows less about the law than they do.

The International Commission of Jurists (ICJ), which in February this year published a highly critical report on the JSC, pointed to members’ lack of technical ability and knowledge as one reason for its inability to do its job of ensuring the judiciary’s ethical and professional standards.

Citing ‘administrative efficiency’, as the reason, the JSC abolished the Complaints Committee in May this year. It was the mechanism by which the JSC was to have investigated complaints against the judiciary.

The JSC’s 2010 annual report shows there are over 200 complaints – some involving judges at the country’s highest courts – that are yet to be investigated. Any attempts to force the JSC to investigate complaints using the courts system have so far been unsuccessful.

Meanwhile, any criticism of the judiciary is becoming increasingly difficult as the courts gag the media, or issue threats against those who speak against its actions – even when they are clearly unconstitutional.

Recent examples include the Criminal Court’s decision to ban the media from Deputy Speaker Ahmed Nazim’s alleged corruption hearings and the Supreme Court’s reprimanding of President’s Advisor Ibrahim Ismail (Ibra) for urging the public to fight for their right to an independent judiciary.

What is even more shocking is that the JSC convened an emergency meeting to discuss Ibra’s remarks where members agreed to ask ‘relevant authorities’ to investigate Ibra.

The JSC is constitutionally mandated to investigate complaints against the judiciary made by members of the public. It has no authority to investigate complaints against members of the public made by the judiciary.

Clearly the JSC needs someone who, at the very least, knows what its own role is.

As seen in the case of Velezinee, who was stabbed in the back in January this year, fighting for judicial reform is one of the most dangerous jobs in the country.

Hussein Ibrahim is a religious conservative who thinks women should be covered up and chained to the kitchen sink when they are not occupied with the holy task of breeding. He has no record of pushing a democratic agenda, and has no formal qualifications in any profession. It is hard to imagine him taking on the JSC let alone the judiciary.

Which begs the question: is President Nasheed serious about reforming the judiciary?

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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Judge Ghany resigns from JSC as Gasim sworn in

The High Court’s member on the Judicial Services Commission (JSC) Judge Abdul Ghany Mohamed has resigned from the judicial watchdog.

Haveeru reported Judge Ghany as saying that the high court appointments were incomplete at the time of his appointment, and that his departure would allow the lawful appointment of another member.

Business tycoon and MP Gasim Ibrahim has meanwhile been sworn in to JSC, after narrowly beating former MDP Chairperson Mariya Ahmed Didi as parliament’s representative on the JSC. Gasim took the oath of office before Supreme Court Judge Abdulla Areef.

The JSC’s membership currently includes Judge Abdulla Didi, Supreme Court Judge Adam Mohamed Abdulla, Attorney General Abdulla Muiz, MP Gasim Ibrahim, Speaker of Parliament Abdulla Shahid, public representative Shuaib Abdu Rahman, lawyer Ahmed Rasheed and the President of the Civil Service Commission Mohamed Fahmy Hassan.

The President’s member on the commission is currently vacant.

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Mohamed Imtiyaz appointed as acting Chairperson of MDP

The Maldivian Democratic Party (MDP) has issued a statement announcing that following the resignation of the party’s Chairperson MP Mariya Didi, all her responsibilities were handed to the Deputy Chairperson Mohamed Imtiyaz.

Mariya had resigned from her post to stand as a candidate for the Judicial Service Commission (JSC) as the member representing the parliament, after DRP MP Dr Afrashim Ali was removed for misconduct.

Leader of MDP, former fisheries minister Dr Ibrahim Didi, said Mariya’s resignation was a great sacrifice to establish an independent judiciary in the Maldives.

Speaking to the press today, Didi said that within the next two months the new Chairperson of the party would be appointed after 60 days of campaigning, as granted by the party’s charter.

Maryia was not appointed as the member from the parliament to JSC, after the post was narrowly secured by Jumhooree Party (JP) Leader and MP ‘Buruma’ Gasim Ibrahim.

36 MPs voted in favor of appointing Mariya to the JSC, while 38 voted in favor of appointing Gasim to the commission from the parliament.

Mariya congratulated MP Gasim and said she hoped he would carry out his responsibilities as a member of the JSC with sincerity for the benefit of the citizens and the best interests of the nation.

She also thanked all the MPs that voted for her.

Today’s parliament session ended after MDP MPs left the parliament chamber.

DRP MP Ahmed Nihan said that it has become a major issue that MPs were leaving the parliament, forcing the speaker to cancel the session.

”I think MPs have to seriously think about this now,” Nihan said. ”It has become a major issue.”

Nihan said that after MDP ”bought” former DRP MP Ali Waheed, he had been “very inactive” in parliament.

”Nowadays he just roams around the parliament singing songs and often goes to the tea room. He hasn’t been doing any work at all,” Nihan said. ”However, Gasim’s appointment to the JSC is a great victory for the citizens in this delicate situation.”

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Gayoom praises MP support during Afrashim vote

Former Maldivian President Maumoon Abdul Gayoom has issued a statement thanking MPs who supported Judicial Services Commission (JSC) member and Dhivehi Rayyithunge Party (DRP) MP Dr Afrashim Ali during a motion of no confidence that saw him removed from the judicial watchdog yesterday, according to local media.

Miadhu reported that Gayoom praised the 34 MPs who voted against removing Dr Afrashim from his post with the JSC, despite the no confidence motion passing with 38 votes in favour, claiming the Ungufaaru MP had strived to ensure “freedom and independency” in the Maldivian judiciary.

Gayoom used the statement to praise the need for independence in establishments like the judiciary that he said served as “foundations of democracy” that needed to be kept free of “undue political influence.”

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Afrashim’s dismissal highlights JSC composition concerns: DRP deputy

A Parliamentary decision passed yesterday by 38 votes to 34 to remove Dhivehi Rayyithunge Party (DRP) MP Dr Afrashim Ali from the Judicial Service Commission (JSC) raises further questions over the watchdog’s impartiality and reliance on political appointees, Ibrahim ‘Mavota’ Shareef has claimed.

Shareef, a DRP Deputy Leader, told Minivan News that he believed the no confidence motion against Afrashim, forwarded by Maldivian Democratic Party (MDP) MP “Reeko” Moosa Manik, was an “alarming” move by the government that was passed with “no valid reason”.

“If anyone elected to a position is not doing a job properly and perhaps there are more competent people who can do better, then [the removal] wouldn’t be a problem,” he claimed. “However, the MDP reason [for the vote] is not based on this. The government wants to use the JSC as a vehicle for [its own interests].”

The composition of the JSC, which serves as a watchdog for the country’s judiciary, was criticised by one independent judicial review body for failing to ensure transparency in its workings.

The International Commission of Jurists (ICJ) has maintained that although it was not illegal to rely on mostly political appointees as opposed to judicial and legal figures to oversee a national legislative watchdog, it was perceived as “bad practice”.

Criticisms of the JSC have also come from within the body itself by a former member selected by President Mohamed Nasheed. Presidential appointee Aishath Velezinee served as a whistle-blower by forwarding allegations of what she called a “silent coup” taking place in the JSC against the government.

Shareef said that he personally held concerns about relying on political figures to serve as JSC appointees when it came to overseeing the country’s courts, despite the process being constitutionally mandated.

“The fact that political appointees are allowed onto the body is not the best for the JSC. I myself have raised the wisdom [of allowing this],” he said. “In my view the JSC should be made up of members of the judiciary. However [composition requirements] are outlined in the constitution and we have to live with that.”

With the removal by parliamentary vote of Dr Afrasheem from his JSC post, Shareef claimed it remained vital to try and ensure the government did not have the ability to potentially “threaten the judiciary” with political appointments to the JSC.

“We [the political opposition] have lost representation on the body and we need a voice,” he said.

With the president entitled under the constitution to appoint a member of his own choice to the body – a position formerly held by Aishath Velezinee before she was dismissed with presidential praise last month – Shareef said he believed the opposition should be allowed a similar appointment.

“The opposition should be given the opportunity to appoint a representative itself to allow for equilibrium in the JSC,” he claimed.

ICJ view

The ICJ said it could not be commenting on Afrashim’s dismissal without additional details.

However, a spokesperson for the ICJ said previous reports on the Maldives had raised issues regarding the composition of the JSC relating to the number of political appointments made to the body compared to legislative and judicial figures.

“[Political representation] was identified as a key issue [by the ICJ] at the time in preventing the JSC from acting in an independent way,” said the spokesperson. “We are in no doubt that this current JSC has had no success in trying to bring about independence in the judiciary. We are not blaming any individual for this, but the JSC is not acting as it should be.”

As a matter outlined under the country’s constitution, the ICJ source said that the organisation accepted that changing such a system and finding a solution was difficult.

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Parliament to debate dismissal of JSC member Dr Afrasheem Ali

Parliament has accepted a request from the ruling Maldivian Democratic Party (MDP) to discuss the removal of opposition Dhivehi Rayyithunge Party (DRP) MP Afrasheem Ali from the Judicial Services Commission (JSC).

The MDP sent a letter to the parliament in March requesting the removal of Afrasheem, claiming he had disregarded JSC procedure, and showed insincerity towards the responsibilities of the commission.

In the letter signed by MDP’s Parliamentary Group Leader and MP ‘Reeko’ Moosa Manik, the party alleged that Dr Afrasheem had violated articles 10/2008 Section 20[a] and [b] of the JSC’s Act, which states that a meeting of the JSC can be held only if more than half the total number of members were present, and which requires a majority vote of present JSC members to make any decision.

Moosa referred to the incident where Dr Afrasheem allegedly phoned JSC member Fahmy Hassan – also head of the Civil Service Commission (CSC) – to ask whether he was fine with Dr Afrasheem speaking in the Supreme Court on behalf of the JSC. The matter concerned a trial conducted after a Criminal Court Judge filed a case against the JSC’s appointment of judges to the High Court.

”Records of the JSC show that Dr Afrasheem Ali made that decision against the JSC’s policies,” Moosa said in the letter.

The JSC had sent a letter to the Supreme Court, with the same date, saying that “a majority decision had been taken by members who participated in the meeting on February 6” to appoint MP Afraasheem as JSC’s representative to the higher courts. This was despite taped phone conversations indicating that he had called members separately.

Furthermore, Moosa said, “although Article 164 of the constitution very clearly states that persons appointed to the JSC who are nots member of  parliament shall receive allowances and salary as decided by the parliament, records of the JSC shows that Dr Afrasheem Ali has been paid such allowances.”

Dr Afrasheem had played a role in the unlawful and unconstitutional activities the JSC had conducted, and he has been insincere in carrying out the responsibilities of the JSC, Moosa claimed.

”Therefore, [we] find Dr Afrasheem is not an appropriate person to represent the parliament in the JSC, and [we] hereby present this complaint according to article 165 of the constitution and request his dismissal,” Moosa said in the letter.

Dr Afrasheem did not respond to calls at time of press.

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JSC denies arbitrary dismissal of magistrate, blames affair

The Judicial Service Commission (JSC) has told the Civil Court it removed the former Chief Magistrate of Thinadhoo in Gaafu Dhaalu Atoll, Ahmed Shareef, from the bench because of a previous conviction for having an affair.

In court for the third time this year facing allegations of unconstitutional behaviour, the JSC defended its decision to remove Shareef from the bench in August 2010 by providing the court with a detailed account of Shareef’s previous conviction dating back over a decade.

According to the records, Shareef was sentenced to two months under house arrest on July 30 2001, for having an affair. Shareef and the other person had been engaged in a “connection of love” prior to the case being brought to court in 1998, the records state.

The Criminal Court, which handled the case, was in possession of a photograph taken in Shareef’s house where the pair were alone on a bed. The sentencing judge said the court had determined the image depicted a sexual offence. Initial documents submitted to the court by the JSC to the labelled the other party in the affair as male, however the JSC has since claimed the party was female and that this was a typo.

As Shareef was a first time offender the judge suspended Shareef’s sentence for a period of three years. Which means, Shareef has argued, he did not fail the moral standards required of a judge by the Constitution as was wrongfully determined by the JSC.

Shareef is also alleging that there were a total of 37 judges, including himself, with previous convictions. The JSC removed only six of them from the bench, meaning that there are still 31 individuals with criminal convictions on the judiciary’s benches across the country.

In the Civil Court yesterday Shareef’s lawyer Ahmed Zaheen Adam said he is seeking from the JSC a list of all the judges currently on the bench who have criminal convictions to their name.

He also wants the JSC to furnish to the court details of the said convictions as well as the manner in which the JSC considered details of the offences prior to making the decision to allow them to remain on the bench.

According to papers filed by Shareef, the convicted offenders on the bench were – or are – involved in offences relating to misconduct, fraud, bribery and other crimes.

Shareef wants the JSC to explain the criteria it used to determine who should go and who should stay on the bench in what was intended to be the biggest clean-up in the history of the judiciary last August, required by the 2008 Constitution.

Shareef is alleging that the JSC did not, in fact, have a standardised and pre-determined methodology for deciding which judges were qualified to stay on the bench.

Similar to the allegations made recently against the JSC by two failed applicants to the High Court bench, Shareef has accused the JSC of allowing personal opinion and interest to influence its decisions regarding the fate of members of the judiciary.

Shareef alleges that the JSC paid scant regard to the Constitution or statutory law in dismissing him.

The Judges Act, he has argued, states that a member of the judiciary will be seen as failing to meet the required ethical and moral standards if they had served a sentence for a criminal offence in the seven years previous to his appointment.

Shareef’s conviction was 11 years old when he was removed from the bench on August 5, 2010, and his sentence had been suspended.

The Judges Act was being debated in the Majlis at the time of Shareef’s removal, and was passed five days later, on 10 August 2010.

The 2008 Constitution created and mandated the JSC with bringing the judiciary in line with its new standards designed to meet the values ascribed to by a functioning democracy within two years of the Constitution coming into affect. The deadline expired on 7 August 2010.

Had the passage of the Act taken less time in the Majlis, the JSC would have been in possession of detailed guidelines on if, how and when a member of the judiciary can be removed from the bench, the court heard.

Shareef alleges the JSC deliberately decided not to wait for the legislation to be passed by the Majlis and, in fact, expedited the dismissals to suit members’ own personal opinions and interests.

“Speaker of the Parliament Abdulla Shahid is a member of the JSC, and so is Dr Afraasheem Ali, another MP. How can the JSC in all honesty tell this court that it was unaware of the contents of the impending legislation?” Shareef’s lawyer Zaheen asked.

“It is a shame if lawmakers do not know the contents of their own laws,” Zaneen said.

The JSC pointed out that the Judges Act post-dates its decision to remove Shareef from the bench and argued that it cannot be expected to rely on legislation that did not exist. Nor can it be expected, it said, to pay heed to impending legislation.

Shareef is asking the court to reinstate him on the bench and to order the JSC to reimburse his “full salary and privileges” from August 2010 till now. He is also claiming to have suffered great emotional and financial distress as a result of the dismissal and is also seeking compensation for psychological damages.

The case will resume at the Civil Court within the next 10 days, on a date yet to be confirmed.

Correction: Documents provided by the JSC to the court mistakenly labelled the other party in the affair for which Magistrate Shareef was convicted as another male. The  party was female and the JSC has since claimed this was a typo. Minivan has corrected the error for this story.

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Parliament confirms ongoing “confidential” investigation of JSC

Parliament’s Committee for Independent Commissions has confirmed it is conducting a closed-door investigation of the Judicial Services Commission (JSC), the body responsible for the appointment of judges and oversight of the judiciary.

The JSC has been both the subject of a damning report by the International Commission of Jurists (ICJ) and an investigation by the Anti-Corruption Commission into the JSC’s awarding of extraneous committee allowances.

Several judges – including Chief Judge of the Family Court Hassan Saeed – who were passed over for appointment to the High Court by the JSC have come forward to complain about issues relating to the JSC’s procedures after his appeal was dropped by the Supreme Court.

During a press conference held in parliament today, Committee Chair Mohamed Mujitaz confirmed that a sub-committee was conducting an ongoing investigation into the JSC, but said the members of the sub-committee had decided to keep the proceedings confidential.

According to Parliament’s regulations, closed door meetings can be held on issues relating to national security, law enforcement, or where a person is at risk of being defamed or perceived “as having committed a wrong.”

Minivan News understands that the three members of the Sub-Committee include Chair Ahmed Hanza, Mohamed Mujitaz and Independent MP Mohamed Nasheed. Hamza and Nasheed had not responded to Minivan News’ request for comment on the matter at time of press.

The President’s Member of the JSC, Aishath Velezinee, an outspoken whistleblower and critic of the JSC who has previously accused it of not just compromised independence but collusion with members of parliament to oust the executive, said the sub-committee had shown no interest in answering the letter of no-confidence she had sent in February 2010.

“On August 4 I sent a letter requesting an injunction order on the reappointment of judges until parliament had completed its investigation [of the JSC],” she said, adding that this too had gone unanswered.

Velezinee confirmed that JSC members had been summoned by the sub-committee, but had been informed that the questioning had related to her own conduct.

“The focus of the investigation appears to be taking action against me,” she claimed. “They’ve also asked for attendance sheets. Why is this being conducted in secret?”

“I’ve named five people – including two members on the sub-committee – as involved in this ‘silent coup’,” she said.

“The judiciary has not transformed [since the introduction of separation of powers], just transferred. The old boys [of the former administration] are trying the legitimise their return to power with a court order. Judging from the recent behaviour of the Supreme Court, it is in on it now which is utterly irresponsible and a tragedy.”

Professor Murray Kellam, a former Australian Supreme Court Justice who recently spent several weeks observing the JSC on the invitation of UNDP, pressed for transparency stating that “sunlight is the best antiseptic”.

“The process in your Constitution is that [in the event of] gross misconduct and gross incompetence, the Majlis (parliament) has the job of dismissing [the JSC], and that’s consistent with other places in the world,” he said.

“But the problem here is that the body making the recommendation is also the membership.”

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