The Judicial Services Commission (JSC), the body entrusted to vet and regulate the conduct of judges in the Maldives, has failed to match the government and parliament over the last two years in operating within a constitutionally defined role, Attorney General Dr Ahmed Ali Sawad has claimed.
The claims follow the publication this week of a report by the International Commission of Jurists (ICJ) that was critical of both political interference in the judiciary by government and opposition groups, and critical of the JSC’s ability to “carry out its functions” in ensuring judges were both impartial and capable of performing their duties.
Along with outlining recommendations for the executive, the Majlis and legal bodies like the JSC to follow in order to better ensure a judiciary independent from government and opposition influence, the ICJ’s Director of Asia Pacific Operations, Roger Normand, suggested a lot of work lay ahead.
Accepting that positive developments had been made within its courts since the Maldives became a democracy, concerns remained over a number of issues, Normand said. Having spoken to stakeholders across the country’s legal system, “ordinary” Maldivians did not look to their courts for justice or to solve problems, he suggested.
The report criticised the conduct of the government during a period of crisis last year; where the government locked shut the Supreme Court questioning its legitimacy on conclusion of the interim period. The report was also critical of the JSC’s decision-making, which was perceived as being inappropriately politically influenced.
Sawad said that he welcomed the observations by the ICJ in regards to recommendations for improving efficiency in the JSC and judicial administration, but added that ultimately, all stakeholders working within the Maldivian court system were under pressure to step up accountability.
“I think there is a lot to be done by the JSC in terms of enhancing the standard of the judiciary,” the attorney general told Minivan News. “I think there is a need to inwardly look into the judiciary and all agencies related to it. That is the judicial administration, the judicial council, the JSC, the Attorney General’s Office, the Supreme Court and the High Court – it’s time they work together in bringing about perceived standards required of the judiciary in the constitution.”
Sawad said that he believed that as a judicial watchdog, the JSC had at times tended to act defensively instead of self-critically, particularly when reviewing the constitutional role it was assigned within the constitution to appoint judges and protect independence in the judiciary.
In order to try and ensure it was able to meet these roles efficiently, the attorney general suggested that it may be appropriate to have the Majlis consider reviewing the role of the JSC during the last year and a half to determine if it was functional.
However, Sawad claimed that no single entity alone should shoulder the blame in terms of perceived issues with independence in the judiciary. He added that during a seven year period allotted for education and improvement under the Judges Act, education was a key to ensuring effective changes and developments in ensuring confidence within the legal system.
“When I look at the crucial actors in this, I feel the JSC has a crucial role to play. I feel the judicial administration have a crucial role to play and I feel there is a missing link in the form of a judicial training academy,” he said. “We cannot burden the Supreme Court or the High Court of with continuously setting the standards of measure for the rest of the judiciary day-on-day.”
Ultimately, Sawad said that as one of three distinct branches of the state along with the government and the Majlis, the judiciary was required to meet the same levels of accountability as part of its independence – making the role of the JSC essential.
“What we have [under the constitution] is an accountable government and an independent judiciary,” he said. “But independence is a perception made by the people who are the beneficiaries – in this case the public. If the people do not perceive that level of independence then there is a problem.”
Sawad stressed that the perception of independent courts within the country were especially important in defining the difference between the judiciary before and after 2008, when the Maldivian Democratic Party (MDP) came to power on the promise of trying to bring more political accountability.
“Pre-2008, people knew that the judiciary was part of the executive,” he said. “Post-2008, the people need to know the judiciary is independent.”
Government criticism
Along with concerns over the impartiality of the judicial system in the Maldives, the ICJ was also critical of the handling by the government of what it called a “constitutional crisis” last year over the legitimacy of the courts and the arrest of some prominent opposition figures.
In addressing these concerns and whether the actions of the government were a setback to the democratic mandate it promised, Dr Sawad said it was unacceptable under the constitution for any branch of the state to have jurisdiction over another, whether in the case of the executive over the judiciary, or the Majlis over the executive.
The attorney general claimed that ultimately, a “culture of respect” needed to be created by different branches of the state and government that would allow these different groups to work under the mandates they were assigned.
“That is a constitutional convention that needs to be dealt with. We haven’t had that in the past,” he said. “It’s just over two years since 2008. Now a convention takes a little more than two years, but it must nevertheless be started. The commencement of that respect agenda, that’s what needs to happen.”
Sawad said that he was generally encouraged by findings in the report, which he suggested were “timely” in light of political tensions across the nation, though may have been better served if it had been released a year earlier to grant more room for maneuver (prior to the end of the interim period).
However, the attorney general claimed to be cautiously optimistic that the report would provide guidance to “tweak” the problems that had been experienced in trying to establish courts independent of political and commercial manipulation.
“When you look back at what has happened, it has been a tumultuous two years where the three branches of the state have been morphing into their own jurisdiction perimeters – there have been teething issues, but I think two years is long enough to learn respect,” he said. “I am more optimistic about the future, I think we have a permanent judiciary now and the role of the judiciary is very clear.”
The Maldives legal system is failing to serve its citizens despite many “positive developments” that have been made in an effort to depoliticise the courts; with many of judges found lacking in qualifications and independent attitude, according to the International Commission of Jurists (ICJ).
“How often do ordinary Maldivians look to the courts for justice? Is there a sense that ‘We [Maldivians] have an independent judiciary that is capable of resolving problems?’ I think the answer is no,” surmised Roger Normand, Director of the ICJ’s Asia Pacific operations.
“Historically, [independent resolution] has not been the role of judges. Judges were an outcome or a product of the executive power. This is not a controversial statement, this is an outline of what their legal role was in the previous [government],” Normand stated.
Normand’s claims were made as the ICJ published a report on the Maldives legal system that outlining a huge number of challenges to ensure the country’s courts are in the long-term transparent in their decision making. It is hoped that the developments can remove the opportunities for abuse from government and opposition politicians alike, the ICJ stated.
The report itself is highly critical of both the role of some members of government in calling for protests and gatherings outside judges’ homes, as well as the Judicial Services Commission (JSC) that it said was “unable to carry out its functions” to impartially vet and reappoint judges on the basis of qualification and background.
“To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment,” the report stated. “Also troubling is that members of the judiciary have been subject to threats and intimidation as well as improper inducements by both governing and opposition party members.”
The ICJ said the report, entitled ‘Securing an Independent Judiciary in a Time of Transition’, had raised particular concerns over the “constitutional crisis” that occurred last year concerning the legitimacy of the courts and judges and the conduct of the government of President Mohamed Nasheed in addressing this.
Despite these concerns, Normand claimed that while there were “significant” problems with judiciary in the Maldives, and that the structure of a watchdog body such as the JSC needed much work needed to resolve, he was encouraged that there appeared to be a political mandate to bring changes to the legal system. However, the ICJ Asia Pacific director stressed that a non-independent judiciary could not simply change directly to an independent body.
“To have a sudden change, where suddenly judges are independent – this can’t just be signed on a piece of paper or constitution, it’s an attitude and a practice,” he said. “I think it’s safe to say we don’t have those attitudes and practices in the Maldives, but I also think the size of the developments are very positive.”
According to Normand and the ICJ, part of the challenge in trying to provide an independent judiciary is to ensure public support and acceptance of the country’s legal institutions and their verdicts, which in itself was linked to transparency within the decisions of bodies like the JSC.
“Judicial accountability is key to cultivating such public confidence and is an integral aspect of judicial independence,” the report stated. “Accountability must be manifest both at institutional level, in terms of court administration and access to justice, and at the individual level. This enables judges to decide cases without fear or favour and that they strictly apply the law to the facts before them.”
Recommendations
The report recommends a number of areas, such as education and training programmes for court appointees, bringing foreign experts to assist long-term, and advise on developments that it believes the Supreme Court could adopt to boost its own accountability.
In areas such as education, the ICJ said that seven-year periods outlined under the national Judges Act was used more effectively to enhance the qualifications of judges as well as ensure that a code of ethics was introduced in line with international agreements such as the Bangalore Principles on Judicial Conduct.
In addition, the ICJ claimed that steps could also be taken to ensure the Department of Judicial Administration was used to try to provide smoother administration of justice,such as requiring all levels of court to issue written reasons for its actions and establishing a judicial database so the court and public could refer to similar case law and precedents.
Normand stressed that the Maldives was relatively unique in that its courts would turn to Sharia law where Maldivian legislation didn’t apply, but that it was not alone in such experiences.
“We would recommend [collaboration with] countries that have experience of working both with common law – using previous legal cases to set precedent – and Sharia law, Pakistan is one example, Malaysia is another,” said Normand. “There are other countries where the issues the Maldives faces have been looked at before. It’s not the first time so you need to take advantage of this.”
The ICJ also recommended steps it hoped the JSC would take to act with greater transparency after coming under criticism and allegations of possible corruption.
Beyond adopting regulations and procedures to create greater accountability into the JSC’s decision making by recording detailed minutes of its meetings, a technical secretariat could also be established by a neutral party that could limit the workload to allow the organisation to work to its constitutional requirements.
The ICJ added that these developments needed to be backed by using international experts to help oversee work, and also ensure the high “moral integrity” of judges in relation to their criminal records that is also outlined under various international treaties and agreements.
The report also outlined recommendations for the country’s parliament and government to adhere to in their conduct in relation to the courts such as launching public awareness campaigns in relations to the requirements under the constitution of various legal institutions. The government was also called on to provide funding and strengthen the faculty of law and Sharia in the country, and the Majlis were called upon to pass vital laws such as the Penal Code and Criminal Procedure Code to allow swifter and more impartial delivery of justice.
The organisation also called for reform of the JSC in relation to concerns the report and others have raised over issues of transparency.
“As a principle, the JSC must become more transparent and effective in processing the complaints by the public about judges,” added Normand. “In fact, it is important for the judges themselves that the institution of the judiciary has the confidence of the public – that you’re qualified, that you’re not a criminal – it’s important for everyone.”
Taking the example of other nations such as Indonesia that are claimed to witnessed huge problems with trying to establish an independent and efficient judicial service, Normand claimed there were positive examples of countries like the Maldives that had seen vast improvements in the impartiality of its courts.
Supreme Court rulings were far superior under “supposedly uneducated judges” during the interim period compared to those delivered by the current bench, some members of the JSC have said.
JSC members MP Afraasheem Ali, High Court Chief Judge Abdul Ghanee Mohamed, Judge Abdullah Didi and Lawyer Ahmed Rasheed also agree that arbitrary powers of the Supreme Court have increased while the standards of its rulings have fallen since the interim period ended.
The JSC members’ scandalous criticism of the country’s highest court comes at a time when it is facing legal action in the Supreme Court over its handling of recent appointments to the High Court.
The remarks were made at a secret meeting on February 6 to discuss who should represent JSC at the Supreme Court, and came to light after an audio recording of the meeting was leaked to the public via YouTube by a source calling itself ‘dhikileaks‘.
Discussing recent Supreme Court rulings during the lead up to the local council elections, Rasheed, who represents the law community at the JSC, said some of the actions would not have been possible “even under the Blue Constitution” of the “former President”.
“Not even then was such a thing [as the Supreme Court ruling on Addu City] possible,” Justice Ghanee is heard saying to general laughter among the men.
MP Afraasheem, agreeing with Justice Ghanee, is heard responding that, “One very prominent judge has told me that things have reached an embarrassing state.”
“The court’s jurisdiction has changed now with the Justice Act”, Rasheed says. MP Afraasheem agrees, “They are stronger… it is always the voice of the Supreme Court now, isn’t it?”
“When these five judges get together, anything goes,” Rasheed is heard replying. MP Afraasheem is heard pointing out that two dissenting opinions were expressed in the particular Supreme Court ruling they were discussing.
“Yes, but this type of powers…” Justice Ghanee is heard saying. The decision, he adds, was made by “consensus of the majority.” Something, he further adds, “Cannot even be seen in Arabic, an Arab nation”.
Laughing, MP Afraasheem is heard responding, “If it’s a majority decision it means there was no consensus… majority is always unanimous… things that are said!”
“That is just to make things as confusing as possible”, Rasheed adds to Abdullah Didi’s agreement.
He also says that, “during the transition period, when it was being said that judges on the bench did not have an education –the rulings they made were far superior.”
“Mujey [Interim Supreme Court Justice and former JSC Chair Mujthaz Fahmy] and them, their rulings were far superior,” Rasheed continues. MP Afraasheem Ali is heard agreeing with him, laughing, and adding that “Yes, things are far more odd now.”
Colluding to commit perjury
Throughout the conversation, the men – with the help of Acting Secretary General Abdul Faththah Abdul Ghafoor – are heard making phone calls to certain members of the JSC to solicit their approval for appointing MP Afraasheem as the JSC’s official representative at the Supreme Court.
MP Afraasheem, who is the Deputy Chair of the JSC, is successful in ringing JSC Public Member Shu’aib Abdul Rahman and Mohamed Fahmy Hassan and getting their approval to appoint him as JSC’s representative to the Supreme Court.
“The Commission majority is not present here … see the way we arrange things on the phone when that happens?” MP Afraasheem is heard saying on the phone to Shu’aib. Shu’aib confirms that he knows of this procedure, and consents to give his approval.
MP Afraasheem expresses his gratitude, and tells Shu’aib the Commission will send a written copy of the decision for him to sign.
“You don’t have a problem with that, Usthaz Shu’aib. That’s okay?” Afraasheem asks. “Yes, yes, yes”, Shu’aib is heard replying.
Once the phone call to Shu’aib is over, Afraasheem, Ghanee and Rasheed are heard discussing whom they should phone next. Ghanee is heard rejecting a suggestion by one of the men to phone Attorney General Sawad, “That will not be so good.”
The careful selection of which JSC members to phone suggests the calls were being made only to those perceived as likely to approve Afraasheem’s appointment; and to those who were unlikely to object to granting their approval on the phone – an act that directly contravenes the Constitution and JSC regulations.
Article 163 of the Constitution states that any meeting of the JSC should be attended by a majority of its 10 members, and that any decision taken by JSC should be by a majority vote cast by members present.
JSC interim Secretary General Abdul Faththah has told Minivan News that while there “should be quorum”, in time-sensitive matters such as court summons members sometimes had to make decisions outside formal meetings, with the approval of other members.
“This is not a matter so important to take a decision with the discussion of the members,” he said.
Forging documents for the Supreme Court
The JSC 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.
There are six signatures on the document – that of the four men supposedly present at the meeting, and the two men – Shua’ib and Fahmy – who were absent at the meeting, but had agreed on the phone to Afraasheem’s proposal.
The document is misleading, and represents the decision as having been made by six members who were present at the meeting.
Minivan News can also confirm that the four members present at the meeting had engineered it in such a way that one of its members, Aishath Velezinee, was deliberately excluded from the meeting despite having presented herself at the scheduled time.
Velezinee, who has been the most outspoken and vocal critic of what she has called “machinations of deliberate deceit” at the JSC, had arrived for the meeting as scheduled at 7:30p.m.
After 15 minutes, when the required six members failed to attend, the meeting was cancelled as is required by JSC regulations and Constitutional stipulations. Velezinee left the meeting room, the three men and Acting Secretary General – JSC’s third appointment to the post in five months – remained behind.
Suspecting “something was amiss”, Velezinee stayed within JSC premises after the meeting was called off. The four men were still in the meeting room when she returned to check a quarter of an hour later.
She asked them what they were up to, and was told they were just wrapping things up before leaving. She left. It was after her departure that the three men began making the phone calls. The fourth, Judge Abdulla Didi, had joined some time after she left around 8.00pm, says Velezinee.
The contents of the leaked audiotape supports Velezinee’s version of events as Judge Abdulla Didi is heard saying that the meeting “was cancelled” and “we can’t order for a cancelled meeting”, when MP Afraasheem Ali asks if anyone wants refreshments.
Premeditated plan of deception
In the audio recording of the meeting the four men are also heard discussing not just which members to phone but also what should be said in order to attain the approval they were seeking.
MP Afraasheem, for instance, discusses his phone call with Shu’aib asking if had “said the right things”. Abdul Ghanee replies that it was “perfect”, and disagrees with MP Afraasheem that perhaps he should have “made things a bit shorter”.
Laughing, Ghanee says, “No, no, that is just about right.” The men also discuss whether they should first send text messages to their targeted members, and whether it is best to ring them on the Secretariat mobile phones first as they would be more likely to pick up then.
After Shu’aib, Afraasheem’s next call is to Mohamed Fahmy Hassan whom he tells he is “calling from that big phone” at the JSC.
Inquiring after how things went “during the campaign”, he laughingly tells Fahmy that “Usthaz Ghanee, Usthaz Ahmed Rasheed and Usthaz Didi” were all listening.
Afraasheem is heard requesting Fahmy’s approval to appoint him as JSC’s legal representative to the Supreme Court, and also informs him that Shu’aib had already said yes.
“If you want, Afraasheem…”, Fahmy is heard saying.
“What you are saying is that if I have no objections to the appointment, you have none. Is that so?” Afraasheem says. “Yes, yes”, Fahmy says. Afraasheem also tells Fahmy that Ghanee had suggested appointing Fahmy himself as the representative.
“No, no. Keep me at a bit of a distance”, Fahmy demurs. “In that case”, replies Afraasheem, “I will send you the decision for you to sign.” Fahmy agrees.
Fahmy has previously told Minivan News he had no comment on matters relating to the JSC.
The men also appear to be aware of the underhanded nature of their actions, saying such tactics would have been harder had the JSC Chair Adam Mohamed been present.
“It would not have been this easy to do this if Adam was here”, Justice Ghanee is heard saying referring to Adam Mohamed’s lengthy pronunciations. Abdulla Didi agrees, “Yes, that’s the problem with Adam, isn’t it?”
Adam was abroad at the time of the meeting.
Once Fahmy gave his approval, Afraasheem hangs up the phone, and is heard declaring, “This is fun!”
He continues, “Tension. Able to get rid of the tension! We have six now, don’t we?” he says, referring to the six signatures that are needed for a JSC decision to be valid and binding.
“Six,” Rasheed is heard confirming.
“We have six”, Faththah says. The audio recording ends with some muffled voices in which one of the voices, which cannot be identified, says, “So lets get this signed and done with.”
JSC’s efforts to resist judiciary reform
JSC’s criticism of the Supreme Court bench, and the broad agreement among the men that the Court functioned better during the interim period reflects a general attitude observed among some JSC members to resist bringing the judiciary in line with the 2008 Constitution.
MP Afraasheem has been at the forefront of the resistance. He has, for example, dismissed as “symbolic” Article 285 of the Constitution, which demands that all judges who do not meet its newly stipulated qualifications be dismissed after two years of it coming into force.
The two years were up in August 2010, and the JSC has failed to take the required steps to remove or replace unqualified judges, instead deciding to re-appoint the whole bench having declared it “a violation of their human rights” to remove them under a retrospective law – meaning the new Constitution.
Moreover, in December of last year, MP Afraasheem successfully sought Majlis approval for legislation that granted a lifetime pension of Rf 600,000 (US$46,700) a year to former Interim Supreme Court Justice Mujthaz Fahmy.
Fahmy was on the bench of the Interim Supreme Court, which was dissolved on 10 August, 2010. When the new Supreme Court proper was established he was not re-appointed to the bench.
Records seen by Minivan News show that Fahmy is nowhere near meeting the educational qualifications required of a judge in any court, let alone the Supreme Court, and had also been found guilty of embezzling State funds.
Fahmy lacks a basic law degree, trained a total of 217 days in the 29 years he spent in the judiciary, and possesses a ‘sentencing certificate’ obtained as his only claim to an education in law.
Some of the 217 days Fahmy spent in ‘professional training’ included time spent acquiring the skills to use a computer.
MP Afraasheem told an approving Majlis that awarding the extraordinarily generous pension to Fahmy would strengthen the country’s judiciary and ensure its honesty and integrity.
JSC and a legal black hole
Alleged irregularities in its recent High Court appointments are not the only reasons for which the JSC has been recently summoned to the courts. In January this year, Civil Court Judge Mariyam Nihayath threw out a professional negligence case against the JSC.
Treasure Island Limited had brought the civil suit against the JSC alleging that it had failed to carry out its constitutional duties by arbitrarily dismissing its complaints of misconduct against two judges in a case involving millions of US Dollars and prominent members of the tourism industry.
Although the JSC failed to satisfy Judge Nihayath that it did have a proper procedure for dealing with complaints against the judiciary, she threw out the case against it when Treasure Island was late for the court on what was to be the penultimate hearing of the case.
Shortly after, the JSC launched its process for the High Court appointments. Judge Nihayath was one of the unsuccessful candidates, and is also among three candidates who have written to the JSC requesting further details on the selection criteria.
Although Nihayath and two other judges have written to the JSC seeking clarification of the procedures for making High Court appointments, and despite the fact that the High Court is virtually suspended while the case remains pending at the Supreme Court, the JSC does not appear to be treating the matter with any real importance or urgency.
It tabled the three judges’ requests for discussion on 16 February. It was the second last matter to be discussed – before the matter of the retirement procedure for judges who are over 70 years of age, and after four other items including the matter of what legal action to take against Velezinee.
Velezinee’s alleged removal of JSC’s official documents from its premises appears to be the matter to which the JSC is according most importance, ahead of a properly functioning judicial system.
The contents of the dhikileaks audio tape has been available to the public, and broadcast in the national media, from last week onwards. The JSC is yet to pay any attention to it, despite the evidence it provides of members colluding to submit a forged document to the Supreme Court, committing perjury.
The International Commission of Jurists (ICJ) conducted a fact-finding mission in September of last year, and is due to publish its findings tomorrow.
The International Commission of Jurists (ICJ) has told Minivan News that it has serious concerns over the structure and operations of the Maldives judiciary, which are set to be outlined in the findings of a “comprehensive” new report to be released next week.
Roger Normand, director of the ICJ’s Asia Pacific operations said that although he could not reveal specific details of the report ahead of its publication on Monday, a number issues will be raised by the NGO concerning the independence of the Maldives judiciary, as well as the conduct of the government during last year’s constitutional “crisis” over the legitimacy of judges in the country.
The comments were made as institutions such as the country’s High Court are said to effectively be on “hiatus” due to ongoing legal disputes involving the appointment of a bench to oversee its cases – a trial that is currently awaiting a final decision by the country’s Supreme Court .
The appointments issue was initially raised in Civil Court by Criminal Court Judge Abdul Baary over claims that the appointment procedures of the local watchdog body, the Judicial Service Commission (JSC), were unjust.
Eventually the Supreme Court ruled that the Civil Court did not have the mandate to rule on appointments of a higher authority such as the High Court and that it should therefore have the final say on such a constitutional matter.
In this environment of judicial uncertainty, High Court Chief Judge Abdul Ghani Mohamed told Miadhu today that the issue of completing the bench was a huge challenge for the institution.
However, he claimed that various parties were working on a solution to ensure human rights were not being lost out on due to concerns that the court was “now almost on hiatus” due to the ongoing appointments case.
Forward looking report
Although not wishing to discuss any specifics ahead of the publication of the ICJ report, Normand said that the findings could be expected to detail a number of issues claimed to be specifically at odds with judicial structure and general practice designed to ensure greater transparency in line with the independence of certain courts in Europe and Asia.
“[The findings] are going to be part of a forward looking report for the country, given that you can’t have democracy without strong judiciary,” he said. “It’s essential for all political parties to work towards strengthening an independent judiciary under the framework of the Supreme Court.”
The report’s findings could prove hugely significant for groups such as the JSC that has faced criticism in recent months over their transparency.
The attacks are perhaps more significant in that they come from one of the JSC’s own members in the form of Aishath Velezinee, who now faces internal disciplinary action for her work in leaking details of their operations.
Velezinee, an outspoken critic of the JSC’s refusal to adopt a Standards of Procedure as required by the Constitution, earlier this month accused several fellow members of corruption and treason.
She has published a large cache of JSC documents, including audio recordings of Commission meetings, on her personal website as evidence, she says, to support her accusations.
The JSC last month appointed a special three-member team to decide on the best course of action against JSC member Aishath Velezinee for removing official documents from the Commission’s premises.
The JSC, which is yet to adopt a Standards of Procedure a year after the 26 January 2010 deadline, earlier this month, passed new secrecy regulations that make it an offence for members to reveal any Commission business to the public without prior authorisation.
A number of JSC members contacted by Minivan News were not available for a response at the time of going to press.
President’s member of the Judicial Services Commission (JSC) and whistle-blower Aishath Velezinee has presented documents to the Supreme Court she claims provide evidence that the JSC has forged documents for the hearing over High Court appointments.
The JSC is currently in the Supreme Court defending its appointment of five high court judges – current Juvenile Court Chief Judge Shuaib Hussein Zakariya, former Law Commission member Dr Azmiralda Zahir, Civil Court registrar Abdu Rauf Ibrahim, lawyer of former President Maumoon Abdul Gayoom, Abbas Shareef and Civil Court Chief Judge Ali Sameer.
The Supreme Court took over the case from the Civil Court in January, after several judges who were not appointed raised concern that there were policy and legal issues related to the Judicial Service Commission’s (JSC) appointment procedures, such as giving higher priority to appointees on the basis of gender.
The documents concern JSC resolution B1/11/24, passed at the 22nd sitting of JSC on the evening February 6, 2011, informing the Supreme Court that Vice Chair Dr Afrasheem Ali would represent the JSC in the High Court appointments matter.
The resolution carries the signatures of six JSC members, three of whom Velezinee contends were not even present at the meeting of February 6, 2011 when the resolution was supposedly passed.
“The JSC sent a text message calling a meeting on Sunday evening at 7:00pm, and then changed the time to 7:30pm. I was there at 7:00pm, and only four members turned up including myself, Dr Afrasheem Ali, Chief Judge of the High Court Abdul Ghani Mohamed, and Ahmed Rasheed from the law community,” Velezinee says. “I stayed until 8:00pm, to make sure.”
With only four members present, the meeting failed to reach the JSC’s six member quorum.
“The JSC’s regulations state that after a meeting is called, if we do not reach quorum within 15 minutes from the scheduled time, then the meeting is cancelled. On Sunday evening we had no meeting because we didn’t meet quorum with only four members present.”
When Velezinee later requested to see the attendance record for the February she discovered a fifth signature – that of Criminal Court Judge Abdulla Didi – had allegedly been added to the official records.
That still was not enough enough to reach the JSC’s quorum, so Velezinee says she was surprised to see six signatures in the submission to the Supreme Court passing the resolution – including those of Member of the Public Sheikh Shuaib Abdul Rahman and Civil Service Commission member Mohamed Fahmy Hassan, neither of whom attended the meeting on February 6.
Velezinee further claimed to have audio recordings of conversations between the JSC and the two absent members who signed the resolution, arranging for the resolution to be sent out to their homes for them to sign.
“The submission to the Supreme Court very clearly states: ‘this resolution was adopted February 6, on the 22nd sitting of the JSC by majority vote of those members who attended’,” Velezinee said.
Fahmy told Minivan News he had no comment on the matter, while Dr Afrasheem Ali referred Minivan News to the JSC’s media spokesperson, Hassan Zaheen. Zaheen referred Minivan News to the JSC interim Secretary General, Abdul Faththah, also the JSC’s legal representative.
Faththah said that while there “should be quorum”, in time-sensitive matters such as court summons members sometimes had to make decisions outside formal meetings, with the approval of other members.
“This is not a matter so important to take a decision with the discussion of the members,” he said.
JSC members had also previously decided who should attend court hearings, during a meeting of full attendance, he added, “[but] that day the Chair was not in Male’, so members decided instead that the Deputy [Afrasheem] should attend [court],” acknowledging that “they may not have had quorum that time.”
“These kind of things happen with things like court attendance issues, but no other decisions,” he said.
Supreme Court case
“Today was the last hearing before the Supreme Court’s verdict [in the case],” Velezinee said. “I sent two letters, a copy of the attendance sheet and the resolution to all five Supreme Court judges and informed them that it was a forged document.”
“The JSC seems to think there is no procedure to gain a majority. That was exactly what they did with Article 285. But when we are talking about a democracy with laws of transparency and accountability, there are procedures to follow to get a majority – otherwise it becomes mob rule.
“Anyone can run around and intimidate people to get signatures, but that is not how an independent constitutional body such as the Judicial Services commission should be working. if the integrity of the Judicial Services Commission is under question, there is no reason why people should trust the judiciary.”
Velezinee has previously alleged that practices such as “manipulating the agenda, manipulating meeting times, withholding information and trying to manipulate decisions by providing misleading information.”
“This is classic, but this time they have been caught in the act,” she claimed.
The outspoken whistle-blower, who was hospitalised on January 3 after she was stabbed three times in the back in broad daylight on the main tourist street of Male’, expressed frustration with the slow acknowledgement that “the JSC by its actions causing the public to mistrust judges and the judiciary – the JSC is permitting impunity among judges.”
“Nobody from any civilised country would believe you if you said that judges and MPs were lying. Chief judges, high court judges – you expect office bearers to be working in the interest of citizens and the state. But here we have a judiciary that seems to think the whole country is out to attack them. That has happened because we have not established a judiciary according to the constitution.”
All the current sitting judges were, Velezinee said, “hand-picked without due process, often for their personal and political connections. We have all the documents to prove it, but JSC is hiding from it. They say: ‘the constitution says we are an independent commission’. But it’s not what the constitution says, it’s how you act. Why not simply eliminate crime by rewriting the constitution so it says there is no crime in this country?”
The Anti-Corruption Commission (ACC) is currently investigating the JSC for embezzling state funds by awarding itself over Rf 500,000 in ‘committee allowances’, contrary to Article 164 of the Constitution.
Velezinee has also requested police investigate JSC President and Supreme Court Justice Adam Mohamed Abdulla, JSC Vice Chair and MP (DRP-PA) DrAfraasheem Ali, Criminal Court Judge Abdulla Didi, Speaker of Parliament (DRP-PA) Abdulla Shahid, former JSC President and interim Supreme Court judge (now removed) Mujuthaaz Fahmy, and Former Civil Service Commission President and current member of Civil Service Commission Dr Mohamed Latheef.
The charges filed included accusations that some MPs were influencing courts and judges “for personal gain and profit”, subverting the rule of law and obstructing the JSC from conducting its constitutional duties, “committing and attempting to commit crimes against the State using JSC and the courts as tools”, and defamation against her “with criminal intent”.
Download the documents presented by Velezinee to the Supreme Court (Dhivehi)
Judicial Services Commission (JSC) member Aishath Velezinee has expressed concern that the JSC failed to meet with the European Commission Identification Mission today, despite a request to do so from the Ministry of Foreign Affairs.
In a letter to Acting Secretary General of the JSC Moomina Umar, Velezinee said she wished to note “my critical concern that the Judicial Service Commission is refusing to meet with European Commission Identification team, as they have earlier refused to respond to requests from the US Embassy and Commonwealth teams, in order to hide trickery and treason practiced by JSC and their crimes against the State refusing to uphold the Constitutional mandate of the JSC.”
“As you are fully aware, JSC has been a closed body and remains one, and no one not even members are quite aware of what goes on in the Commission,” Velezinee said in the letter, adding that she had received no response from the JSC despite her efforts to ensure the meeting took place.
Chair of the JSC, Supreme Court Justice Adam Mohamed, declined to comment on Velezinee’s allegations. Vice Chair of the JSC, Dr Afrasheem Ali, referred Minivan News to the JSC itself. Moomina Umar was not responding at time of press.
Minivan News is currently seeking comment from the European Commission Identification Mission.
Velezinee is an outspoken whistleblower against the judicial watchdog, and has claimed that in her position of privilege within the JSC she has witnessed “it committing acts that stand to bring down the Constitutional Democracy that we as a people agreed to with the ratification of the Constitution on 7 August 2008.”
The JSC has meanwhile accused Velezinee of spreading misinformation to the international community, and set up a special committee comprising Vice Chair Afraasheem Ali, Member Abdullahi Didi, and Deputy Legal Representative Abdul Faththah to discuss how best to apply the new secrecy regulations against her.
It is the first time in the history of the new democratic government that a member of an independent Commission, set up by the 2008 Constitution, is being subjected to an internal investigation.
The Judicial Service Commission (JSC) has appointed a special three-member team to decide on the best course of action against JSC member Aishath Velezinee, for removing official documents from the Commission’s premises.
The JSC, which is yet to adopt a Standards of Procedure a year after the 26 January 2010 deadline, earlier this month passed new secrecy regulations that make it an offence for members to reveal any Commission business to the public without prior authorisation.
The regulations were passed at a meeting on 17 January at which Velezinee was not present, and the agenda of which, seen by Minivan News, did not indicate any plans or proposals for new secrecy restrictions.
On 24 January, days after passing the new regulations, the JSC set up a special committee comprising Vice Chair Afraasheem Ali, Member Abdullahi Didi, and Deputy Legal Representative Abdul Faththah to discuss how best to apply the new regulations against Velezinee, who it alleges removed a documents file from the presmises on that day.
It is the first time in the history of the new democratic government that a member of an independent Commission, set up by the 2008 Constitution, is being subjected to an internal investigation.
The unprecedented move by JSC is made all the more surprising by the inclusion among the three special investigators a member of the Commission’s staff.
It is rare, if not unknown, for a junior staff member to be placed in a position of deciding disciplinary action against a state official they have been appointed to serve.
Velezinee, an outspoken critic of the JSC’s refusal to adopt a Standards of Procedure as required by the Constitution, earlier this month accused several fellow members of corruption and treason.
She has published a large cache of JSC documents, including audio recordings of Commission meetings, on her personal website as evidence, she says, to support her accusations.
Velezinee also runs a Facebook page dedicated to Article 285 of the Constitution, which regularly carries electronic copies of various official documents from the Commission.
She maintains that the JSC, unlike other independent Commissions set up by the Constitution, should conduct its business publicly. She has lobbied for media access to JSC meetings, a proposal that has not met with unanimous support from other members.
She has also called for an open inquiry into her allegations against the JSC, and has repeatedly challenged Commission Member Abdulla Shahid to respond to her charges of treason against him.
According to Velezinee, Shahid, also Speaker of the Majlis, while straddling two of the democracy’s three separated powers, is gradually executing plans – through the JSC and the Majlis – to take over the third.
Shahid, who has defended himself in the media against other allegations of corruption such as those related to the privatisation of Male’ International Airport, has remained silent on the charges made by Velezinee.
Speaker Shahid is currently travelling the country on a political campaign with opposition Dhivehi Rayyithunge Party (DRP) leader MP Ahmed Thasmeen Ali, and could not be contacted for comment.
Notably, the JSC’s investigation into Velezinee’s decision to remove Commission documents does not make any reference to her publication of JSC internal documents on the internet.
If the JSC were to refer to Velezinee’s publication of the documents, it would be forced to acknowledge her accusations against Speaker Shahid, and itself.
According to a JSC internal memo, also made public by Velezinee, the three investigators will focus their deliberations on what course of action to take against her for removing the documents.
What an offending member does with the documents is not up for regulation or deliberation, as of yet.
Meanwhile, as the JSC considers disciplinary action against one of its own for retrospective infringement of newly-passed secrecy regulations, the Anti Corruption Commission and the police are investigating the JSC.
It is also currently facing allegations of bias in its recent High Court appointments made by two failed candidates, a Civil Court judge and a Family Court judge.
The case is now at the Supreme Court. JSC Chair Justice Adam Mohamed Abdulla, who is on the Supreme Court bench, is yet to recuse himself from the case despite the possibility of a conflict of interest.
This is the second time in less than six months that the JSC has had to face allegations of bias in a court of law. Earlier this month, the Civil Court threw out a professional negligence case against the JSC where it stood accused of not performing its Constitutional duty to investigate judiciary misconduct.
Judge Mariyam Nihayath dismissed the case on a technicality – slovenly time keeping by the plaintiff – but not before the JSC admitted it did not have a standard system in place for dealing with complaints of judicial misconduct.
It also became known during the hearings that the JSC received and failed to investigate over 100 complaints received last year.
The International Commission of Jurists (ICJ) visited Male’ on a fact finding mission related to the independence of the country’s judiciary last year. Although the mission was reported as having been completed in September last, its findings are yet to be made public.
The Civil Court has rejected a second case filed by a judge opposing the Judicial Services Commission (JSC)’s appointment of High Court’s judges, reports Haveeru.
Chief judge of the Family Court Hassan Saeed filed a case in the Civil Court calling for the JSC’s appointments to be invalidated.
Last week Criminal Court judge Abdul Bari Yousuf, one of the unsuccessful applicants to the High Court bench, filed a similar case that was accepted by the court – however it was blocked from hearing the matter by the Supreme Court, which issued an unprecedented Writ of Prohibition and requested the case file.
High Court judges appointment by the JSC last week include Juvenile Court Chief Judge Shuaib Hussein Zakariya, former Law Commission member Dr Azmiralda Zahir, Civil Court registrar Abdu Rauf Ibrahim, lawyer of former President Maumoon Abdul Gayoom, Abbas Shareef and Civil Court Chief Judge Ali Sameer.
The Supreme Court of the Maldives has ordered the Civil Court to halt its case regarding the Judicial Services Commission (JSC)’s appointment of five High Court judges last week, and hand the matter to the Supreme Court.
The Judicial Service Commission appointed five judges, Shuaib Hussein Zakariyya, Dr Azmiraldha Zahir, Abdul Rauf Ibrahim, Abbas Shareef and Ali Sameer to the High Court bench last week. Zahir is the first woman to be appointed to the High Court bench in the Maldives.
However once the appointments were concluded, Criminal Court judge Abdul Baary filed a case in the Civil Court against the appointment of the new judges, claiming that there were policy and legal issues in the JSC’s appointment procedure.
Judge Baary told Haveeru that there were issues with the High Court Judges Appointment Policy as established by the JSC itself.
He claimed that the JSC’s policy stated that if a female and a male scored even marks, higher priority should be given to the female when appointing judges for the High Court bench. This, he said, was against the Constitution and the Labor Act.
The Civil Court issued an injunction halting the appointment of the High Court judges prior to taking their oath.
However the Supreme Court today stated that it had issued a Writ of Prohibition to the Civil Court, ordering it to hand over the case file to the Supreme Court before 4:00pm tomorrow.
Six JSC members have been accused of criminal charges by the President’s Member on the Commission, Aishath Velezinee, while the Commission as a whole is under investigation by the Anti-Corruption Commission for allegedly embezzling money by paying itself a ‘committee allowance’.
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