The Judicial Service Commission (JSC) has appointed five judges to the High Court of the Maldives, including Shuaib Hussein Zakariyya, Dr Azmiraldha Zahir, Abdul Rauf Ibrahim, Abbas Shareef and Ali Sameer.
Dr Azmiraldha Zahir is first female judge to be appointed to the High Court, and the JSC said in a statement, was appointed despite the objection of Sheikh Shuaib Abdurahman on the grounds of her gender.
”The only commission member that did not vote for Dr Azmiraldha was Sheikh Shuaib Abdhulrahman,” said the commission. ”The reason he did not vote was that he said none one of the four sunnah sects of Islam allow females to judge in cases.”
However, the commission said Dr Azmiraldha had been appointed as one of the five judges during last night’s meeting, by the vote of eight among nine present members of the commission. All the members of the JSC were present at the meeting excluding the President’s Member Aishath Velezinee, who has contended that the commission is unfit to appoint the judiciary because the far lower standards of ethical and moral conduct it demands from judges, than is required by the Judicial Code of Conduct as passed by the JSC itself.
The Anti-Corruption Commission (ACC) is furthermore investigating the JSC for embezzlement of state funds. Last Thursday, Velezinee also filed criminal charges with police against six members of the JSC.
All judges appointed to High Court, excluding Dr Azmiraldha Zahir, were appointed by the majority vote of the commission, the JSC said.
Currently there are very few female judges in Maldivian courts.
”According to the policy of appointing judges to the High Court, which was approved by the JSC, any member that does not vote for a person among those who received the highest mark, shall explain the reason why he did not vote,” said the JSC.
Meanwhile, daliy newspaper Haveeru has reported that a judge at the Criminal Court has filed a case against the appointment of judges in the Civil Court, claiming that there were policy and legal issues in the appointment procedure.
Haveeru reported that Criminal Court Judge Abdul Baary Yousuf told the paper that there were issues with the High Court Judges Appointment Policy established by the JSC.
According to Haveeru he said that the policy states that if a female and male scored even marks, higher priority shall be given to the female when appointing judges for the high court bench, and that this was against the constitution and Labor Act.
Haveeru also reported that Ali Sameer was the chief judge of Civil Court, Shuaib Hussein was the Chief Judge of the Juvenile Court, Abdul Rauf Ibrahim was the registrar of the Civil Court and Abbas Shareef was the lawyer of former President Maumoon Abdul Gayoom.
The Judicial Service Commission (JSC) will decide January 18 the candidates for the High Court bench, to be appointed the following week January 23.
The JSC has interviewed a total of 18 candidates – four women and 14 men – after disqualifying three applicants for failing to meet one or more of the standards required. One candidate withdrew his application after JSCs integrity was publicly questioned, advising JSC members to act responsibly.
The High Court appointments – which would confirm the bench for the next 30 to 40 years, given the average age of applicants – has been question following allegations that the JSC has failed to uphold the standards required of a judge under the 2008 Constitution.
Article 149(a) of the 2008 Constitution requires judges to be of ‘high moral character’ in addition to meeting educational qualifications and other competencies. Article 149 (b) 3 requires that appointments must not be convicted for any hadd offence, criminal breach of trust or bribery.
The Judges Act, legislation passed by the Majlis on 10 August 2010 to implement the Constitutional stipulations, however limited the length of time for which a judicial candidate can be held responsible for criminal offences.
It also set a low threshold for what could be considered as evidence of ‘high moral character’ in a judicial candidate.
As provided for by the Act, for example, convicted felons – even those found guilty of “sexual offences or terrorism” – may be appointed to the bench and deemed as meeting the Constitutional requirement of ‘high moral character’, provided the sentence had been fully served seven years prior to their judicial appointment.
The only other measurement for deciding whether or not a judicial candidate is of high moral character, as stipulated in the Act, is that any debt valid debt owed by the candidate has been, or is being, properly paid back.
The provisions of the Act demand far lower standards of ethical and moral conduct from the judiciary than is required by the Judicial Code of Conduct as passed by the JSC itself on 30 December 2009, and by accepted democratic international norms.
The Judicial Appointment Commission (JAC) of UK, for example, is likely to immediately disqualify any judicial candidate with a previous sentence for imprisonment.
A criminal conviction without a prison sentence is also likely to disqualify the candidate even though “minor convictions maybe disregarded”.
The JAC’s “Good Character Guidance” further states that “depending on their seriousness” other offences can also be disregarded after twenty years, provided there had been no repeat offending.
The JAC stipulations that any prison sentence whether minor or major is likely to disqualify any judicial candidate, and that even after twenty years a previous criminal conviction can only be disregarded after considering the seriousness of the crime, are in sharp contrast to the Judicial Act’s provision that however serious a judge’s crime, it can be disregarded after six years.
The JSC’s own Principles for Judicial Conduct is an almost verbatim translation of the Bangalore Principles 2002, which sets the international principles for judicial conduct.
JSC’s adaptation of the Principles, however, excludes the proclamations that a judge’s propriety is essential for performing all activities of a judge; and that a judge should willingly and freely accept more personal restrictions than expected of an ordinary citizen.
In interviewing potential High Court appointees, the JSC adopted the narrower definitions of the Judges Act instead of the broader interpretations allowed for by the Constitution and its own published principles of conduct.
The only dissenting opinion expressed publicly has been that of JSC Member Aishath Velezinee, who boycotted the interview panel on Sunday, on grounds that it was unconstitutional.
Velezinee, who has also filed treason charges against three members of the Commission, and who also lobbied the High Court candidates to stand against the unconstitutionality of the interview procedures, was violently stabbed earlier this month in what several international NGOs have condemned as potentially a politically motivated attack.
The JSC, which is also currently being investigated by the Anti-Corruption Commission over allegations of embezzlement, was set up by the 2008 Constitution to oversee the ethical standards of the judiciary.
Until the last week, the JSC was also being sued for neglecting its Constitutional duties by Treasure Island Limited, which alleged that the JSC had arbitrarily and unfairly dismissed its complaints against two judges whom it accuses of misconduct.
Presiding Civil Court Judge Mariyam Nihayath dismissed the case last week when the appellant, Treasure Island Limited’s Ali Hussein Manik, arrived half an hour later for the hearing, Sun FM reported.
During one of the many hearings of the case held over three months, JSC Legal Representative Abdul Faththah complained to Judge Nihayath that her habitual lateness was causing problems with his work schedule. On many occasions the case had started over half an hour late due to her late arrival.
Another hearing, scheduled for 22 December last, was cancelled when Faththah said Judge Nihayath’s lateness had made it impossible for him to continue the case that day.
On 13 January, Judge Nihayath agreed to the JSC’s request to throw the case out when Manik did not arrive for the hearing on time.
Judge Nihayath is among the 18 candidates shortlisted for the High Court bench and was interviewed by the JSC on Sunday.
The deadline for High Court applications closed on 26 October 2010, but the matter was delayed as JSC, embroiled in internal conflict, re-organised the High Court bench twice.
At least three members of JSC have questioned JSC’s integrity and raised concerns of corruption in relation to the High Court appointments, according to information available on Velezinee’s website. The other two members to raise concern are MP Dr.Afraasheem Ali and Criminal Court Judge Abdulla Didi.
President’s Member on the Judicial Services Commission (JSC) Aishath Velezinee on Thursday filed criminal charges with police against six members of the JSC, ahead of the panel’s interviewing of potential High Court judges this weekend.
Police Sub-Inspector Ahmed Shiyam confirmed that Velezinee had pressed charges against the JSC members, and said police were now investigating the matter.
In a letter she also distributed to candidates attending the panel’s interviews, Velezinee stated that she had 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”.
Today Velezinee noted that three of the six people being investigated by police were interviewing 18 candidates as part of the High Court Appointment panel, despite not all meeting the prerequisite ‘good character’ requirements as adopted and gazetted by the JSC on 30 December 2009.
She refused to sit on the interview panel herself, stating “serious concerns about the integrity of the JSC itself”, criticising the Commission “for continuing without responsibility or accountability despite the very public issues of breach of trust and embezzlement reported in the media” and claiming it had ignored her requests for a delay while it “proves itself worthy of carrying its duties.”
“The day I was attacked they decided that everything had to be rushed, and they’ve been holding three meetings a day from 8:30am in the morning until 8:30pm at night,” she said, claiming the haste was with the intention of having a high court appointed in time to resolve disputes caused in the aftermath of the local council elections.
“I haven’t had a day to rest, and it took 11 days to remove my stitches. I still need to go to hospital for the dressings.”
Velezinee was hospitalised on January 3 after she was stabbed three times in the back in broad daylight on the main tourist street of Male’, an attack international organisations such as Transparency International have condemned as potentially “politically motivated.”
JSC Chair Adam Mohamed had not responded to Minivan News’ request for comment on the charges against JSC members at time of press.
Last week the Anti-Corruption Commission (ACC) said it was investigating the JSC for embezzling state funds by awarding itself over Rf 500,000 in ‘committee allowances’, contrary to Article 164 of the Constitution.
President’s member on the Judicial Services Commission (JSC) Aishath Velezinee has referred the judicial watchdog to the Anti-Corruption Commission (ACC), accusing it of embezzling state funds by awarding a ‘committee allowance’ contrary to Article 164 of the Constitution.
Article 164 states that “A member of the Judicial Service Commission who is not a member of the Executive, the Judiciary, or the People’s Majlis shall be paid such salary and allowances as may be determined by the People’s Majlis.”
Only JSC members Velezinee, Sheikh Shuaib Abdu Rahmaan and lawyer Ahmed Rasheed are paid salaries as they do not hold state posts.
However Velezinee has alleged that all commission members – including those with state incomes – are earning Rf 500 for each commission meeting and Rf 300 for each committee meeting, and claimed that these allowances were not approved by the parliament and were therefore unlawful.
The budget for the JSC commission members, obtained by Minivan News, confirms Velezinee’s claims that JSC members are in some cases receiving up to Rf 9000 (US$700) a month as a ‘committee allowance’; a total of Rf 514,660 (US$40,000) in 2010.
“JSC members have been taking allowances for the meetings and committees they attend stating that this has been decided by JSC,” Velezinee said.
“The decisions in the JSC defer day to day depending on the views of the members present at the time. This decision has no legal backbone to support it and will not at all make any sense to a sane person.”
Furthermore, she said, “the JSC is not independent. Some members use their position, power and connections (including with judges and the Judges Association of the Maldives) to spread absolute lies to discredit and defame me which has prevented me from carrying out my responsibility according to the Constitution.”
The JSC, she noted, had not even provided her chair in which to sit for over a year. “Every time I sit down somewhere in the office they find another use for the space the next day. Junior staff don’t even seem to think I’m a member of the commission.”
On January 3 Velezinee was hospitalised after she was stabbed three times in the back in broad daylight on the main tourist street of Male’, an attack international organisations such as Transparency International have condemned as potentially “politically motivated.”
Velezinee said she has repeatedly asked the Commission to stop paying the allowance into her bank account, “even giving them cheques for the money”, but says she is always met with prevarication. The budget shows that Attorney General Ahmed Ali Sawad, also a JSC member, has declined to receive any money from the Commission.
Despite drawing the allowances that Velezinee alleges are fraudulent, the Commission also failed to investigate any of the 140 complaints against judges sent to it in 2010. Furthermore, 122 complaints sent to the Commission in 2009 were rejected “as irrelevant.”
A statement issued by the JSC claimed that parliament had approved the allowances.
”Although that is the truth, on January 10, 2011, Presidential Member of the Commission Aishath Velezinee misinformed the media about this without clarifying the matter,” read the statement. ”We advise her to uphold the code of conduct as mentioned in article 17 of the Judicial Service Commission.”
Yesterday JSC President Adam Mohamed and Vice President Dr Afrasheem Ali called a press conference in the JSC’s meeting room, but cancelled it after Velezinee attended the press conference and sat with the journalists.
The press conference was later held in Maldives National Broadcasting Corporation (MNBC) studio without Velezinee being informed.
During the conference, when journalists questioned why the first meeting was canceled, Adam replied that no members of the commission other than those who the commission decided could attend were permitted to attend the press conference.
Haveeru reported Deputy Commissioner Dr Afrasheem Ali as saying the constitution did not say that the allowance could not be given unless the parliament approved it.
The Anti Corruption Commission (ACC) has said it will begin investigating the case as a serious issue.
The President’s Member on the Judicial Services Commission (JSC) and outspoken whistleblower Aishath Velezinee has vowed to continue pushing for a public inquiry into the activities of the JSC, despite what she has described as an “assassination attempt” on Monday January 3.
Velezinee was hospitalised after she was stabbed three times in the back, in broad daylight on the main tourist street of Male’, “right outside the Home Minister’s door.”
Many international organisations, including Transparency International and the International Commission of Jurists (ICJ), have expressed “grave concern that the attack may be politically motivated.”
Velezinee turned whistle-blower on the JSC in August 2010, after parliament failed to issue an injunction she had requested on the reappointment of judges before the conclusion of the constitutional interim period. Velezinee contends the reappointment of unsuitable judges – many largely uneducated and some with criminal convictions – was rushed through in collaboration with senior members of parliament.
Since then she has campaigned against what she alleges is a “silent coup”, an “alliance between parliament and the judiciary to subvert the rule of law, derail constitutional democracy and use the courts to bring down the executive.”
“I didn’t stop complaining. I realised this was a bigger thing, a conspiracy, and mentioned names. They were not interested in change – they are using all their powers, their status and the respect people have for them to subvert the rule of law.”
The public, she claims, is poorly informed on the matter as “there is a huge information gap because the JSC meetings are closed. If the JSC sittings were open to the media, the public would be able to put together what has happened.”
“I sit in the JSC and I see the Speaker of Parliament (Abdulla Shahid) and DRP MP (Dr Afrasheem Ali), also members of the Commission, do whatever they will. What is done in the JSC is done by parliament.”
For example, she explained on the last day of the final parliament session for 2010, the opposition-majority Majlis amended the Judges’ Act (13/2010) to award a Rf 53,250 (US$4140) monthly retirement package to former JSC Vice Chair and Interim-Supreme Court Justice Mujthaz Fahmy, despite a conviction for embezzling state funds in 1996.
“It was not an honourable discharge, he was not fit to be a judge. But they made an amendment to the judges bill solely for one man – only Mujthaz it applies to, and only Mujthaz it will apply to,” Velezinee explained.
MP Afrasheem observed at the time that judges are awarded high salaries and benefits to ensure their ethical and disciplinary standards, and that it is essential for them to continue to be able to uphold their dignity and impeccable ethical standards even after they leave office.
“If a retired Justice were forced to wheel a cart on the street after leaving the bench, it will not give them the respect and the love that they received in office, and still deserve,” Afrasheem said.
The entire amendment, Velezinee alleges, was “to pay Mujthaz his dues for his role as an instrument in the silent coup.”
Meanwhile the public, she stated, “ is misinformed as to the reality of the judiciary they have. We have high state officials using their status and their authority to confuse the public, and legitimise that which is unconstitutional.
“The public are helpless when it is the state that has dissented. We Maldivians have been taught to obey. Obedience is the priority – our religion is about obedience. It is a completely different culture for us to stand up for ourselves and demand things of our leaders.”
JSC member and whistle-blower Aishath Velezinee
Lead-up
Days prior to being stabbed in the street, Velezinee had been trying to get the Majlis to distribute a 34-page letter to members of the JSC’s parliamentary oversight committee, without apparent success. On January 2, she delivered 250 posters to citizens around Male’, calling for a public inquiry into the JSC.
“The Constitution grants everyone a free and fair trial, but JSC’s treason has deprived the people of not only a right to a free and fair trial but thereby compromised all other fundamental rights,” she wrote on her website, the day before her stabbing. “The State can neither protect fundamental rights of the people, nor further human rights and practice democratic government without the institutionalisation of an Independent judiciary.”
The attack
At 10am on the morning of January 3, Velezinee was walking along the main tourist street of Chandhanee Magu near Islanker school, “when I felt this knock on my back.”
“I thought I had been bumped, I didn’t realise I had been stabbed,” she said. “When I looked back I made eye contact with a guy as he was turning around. So I kept walking and then he turned back and stabbed me a second and third time.”
Her assailant, whom she described as “a young kid, a teenager”, jumped on the back of a waiting motorbike driven by another and rode off.
“At that point I put my hand up and it was completely soaked in blood, and I realised I had been stabbed. If I had fallen I would have been dead, the second two stabs would have finished me off, as would the first if their aim had been correct. But I’m light and my bag got in the way. I think it was meant to be assassination attempt or else hit my spine and make me a vegetable for the rest of my life.”
While still upright she was, however, “bleeding everywhere. I was soaked through.”
“My fear was that I would easily I bleed to death. But I took a deep breath and realised I was alive. As soon as I realised this, the only thing I wanted to do was go and get the blood stopped and get to the Commission because this was the day of the High Court appointments, and I know they wanted me out of the way. I didn’t realise how serious the wounds were, I didn’t see them until two days later when I went for a dressing change.”
“I tried calling 119, it took four attempts to get through, I told them I was stabbed. Nobody stopped to help me, so I saw a neighbour from my childhood and didn’t give him a chance to say no and jumped on the back of his motorbike and said ‘take me to IGMH (Indira Gandhi Memorial Hospital), I’ve been stabbed.”
“He took me round the corner to his home, where he could get a vehicle. At that point another man stopped and said “no, you can’t wait if you’re bleeding like that, get on my bike.”
“I got on the bike without thinking and then wondered, ‘who are you?’ He was really good, screaming at traffic to get out of the way, but I was bleeding very heavily. I had to hold on and he was afraid I would faint – it was dangerous on a motorbike.
“He came to Majeedhee Magu. He tried to get a taxi to respond, but I saw a police car and they took me to hospital.”
On the agenda at 2:30pm that day at the JSC was the decision over which applicants would qualify for appointment as High Court judges.
“It was very suspicious the way the Commission acted [after the stabbing],” Velezinee said.
“Not a single Commission member called or came to the hospital or made any effort to see how I was. Instead they hurried to organise an extraordinary meeting to discuss the assault, and then decided to hold a press conference – all of this without checking on me – and as I understand it, it was suggested by the Speaker of Parliament that the Chair of the Commission, who’ve I’ve previously alleged is suffering from a psychiatric disorder, be nominated to give a press conference.
“At the press conference they made very strange statements. They said that ‘Nobody should be attacked for having different opinions, or the way they express their different opinions’.
“The commission did not show me any respect, because after that press conference they organised a meeting on Tuesday to decide on the High Court judges. The Commission had previously agreed not to meet on Tuesdays because Tuesday is cabinet day.
“So I requested Commission members talk with the chair and make him postpone the meeting. The Speaker was leaving the country that night – I asked the Secretary General to speak with the Chair and delay the meeting until Wednesday, but the response I got was that they could not delay the meeting because it was ‘the right of the people to have the High Court’.
“I put out a rude statement accusing the Commission of trying to expedite things while I was incapacitated, and that persuaded them to cancel the meeting. But they did not say they were doing so out of concern for my wellbeing – instead they told the media that the meeting was postponed “because some members are busy.”
Still busy
Velezinee says she does not believe last week’s attempt on her life will be the last.
“I don’t believe the State can actually protect me. Because it is the state that wants me silenced – the parliament and the judiciary. If you look at what happened in the days before the attack, there was a flurry of attacks in the media – including by the parliamentary oversight committee – criticising me, my character and my performance in the JSC. This has been a very organised effort to discredit me, and some people speak in different voices.
“There are honourable men in this country who are owned by others, and they may be put in a position where they believe they have to take my life. I knew there was a chance that I was risking murder, and I wasn’t wrong. It was only because of God’s grace that I survived.”
The police, she said, had been “very effective” in their investigation so far. However police spokesperson Sub-Inspector Ahmed Shiyam said that it was “very difficult” for police to release an update on the case, as it was “complicated”.
Police were, he said, collecting evidence and would release an update to the media “as soon as it is available.”
As to whether the attacks would dissuade her from continuing to campaign against the “derailment of democracy” by parliament and the judiciary, “if I close my eyes, I will have betrayed my country and people,” Velezinee said.
“I will have betrayed them by failing to inform people and give them a chance to change this. When the State fails it is up to the citizens to hold the State accountable. The state has failed here, and as a state official it is my responsibility to inform the public and give them the chance to make an informed decision.
“I know for a fact that rule of law has been subverted. I know for a fact that there is corruption at the highest level in parliament. And I know that if I join the majority in keeping silent, I have become a traitor.”
The Adhaalath Party has today joined a growing number of political voices in condemning the attack on Presidential Member of Judicial Service Commission (JSC), Aishath Velezinee.
Velezinee was attacked yesterday morning in Chandhanee Magu, while she was walking down the street, leading to strong criticism from President Mohamed Nasheed and his cabinet.
Haveeru had reported that attackers travelling on two motorbikes came at Velezinee while she was walking down the street, stabbing her at three separate points in the back.
Police have said that no suspects have yet been charged in connection with the attacks, which they claim serve to highlight growing concerns over gang violence in the capital.
The religious Adhaalath party released a statement strongly critical of the perpetrators of the crime.
”The attack on Aishath Velezinee is a very degraded and an uncivilized action,” said the Adhaalath Party. ” The Adhaalath Party condemns this action in strongest possible terms.”
Adhaalath Party called on Maldivians to stop committing what it called inhumane activities.
”We also call on the concerned authorities to identify the attacker and to present them before justice.”
Police Sub-Inspector Ahmed Shiyam said that so far no persons had been arrested in connection with the attack and there were no updates on the case yet.
The police issued a statement today expressing concern over the rise in gang violence and called on everyone to co-operate with the police to curb the rise in gang violence in Male’.
”It is very concerning that the gang violence in Male’ is progressing and becoming more serious during a time police is working to curb the violence under a three year strategic plan,” said police. ”These sort of crimes could be prevented with the co-operation of all institutes, independent commissions, politicians and citizens.”
The Maldives Police Service said that it would take any actions necessary against those committing such serious crimes and would not hesitate to bring them to justice.
President Mohamed Nasheed, his cabinet and the ruling Maldivian Democratic Party (MDP) have strongly condemned today’s attack on Judicial Service Commission (JSC) Presidential Member Aishath Velizenee.
Velezinee was taken to Male’s Indira Gandhi Memorial Hospital (IGMM) this morning after being attacked in the streets.
Nasheed later visited Velezinee at the hospital while she was being treated for her injuries, according to the president’s office website. The president later condemned the attack during a meeting of the cabinet and said that the government would take necessary measures to ensure such incidents did not occur in the future.
The Ruling MDP has also issued a statement today following the attack calling on political parties to resolve their disputes peacefully.
”Valizenee is a person that advocates freedom of speech, of gathering and the promotion of human rights,” said the MDP’s statement.
The stabbing this morning of Aishath Velezinee, Presidential Member of the Judicial Service Commission (JSC) responsible for ensuring ethical conduct in the judiciary, has been condemned as an attack on free speech and law and order in the country, attorney general Dr Ahmed Ali Sawad has said.
Velezinee was taken to Male’s Indira Gandhi Memorial Hospital (IGHM) after she was stabbed in the back with a sharp object whilst out in the city this morning, police have confirmed.
The Maldives Police Service were unable to confirm if any suspects had as yet been apprehended over the attack and were continuing to investigate the case.
Speaking to Minivan News today, Dr Sawad said that the attack was a “huge concern” for the country. “Judicial abuse at any level cannot be tolerated,” he said.
Beyond the concerns held as a private citizen over an attack within the capital, Dr Sawad added that the assault on Velezinee had a direct impact on judicial proceeding in the country.
“The JSC is constitutionally mandated to oversee the ethical functioning of the judiciary, she [Velezinee] had been very vocal in her role and that is something that must be accommodated [in the courts],” he said “If we cannot express our opinions openly, than this obviously impacts the functioning of the judicial body and how it serves the public.”
Dr Sawad said that beyond his role as Attorney General, as a private citizen he was dismayed that “law and order in the capital could have deteriorated to such an extent”.
Haveeru reported that President Mohamed Nasheed had visited Velezinee this morning in hospital following the attack, which reportedly occurred on a junction between Maaveyo Magu and Majeedee Magu, expressing hope she would continue her work at the JSC.
The Majlis yesterday amended the Judges’ Act (13/2010) to award a Rf 53,250 monthly retirement package to former Interim-Supreme Court Justice Mujthaz Fahmy, who was found to have embezzled state funds in 1996.
Former Justice Fahmy claimed, by fraudulent means, Rf900 in overtime pay while working as a judge at former Court No.2 in 1996. A development that casts doubt over his moral character and according to the principle of hadd offences, whether he met the constitutionally-stipulated Islamic qualifications required for the bench.
According to a letter seen by Minivan News that was sent to the Justice Ministry by the Anti-Corruption Board in June 2009, former Justice Fahmy and another judge were said to have deliberately omitted their working hours from attendance records to carry out the deception, and to fraudulently obtain pay for work they had not done.
None of the 77 MPs who were present when the retirement package was passed yesterday raised the question of former Justice Fhamy’s fraud record, despite some MPs openly admitting the package was being introduced especially for the former Justice.
Dismissing any objections to the extraordinary circumstance where the nation’s legislative body passes a law designed for a specific person, Vilufushi MP Riyaz Rasheed said, “Even though it may appear today that this is an amendment proposed for one person only, it is something that we have to do for the future.”
MP Rasheed also pointed out that the People’s Majlis passing a law for the benefit of one particular person is not without precedent. He asked members to recall another similar legislation passed with former President Maumoon Abdul Gayoom in mind.
MP Afraasheem Ali, who had introduced one of the amendments, also made it clear that it was a purpose-built package for former Justice Fahmy.
“I believe that it will enhance the strength of the country’s judiciary immensely if we were to award these benefits, as we have proposed in the amendments, to Mr Mujthaz, the judge who recently left the Supreme Court”, MP Afraasheem Ali said.
MP Afraasheem said judges are awarded high salaries and benefits to ensure their ethical and disciplinary standards, and that it is essential for them to continue to be able to uphold their dignity and impeccable ethical standards even after they leave office.
“If a retired Justice were forced to wheel a cart on the street after leaving the bench, it will not give them the respect and the love that they received in office, and still deserve”. That is why, he said, it was essential for Mujthaz – who was specifically named in the Majlis – to be awarded the package.
Constitutional requirements
Article 149 of the 2008 Constitution requires that only those who possess the stipulated educational qualifications and competence, in addition to a “high moral character”, are eligible for the bench.
It also stipulates that only those who “have not been convicted of an offence for which a hadd is prescribed in Islam, criminal breach of trust, or bribery” should be allowed on the bench.
Theft, big or small, is one of the hadd offences prescribed in Islam.
A judge’s required professional qualifications, as stipulated under the Constitution, requires education in Islamic Shari’ah or law in addition to a minimum of seven years experience.
Former Justice Fahmy’s education qualifications, although a matter of public interest, are not publicly available. Documents seen by Minivan News show that in addition to the “Sentencing Certificate” with which former Justice Fahmy first sat on the bench, he has undergone four other training programmes in the last 29 years.
In 1985, he attended a two-month “Training for Island Court Judges”; a four-month “Training to Upgrade Judges” in 1996 – the same year in which he was found to have made fraudulent claims for overtime; a month long “Computer Course conducted by CPL” in 1998; and a four-day training programme conducted for Maldivian Judges and Court Administrators in Singapore in October 2007.
According to these records, Justice Fahmy spent a combined total of roughly eight months –217 days – spread over a period of 26 years training for his career in the judiciary, which ultimately put him on the Interim-Supreme Court bench and has now provided him with the lifetime retirement package of Rf600,000.
The above total does not include the unspecified number of days it took him to acquire the initial “Sentencing Certificate”, but includes the month in 1998 which he took to learn how to use a computer.
There is no record of whether or not former Justice Fahmy had any formal education before acquiring his sentencing ‘sanadh’ or certificate.
A law degree takes an average of four years to obtain, and has higher entry requirements than most other faculties in the humanities.
Article 285 of the Constitution required that the Judicial Service Commission – established to oversee the professional, ethical and disciplinary standards of the judiciary – remove from the bench by August 2010 any sitting judge who did not fit the criteria stipulated in Article 149.
Former Justice Fahmy himself was the Vice Chair of the Judicial Service Commission from 2008 to 2010. He was removed on 7 August 2010, when the Interim Supreme Court was abolished and the Supreme Court proper established in its place. He also lost his seat in the JSC as a result.
MP Afraasheem, who introduced part of the amendments to reward former Justice Fahmy the retirement package, is also on the Judicial Service Commission and was a colleague of former Justice Fahmy.
MP Afraasheem is on record as having said that Article 285 is “symbolic”, suggesting that he does not regard the Constitutional stipulations concerning a judge’s qualifications and moral character as legally binding.
Fonadhoo MP Abdul Raheem Abdulla, who introduced the amendments at Majlis yesterday, is in the Parliamentary Oversight Committee for Independent Commissions, with oversight of the Judicial Service Commission.
Speaker Abdulla Shahid is also a member of the JSC.
MP Afraasheem also proposed to the Majlis yesterday that the benefits package for retired Supreme Court Judges should begin from 7 August 2010. It was the day on which former Justice Fahmy was ousted from the two positions he held – the Interim-Supreme Court bench and the JSC seat.
Job benefits
Minivan News has also learnt that despite Justice Fahmy not having been a member of the judiciary for the last four months, he has continued to receive full salary and benefits “pending a decision by the Majlis”.
The salary for a Supreme Court Justice is Rf51,000, plus Rf20,000 in living allowances.
A “Special Car”, or “Kaaru Kolhu” as well as medical insurance worth Rf12,000 is also part of the monthly remunerations.
The amendments approved by Majlis yesterday also entitles a Supreme Court Justice who retires after 20-25 years of service to two thirds of a serving Supreme Court Justice’s salary.
If the retirement is after 25 years of service, they are entitled to three fourths of the salary. Benefits and other living expenses as well as state protection, and the status of a dignitary are also included in the package.
It will become law if President Nasheed ratifies the amendments within fifteen days of receiving them from the Majlis.
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