The Judicial Services Commission (JSC) is considering a probe into a blog post by Drug Court Judge Mahaz Ali.
The judge’s May 8 blog post disagreed with the Attorney General’s (AG) advise on the ongoing leadership vacuum at the independent Prosecutor General’s (PG) Office.
JSC member Sheikh Shuaib Abdul Rahman said the commission had started discussions on whether to proceed with an investigation, but said a decision has not been made yet.
“I do not believe the commission should take up this matter. Article 41 of the Judges Act allows judges to engage in academic writing,” Shuaib said.
Clause 41 (a) of the Judges Act states judges may write essays and academic documents as long as they do not intend to politically benefit any party.
According to Shuaib, AG Mohamed Anil, who also sits on the JSC, had agreed with him on the matter.
In his legal opinion to President Abdulla Yameen, Anil last week said the senior most official at the PG office must takeover the PG’s constitutional obligations in the aftermath of acting PG Hussein Shameem’s resignation.
State prosecutors had stopped work at the time, bringing the criminal justice system to a halt.
Anil said prosecutors must resume work even in the absence of guidance by the PG, claiming the country was in a “state of necessity” where extra legal actions by the government could be deemed lawful.
However, Mahaz wrote that the state of necessity argument was valid only if there was no legal solution to the crisis, suggesting that there was no reason President Yameen could not propose a name for approval by the current People’s Majlis.
Yameen had said he would only submit a new nominee to the newly elected parliament, which is set to convene on May 28.
The current Majlis is in recess. It had rejected Yameen’s previous choice – his nephew Maumoon Hameed – for the position in March.
Mahaz said any criminal trials in the PG leadership’s absence is unconstitutional.
“A state of necessity is faced only when all legal avenues have been exhausted. In the current situation, the solution is to appoint a new prosecutor general. The current People’s Majlis is not in a situation where it cannot carry out its duties,” wrote the judge.
“The authority that must nominate a candidate [the President] is able to do so. Unless these two parties are in a state in which they cannot carry out their constitutional duties, a state of necessity will not be faced in the prosecutor general’s case.”
However, prosecutors were forced to end their strike on Tuesday following a Supreme Court ruling on the matter on Monday. The ruling upheld Anil’s state of necessity argument.
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