Tag: Judge

JSC investigating more videos of Supreme Court judge

A committee appointed by the Judicial Services Commission (JSC) to investigate a leaked sex video of Supreme Court Judge Ali Hameed are reviewing two additional videos, local media has reported.

In addition to a video in which an individual believed to be judge Hameed has sex with a unidentified foreign woman, the JSC is reportedly investigating videos of Hameed discussing political corruption of the judiciary with a local businessman, and a meeting with former immigration controller Ilyas Hussain Ibrahim. Both have been circulating on social media.

The home of the businessman in the second video, owner of Golden Lane Mohamed Saeed, was recently searched by police.

Police also last week summoned Hameed for questioning over his alleged appearance in the sex tape. The judge is continuing to hear cases, unlike High Court Judge Ahmed Shareef who was recently suspended by the JSC as a “precautionary measure” following non-specific complaints filed by other judges. Shareef was one of the judges hearing a high-profile case concerning former President Mohamed Nasheed.

The motion to suspend Shareef was proposed by then Attorney General Bisham, who subsequently failed to receive parliamentary consent for her appointment.

According to Maldivian law, the crime of fornication is subject to 100 lashes and banishment or house arrest for a period of eight months.

The courts regularly issue this sentence, overwhelmingly to women found guilty of extramarital sex, such as a 15 year-old victim of rape who was sentenced in February after reportedly confessing to an instance of consensual sex.

Sentences are carried out in front of the justice building, next door to the Supreme Court and President Mohamed Waheed’s residence.

Police are also investigating senior Council Member of President Waheed’s Gaumee Ihthihaad Party (GIP) and former Project Advisor at the Housing Ministry, Ahmed Faiz, in connection with leaked sex tape. He has since been sacked from both posts.

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Civil Court dismisses case submitted by High Court chief judge against the JSC

The Civil Court has today dismissed a case submitted by Chief Judge of the High Court Ahmed Shareef to overturn his indefinite suspension by the Judicial Service Commission (JSC).

The case was dismissed by Civil Court Judge Hathif Hilmy after the claimant did not attend a hearing scheduled for today, while also failing to provide any reasonable grounds for his absence.

The Civil Court said that the hearing was scheduled for 1:00pm.

Judge Ahmed Shareef was suspended on the same day that the High Court cancelled a hearing of a case involving former President Mohamed Nasheed.

The hearing was scheduled to decide on procedural issues raised by the JSC contending that the High Court did not have the jurisdiction to hear the case, which involved the legitimacy of a panel of judges appointed by the commission to preside over the former president’s trial at the Hulhumale’ Magistrate Court.

Shortly after the cancellation, the JSC declared that the commission had indefinitely suspended Shareef.

He was the presiding judge in former President Nasheed’s case against the JSC.

JSC Chair and Supreme Court Justice Adam Mohamed Abdulla insisted at a press conference later that day that the disciplinary action had no relation to the former president’s case.

The JSC then announced it had appointed Judge Abdul Rauoof Ibrahim as acting Chief Judge of High Court until the conclusion of its inquiry into complaints filed against the suspended chief judge.

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Comment: What case, if there is no Judge Abdulla?

This article was first published in Ceylon Today on 27 February 2013, and is reproduced with the permission of the author.

President Mohamed Nasheed is being prosecuted, accused of using the military to remove ‘Chief Judge of the Maldives Criminal Court’. Found guilty, Nasheed will lose the chance to contest elections; and the public will lose the first consistent voice for democratic change for nearly a quarter of a century.

On 17 January 2011, Abdulla Mohamed, who sat as Chief Judge of Criminal Court, was forcibly “removed” by the military. Political opponents of Nasheed, all once linked to former President Maumoon Abdul Gayoom, quickly screamed foul, praised “Top Judge Ablow”, wreaked havoc on Male’ streets, damaged public property in nightly riots, and by 7 February had co-opted the security forces in a drama that unfolded live on local media.

This Criminal Court, which in fact was the ‘subject’ of the political crisis, had kept the nightly ‘vigil’ for “Judge Ablow”, systematically releasing detainees and helping to sustain numbers out on the streets. Those released praised Allah on social media, their release a sign that victory was theirs and God was with them.

To the familiar eye, the crowd of no more than 300 to 400 people who came out nightly were easily identifiable. Leading opposition politicians, MPs, recognised gang activists, and petty criminals. Many had cases before the Criminal Court or had appeared before ”Judge Ablow” on some criminal allegation. They were joined by former security personnel ‘retired’ during the government transition and a few serving policemen adorned in pink t-shirts. With them was sitting member of the Judicial Service Commission – business tycoon, MP and presidential candidate Qasim Ibrahim – and Chair of the JSC’s Parliamentary Oversight Committee, MP Mohamed (Kutti) Nasheed. It certainly was not the ‘public’, as public would be defined in a democratic state.

I watched these unfolding scenes, stunned, as my fears were confirmed.

To all outward appearance, however, President Nasheed had faulted. He had, it seemed, interfered in the business of the independent judiciary, an area strictly forbidden to the executive.

The international community, wary of domestic politics and players, is cautious not to be seen as interfering in a matter of rule of law. Due process, while reiterating the importance of free and fair, inclusive elections, is the mantra of the democratic international community.

The sitting government echoes back the words: ‘rule of law’, ‘due process’. Home Minister Dr Mohamed Jameel, who served in President Gayoom’s cabinet as Justice Minister during the transitional years and was personally involved in selecting many of the sitting judges, is one of the loudest voices insisting on ‘rule of law’.

What is not obvious to the casual observer, or understood by distinguished members of the international community, is that while the government and the international community voice the same words, they may not have a shared understanding of the concepts so familiar to democracies that they do not even think to question how another may be using or abusing it. What is forgotten, it seems, is that the Maldives never was a democratic state, but is a state in transition.

The Maldives’ judiciary, unlike in Sri Lanka or even Egypt, has never been independent. The Constitution introduced the concept of an “Independent Judiciary” with requirements upon the state to appoint a new judiciary within two years, and 15 years transitional provision to develop it.

Hence, the suggestion that Nasheed interfered in the judiciary holds true only if built upon certain assumptions, such as the assumption that Abdulla Mohamed is a legitimate judge appointed through due process.

If this assumption – the premise for the case against President Nasheed – stands, if indeed he had disregarded due process, interfered in the judiciary, and physically removed Chief Judge of the Criminal Court from duty, President Nasheed must stand trial. Rule of law must not be disregarded for President Nasheed, Abdulla Mohamed, or myself, and must prevail in all instances for democracy to take root.

Having said that, what if that premise does not hold true?

What if Abdulla Mohamed, who had become a household name with frequent reports of his irregularities in the media and public speeches against President Nasheed and his government, was placed as Chief Judge of Criminal Criminal Court without due diligence or due process?

What if the Judicial Service Commission, backed by President Nasheed’s powerful opposition, had indeed breached the Constitution and corrupted the judiciary in an elaborate scam to deceive Maldivian citizens and the international community? What if Abdulla Mohamed is indeed unfit to sit as a judge?

What if, apart from the criminal conviction for hate speech and disrupting public order – on record before Abdulla Mohamed was first appointed a judge in 2005 – there is truth to the claims that Abdulla Mohamed systematically works with organised crime, “launders” criminals and is likely being blackmailed?

What if there is truth to reports that certain influential MPs are linked to organised crime, and Abdulla Mohamed is kept Chief of Criminal Court by the power and influence of these criminal elements in parliament?

Of course none of these questions will rise anew with the trial of President Nasheed, had they not existed or been raised before.

Questions on constitution breach by the Judicial Service Commission, and the constitutionality of Abdulla Mohamed’s reappointment, together with the reappointment of all other men and women sitting as judges prior to ratification of the Constitution, is a matter pending inquiry in parliament since 2010.

The Parliamentary Oversight Committee for Independent Commissions first summoned the JSC on 2 August 2010, following months of appeal, and after I went public with information pointing to high treason in the JSC.

The summons from parliament to the JSC clearly stated the inquiry was in relation to complaints filed by myself, leaving no doubt that the committee was finally ready to inquire into the matter.

However, the committee sitting, telecast live, turned out to be a farce, a clever cover-up, a signal for the JSC and ‘judges’ to go ahead. The scandalous three-hour sitting centered on allowing then JSC Chair Mujthaaz Fahmy to air his story, a story that he has no evidence to back, and a story I could easily disprove with the documents and audio evidence I had brought to the committee.

Not only did the parliament committee deem it unnecessary to hear my evidence, they decided I was not to speak at all after my initial response to Chair Fahmy’s statement, declaring “all members have equal opportunity to speak” – ie, once. Chair Fahmy and Vice Chair, the late MP Dr Afraashim Ali, responded on behalf of the Commission.

That the matter was a disagreement in the JSC, and the fact that I stood against the Commission, was irrelevant to the MPs. In fact, the DRP and current PPM MPs took the opportunity to ridicule, slander and attack me, and praise the JSC Chair and Vice Chairs’ perjury while I sat gagged. The only other member to join me in noting the Chair was committing perjury was member of the general public appointed by Parliament, Sheikh Shuaib Abdul Rahman.

Attorney General Husnu Al-Suood, who also sat as a member of JSC, remained silent.

MDP MPs were of little help. Not having given time to review the evidence they were either not fluent enough with the subject to see the JSC was committing perjury, or not interested in entering a battle where a sure win was far from guaranteed given the balance of power in the Committee and in Parliament.

The JSC session with the committee ended not with a conclusion on the issue, but having run out of time. Committee rules did not permit a further extension. The Chair quickly closed the sitting as one MP noted the issue of Article 285 was a very serious matter and was to be investigated.

The JSC, for its part, fabricated a “legal reasoning on Article 285”, organised a press conference unknown to Sheikh Shuaib Abdul Rahman and myself, and made a statement attacking and defaming me in what was supposedly their legal reasoning.

In 24 hours, the judges took a ceremonial ‘symbolic’ oath without check or scrutiny in a ceremony that shocked the entire nation as unexpected live footage of it appeared. It was a moment that replayed continuously on all local TV stations for the next 72 hours, and has been repeated often since. The video footage raised serious doubts in the public.

Questioned by the media immediately after the now infamous oath, parliament made a statement to the effect that the Article 285 inquiry was pending while Legal Counsel Dr Ahmed Abdulla Didi reviewed the matter.

However, all was forgotten within the week, as “political dialogue” encouraged by the international community diffused the situation.

The suspension of the interim Supreme Court ended with the appointment of a politically-agreed Supreme Court, and the constitution compromised. On the bench among others of dubious integrity sits the said Legal Counsel Dr.Ahmed Abdulla Didi, who, despite not qualifying even after an unusual amendment to the Judiciary Act hours after its ratification, was approved by Parliament in the same sitting that amended the Act.

The question of Article 285 was forgotten except for my continued ‘rants’. Repeated calls for an inquiry went unheeded despite an International Commission of Jurists report in February 2011, noting both substantive and procedural issues in the JSCs’ actions regarding Article 285.

Repeated concerns on the JSC acting against Constitution and State, the runaway judiciary, the  politicisation of judges, and specifically the JSCs’ cover-up of Abdulla Mohamed and his threat to national security reported in communications to parliament and shared with military intelligence, were ignored. Nor was there any action against me by parliament or the court, all keeping silent on the subject.

If, there is any substance in what I repeat, wherein is rule of law or justice in the trial of President Nasheed?

The real questions in the Maldives case are not about Judge Abdulla Mohamed or the Hulhumale’ Magistrate Court. It is a battle centred around the Constitution; its meaningful execution and state building. It is a tug of war between President Nasheed, who attempted the judicial reform required by Constitution, and his opposition intent on preventing fulfillment of Article 285 and retaining their handpicked judges. Abdulla Mohamed is a shield.

Today, the future of the Maldives’ democracy is more than ever dependent on the goodwill, wisdom and diplomatic skills of the international community. The trial of President Nasheed is a standoff where a domestic resolution is out of the question.

Try President Nasheed, and myself too, but not without trust in the judiciary and the guarantee of a free and fair trial. Will the international community guarantee there is no aberration of justice in the name of democracy, rule of law and justice?

Velezinee served on the Maldives’ Judicial Service Commission (April 2009-May 2011) and is the author of ‘The failed silent coup: in defeat they reached for the gun‘ published in August 2012.

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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Presidential power struggle in the Maldives: South Asia Journal

The detention of the judge had provided the spark for a police and military mutiny – labelled by many a coup d’etat – which resulted in Nasheed’s departure from office on February 7, 2011, writes Daniel Bosley for the South Asia Journal.

“Alleging his resignation had come under duress, Nasheed and his supporters took to the streets the following day where they were met with brutal suppression by a police force which has yet to be brought to account for the numerous human rights abuses that ensued.

The Kafkaesque legal polemics when Nasheed was forcefully brought before the court for the first hearing in October hinted at deeper issues which underscore the country’s recent crises. Contending legal opinions suggested an illegal arrest warrant had been used, from an illegally assembled court, to bring an illegally removed president to trial, for the illegal detention of an illegal judge.

This labyrinthine situation indicates the urgent need for police and judicial reform in a struggling democracy which is looking increasingly rudderless. After months of political deadlock, street demonstrations, accusation and counter-accusation, Nasheed’s trial presents an opportunity to bring the political crisis back to where it began, with the judiciary and the criminal justice system.

Read more

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Failure of judiciary, JSC and parliament justified detention of Abdulla Mohamed, contends Velezinee in new book

Former President’s Member on the Judicial Services Commission (JSC) Aishath Velezinee has written a book extensively documenting the watchdog body’s undermining of judicial independence, and complicity in sabotaging the separation of powers.

Over 80 pages, backed up with documents, evidence and letters, The Failed Silent Coup: in Defeat They Reached for the Gun recounts the experience of the outspoken whistleblower as she attempted to stop the commission from re-appointing unqualified and ethically-suspect judges loyal to former President Maumoon Abdul Gayoom, after it dismissed the professional and ethical standards demanded by Article 285 of the constitution as “symbolic”.

That moment at the conclusion of the constitutional interim period marked the collapse of the new constitution and resulted in the appointment of a illegitimate judiciary, Velezinee contends, and set in motion a chain of events that ultimately led to President Mohamed Nasheed’s arrest of Chief Criminal Court Judge Abdulla Mohamed two years later.

Nasheed resigned on February 7 after mutinying police and military officers joined forces with opposition demonstrators, who had been accusing Nasheed of interfering with the ‘independent’ judiciary in his arrest of the judge, and demanding not to be given ‘unlawful orders’.

The Commonwealth-backed Commission of National Inquiry (CNI) report found that there was no evidence to support Nasheed’s claim that he was ousted in a coup d’état, and that his resignation was under duress and the events of the day were self-inflicted.

“The inquiry is based on a false premise, the assumption that Abdulla Mohamed is a constitutionally appointed judge, which is a political creation and ignores all evidence refuting this,” Velezinee stated.

“Judge Abdulla Mohamed is at the centre of this story. I believe it is the State’s duty to remove him from the judiciary. He may have the legal knowledge required of a judge; but, as the State knows full well, he has failed to reach the ethical standards equally essential for a seat on the bench.

“A judge without ethics is a judge open to influence. Such a figure on the bench obstructs justice, and taints the judiciary. These are the reasons why the Constitution links a judge’s professional qualifications with his or her moral standards,” she states.

The JSC itself had investigated Abdulla Mohamed but stopped short of releasing a report into his ethical misconduct after the Civil Court awarded the judge an injunction against his further investigation by the judicial watchdog.

“There is no legal way in which the Civil Court can rule that the Judicial Service Commission cannot take action against Abdulla Mohamed. This decision says judges are above even the Constitution. Where, with what protection, does that leave the people?” Velezinee asks.

“The Judicial Service Commission bears the responsibility for removing Abdulla Mohamed from the bench. Stories about him have circulated in the media and among the general public since 2009, but the Commission took no notice. It was blind to Abdulla Mohamed’s frequent forays outside of the ethical standards required of a judge. It ignored his politically charged rulings and media appearances.

“Abdulla Mohamed is a man who had a criminal conviction even when he was first appointed to the bench during President Maumoon Abdul Gayoom’s time. Several complaints of alleged judicial misconduct are pending against him. The Judicial Service Commission has ignored them all. What it did, instead, is grant him tenure – a lifetime on the bench for a man such as Abdulla Mohamed. In doing so, the Judicial Service Commission clearly failed to carry out its constitutional responsibilities. It violated the Constitution and rendered it powerless. Where do we go from there?”

Parliament, Velezinee states, was the body responsible for holding the JSC accountable.

“The Majlis knew the threat Abdulla Mohamed posed to national security and social harmony. The Majlis was also aware of the Judicial Service Commission’s failure to carry out its constitutional responsibilities and its efforts to nullify constitutional requirements.

“Concern had been shared with the Majlis that the Judicial Service Commission had committed the ultimate betrayal and hijacked judicial independence. The Majlis failed its Constitutional responsibility to hold the Judicial Service Commission accountable for any of these actions. The Majlis had violated the Constitution and rendered it powerless. Where to from there?”

Ultimate responsibility for upholding the constitution fell to the President, Velezinee states.

“Democratic governance can only function if the entire system is working as an integral whole; it is impossible if the three separated powers are failing in their respective duties.

“Under the circumstances – once it was clear that Abdulla Mohamed was an obstruction to justice and a threat to national security, and once it became apparent that neither the Judicial Service Commission nor the Parliament was willing to hold him accountable – the only authority left to take control of the situation was the Head of State.”

With the return to power of Gayoom’s autocratic government behind President Mohamed Waheed’s “fig leaf of legitimacy”, the judiciary continued to be subject to influence, Velezinee writes.

“The judiciary we have today is under the control of a few,” she wrote.

“This was an end reached by using the Judicial Service Commission as a means. Most members of the Judicial Service Commission betrayed the Constitution, the country, and the people. They broke their oath. There is no room for free and fair hearings. And most judges do not even know how to hold such a hearing.”

“For democracy and rule of law to be established in the Maldives, and for the right to govern themselves to be returned to the people, they must have an elected leader. And the judiciary, currently being held hostage, must be freed.

“Article 285 of the Constitution must be fully upheld, judges reappointed, and an independent judiciary established,” she concludes.

Download The Failed Silent Coup (English translation by Dr Azra Naseem)

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Suspects in murder of alleged sorcerer deny charges

Two people suspected of murdering 76 year-old alleged sorcerer Ali Hassan, of Kudahuvadhoo in Dhaalu Atoll, have denied murder charges in court today.

Local newspaper ‘Haveeru’ reported that the hearing for Fauzan Mohamed and Ibrahim Majidh was held today in the Criminal Court.

The lawyer from the Prosecutor General’s Office told the court that Fauzan and Ibrahim, along with a group of other people, had planned to kill Ali Hassan and attacked him around 7:00pm on the evening of January 8, the paper reported.

When the judge queried both individually, Fauzan told the judge that he denied the charges and said he wished to appoint a lawyer, and also requested the court to conclude the case soon. Ibrahim also denied the charges.

Ibrahim Waseem, the step-grandson of Ali Hassan, has previously confessed to being an accessory to murder.

Kudahuvadhoo resident Ibrahim Waseem contradicted a previous statement provided to authorities by claiming today that he had sought revenge against Ali Hassan – the defendant’s step-grandfather.  Waseem claimed he has been seeking revenge after hearing allegations that Hassan was responsible for the murder of his mother using sorcery.

In March, two minors were arrested and charged with the murder of Ali Hassan, pleaded guilty to accessory in court.

The two 16 year-olds were charged with spying on Hassan before the murder, and assisting the assailants to hide the weapons they used to murder Hassan.

Another 17 year old boy was also summoned to court in connection with the case, and charged for involvement in murdering Hassan.

He requested the court that he wished to continue the trial with a lawyer, which was granted.

The step-grandson of Hassan was also summoned to the Criminal Court for his involvement in the case.

He told the court that Hassan was murdered because he was informed that Hassan had killed the mother of Fauzan Mohamed

The victim himself had previously been accused by the islanders of using sorcery on a 37 year-old woman, who was reported missing at 2:00am on December 4, 2011, and whose body was found floating in Kudahuvadhoo lagoon later that morning.

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Juvenile Court extends detention of minors charged with Muheeth murder

The Juvenile Court extended the detention by 15 days of three minors charged with the murder of 20 year-old Abdul Muheeth, as one of the minor had not appointed a lawyer to respond to the murder charges pressed against him by the Prosecutor General.

A Juvenile Court official told local media that the three minors will have to provide detailed answers to the charges pressed against them in the next hearing, which will be held after 15 days.

Juvenile Court Spokesperson Zaeema Nasheed was unavailable for comment as she was attending the Juvenile Justice Program.

Three men have been charged in the same case, in addition to the minors.

Police identified the three men as Muhujath Ahmed Naseeh of Gahdhoo in Gaafu Dhaalu Atoll, Ali Mushaf of Maradhoo in Addu City and Mohamed Maimoon of Naifaru in Lhaviyani Atoll.

Abdul Muheeth of G. Veyru was rushed to Indira Gandhi Memorial Hospital (IGMH) after he was stabbed at 1:45am near the Finance Ministry building on February 19. He later died during treatment.

In March, Police Inspector Abdulla Satheeh said Muheeth was mistakenly killed by a gang and that he was not the intended target.

Police said Muheeth was not a member of any gangs and said he held a responsible job at the time he was stabbed to death.

The Juvenile court is also hearing a second murder case involving a girl and two boys under the age of 18, who are suspected to be involved in the murder of 21 year-old Ahusan Basheer.

Family members of Ahusan Basheer were recently summoned to the court to approve a possible death sentence verdict if the three minors were to be found guilty in the case.

Four of Basheer’s family members said they approved of death sentence. According to the Juvenile Court there were four additional family members who needed to tell the court their stance in order to decide whether death sentence should be passed if the suspects were found guilty.

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MDP attempts to stop courts from preventing disciplinary action against judges

Maldivian Democratic Party (MDP) MP Imthiyaz Fahmy today submitted a parliamentary motion aimed at blocking the country’s courts from issuing rulings preventing their own watchdog body from taking disciplinary action against judges.

The motion follows a recent decision by the High Court to uphold a civil court injunction preventing the Judicial Service Commission (JSC) from taking action against Criminal Court Chief Judge Abdullah Mohamed until a final verdict was reached at the Civil Court.

Judge Abdulla was a central figure in the downfall of former President Mohamed Nasheed after he was detained by the military.  Abdulla’s controversial detention was made after the government accused him of political bias, obstructing police, stalling cases, links with organised crime and “taking the entire criminal justice system in his fist” to protect key figures of the former dictatorship from human rights and corruption cases.

Abdulla Mohamed obtained the injunction against his investigation by the judicial watchdog in September 2011 after it produced a report stating that he had violated the Judge’s Code of Conduct by making politically biased statements in an interview he gave to private broadcaster DhiTV.

According to the motion submitted today by MP Imthiyaz Fahmy, it is unconstitutional for a superior court to rule on a cases pertaining to the JSC’s decisions, as well as to prevent the commission from performing its statutory obligation to investigate and take action against judges.

Fahmy argued that allowing the courts to defy the JSC’s decision contravened the purpose of establishing the court watchdog as an independent institution in the first place.  He argued that such a decision violated the system of checks and balances designed to ensure separate powers of state.

Fahmy also observed that the parliament cannot remove the judge from a bench while a case concerning the matter is at court and noted that it would be an obstruction to parliament’s duty as well.

Several pro-government MP’s challenged the motion, citing the judge had not been convicted of any offence and must not subjected to unfair treatment or intimidation.

Former President’s member on the JSC and whistle-blower Aishath Velezinee for several years contended that Abdulla Mohamed was a central, controlling “father figure” in the lower courts, answerable to former President Maumoon Abdul Gayoom.  She also claimed the judge was a key figure responsible for scuttling the independence of the judiciary under the new constitution.

Allegations against the judge, which date back to 2005, include misogyny, sexual deviancy, throwing out an assault case despite the confession of the accused, political bias, obstruction of police duty, disregarding decisions of high courts, deliberately holding up cases involving opposition figures and barring media from corruption trials.  He also stands accused of ordering the release of suspects detained for serious crimes without a single hearing, maintaining “suspicious ties” with family members of convicts sentenced for dangerous crimes, and releasing a murder suspect “in the name of holding ministers accountable” who went on to kill another victim.

In one instance, Abdulla Mohamed was accused of requesting that two underage victims of sexual assault act out their attack in court in front of the perpetrator.

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Civil Court orders JSC to reassess the eligibility of judge dismissed for assault

The Civil Court on Sunday ordered the Judicial Judicial Service Commission (JSC) to reevaluate the qualifications and eligibility of Raa Atoll Maakurathu Court Magistrate Adnan Hussain, who was dismissed in 2010 for failing to meet the “high moral character” required of a judge.

The court issued the ruling following a suit filed by Magistrate Adnan Hussain, claiming he was disqualified unconstitutionally. He had also asked the court to order the JSC to reimburse his full salary and privileges from August 2010 until now.

During the reappointment of judges in 2010, in which all but a few sitting judges in the lower courts were given life tenure, the JSC decided to disqualify Adnan Hussain and several other judges as he had failed to meet the “high moral character” requirement stipulated in article 149, due to prior conviction for assault.

In addition to the qualifications specified in Article (a), the judge should “not [have] been convicted of an offence for which a hadd is prescribed in Islam, criminal breach of trust, or bribery”, according Article (b) section 3.

However, on Sunday the court contended that the offence of assault “does not constitutionally necessitate [his] dismissal”.

Presiding Judge Mariyam Nihaaath acknowledged that Hussain was convicted for the “least form” of assault and it was committed before his appointment to the bench in 2007. Furthermore, she observed that he had not repeated the same offence and did not have any prior criminal records, which proved that he has no intention of repeating the offence.

Moreover, as it was proven in court that judges with similar convictions were deemed eligible during the reappointment process, Nihaayath contended that Former Magistrate Hussain must be treated same those judges.

She concluded that JSC discriminated against Hussain, adding that commission had acted in a manner which violated his constitutional right to non-discrimination and equal protection before law.

“Therefore, from March 29 onward, within the next 30 days, the JSC must reevaluate Hussain’s qualifications to determine his eligibility,” she ruled.

JSC’s decision in 2010 to remove dozens of judges from the bench for contradicting moral character clause, has been previously challenged in the court.

According to the article 15 of the Judges Act – which came into effect five days after the reappointment of judges – a judge will be considered as failing to meet the required ethical and moral standards if they had served a sentence for a criminal offence in the seven years prior to the appointment.

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

Had the passage of the Act taken less time in parliament, 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.

Judges argued in court that 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 political interests, while disregarding their criminal convictions.

Meanwhile, JSC’s  decision to reappoint two  judges previously removed from the bench for sexual misconduct in December 2011, prompted criticism from several lawyers – however, the JSC defended itself citing that the Judges Act allowed it as the convictions pre-dated the aforementioned seven years.

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