Judges legitimised JSC’s actions with their silence

Is the law community finally getting ready to stand up to the JSC?

On Saturday night, as Earth Hour plunged the world into darkness, the Judicial Service Commission (JSC) quietly went about swearing in its controversial five new High Court appointments.

The ceremony, held at the JSC premises in the former Presidential Palace, marks the second time in less than a year that the JSC has sworn in judges under circumstances that are legally dubious and highly challenging for democratic consolidation.

The first occasion was in August 2010 when the JSC disregarded Article 285 of the Constitution relating to the educational and other qualifications of the bench and arranged for close to 200 judges to re-take their oaths, regardless of their professional or ethical qualifications.

160 of the judges had been originally appointed by the previous regime, and over a quarter of them possessed criminal records. Many more failed to meet the required educational qualifications by a long shot, having only attended  primary school – an establishment that is yet to be known as a bastion of legal education.

Although the JSC had then decided to treat Article 285 as nothing more than ‘symbolic’, its Annual Report 2010 published this month lists a total of 191 judges as having been sworn in last year ‘under Article 285 (c)’.

The implication is clear, and clearly false – the judges were reappointed to fulfil the stipulations of Article 285.

According to the JSC – except for President’s Member Aishath Velezinee who launched an emotive appeal against the procedure as the judges prepared to re-take their oaths – such a ceremony adequately met the constitution’s ‘symbolic’ requirement for judicial reform.

None of the sitting judges, nor any other member of the law community, mounted any significant objections to JSC’s dismissal of the Constitution as ‘symbolic’ and proceeded to re-take their oaths, implicitly legitimising JSC’s approach.

JSC’s ‘winning’ streak

Until now, this initial tacit complicity of the law community in the JSC’s actions had remained largely unchanged as lawyers and judges all appeared to turn the other cheek as the number of allegations of unconstitutional policies and activities in the JSC continued to mount.

Indeed, none of the cases brought against the JSC have so far been successful. This state of affairs is even more remarkable when it is taken into account the JSC’s ‘wins’ have been due to technicalities rather than reasoned argument or skilled interpretations of the law.

In January last, for instance, the Civil Court threw out a lawsuit brought against the JSC by Treasure Island Limited, which alleged that the Commission had been deliberately negligent in its constitutional duty to investigate all complaints of judicial misconduct.

Despite an admission by the JSC during the hearings that it did not have a standardised procedure for dealing with complaints – or anything else for that matter – the Civil Court threw out the case when the plaintiff was late for what was to be the penultimate hearing.

The dismissal meant that the JSC’s complaints procedure – or lack thereof – eluded legal and public scrutiny despite clear indications that such an examination was necessary in light of JSC’s methods for dealing with complaints, which were at best ad hoc by its own admission.

Last Thursday, it was on almost exactly the same grounds that the Supreme Court dismissed Criminal Court Judge Abdul Bari Yousuf’s lawsuit against the JSC alleging that the policy adopted by the JSC to select candidates for the high Court bench was discriminatory and therefore unconstitutional.

Judge Abdul Bari, the Supreme Court ruled on Thursday, had violated court regulations by taking leave without giving prior notice to the court as is required of all claimants in an ongoing case. On these grounds the case was thrown out.

The Supreme Court’s decision to dismiss the case becomes all the more confounding when seen in light of the force and speed with which it moved to acquire the files from the Civil Court where Judge Bari first lodged it.

Citing ‘public interest’, and the magnitude of its importance to the Constitution, the Supreme Court on 21 January used an unprecedented Writ of Prohibition to force the Civil Court to hand over the case files.

Shortly after, the Supreme Court ruled that given the gravity of the matter, only the Supreme Court had jurisdiction over the case. The Civil Court, it said, did not have the authority to decide constitutional matters or matters relating to a higher court.

No need for a lawyer

After two sittings, in which JSC member Dr Afraasheem Ali – appointed as JSC’s representative to the Supreme Court after some frantic self-lobbying over the ‘big telephone in the JSC’ – denied all wrongdoing, the Supreme Court threw out the case.

Despite having been officially made aware of a leaked audio which provides evidence of the unorthodox – if not illegal – methods by which Dr Afraasheem managed to confirm himself as the JSC’s legal representative, the Supreme Court did not raise any objections to his new role as ‘defence counsel’.

Although the JSC is composed overwhelmingly of judges or other legal professionals Dr Afraasheem is not one of them. In fact, despite the growing number of lawsuits against it, the JSC is yet to hire a professional lawyer – hence the need for members to moonlight as defence counsel, qualified or not.

As it turned out, not much training or skills were called for as the Supreme Court threw out the case on 24 March without addressing the issues that the Court itself had deemed as highly important.

The Supreme Court decision, delivered after 4:00pm on Thursday, freed the JSC to swear in its new appointees. It did not waste any time, quickly arranging for the ceremony to take place not much more than 24 hours later.

Although Supreme Court regulations provide a seven-day period in which a claimant can appeal a ruling, JSC’s expedited oath-taking ceremony effectively pre-empted any such action by Judge Bari.

The Supreme Court’s decision to dismiss the case also means that the concerns raised by Family Court Chief Judge Hassan Saeed alleging similar violations of the Constitution by the JSC in its High Court appointments were not addressed either.

By the time he lodged his case, also at the Civil Court, the Supreme Court had ruled that only it had jurisdiction over the matter. His case, too, was then transferred to the higher court to be heard with Judge Abdul Bari’s case.

Personal interest versus public interest

Unlike the oath-taking ceremony in August last year, there appears to be less appetite among members of the judiciary to swallow whole the JSC’s interpretation of the Constitution this time around.

Back then none of the judges stood to make a personal loss in re-taking the oath. The negative impact of such an action would have been, and has been, on the public’s faith in the independence of the judiciary.

In the current dispute, however, the JSC’s appointment criteria as well as the Supreme Court’s dismissal of any alleged wrongdoing on the part of the JSC have cost the appellants – and other unsuccessful candidates – a seat on the High Court bench.

The personal cost appears to have galvanised the law community into action in ways that the JSC’s dismissal of the Constitution in August 2010 did not.

Judge Hassan Saeed, for instance, wrote to President Nasheed on Saturday, asking him to apply the powers vested in the executive by Article 115 of the Constitution, which accords the president both the right and the duty to intervene in furtherance of the rule of law.

Judge Hassan Saeed’s appeal to President Nasheed to use his executive powers to bring the JSC in line marks not only a potential turning point in the law community’s attitude towards the JSC and the role of the courts in supporting it; it also signals a u-turn in the judiciary’s perception of the executive’s relationship with the judiciary.

When President Nasheed criticised the JSC in June 2010, when it first decided to disregard Article 285 of the constitution, the Judges Association of Maldives (JAM) was scathing in its response.

In a press release, JAM described President Nasheed’s condemnations of the JSC’s actions at the time as ‘disrespectful towards the honour and dignity of judges’, and said his criticisms were indicative of the ‘negative view he holds of the judiciary’.

The Judges Association also accused the president of attempting to unduly influence the JSC, which it said, would ‘render separation of powers obsolete’.

It is not known yet whether President Nasheed has responded to Judge Hassan Saeed’s letter, a copy of which Minivan News has obtained.

If the president does heed the call to intervene in the matter, the law community’s reaction would tell whether or not it has arrived at a point where it is willing to stand up to threats to judicial independence – perceived or real.

As Pakistan’s law community demonstrated in 2007, the strongest ability to establish and protect the independence of the judiciary lies within itself and not outside of it.


Senior judges accuse Supreme Court of violating due process in High Court appointments dispute

Two senior judges have accused the Supreme Court of violating due process and rules of procedure by unfairly dismissing a case challenging the legitimacy of the Judicial Service Commission’s (JSC) selection and appointment of judges to the High Court.

Five judges were sworn in to the High Court bench by the JSC last night after the Supreme Court on Thursday dismissed a case filed by Criminal Court Judge Abdul Bari Yoosuf at the Civil Court claiming to show procedural and legal issues in the JSC vetting process. Bari’s case was later entered into by Family Court Chief Judge Hassan Saeed as a third party.

On January 20 – three days before the judges were due to be sworn in – the Civil Court issued a temporary staying order halting the appointments by the JSC pending a final ruling.

The Supreme Court however transferred the case from the lower court a day later and conducted two hearings before dismissing it without issuing a verdict on Thursday (March 24) after neither Bari nor Saeed reportedly appeared at court.

The Supreme Court had announced on January 21 that it was taking over the case as it involved “a matter of public interest”.

Judge Bari, who was himself among the candidates for the High Court, however insists that section 23 of the Supreme Court regulations – which requires claimants to inform the court prior to leaving the country or face dismissal of their case – does not apply to him as he had filed the case at the Civil Court.

The Criminal Court judge claims that he had also informed the senior registrar of the Supreme Court of his departure on a personal trip. In an apparent violation of standard procedure, chits were reportedly sent out to the involved parties two hours before Thursday’s hearing began.

Moreover, under section 75(c) of the Supreme Court regulations, the court must give a maximum period of seven days for the claimant to file the case again. However, the JSC – chaired by Supreme Court Justice Adam Mohamed Abdulla – decided to hold the swearing-in ceremony on Saturday night, effectively preempting Bari from filing the case again.

In a letter sent to President Mohamed Nasheed today, Chief Judge Hassan Saaed writes that “that the case was dismissed in violation of legal principles and procedures came as a shock to the judiciary.”

Saeed added that as a result of the incident, “the growing confidence that I and ordinary citizens had in the judiciary is lost,” urging the President to “stop this process continuing unlawfully.”


JSC appoints five judges to High Court bench

The Judicial Service Commission (JSC) has appointed five judges to the High Court bench. The five took their oaths of office last night.

The five were Shuaib Hussein Zakariyya, Dr Azmiraldha Zahir, Abdurauf Ibrahim, Abbas Shareef and Ali Sameer.

The appointment of the judges had been previously scheduled however right before the five were about to take the oath and officially commence work, Criminal Court Judge Abdul Baary Yousuf filed a case in the Civil Court claiming that there was discrimination between men and woman in the appointment.

Judge Baary’s case, which was later taken to the Supreme Court, ended up as a void complaint after the court ruled that Judge Baary had left the town without informing the Supreme Court.

The High Court has said on its website that the five new judges have taken the oath of office last night.


“Sunlight is the best antiseptic”: the case for an independent judiciary

The structure of the Judicial Services Commission (JSC) is compromising its accountability and obstructing the creation of an independent judiciary, says Professor Murray Kellam, a former Australian Supreme Court Justice who has spent several weeks observing the group.

The UNDP brought Kellam to the Maldives to observe the JSC based on a recommendation in a report by the International Commission of Jurists (ICJ) that suggested the commission be subjected to independent outside oversight.

As well as a former Justice of the Supreme Court of Victoria, Kellam is the current Chief Commissioner of the Tasmanian Anti-Corruption Commission and also has extensive experience assisting with the development of legal systems in countries such as Burma and Bangladesh.

He has also been appointed an Officer of the Order of Australia, an award given for distinguished service of a high degree to Australia or humanity at large.

“I think there’s a real problem when you’ve got members of both the executive and the legislative body administering judicial affairs,” Kellam said, on conclusion of his visit to the Maldives.

“You have the Speaker, Attorney General and an MP sitting in judgement on their own recommendations. That situation doesn’t need describing any further.”

Kellam said his observations were not intended to be critical of the members of the JSC, but rather to assist in the development of an independent and respected body.

In other countries it was usual for the Chief Justice to chair the body responsible for judicial accountability, but the members were made up of respected people from the community “rather than those allied to the executive or legislature.”

“The process in your Constitution here is that [in the event of] gross misconduct and gross incompetence, the Majlis (parliament) has the job of dismissing them, and that’s consistent with other places in the world. But the problem is that the body making the recommendation is also the membership.”

Kellam was provided with full access to the JSC’s meetings and files during his visit, however he acknowledged that language was a barrier – most significantly, the lack of official English translations of most legislation.

“The unofficial translation of the Constitution is pretty good, but I have doubts about the accuracy of the translation for the JSC Act. The UNDP assisted, but the [language gap] makes it pretty difficult.”

However, Kellam said that he agreed with the ICJ’s recommendation that parliament should evaluate the JSC “and ensure it operates more transparently.”

“There may be an argument that the appointments and complaints processes [for judges] should be separated,” he said. “At the moment it appears that the expectations of the authors of the constitution are not being met.”

There had been, he noted, a requirement for the JSC to undergo training, ”but that was removed by the Supreme Court and subsequently by the legislature.”

Urgent legislation required

Beyond a review and possible reform of the JSC by parliament, the Majlis needed to urgently pass a Criminal and Civil Code, a Penal Code, and an Evidence Act, as currently, “the courts have no guidance as to the exercise of their powers under the constitution.”

“These legislative enactments ensure consistency on the part of the courts and a proper legal basis for the process of litigation,” he said, adding that under the current circumstances, “I can’t see how the courts can operate. The importance of the legislature passing such legislation cannot be overstated.”

As for oversight, the parliament, he said, was entitled to take an interest in the functioning of the judiciary, as the courts were funded by public expenditure.

However, Kellam did mirror the concerns of the ICJ at the interference of the executive, and particularly, the “the extra-constitutional use of the Maldives National Defence Force and police and defiance of court orders.”

He noted the ICJ’s concerns over public statements of members of government meeting with judges and members of parliament imploring the President to ignore both the courts and the legislature: “Actions such as this brought Hitler to power,” he warned.

Judges needed to be able to make decisions contrary to interests of the executive, and should not be subject to pressure from the politically powerful, commercially powerful or any other specific social interest groups.

“I have in my own career made decisions the government was extremely unhappy with – but they did what they were told in due course, because that’s the way the rule of law operates.”

At the same time, “‘Rule of law’ does not mean ‘rule of judges’. Judges are not free to do as they wish. They are subject to the Constitution and the laws enacted by parliament. It is not their role to make disparaging
remarks about parties, witnesses who appear before them, or to send signals to society at large in order to intimidate and undermine other basic freedoms such as freedom of expression.

“Respect is not gained through coercive use of power. The judiciary earns respect by its performance and its conduct,” Kellam said.

Framework in place

The Maldives’ Constitution provided an excellent model for an independent judiciary, “much better than the ones in many countries I’ve worked in,” Kellam said.

“There was quite clearly a real endeavour to set up accountability mechanisms, such as the JSC, Anti-Corruption Commission (ACC) and provision for an independent prosecutor – a really significant step.

“But having a model is one thing, executing the plan is another. In the end that depends on the calibre and integrity of people who run these organisations. They need to set the gold standard in terms of behaviour, conduct and transparency.”

Paying judges generously was a significant part of the equation, he said, recalling a judge he met in Cambodia who drove taxis at night to avoid having to accept bribes.

Australia, he commented, had never had a judge convicted of bribery.

“Judges misbehave in Australia just like elsewhere, but we do not have corruption. I think that’s a reflection of accountability, but also a significant reflection of the fact that they are well-paid. As a judge in Australia you would have to be extremely silly [to accept a bribe], because the risk of losing your salary and all your pension entitlements is simply too high.”

Transparency trumps nepotism

In both his interview with Minivan News and a lecture held on completion of his visit to the Maldives, Kellam repeatedly emphasised the importance of independence.

It was not, he said, necessarily a obstacle to independence that the Maldives was a small country with myriad family, political and business connections.

“I chair the Anti-Corruption Commission in Tasmania, a state with a population of 500,000 people,” he said. “Many families have been living there a very long time, and everyone knows everyone else which is a reason why they brought an outsider like me to chair their Anti-Corruption Commission.

Transparency, he said, was the answer to the problem, and was as much a defence for those drafting contracts with those they knew as a means of mitigation corruption.

“There should be a declaration at the start of meetings, where interests should be stated,” he said.

“If you are awarding a contract to your brother-in-law, which can happen in Tasmania, it must be on the table. The person awarding contract should make the declaration. It must be a similar problem for judges in island courts here – judges here know the islanders, but you can’t have them disqualifying themselves.

“We have a jury system in Australia, and in a town with a population of 20,000 the jury will know all the victims and the witnesses. The important thing is that there is transparency and it is on the stable.

“Sunlight is the best antiseptic. The real problem of perception happens when these things are not out in the open – when they are done under the table, and somebody says ‘Hang on, he’s related or they had dinner the other week.’ If it is in public, decisions can be made impartially. If it’s disclosed you can look at the tender process and say ‘Not withstanding that this person is the uncle of the person delivering on the contract, on the face of it this is transparent.’ That’s entirely different to somebody awarding a contract to a relative behind closed doors.”

Rulings had to also be open to public scrutiny, and actively published and subjected to public analysis. Judges and their verdicts were open to scrutiny and criticism, Kellam said, and in Australia it was understood that judges did not pursue cases of defamation against them.

The economic case for justice

An impartial judicial system was a key factor in encouraging foreign investment, Kellam said, and could have a direct and significant impact on the economy.

This was something that Singapore recognised 15 years ago, he said.

“They understood the value of a civil system that is incorruptible and competent. They spent a lot of money on their judiciary and Transparency International now rates their civil legal system as one of the best in the world.

“Singapore realised that one of the best ways to attract investment was to have a system whereby international investors knew they would get a fair go in domestic courts. If you look at the circumstances in other parts of the world where investors have no confidence in the judiciary, that deters investment and takes it offshore. They’ll go somewhere else.

Citing Adam Smith, considered one of the founders of modern capitalism, Kellam observed that “Commerce and manufacturers can seldom flourish long in any state which does not enjoy a regular administration of justice, in which people do not feel themselves secure in possession of their property, in which the faith of contracts is not supported by law.”

As a foreign investor, Kellam said, “you want to know that contact you enter into with domestic partners will be understood and enforced by courts if there is a breach. You want courts to judge you impartially – you don’t want to be discriminated against because you are a foreigner.”

“Secondly, it’s no good getting judgement if no there is enforcement – which is a major factor in developing countries. Sure you can get a judgement, but it’s not worth the paper it’s written on because there is no process for getting it enforced, and you can’t turn judgements into anything productive.”

Singapore had recognised this, and become not only a hub for foreign investment but also a regional hub for commercial arbitration.

“People from around the region will use Singapore as a place of law and business,” Kellam observed.

“The constitution sets up [an independent judiciary] for principled reasons. But there are not only good arguments for these in terms of principle, there are very good economic arguments. But the judges have got to understand that, and they’ve got to build it.”

Perhaps tellingly, President’s Member of the JSC Aishath Velezinee observed on her blog that “not a single member of the Judicial Service Commission (except for myself) or staff attended Professor Kellum’s lecture.

“What cannot be ignored is that neither the JSC nor the judges have the willingness and interest or the knowledge and capacity to reform the judiciary in accordance with the Constitution, despite the rhetoric.”


Supreme Court to look in to High Court judges case

The Supreme Court of the Maldives has today announced that it will conduct a trial on the issue of appointing High Court judges that had originally been scheduled for the country’s Civil Court, amidst ongoing debate over the institution’s right to influence the workings of a higher authority.

The case was first filed in Civil Court last week by Criminal Court Judge Abdul Baary over concerns 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.

Judge Baary claimed in Haveeru at the time that the JSC 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 Labour Act.

A Writ of Prohibition was issued by the Supreme Court last week in an unprecedented step against the Civil Court designed to order the institution to hand over the case to determine whether it had the authority to deal with the functions of a higher court.

The Supreme Court has today ruled that the issue was a constitutional matter and that the Civil Court did not have the authority to decide on constitutional matters such as the legality of appointing members to the High Court bench.

”If the matter was conducted in the lower court, the case would get appealed and would cause a delay in the appointment of High Court judges which will lead to a loss of basic rights for the administration of justice,” said the Supreme Court in a statement posted on their website.

High Court judges appointed by the JSC last week included 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.

A JSC spokesperson was unavailable to comment on the issue at the time of going to press, though told Minivan News that the commission had not had any communication with the Supreme Court over today’s decision.


Supreme Court enters legal wrangle over High Court appointments

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’.


JSC appoints high court judges, including the first woman to the post

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.


Criminal Court stops accepting new cases, Civil Court returns to normal

The Criminal Court has told the Prosecutor General not to send any new cases to the court until further notice as it is busy implementing administrative changes required by the Judicature Act.

The Civil Court, which had suspended “all matters of justice” for seven days from Sunday to make administrative changes necessitated by the Judicature Act, will be returning to normal tomorrow, Chief Judge Ali Sameer told Minivan News.

“Four days” in which justice was suspended so the court can focus on administrative jobs, Chief Judge Sameer said, was “not bad”.

Chief Judge Sameer denied that President Nasheed’s ratification of the Act on Thursday 21 October had taken the court by surprise. Rather, he said, the Court was unsure as to whether President Nasheed would ratify the Act or not.

“Had he not ratified the Act as passed by the Majlis, pre-emptive action on our part would have meant that we would have made changes that were unnecessary, and also incurred a huge amount of expenses unnecessarily”, he said.

The Judicature Act was enacted to bring the nation’s judiciary in line with the standards set by  the 2008 Constitution to establish an independent judiciary replacing the administrative system of justice that was in place prior to the passing of the Constitution.

It creates the country’s courts, establishes their system of hierarchy and forms regulations according to which they should function.

The Act, which the President ratified within the specified 15-day period, changed the name of the Madhanee Court to Civil Court and the name of the Jinaaee Court to Criminal Court. ‘Madhanee’ means ‘civil’ in Arabic and ‘jinaaee’ means ‘criminal’.

Changes in the Act also affect the operation of courts in various islands. Attempts by Minivan News to contact the Chief Judicial Administrator Ibrahim Adam Manik to clarify the full range of administrative changes that has necessitated the interruptions to justice proved unsuccessful.

When Minivan News was able to get Manik on the phone after a two hour period in which his secretary repeatedly said he was “on his break” he requested that the question be sent to him by email.

Manik ignored the email when it was sent as requested.

The Criminal Court announcement states the difficulties have arisen because “relevant authorities of the judiciary have not taken the required decisions” on the procedures to be followed in the cases that are now brought to the court.

Nor have the said authorities taken a decision on how island courts should be addressed when the Criminal Court is sending out summons or messages to people involved in the cases being brought to the court.

The Court does not specify a date when it will resume accepting cases from the Prosecutor General. It says, however, “even though the Court is encountering administrative difficulties in implementing the many changes required by the new Act”, it will resume normal business “as soon as the work is completed”

Mohamed Nasheed, Independent MP for Kulhudhuffushi, who was a member of the Parliamentary Committee in charge of the Bill said the courts should have been in a position to meet the changes required by the Judicature Act head on.

The Bill had been in the Parliament since the beginning of the year, and the Parliamentary Committee had worked closely with the Courts during the re-drafting stages, asking for their opinion, comments and feedback all along the way, Nasheed said.

“The Judicature Act does not bring about a change so fundamental or so radical that the process of dispensing justice has to be interrupted. There should have been a smooth transition in which the courts seamlessly integrated the changes as the Act was ratified,” Nasheed said.


Legal limbo leads MNDF to confiscate Supreme Court keys, after Majlis cancels last session of interim period

The Maldives National Defence Force (MNDF) confiscated the keys to the Supreme Court on Saturday afternoon pending the conclusion of the interim period of the Constitution.

Press Secretary Mohamed Zuhair said the President had ordered the move “to prevent entry until the Majlis (parliament) reaches a consensus [on appointing the new Supreme Court judges].”

Zuhair explained the decision to confiscate the keys was made “to avoid unforeseen circumstances, because right now there is a difference of opinion as to what will happen should the Majlis fail to reach a decision by tonight.”

The current Supreme Court judges have previously declared themselves permanent in a letter sent to President Mohamed Nasheed, although the President’s member on the Judicial Services Commission (JSC), Aishath Velezinee, claims this was unconstitutional “and no one has recognised or even mentioned it.”

According to the constitution, the president is required to nominate the new Supreme Court judges following consultation with the Judicial Services Commission (JSC), and then present the names to parliament to approve in a vote.

Nasheed has already nominated Supreme Court Judge Uz Ahmed Faiz Hussain for the position of Chief Justice, however “he has not been able nominate [the rest of the bench] because parliament has not yet passed the Bill on Judges that stipulates the number required,” Velezinee said.

The constitution obligates parliament to resolve the matter before the end of today, however scheduled sessions were postponed to 8pm and then eventually cancelled in a statement issued by the Speaker, opposition DRP MP Abdulla Shahid, on the grounds that both sides were unable to decide the matter.

The Majlis was also to approve nominations for the Human Rights Commission of the Maldives (HRCM) and the Civil Service Commission (CSC).

Under the constitution, the cancellation effectively leaves the country in a legal ‘limbo’ period as of midnight, without several institutions functioning legitimately including the country’s highest court – “as of midnight there are no Supreme Court judges”, Zuhair noted.

Parliament has also yet to approve the reinstated cabinet ministers.

A senior government official told Minivan News that “rather than leave the country without a legitimate judiciary on conclusion of the interim period, the President will decree at midnight that the trial courts [the Criminal and High Courts] will continue to function, while an interim body of credible judges of high reputation will serve as an appellate court, under advisory of the Commonwealth.”

Appellate courts have been used in countries like the United States, and are typically limited to reviewing decisions made by lower courts rather than hearing new evidence.

Foreign Minister Dr Ahmed Shaheed confirmed the President had proposed to decree that the two trial courts continue to function after midnight, “to give parliament time to pass the necessary legislation.”

However Dr Shaheed said the President would not re-mandate the current Supreme Court bench, “because that would be a de-facto extension and could go on forever.”

“Parliament has failed to complete legislation that would give legitimacy to the Supreme Court [under the new Constitution],” Dr Shaheed said.

He also said that while the government had asked the Commonwealth for assistance running the interim appellate court, it had not yet received an answer. The government had also briefed the UN Resident Coordinator, Andrew Cox, he said.

“It’s not just tonight’s cancellation [of parliament],” Dr Shaheed said. “Parliament has had two years to do these things. It baffles me why they would put the country in this situation – tonight people should be asking who they should blame.”

Minivan News was still waiting for a response from Attorney General Husnu Suood at time of press, following the announcement of the appellate court.

Suood had previously told newspaper Haveeru that parliament had the option of extending the transition period for another one to two months with a two-thirds majority vote, or by appointing a new chief justice before midnight.

“Questionable matters will arise when this state is over,” Suood told Haveeru.

Velezinee told Minivan News that the country was now “in a vacuum”, and the JSC had been asked to be on call to meet with the President and suggest names should parliament reach a decision.

She noted that the JSC now consisted of eight members, as the Supreme Court’s member and head of the commission Mujthaz Fahmy and ex-officio member of the Civil Service Commission (CSC) Dr Mohamed Latheef no longer retained their positions on conclusion of the interim period, until reappointed.

“I have asked the Secretary General to call the police if they try and enter the building,” she added.