Tag: Judicial Council

Civil Court rejects Nasheed stay order on Hulhumalé Court bench changes

The Civil Court has decided “there are no grounds” to grant a stay order asking the Judicial Services Commission (JSC) to halt the process of reappointment of the Hulhumalé Magistrate Court.

The order was requested by former President and opposition Maldivian Democratic Party (MDP) leader Mohamed Nasheed, who is challenging the assembly of the bench tasked with trying him for the detention of judge Abdulla Mohamed while in office.

In the hearing held yesterday (February 15) at 4pm, the presiding judge stated that the stay order cannot be granted as the court has not found that the JSC is bringing changes to the Hulhumalé Court bench.

Meanwhile the Bar Human Rights Committee of England and Wales (BHRC) has expressed concern over the “sudden resumption” of Nasheed’s trial, noting that the committee is closely monitoring the developments.

The BHRC said it had closely followed the case for almost two years. Previous observation of the case led the committee to describe the Hulhumalé court bench as “cherrypicked to convict”, prompting calls for “fundamental reform of the judiciary and its administration in the Maldives”.

In answering Nasheed’s stay order request, the JSC has previously denied that it is bringing any changes to the court, also claiming that it does not currently exist as the two out of three of the magistrates first appointed have now been promoted to superior courts.

Saturday’s trial saw the JSC raise a procedural issue, stating that while the commission has the authority and power to allocate and transfer judges, the Civil Court does not have the jurisdiction to deliberate on the legality of the Hulhumalé Magistrate Court bench as the bench was appointed on the Supreme Court’s advice.

The JSC lawyers also contended that the decision was not made by the Judicial Council as claimed by Nasheed’s lawyers, as the responsibilities and authority of the council have been taken over the Supreme Court.

Procedural issues

Nasheed’s lawyers asked whether the JSC is claiming that the Civil Court cannot deliberate on the matter because the commission interprets the Supreme Court’s advice on appointing the bench as a court ruling or because the JSC does not believe Civil Court has jurisdiction on the matter.

The JSC lawyers responded by stating that the “procedural issue is based on Supreme Court’s decision”.

In Nasheed’s challenge at the High Court regarding the legality of the Hulhumalé Magistrate Court bench, the JSC raised a similar jurisdictional issue, with the High Court deciding that it did not have jurisdiction to look into the matter, saying it could only deliberate on decisions taken by lower courts.

In reply, Hisaan Hussain from Nasheed’s legal team explained that Article 43 (C) of the Constitution afforded every citizen the right to appeal against any administrative decision and that “therefore we are appealing JSC’s administrative decision to convene the magistrates panel”.

Subsequently, the JSC clarified that the procedural issue was based not on jurisdictional grounds but because the commission believes that the Supreme Court’s advice on appointing the Hulhumale’ Magistrate Court bench is the court’s ruling.

At that point, the presiding judge stated that the Supreme Court had issued a circular that “changes the composition of the Civil Court by 12am tonight (by 15th February)”, explaining that “I cannot assure you that I will be sitting on this appeal after the said changes; therefore I cannot give out court summons for the next hearing.

Nasheed’s legal team also requested more time to discuss the case with the legal team and lawyers based outside Maldives.

The controversial court was formed specifically to oversee Nasheed’s trial for the January 2012 detention of Criminal Court Judge Abdulla Mohamed. Legal challenges to the court have seen the case stalled since April 2013.

Nasheed’s lawyers have previously challenged – unsuccessfully – the establishment of a magistrates court in the Malé suburb, arguing that Hulhumalé is considered to be part of Malé City under the Decentralisation Act and therefore does not require a separate court.

United Nations Special Rapporteur on the Independence of Judges and Lawyers Gabriela Knaul has also noted that the “appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws”.


Related to this story

High Court cannot deliberate on Hulhumalé court bench

Nasheed’s request for halt to Hulhumalé court appointments denied

Nasheed requests reappointments to Hulhumalé court be stopped

Nasheed trial part of drive to eliminate President’s opponents, says MDP

Fair trial for Nasheed “difficult to see” when judicial bench “cherrypicked to convict”: BHRC trial observers

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Supreme Court approval required for transfer of judges

The Supreme Court has issued new rules requiring judges requesting transfer to a different court to seek approval from the apex court.

The rules (Dhivehi) enacted yesterday stipulate that judges of lower courts seeking transfer must write to the Supreme Court stating the reason for the change.

“The transfer of a judge of a lower court from one court to another shall be decided by a majority of the Supreme Court bench,” states section five of the rules.

Former Judicial Services Commission member Aishath Velezinee has accused the court of taking administrative control of the judiciary, while the UN has previously suggested the independence of lower courts is being compromised.

Once a decision is reached, the new rules state that the reappointment would be made by the Judicial Service Commission (JSC) based on the Supreme Court’s proposal. The judge would be given time to conclude cases before the transfer is finalised.

Judges must have served at least two years in the court they were appointed to before the request could be considered.

Before proposing the transfer to the JSC, the rules state that the Supreme Court bench must ensure the importance of the judge working in a different court based on academic qualifications and experience and consider whether the judge has relevant experience better suited to a different court.

For evaluation of the request, the apex court should also consider the quality of work done by the judge, the number of cases heard by the court or judicial area, the number of unfinished cases, the number of judges in the court or judicial area to which the transfer has been requested, and the population of the judicial area.

Outspoken whistleblower, Velezinee, told Minivan News today that the Supreme Court was taking over functions of the JSC.

“The Supreme Court is systematically taking control of the judiciary and misconstruing the Constitution for their benefit,” she said.

“The JSC is controlled by the Supreme Court and remains silent on these matters, facilitating the Supreme Court take over.”

The promotion and transfer of judges was previously overseen solely by the JSC. Last month, the JSC demoted former Chief Judge of the High Court, Ahmed Shareef, to the Juvenile Court as a disciplinary measure.

Under the Judges Act passed in 2010, transfer of judges was to be made by the Judicial Council, before the Supreme Court struck down the relevant articles in the Judicature Act, abolishing the council.

“Take over”

In May, the Supreme Court enacted new rules stipulating that the Department of Judicial Administration (DJA) – tasked with management of the courts and public relations as well as providing facilities, training, archiving systems and security for judges – will function in accordance with policies set by the apex court bench and under the direct supervision of a designated justice.

Velezinee stressed at the time that the administration of justice and the administration of the courts were “two different though interconnected issues.”

“The Supreme Court is misconstruing article 156 of the Constitution and the appointment of a Supreme Court judge to [oversee] the DJA is tantamount to control of the courts,” she contended.

In a comprehensive report on the Maldivian judiciary released in May 2013, United Nations Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, wrote that “the dissolution of the Judicial Council and the direct control of the Supreme Court over the [DJA] have had the effect of centralising administrative decisions in the hands of the Supreme Court.”

“This has undoubtedly contributed to the strong impression that lower courts are excluded from the administration of justice and decision-making processes,” she noted.

She also referred to “several complaints about internal tensions in the judiciary, where lower courts are left with the feeling that the Supreme Court only works for its own interests, without taking into account the situation of other judges and magistrates.”

Earlier this month, the Supreme Court informed lower courts that it would be appointing magistrates to take over cases where magistrates have recused themselves.

The apex court noted that it has learned of magistrate courts writing to the JSC to appoint magistrates in cases where the presiding magistrate had excused himself.

Noting that the Supreme Court was the “highest authority for the administration of justice” under Article 141 of the Constitution and referring to a circular issued on August 10, 2011 – which stated that the Supreme Court would specify rules for appointing magistrates following recusal –  Chief Justice Ahmed Faiz Hussain asked magistrate courts to write to the Supreme Court if a magistrate recuses himself from a case.

In May, the Supreme Court also formulated new regulations making it mandatory for judges and judicial employees to seek permission to attend overseas workshops, seminars, conferences, or training programmes.

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New regulations require Supreme Court permission for attending overseas events

The Supreme Court has formulated new regulations making it mandatory for judges and judicial employees to seek permission to attend overseas workshops, seminars, conferences, or training programmes.

Made public yesterday (May 20), the regulations (Dhivehi) require judges and staff to submit an “overseas travel permission” form to the Supreme Court for approval if expenses are provided from the judiciary’s budget or by a foreign party.

The regulations appear to lend credence to what critics regard as the increasing centralisation of judicial administration, with the potential effect of compromising independence and increasing tension within the system.

Should permission for overseas travel be granted, the regulations state that a second form providing details of expenses must be submitted to the Department of Judicial Administration, after which approval must also be sought from the Ministry of Finance and Treasury.

Moreover, a report must be submitted to the Supreme Court at the end of the trip.

The regulation also states that equal opportunity must be provided for judges and judicial employees to participate in overseas programmes while all expenses must be made in accordance with public finance rules.

The regulations, however, exempt overseas travel by judges and judicial employees for participation in workshops or seminars in their personal capacity, so long as expenses are not covered by the state.

“Centralising administrative decisions”

The Supreme Court stated that the rules were formulated under authority granted by articles 7, 141, and 156 of the constitution.

While Article 141(b) states that the Supreme Court “shall be the highest authority for the administration of justice in the Maldives,” Article 156 states, “The courts have the inherent power to protect and regulate their own process, in accordance with law and the interests of justice.”

Referring to the articles, the Supreme Court earlier this month introduced new regulations requiring the Department of Judicial Administration (DJA) to function under its direct supervision.

The DJA – tasked with management of the courts – was formed by the Judicial Service Commission (JSC) in October 2008 to replace the Ministry of Justice following the adoption of the new constitution.

While the DJA was to function under the JSC, in December 2008 the Supreme Court brought the department under its control before the Judicature Act in 2010 transferred the DJA to the new Judicial Council.

The Judicial Council was subsequently abolished by the Supreme Court in late 2010, however, in a ruling that struck down the relevant articles of the Judicature Act.

The apex court’s move to cement control over judicial administration is in contravention to the constitutional concept of the independence of courts, former JSC member Aishath Velezinee told Minivan News earlier this month.

The new regulations were the culmination of a “systematic takeover” of the DJA, she contended, as the department “should stand as an independent institution solely facilitating administration of the courts.”

In a comprehensive report on the Maldivian judiciary released last year, United Nations Special Rapporteur Gabriela Knaul wrote that “the dissolution of the Judicial Council and the direct control of the Supreme Court over the Department of Judicial Administration have had the effect of centralising administrative decisions in the hands of the Supreme Court.”

“This has undoubtedly contributed to the strong impression that lower courts are excluded from the administration of justice and decision-making processes,” the report stated.

Knaul also expressed concern with reports of the Supreme Court “not following due process in many of its decisions.”

“It is also troublesome that some of the Supreme Court’s interventions are perceived as arbitrary and as serving the judges’ own personal interests. Such misinterpretation of the independence of the judiciary needs to be urgently resolved both with regard to the public perception of the judiciary and the internal functioning of the justice system,” she advised.

“The Special Rapporteur heard several complaints about internal tensions in the judiciary, where lower courts are left with the feeling that the Supreme Court only works for its own interests, without taking into account the situation of other judges and magistrates.”

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Judicial administration brought under direct control of Supreme Court

The Department of Judicial Administration (DJA) will function in accordance with policies set by the Supreme Court bench and under the direct supervision of a designated justice, according to new rules (Dhivehi) promulgated by the apex court.

The rules made public last week states that the Supreme Court bench shall assign a justice to ensure that the DJA – tasked with management of the courts, public relations and providing facilities, training, archiving systems and security for judges – was implementing policies determined by the court.

The justice will be assigned for a one-year period with the responsibility of supervising the functioning of the department and “providing instructions and guidelines from the Supreme Court bench.”

The designated justice will also report to the bench on the operations of the DJA.

The Supreme Court stated that the rules were formulated under authority granted by articles 141 and 156 of the constitution.

While article 141(b) states that the Supreme Court “shall be the highest authority for the administration of justice in the Maldives,” article 156 states, “The courts have the inherent power to protect and regulate their own process, in accordance with law and the interests of justice.”

“Systematic takeover”

The DJA was formed by the Judicial Service Commission (JSC) on October 1, 2008 to replace the Ministry of Justice following the adoption of the new constitution in August 2008.

While the DJA was to function under the JSC, on December 2, 2008, the Supreme Court brought the department under its remit with a ruling to that effect.

With the enactment of the Judicature Act in 2010, the DJA was reestablished with a mandate for court management, public relations, training of judges, providing for structures, facilities and archiving systems, and providing security for judges.

Although the department was to function under the Judicial Council created by the new law, the Supreme Court abolished the council in a ruling that struck down the relevant articles in the Judicature Act.

The DJA has since been functioning under the direct supervision of the apex court.

Speaking to Minivan News today, former JSC member and outspoken whistleblower, Aishath Velezinee, stressed that the administration of justice and the administration of the courts were “two different though interconnected issues.”

“The Supreme Court is misconstruing article 156 of the constitution and the appointment of a Supreme Court judge is tantamount to control of the courts,” she contended.

“This goes against the constitutional concept of independence of courts whereby each court is an independent institution, separate from the influence of other courts, including the Supreme Court. And, the own decisions of 2008 and 2011 the Supreme Court refers to are a systematic takeover of the DJA which should stand as an independent institution solely facilitating administration of the courts.”

In a comprehensive report on the Maldivian judiciary released in May 2013, United Nations Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, wrote that as a consequence of the Supreme Court’s ruling abolishing the Judicial Council, “the only platform for internal communication within the judiciary where difficulties, challenges, experiences and opinions could be exchanged, disappeared.”

“Many interlocutors reported that the dissolution of the Judicial Council and the direct control of the Supreme Court over the Department of Judicial Administration have had the effect of centralising administrative decisions in the hands of the Supreme Court,” the special rapporteur stated.

“This has undoubtedly contributed to the strong impression that lower courts are excluded from the administration of justice and decision-making processes.”

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Judicial Council decided Hulhumale’ court could not hear criminal cases, reveals Nasheed’s legal team

Members of the Judicial Council raised doubts over the legitimacy of the Hulhumale’ Magistrate Court at a meeting in late 2010 and decided that criminal cases were out of its jurisdiction, former President Mohamed Nasheed’s legal team have revealed.

In a press statement, Nasheed’s legal team said that minutes from a meeting of the Judicial Council were among documents submitted by the Judicial Service Commission (JSC) to the High Court.

The JSC entered as a third party into an appeal lodged by Nasheed at the High Court challenging a ruling by the Hulhumale’ Magistrate Court, which had summarily dismissed procedural points raised by the former President’s lawyers.

The procedural issues included the legal status of the magistrate court.

However, before the High Court was due to issue a ruling on Nasheed’s appeal, the Supreme Court instructed the High Court to suspend proceedings as the apex court had been asked to determine the legitimacy of the Hulhumale’ Magistrate Court.

The Judicial Council minutes meanwhile revealed that Chief Justice Ahmed Faiz, former Chief Judge of the High Court Abdul Gani, former Chief Judge of the Juvenile Court Shuaib Hussain Zakariyya, Magistrate Mohamed Niyaz from the north judicial district and Magistrate Ali Shareef from the south judicial district “all raised questions over the legitimacy of the Hulhumale’ court.”

The Judicial Council was abolished after the Supreme Court unilaterally struck down articles in the Judicature Act concerning the council.

“Presenting the case [to the council], the Chief Justice said that following the enactment of the law on courts, members of the judiciary as well as lawyers were saying that the court in Hulhumale’ could not function under the law and that the Hulhumale’ court had been stopped following the passage of the [Judicature Act in 2010],” the press release explained.

The Judicature Act states that magistrate courts should be set up in inhabited islands aside from Male’ without a division of the trial courts (Criminal Court, Civil Court, Family Court and Juvenile Court).

According to appendix two of the constitution, Hulhumale’ is a district or ward of Male’ and not a separate inhabited island. The former magistrate court at Hulhumale’ – controversially set up by the JSC before the enactment of the Judicature Act in October 2010 – should therefore have been dissolved when the Judicature Act was ratified.

Moreover, the minutes revealed that the Judicial Council had decided that criminal cases were out of the Hulhumale’ Magistrate Court’s jurisdiction.

The Chief Justice had said at the Judicial Council meeting that the magistrate court had been dealing with civil cases and family disputes.

The press statement noted that it was the opinion on record of all judges at the council meeting that the Hulhumale’ court could not function as a separate court following the enactment of the Judicature Act.

Supreme Court intervention

Nasheed’s legal team also expressed concern with the Supreme Court ordering the High Court to suspend hearings on the appeal.

If the Supreme Court decides to take over the procedural point raised at the High Court, “President Nasheed would lose one stage of appeal,” the legal team said.

Following the High Court granting an injunction or stay suspending the former President’s trial at the Hulhumale’ court, the magistrate court announced that it has suspended all ongoing cases.

However, the Supreme Court last week instructed the magistrate court to resume the cases and took over a case filed at the Civil Court a year ago by a lawyer, Ismail Visham, contesting the legitimacy of the Hulhumale’ Magistrate Court.

Speaking to press yesterday after a ceremony to open new offices for the Drug Court, Chief Justice Faiz criticized the JSC as “inept” and contended that “challenges faced by the judiciary would have been resolved” if the judicial watchdog body “properly” carried out its responsibilities.

Faiz also said that the case concerning the legitimacy of the Hulhumale Magistrate Court presently before the Supreme Court had not been addressed before because the JSC had not filed the case.

“When a case was filed in Civil Court contesting the legitimacy of Hulhumale Magistrate Court, the JSC sent a letter to [the Supreme Court] arguing that the Civil Court did not have the jurisdiction to look into the case. We then asked the JSC to file a case as per the procedure and they only filed the case just a few days ago,” he explained.

The Chief Justice added that the Supreme Court would be considering the case as a “high priority”.

The JSC filed the case while Nasheed’s appeal was ongoing at the High Court.

Meanwhile, MP Mariya Ahmed Didi, former President Nasheed’s spokesperson, said that the Supreme Court deciding on the legitimacy of the Hulhumale’ Magistrate Court without allowing the High Court to rule on Nasheed’s appeal would “give weight to what many are saying about the politicization of the Supreme Court.”

The former Special Majlis MP urged the highest court of appeal to allow the High Court to issue a ruling as those unhappy with the judgment could appeal at the Supreme Court.

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Hulhumale’ Court rejects case against former President Nasheed

Hulhumale’ Magistrate Court rejected a case forwarded by the Prosecutor General against former President Mohamed Nasheed and three Maldives National Defence Force (MNDF) officers for their alleged role in detaining Criminal Court Chief Judge Abdulla Mohamed.

Hulhumale’ Court Magistrate Moosa Naseem told Minivan News that the case was sent back to the Prosecutor General’s Office after the court stated it did not have the jurisdiction to deal with such cases under the Judicature Act.

‘’We studied the case and we found that we do not have the jurisdiction to deal with the case according to article 66 of the Judicature Act,’’ Naseem said.

Naseem today told local media that the Hulhumale’-based court can only accept the case after the Chief Justice issues a decree in agreement with the Judicial Service Commission (JSC) and the Judicial Council as stated in the article 66[b] of the Judicature Act.

Article 66[b] of the Judicature Act states that “In accordance with Section (a) of this Article, if additions or omission to the jurisdictions stipulated in schedule 5 of this Act has to be carried out, the modification has to be done in agreement with the Judicial Service Commission and the Judicial Council and by a decree issued by the Chief Justice.’’

Deputy Prosecutor General Husaain Shameem said he was presently on leave and was not aware of the exact details of the matter when contacted by Minivan News. Prosecutor General Muiz was also not responding to calls by Minivan News at the time of press.

Earlier, Muiz has said that the case was sent to Hulhumale’ Magistrate Court because it related to the Chief Judge of the Criminal Court.  He contended therefore that the case cannot be filed at the same court overseen by the judge owing to a conflict of interest.

Former President Nasheed has said that he is “prepared” to justify the reasons for the arrest of Judge Abdulla, and said he was ready to appear in court and prove his actions were valid.

Nasheed also dismissed accusations of the High Court, the Supreme Court and the prosecutor general that he had ordered the military to arrest Judge Abdulla unlawfully.

“I did nothing unlawful during my tenure,” he challenged.

He also called on the population to be present at his trial and witness what happened in the court, alleging that the whole case was politically motivated and that his opponents were seeking to gain an unfair upper hand from the “political scandal”.

The Chief Judge was detained by the military, after he had opened the court outside normal hours to order the immediate release of former Justice Minister and current Home Minister and deputy leader of the Dhivehi Quamee Party (DQP), Dr Mohamed Jameel.

In late 2011, Judge Abdulla was himself under investigation by the JSC, the country’s judicial watchdog, for allegedly politically biased comments made to private broadcaster DhiTV. The Judicial Services Commission (JSC) was due to release a report into Judge Abdulla’s ethical misconduct, however the judge approached the Civil Court and successfully filed an injunction against his further investigation by the judicial watchdog.

Judge Abdulla’s arrest sparked three weeks of anti-government protests in January, leading the Nasheed administration to appeal for international assistance from the Commonwealth and UN to reform the judiciary.

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