Judicial Service Commission (JSC) – Page 4 – Minivan News

Nasheed’s legal team files High Court case to defer trial until after elections

Former President Mohamed Nasheed’s legal team filed a case with the High Court today (March 24) regarding the deferment of the Hulhumale’ Magistrate Court criminal case until after the September presidential election.

Nasheed is facing criminal charges over the controversial detention of Chief Judge of Criminal Court Abdulla Mohamed during the last days of his presidency.

Nasheed’s legal team previously requested the Hulhumale’ Magistrate Court delay the trial until the end of the scheduled presidential elections in 2013, and in a separate request, asked the Hulhumale’ court for a delay in proceedings by four weeks, during the March 7 Hulhumale’ Magistrate Court hearing.

At the same hearing, state prosecutors said they did not object to delaying the trial until presidential elections scheduled for September this year are over.

The Hulhumale’ court dismissed the request to delay the trial until the end of the elections, but agreed to withhold it for four weeks, stating that the panel of judges by majority “had decided to proceed with the trial”.

Nasheed’s lawyers subsequently contested the decision, claiming that continuing the trial could compromise the rights of many people, arguing that Nasheed was the presidential candidate of the largest political party in the country, the MDP.

However, the court stated that Nasheed’s claim he was the presidential candidate of a political party lacked legal grounds to support it, as presidential candidates were decided by the Elections Commission after it opened the opportunity to file presidential candidates.

Filing of presidential candidates is expected to take place in July.

High Court case submission

Nasheed’s legal team submitted a case to the High Court at approximately 10:20 this morning (March 24) to defer the Hulhumale’ Magistrate Court criminal case until after the September presidential election, MDP Spokesperson Imthiyaz ‘Inthi’ Fahmy told Minivan News.

“Now the court has to formally accept the case, which will happen at a later date,” stated Fahmy.

“We expect that prior to the Hulhumale’ Magistrate Court hearing, the High Court should have a decision and will ask the lower court to halt the case,” he added.

Nasheed’s legal team confirmed with Minivan News that the case has been submitted to the High Court.

“This is not an appeal. We submitted a case to the High Court for the deferment of the Hulhumale’ Magistrate Court case until the election is over,” said one of Nasheed’s lawyers, Hifaan Hussain.

“The court accepted the documents, but we are waiting for the court to accept and register the case,” she explained.

Hussain explained a reply from the High Court will likely be issued within three days and once the case is accepted it should take about a month to complete.

She expects the High Court to grant the deferment of lower court’s case against Nasheed until the presidential election is over.

President Nasheed’s Spokesperson MP Mariya Didi is also confident the High Court will grant the deferment.

“The prosecution has said they have no objection to deferment of the trial until after the elections,” Didi stated.

“I don’t see any reason why the court should not grant deferment when the prosecutor has no objection to it,” she added.

Politicising justice

The MDP maintain that the charges are a politically-motivated attempt to prevent Nasheed from contesting elections in September, and have condemned the former President’s repeated arrest on the court’s order by squads of masked special operations police.

Speaking during a party rally held earlier in March, President Nasheed stated that the four-week break granted by the Hulhumale’ Magistrate Court until the next hearing was an opportunity for state institutions to decide on the matter.

“Delaying trial for just four weeks has no meaning. There is no reason for it nor does it help anyone. We want the trial to be delayed till the elections are over. [The prosecution] gave one month and said that they did not object to further delays,” Nasheed told his supporters.

Nasheed said that it was very clear that charge of arresting the judge was not a charge against him alone, but several others as well.

He also warned that if the magistrate court issued a verdict that would bar him from contesting the elections, a lot of people would rise up against the decision and trigger a “very dangerous political insurgency”.

Didi also highlighted the large number of Maldivians continuing to support Nasheed, speaking with Minivan News today.

“It is clear that 46,000 Maldivians have decided President Nasheed is their presidential candidate. Our campaigns show that President Nasheed will win the elections with a clear majority.

“The coup has set us back not only with regard to democracy and human rights, but in regard to investor confidence and development.

“Our international development partners have also urged the government to take account of the wishes of the people and to hold an inclusive election with – as the European Union put it – the chosen candidate of MDP Mohamed Nasheed being able to contest the elections.

“We cannot waste another five years with a government that lacks a democratic mandate,” Didi declared.

Hulhumale’ Magistrate Court legitimacy questioned

During the early-March MDP rally, Nasheed also criticised the Judicial Service Commission (JSC) stating that the problem with Hulhumale’ Magistrate Court was not just the panel of judges. He alleged that the JSC had formulated the bench and have now been forcing administrative staff of the court to do specific things to impact the trial.

Parliament’s Independent Commissions Oversight Committee has been investigating the legitimacy of the Hulhumale’ Magistrate Court, specifically the appointment of judges by the JSC.

Deputy Speaker of Parliament Ahmed Nazim told local media on Friday (March 22) that a notice had been sent to Gasim Ibrahim – who is a Majlis-appointed JSC member and also the presidential candidate for Jumhoree Party (JP) – regarding a case to remove him from his JSC post.

The parliamentary committee summoned all members of the JSC to attend the committee on Wednesday (March 20) to face questions regarding the manner in which judges were appointed to the Hulhumale’ Magistrate Court bench.

Another committee meeting is scheduled to take place tonight (March 24).

The United Nations Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, also raised concerns over the politicisation of the JSC during her investigative visit to the Maldives this February.

As part of a wider review of the Maldives justice system, Knaul claimed that the JSC – mandated with the appointment, transfer and removal of judges – was unable to perform its constitutional duty adequately in its current form.

Nasheed is currently facing trial for his detention of Chief Judge of Criminal Court last year, charges he claims are politically motivated to prevent him from contesting presidential elections later this year.

Knaul maintained that the former president, like every other Maldivian citizen, should be guaranteed a free and independent trial.

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JSC member/presidential candidate Gasim Ibrahim accuses UN Special Rapporteur of lying, joking

Leader of the Jumhoree Party (JP) and Parliament’s representative to the Judicial Service Commission (JSC), MP Gasim Ibrahim, has accused UN Special Rapporteur on Independence of Judges and Lawyers Gabriela Knaul of lying and joking about the state of the Maldivian judiciary.

During her preliminary observations on the country’s judicial system, Gabriela Knaul expressed concern over the politicisation of JSC – the body constitutionally mandated to oversee the functioning of the judiciary.

Addressing a relatively small party gathering held in its headquarters in Male, Gasim – also the party’s presidential candidate – claimed that JSC had been acting within the boundaries of the law and that the process of the appointment of judges adhered to constitutional stipulations and the law.

“[Gabriela Knaul] claimed that the judges were not appointed transparently, I am sure that is an outright lie. She is lying, she did not even check any document at all nor did she listen to anybody. She is repeating something that was spoon-fed to her by someone else. I am someone who sits in JSC. She claimed there were no regulations or mechanism there. That is a big joke,” Gasim claimed.

“She wouldn’t tell bigger lie”

“We had made all the announcements through the media and we even clearly stated necessary criterion required as well as how the interviews will be carried out. We were acting on what we had announced. She couldn’t tell a bigger lie than that,” Gasim said.

Gasim claimed that the composition of theJSC was decided after a strong debate between members of the assembly, and contended that “nobody can criticise its decisions, not even under international law”.

“That is why I am telling you all this. We the people should not believe the reports compiled by people who come like this without verifying it. This is an influence that has a different motive,” Gasim accused.

Gasim – who is also the Chairman of the Villa Group of companies that owns several resorts in the country – said that a UN representative had once come to Maldives and claimed it could never build a tourism industry.

“A person came like that in 1972. After much surveying, he claimed that the Maldives cannot host a viable tourism industry. Is that true today? But that is what was in the UN report. That is what is on the report by the World Bank. Does the Maldives not have a tourism industry now? He said we cannot; according to him we did not have electricity, water or a transport system but just a bunch of small islands. What would he know?” Gasim said.

Gasim also referred to the presidential elections.

“Is the US judiciary very good? What happened when [George W] Bush sought re-election? You would all know how that election went. Florida High Court ordered for a recount of the vote. When the issue came, Al Gore began winning and winning. Then the Republican Party, who was very upset with that, filed a case at the Federal High Court. The Federal High Court ordered not to count the votes and that President is Bush. Following that order, Al Gore admitted defeat and congratulated Bush on his re-election. This is something the world witnessed,” he told his supporters.

The incident to which Gasim Ibrahim referred took place in the US Presidential Elections 2000, in which George W Bush was running for office for the first time against then Vice President Al Gore. The election was called a victory for Bush after the US Supreme Court declared the ruling made by Florida Supreme Court requiring a state wide recount of votes was unconstitutional. Bush later ran for re-election against then Senator John Kerry in which he won the race by 286 to 251 electoral votes.

Concerns

Knaul’s preliminary observations highlighted that the JSC – mandated with the appointment, transfer and removal of judges – was unable to perform its constitutional duty adequately in its current form.

Her comment was among a number of preliminary observations on the Maldives’ judiciary and wider legal ecosystem, following an eight day fact-finding mission.

As well as recommendations to address what she said were minimal levels of public “trust” in the nation’s judicial system, Knaul also addressed matters such as the trial of former President Mohamed Nasheed – who is currently facing trial for his detention of Chief Judge of Criminal Court last year, charges he claims are politically motivated to prevent him from contesting presidential elections later this year.

She also criticised the appointment of judges presiding over the case against former President Mohamed Nasheed, alleging that the set up was made in an “arbitrary manner”.

“Being totally technical, it seems to me that the set-up, the appointment of judges to the case, has been set up in an arbitrary manner outside the parameters laid out in the laws,” Knaul said.

Her key concerns included the politicisation of the JSC, flaws and inconsistencies over the independence of the judiciary and lack of transparency and accountability.

“I have heard from numerous sources that the current composition of the JSC is inadequate and politicised. Because of this politicisation, the Commission has been subjected to all sorts of external influence and consequently has been unable to function properly,” Knaul stated.

Knaul said she believed it best for such a body to be composed of retired or sitting judges. She added that it may be advisable for some representation of the legal profession or academics to be included.

However, she maintained that no political representation at all should be allowed in a commission such as the JSC.

“I believe that an appointment body acting independently from both the executive and legislative branches of government should be established with the view to countering any politicization in the appointment of judges and their potential improper allegiance to interests other than those of fair and impartial justice,” Knaul added.

Judicial independence

Knaul stated that upon conclusion of her mission meetings, she had found that the concept of independence of the judiciary has been “misconstrued and misinterpreted” by all actors, including the judiciary itself, in the Maldives.

“The requirement of independence and impartiality does not aim at benefiting the judges themselves, but rather the court users, as part of their inalienable right to a fair trial,” Knaul stated, while emphasising the important role of integrity and accountability in judicial independence, and hence its role in the implementation of the rule of law.

Stating that it is vital to establish mechanisms of accountability for judges, prosecutors and court staff, Knaul said: “Such mechanisms must guarantee that the investigation of any actor in the judicial system safeguards the person’s right to a fair hearing. Investigations should be based on objective criteria, the process should respect the basic principles of a fair trial and an independent review of all decisions should be available.”

Transparency and accountability

“When selection criteria [of judges] used by such a body [as the JSC] are objective, clear, based on merit, transparent and well publicised, public understanding of the process and the basis for the appointment of judges increases, and the perception of unfair selection of appointments can be avoided,” Knaul said.

Knaul also spoke of the lack of transparency in the assignment of cases, the constitution of benches in all courts, including the Supreme Court.

“When cases are assigned in a subjective manner, the system becomes much more vulnerable to manipulation, corruption, and external pressure. Information on the assignment of cases should be clearly available to the public in order to counter suspicions of malpractice and corruption,” she observed.

Knaul stated that while transparency is public administration is an obligatory requirement in a democracy, transparency remains a challenge for the Maldivian judiciary.

Furthermore, Knaul highlighted the absence of some fundamental legislation – including the Penal Code, Criminal Procedure Code and the Evidence Act – in the Maldives, adding that this posed huge challenges to upholding the rule of law.

Knaul was appointed to deliver recommendations on potential areas of reform to the Maldives’ legal system, at the 23rd session of the UN Human Rights Council in May, 2013.

Velezinee ruined the JSC: Gasim

Gasim meanwhile alleged that the JSC could not function properly due to then President Mohamed Nasheed’s appointee to the commission, Aishath Velezinee.

Velezinee was an outspoken critic and whistleblower on judicial inconsistencies and lapses. She has consistently maintained that the JSC is complicit in protecting judges appointed under the former 30 year autocracy, colluding with parliament to ensure legal impunity for senior supporters of the old regime. In January 2011 she was stabbed twice in the back in broad daylight.

“At first, the JSC were not able to carry out its duties because of a person called Aishath Velezinee who was appointed to the commission by [President] Nasheed of Canaryge’. She destroyed the whole place. The damage she inflicted on the JSC was so severe that we had to do so much work to bring the place back to order,” he claimed.

Gasim said judiciaries in all countries had problems and that this was not a different case in the Maldives. He also contended in all the countries have to be reformed.

“A person called Gabriela came and met us. She told us there are lots of issues that need to be corrected within the judiciary. Judiciaries in all countries should be reformed. Which country has a judiciary that does not need to be reformed?” Gasim asked.

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ACC investigating former Adhaalath Party head’s bribery allegations against two judges

The Anti Corruption Commission (ACC) is examining photographs of all pilgrims who went on hajj last year, following allegations of bribery levied against two sitting judges.

The allegations were made by former President of the Adhaalath Party, Sheikh Hussain Rasheed.

Sheikh Rasheed said during a Maldivian Democratic Party (MDP) rally in January that he had met a Maldivian businessman while in Saudi Arabia, who told him he had paid two Maldivian judges a sum of MVR 12.3 million (US$ 797,148.41).

According to the report, the ACC began analysing the photographs to identity the businessman to which the former Adhaalath Party leader had referred.

Speaking to Minivan News, President of the ACC Hassan Luthfee confirmed the ACC was investigating the matter. He said Rasheed was summoned for questioning following the allegations.

“The investigations are currently going on. While investigating we will be looking into all the relevant documents and other details,” he said.

Luthfee declined to comment on whether the commission was analysing the photographs of the pilgrims, but said the commission would “utilise all the information it can get on the case.”

He declined to give any further details.

Rasheed alleged the businessman had paid one judge a sum of US$70,000 (MVR 1.079 million) while the other was paid US$50,000 (MVR 771,000) on two different occasions, a sum of US$170,000.

Speaking to Minivan News on Thursday, Rasheed confirmed that he was summoned to the commission and added that he had “given all the details and names of the people involved in the deal”.

“These are stories that are being constantly discussed in society. The businessman told me about the case, and it is a duty to let the public know of such critical matters, especially when it concerns people who we go to seek justice,” he said.

Rasheed further claimed that certain controversial decisions reached in the courts the acquittal of criminals suggested “something is really going wrong”.

“The courts have ruled that printing counterfeit dollars is not a crime. How is that not a crime? It is a crime even under international law,” he said.

Rasheed noted that the courts failed to find any wrongdoing on behalf of a man who put Japanese aid money in his personal bank account, referring to an embezzlement case involving former President Maumoon Abdul Gayoom’s half brother, Abdulla Algeen Abdul Gayoom.

Algeen – also the younger brother MP Abdulla Yameen, ex-President Gayoom’s Progressive Party of Maldives (PPM) presidential hopeful – was accused of embezzling US$177,460 of Japanese funding from the Department of Meteorology (DOM), when he was the director.

Algeen allegedly sent three separate invoices to the Japan Agency for Marine-Earth Science and Technology (JAMSTEC) between May 2006 and April 2007 on behalf of DOM. All three invoices demanded payment to Algeen’s personal Bank of Maldives account.

However, in acquitting the case, Criminal Court Judge Abdulla Didi ruled that the state could not prove that the money in question was owed by JAMSTEC to the government.

Following the former Adhaalath Party leader’s allegations, the Judicial Service Commission (JSC) also discussed probing into the allegations.

A JSC spokesperson told Minivan News at the time that after the allegations were made public, members of the commission had discussed an investigation.

“The matter was discussed during a JSC meeting,” the spokesperson said previously. Asked whether a decision was reached, he replied “there were many items on the agenda.”

Minivan News on Thursday confirmed that the JSC was not investigation any of the allegations.

Former JSC member and whistleblower, Aishath Velezinee, in her book The Failed Silent Coup: in Defeat They Reached for the Gun extensively highlighted the watchdog body’s undermining of judicial independence, and complicity in sabotaging the separation of powers.

In her book, she recounted her experience 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 contended, 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.

In 2004, a report by judicial expert Professor Paul Robinson assessed the country’s criminal justice system, and found in his report that “serious efforts” were required to increase the quality of judges.

“Serious efforts must be made to provide substantial training to current judges in order to ensure that all have the background they need in both law and Shari’a. Perhaps more importantly, no judge should be hired who does not already have the needed training,” he wrote.

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Criminal Court Judge Abdul Baari Yoosuf suspended over allegations of sexual misconduct

The Judicial Service Commission (JSC) has suspended Criminal Court Judge Abdul Baari Yoosuf, informing him to not to report for work until it makes a final decision on his position.

JSC media official Hassan Zaheen confirmed to Minivan News that the judge had been suspended from Wednesday (February 6) onwards, but refused to provide any details. Local newspaper Haveeru reported that Baari Yoosuf was suspended over a disciplinary problem.

“The judge has been asked to not to report to work until further notice from JSC. The matter is being investigated by the JSC, so no additional information can be provided at the moment,” Zaheen said.

Local media outlet CNM reported that the suspension followed a case filed by a female lawyer from the Prosecutor General’s (PG) office, who alleged that Baari Yoosuf had sexually assaulted her.

However, the JSC media official refused to confirm the allegations to Minivan News.

Judge Abdul Baari Yoosuf has looked into many high profile criminal trials including murder and drug offences.

High profile cases he has overseen include the murder case of Police Lance Corporal Adam Haleem, a murder of an expatriate that took place in Shaviyani Atoll and trials concerning drug kingpin Adam Naseer Aboobakuru and Abdul Latheef Mohamed.

Baari Yoosuf sentenced the murderer of Police Lance Corporal Adam Haleem, Ahmed Samah, to death after heirs of the murdered man demanded the death penalty instead of blood money.

In July 2012, Adam Haleem was stabbed to death on Kaashidhoo in Kaafu Atoll Island by Mohamed Samah while Haleem was on his way to report for duty.

He also acquitted Adam Naseer Aboobakuru, whom the former government of President Mohamed Nasheed had labelled one of the country’s ‘top six’ drug dealers.

In June 2009, police found over MVR 6 million (US$461,500) in cash and a tin containing drugs outside Naseer’s house during a raid on his home in Addu Atoll.

He was again arrested in July 2009 in Addu Atoll, but “he wasn’t in prison the whole time,” explained then President’s Office Press Secretary Mohamed Zuhair. “On several occasions, the court has delayed his imprisonment until the hearing.”

In his verdict, Judge Baari Yousuf said there was not enough evidence to prove the money had come from dealing drugs. He added that the drugs could have been placed outside Naseer’s house by anyone and did not necessarily belong to him.

In 2011, Baari made another controversial decision by ordering the release of another drug lord, Abdul Latheef of Fuvamulah in Gnaviyani Atoll, suspected to be involved with a high profile drug cartel.

Despite initially ordering Latheef be kept in detention, in a letter sent to police at the time, the Criminal Court changed its first decision and demanded that police switch Latheef’s detention to house arrest.

Latheef was arrested in December 2010, as he was about to drive away in his car after loading some vegetables into the vehicle’s trunk.

Police officers who stopped his car unpacked the loaded items in his presence and discovered 1083.42 grams of illegal narcotics containing the substance tetrahydrocannabinol (found in cannabis).

The country’s judiciary is currently being subjected to questions over its lack of impartiality and failure to deliver justice.

A substantial amount of criticism is also being levied against the JSC, which is mandated to oversee the functioning of the judiciary.

Several international experts and organisations including the International Commission of Jurists (ICJ) have expressed concern over the state of the judiciary and the JSC.

In February 2011, the ICJ claimed that the Maldives legal system is failing to serve its citizens despite many “positive developments” that have been made in an effort to depoliticise the courts, with many judges found to be lacking qualifications and independence.

Former director of the ICJ’s Asia Pacific operation’s Roger Normand at the time said he did not believe that the Maldives had an “independent judiciary capable of resolving problems”.

A similar report by Professor Paul H Robinson observed that “persons with little or no legal training can hardly be expected to know how to conduct a fair and effective trial.”

“Serious efforts must be made to provide substantial training to current judges in order to insure that all have the background they need in both law and Shari’a. Perhaps more importantly, no judge should be hired who does not already have the needed training,” he further wrote.

The spokesperson of the Criminal Court was not responding to calls at time of press.

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Supreme Court declares Hulhumale Magistrate Court legitimate

The Supreme Court on Wednesday declared that the controversial Hulhumale Magistrate Court was legitimate and could operate as a court of law.

The decision has ramifications for the trial of former President Mohamed Nasheed, who is facing charges of illegally detaining Chief Criminal Court Judge Abdulla Mohamed during his final days in office. Nasheed and his party disputed the legitimacy of the Hulhumale Magistrate Court, which was formed by the Judicial Services Commission (JSC) and which appointed the panel of judges hearing Nasheed’s case. The JSC includes two of Nasheed’s direct political opponents.

Out of the seven member Supreme Court bench, four judges ruled in favor of the court’s legitimacy while three judges including the Chief Justice had opposed it. The other two judges were Judge Abdulla Areef and Judge Mu’uthazim Adnan.

The four judges who ruled in favor of the court were Judge Abdulla Saeed, Judge Ali Hameed Abdulla, Judge, Judicial Service Commission (JSC) President Adam Mohamed Abdulla and Judge Dr Ahmed Abdulla Didi.

The Supreme Court majority ruling stated that despite Hulhumale being mentioned as part of capital Male’ City in the Decentralisation Act, Hulhumale was an “island” with a large population and therefore, having no division of a superior court on that island and if not for the presence of Hulhumale Magistrate Court, its inhabitants would have to travel to another island in order to get justice. Therefore it declared Hulhumale Magistrate Court as legitimate.

Supreme Court also declared that Hulhumale’ is a separate island in Male’ division, even though the law recognises Hulhumale as a part of Male’ City.

The three dissenting judges, having taken different legal arguments, mutually agreed that Hulhumale’ Magistrate Court could not be legally established.

All three judges had unanimously agreed that courts should be established through legislation and that the Hulhumale Magistrate Court was not established in accordance with the Judicature Act.

The case was filed by the Judicial Service Commission (JSC) and the respondent of the case was decided as lawyer Ismail Wisham.

Former President Mohamed Nasheed’s legal team also sought to intervene in the court case. Nasheed’s lawyers stated that the case involved the interests of the former president as his case regarding the detention of the Chief Judge of Criminal Court Abdulla Mohamed is being looked by Hulhumale’ Magistrate Court.

Disregard to principle of bias

During the first hearings, the former Attorney General Husnu al Suood, who was representing the respondent raised procedural points whereby he argued that Supreme Court Judge Adam Mohamed Abdulla could not sit on the bench since he was also the President of the JSC, which therefore amounted to “presumption of bias”.

However, the Supreme Court rejected the procedural points.

Following today’s decision, Suood in a tweet described the decision as a “case of actual bias” with regard to his previous arguments in court.

“A case of actual bias because JSC would [have] lost the case without the vote of JSC president: 3 for 3 against, casting vote by JSC [president]” – Husnu Al Suood tweeted

Meanwhile, MDP MP and Lawyer Imthiyaz ‘Inthi’ Fahmy criticised the Supreme Court decision and echoed similar sentiments.

“The suspect sitting on [Supreme Court] bench today killed and buried in Maldives the very basis for the rule against bias! That’s solid murder!” he tweeted.

Arguments

During the hearing, the respondents argued that according to the existing law, there were no legal basis to support the legal existence of Hulhumale’ Magistrate Court, which had been formed in contradiction to the constitution and the Judicature Act article 53.

Judicature Act Article 53(e) states that if four divisions of the four superior courts are established in one island, then “the magistrate court of that island will be abolished. And if a division from among the four courts is established in an island, matters that fall within the jurisdiction of the relevant court shall be carried out by the relevant division and not by the magistrate court.”

The respondent’s lawyer claimed that with reference to the constitution and the Decentralisation Act, it was clear that Hulhumale’ and Villimale are now considered as a part of Male’ even though they are geographically two islands, therefore a magistrate court cannot be set up in any of the islands which under the law are now considered wards.

The intervening Nasheed’s lawyers also echoed the remarks on the case. Nasheed’s lawyers requested a period of three days to research the documents – which they claimed to have only received just a few minutes before the hearing – but were denied the opportunity.

The JSC lawyers who filed the case argued that Hulhumale’ and Villimale were only considered as a part of Male’ for administrative purposes and that this argument did not have any legal basis. Therefore, they stated, Hulhumale’ should be “judicially” considered a separate island.

The lawyers also claimed that the court was set up with the intention of providing easy access to justice for the people of Hulhumale. They also claimed that according to the Judicature Act article 66, each island must have a magistrate court and that prior to the passing of the Act, the court had been functioning as an island court.

The artice 66 states – “A Magistrate Court shall be established in all inhabited islands with the exception of Male’ where there are the four superior courts created in accordance with Article 53(b) of this Act and in an island where four divisions of these four superior courts are established in accordance with Article 53 (c) of this Act.”

Responding to the claims of the JSC, the respondents stated that based on the documents presented to the court, the Hulhumale court was formed to function as a section of Civil Court and Family Court prior to the passing of the Judicature Act.

The added that only island courts were to be declared as magistrate courts according to the judicature act and since Hulhumale Court was a section of the superior courts, it cannot be declared as a magistrate court according to the Judicature Act.

No one should meddle with the courts: Supreme Court

The Supreme Court decision on the matter is followed by its previous order invalidating the decision of Parliament’s Independent Institutions Oversight Committee to not recognise the legitimacy of the Hulhumale’ Magistrate Court.

In the order, the Supreme Court ordered not to meddle with the business of the courts by other institutions of the state stating that the country’s constitutional system broadly entertained the principle of separation of powers, no one power of the state can go beyond the limits set out in the constitution.

“According to articles 5, 6 and 7 of the constitution that came to force on 7 August 2008, the Maldivian constitutional system has explicitly set out that the executive power, legislative power and the judicial power is independent from one another and the boundaries of each power being clearly set out, it is unconstitutional for one power of the state to go beyond its constitutional boundaries as stated in article 8 of the constitution,” read the order.

The Supreme Court also in its order maintained that as per the constitution, the judicial power of the state was the sole constitutional authority in settling legal disputes between the institutions of the state or private parties.

“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” it added.

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Deputy Speaker Nazim’s lawyer appointed to JSC

President Mohamed Waheed Hassan Manik has appointed Deputy Speaker Ahmed Nazim’s lawyer Mohamed Saleem (G. Raynis, Malé) to the Judicial Services Commission (JSC) on Monday.

The JSC is the watchdog body entrusted with the power to appoint, promote and transfer judges, and to investigate complaints against the judiciary.

Ousted President Mohamed Nasheed’s former JSC appointee, Aishath Velezinee, said Saleem’s appointment constituted a “conflict of interest,” as he was a practicing lawyer defending high profile politicians.

Saleem had defended Nazim against charges of defrauding the now defunct Ministry of Atolls Development. The Criminal Court dismissed all four counts of fraud against Nazim in February shortly after Nasheed resigned “under duress” on February 7.

Saleem has denied conflict of interest allegations, saying he would no longer continue to practice as a lawyer, except to complete ongoing cases that do not involve any conflict of interest.

Saleem had previously served for eight years in the Police Courts, and seventeen years in the Attorney General’s Office (AGO) under former President Gayoom. He started off in the AGO as an assistant state attorney. When he resigned in 2008, he was the head of prosecution at the AGO.

He also served as North Huvadhoo atoll MP in the constitutional assembly from 2004- 2008.

Saleem is also prominent businessmen and Jumhooree Party (JP) Kaashidhoo MP Candidate Abdulla Jabir’s brother-in-law.

“It is public knowledge that Gasim (JP leader) and Jabir win by their pockets and what we are seeing is the judiciary going to the pockets of a few influential businessmen and politicians. We lost the independent judiciary to high treason of the JSC in 2010, and this move by Dr Waheed guarantees nothing but further degradation of the judiciary,” Velezinee told Minivan News.

Saleem refuted Velezinee’s allegations saying, “Even when I worked in the government, I was not one to favor friends or family members. I am certain I can be of honest service”.

Velezinee has alleged the JSC was complicit in protecting judges appointed during Gayoom’s regime, and was colluding with parliament to ensure legal impunity for senior then-opposition supporters.

In addition to Saleem, the JSC now consists of Speaker and Dhivehi Rayyithunge Party (DRP) MP Abdulla Shahid, Jumhooree Party leader and Gayoom’s Finance Minister Gasim Ibrahim, Gayoom’s ex-lawyer and current Attorney General Azima Shukoor, Civil Service Commission President Mohamed Fahmy Hassan, Supreme Court Judge Abdulla Mohamed, High Court Judge Abdulla Hameed, Civil Court Judge Abdulla Didi, Lawyer Ahmed Rasheed, and public member Shuaib Abdulrahman.

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JSC in contempt of court for attempting to influence ongoing proceedings, say lawyers

Making statements in the media and on public forums “in a way that could undermine the dignity and prestige of courts” could lead to lawlessness, social discord and the “destruction” of the nascent democracy in the Maldives, the Judicial Service Commission (JSC) has warned.

In a press statement issued yesterday, the JSC claimed that criticism of the judiciary by any individual or group could “pave the way for a [pervasive] spirit of not bowing to the constitution and legal judgments [among the public].”

“And making such statements could completely destroy the constitutional and legal system established in this country through the hard work of the Maldivian people while in its infancy and pave the way for disagreement and quarrel, division and discord, in the entire country,” it reads. “Therefore, the commission urges all parties not to make such statements or commit any action that could undermine the dignity and eminence of the courts.”

The JSC’s statement comes after the Supreme Court reprimanded President’s Advisor Ibrahim ‘Ibra’ Ismail last week for calling on the public to “rise up and sort out the judges” at a Maldivian Democratic Party (MDP) rally on September 2 in Kaafu Thulusdhoo.

The Supreme Court claimed that Ibra’s remarks encouraged “the illegal curtailment of the tasks of the judiciary” and could lead to “the loss of peace and security of the Maldivian state and plunge the nation into unrest”.

Prior to the Supreme Court issuing its statement, the JSC conducted “an emergency meeting” and decided to ask police to investigate Ibra’s remarks.

Ibra’s remarks came after the Criminal Court barred journalists from observing the corruption trial of Deputy Speaker Ahmed Nazim on August 25.

“Judges are issuing verdicts any way they please. The effort we have to make against this is not inconsiderable. It was citizens who came out and ousted Maumoon from power. The matter of judges too can only be sorted out by citizens rising up,” Ibra, former Male’ MP and first elected president of MDP, was quoted as saying in newspaper Haveeru.

Ibra told Minivan News last week that his remarks did not constitute a criminal offence and he strongly criticised the Supreme Court for considering themselves “above the law or a law unto themselves.”

JSC Chairman and Supreme Court Justice Adam Mohamed

Former President’s member on the JSC and outspoken whistle-blower, Aishath Velezinee, told Minivan News that Supreme Court Justice Adam Mohamed had in his capacity as JSC Chair asked that police investigate Ibra, and then had the Supreme Court issue its statement.

“What are the police going to do? It sounds like the highest court in the land has already issued its verdict,” she said.

Both the JSC and the Supreme Court in its respective statements referred to article 141(c) of the constitution, which states: “No officials performing public functions, or any other persons, shall interfere with and influence the functions of the courts.”

Ibra however pointed out that he did not “say anything about an ongoing case” that could be construed as either undue influence or interference.

“Contempt of court”

A group of lawyers meanwhile filed a case against the JSC at the Civil Court last week contesting the legality of the commission’s evaluation criteria for selecting judges to superior courts.

The group of lawyers, represented by Ali Hussein and Ismail Visham, contended that regulations drafted by the JSC containing the evaluation criteria conflicted with both the constitution and article 15 of the Judges Act. The lawyers requested that the regulations be abolished and the shortlist be cancelled.

In addition, the lawyers claimed that two shortlisted candidates had close ties with two members of the commission – the spouse of Judge Abdulla Didi and business partner of Lawyer’s Representative Ahmed Rasheed – suggesting a clear conflict of interest as neither had recused themselves from voting in the JSC panel.

The lawyers explained at a press briefing on Thursday that the evaluation criteria was skewed to favour graduates of the Islamic College by awarding higher marks for Kulliya certificates.

At the first hearing on Thursday night, the Civil Court granted a temporary injunction ordering the JSC to halt the appointment process pending a final ruling.

JSC Public Member Ahmed Rasheed — Lawyer's Representative on the JSC Ahmed Rasheed

The JSC responded with a press statement insisting that the process was legitimate and constitutional.

Following the Civil Court order, the JSC held a meeting on Friday and decided to appeal the court order at the High Court.

Prompted by the JSC’s two press statements in the past three days, the group of lawyers sent a letter to the commission today arguing that while the constitution assured the court’s dignity and respect, “in past years the commission has not acted in a way that upholds the dignity and eminence assured by the constitution.”

The “respect and dignity assured by the constitution” is not intended only for the courts, the lawyers noted.

Moreover, the lawyers argued that the JSC issuing two press statements in the space of three days was an “attempt to unduly influence judicial proceedings” since the case was ongoing at the Civil Court.

“Contempt of court is a rule applied against any attempts to influence the process of an ongoing court case,” the letter explained. “This is a crime under provisions 86, 87 and 88 of the Maldivian penal code.”

Moreover, the lawyers argued that the JSC’s actions obstructed a right guaranteed by article 42 of the constitution to every citizen regarding “justice, transparency and impartiality” of all judicial proceedings.

“Therefore, if the commission has planned to do anything that could influence the ongoing case, stop such efforts immediately,” the letter concludes. “And if it is not stopped, we will be forced to take legal action again.”

Representative for the lawyers suing the JSC, Abdul Hameed Abdul Kareem, told Minivan News today that the JSC was looking for a lawyer to appeal the court order.

“All prominent lawyers support this cause, providing assistance in different forms,” he said.

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