Court refuses whistleblower’s evidence in JSC professional negligence case

The Civil Court has refused to hear additional evidence offered by a member of the Judicial Service Commission (JSC) who alleges that the JSC is withholding information in the ongoing professional negligence case against it.

The Civil Court decision was based on the grounds that any information obtained by a member of the JSC in their official capacity cannot be used for any other purpose than that of executing their official duties.

JSC member Aishath Velezinee applied for leave to enter the proceedings as a third party, saying that the JSC had not made full disclosure in its submissions to the court on the professional negligence case brought against it by Treasure Island Limited earlier this month.

“Aishath Velezinee applied to enter the proceedings in her capacity as a member of the JSC and the additional information she has offered was also obtained as a member of the JSC”, Judge Nihayath said.

Referring to the JSC Code of Conduct, Judge Nihayath said, this meant Velezinee could not share the additional information with the court.

To do so would be to breach the JSC code of conduct, Judge Nihayath said, as it would mean that Velezinee was revealing the information for a purpose other than the execution of her official duties.

In reply, Velezinee said that by sharing the information with the court she would be executing her responsibilities to the nation and to the State. The duty of the JSC, she said, is to serve the people.

Judge Nihayath granted Velezinee the right to appeal, were she dissatisfied with the ruling.

Treasure Island Limited is suing the JSC for failing to execute its responsibilities by neglecting to investigate three complaints it made to the JSC in 2009, alleging professional misconduct by two judges – Judge Ali Naseer and former Interim Supreme Court Justice Mujthaz Fahmy.

At the time Treasure Island made the complaints to the JSC, Justice Fahmy was the Commission’s deputy chair. He later went on to become its Commissioner before being replaced by Judge Adam Mohamed Abdulla in early September this year.

The cases in which Treasure Island alleges misconduct by the judges involve some prominent figures of the tourism industry, including the Ministry of Tourism, and a sum of money amounting to over a million US dollars.

The JSC denied the allegations of professional negligence at the first hearing on 7 October 2010, saying that the complaints made by Treasure Island Limited against the two judges were outside of its constitutional mandate.

The JSC is an independent institution with the Constitutional mandate to oversee the judiciary, investigate complaints against it, and taking disciplinary action if required.

The JSC also told Judge Nihayath at the hearing that it had the power, granted by the Constitution, to ignore any complaints that it deemed were neither valid nor genuine. The complaints made by Treasure Island Limited fell into this category, it said.

The JSC has not investigated any of the 118 complaints submitted to it this year, and the commission’s complaints committee has not met for five months.

Treasure Island refused the offer of an out of court settlement by the JSC at the hearing, saying it would prefer the court itself to make a decision on the matter.

The hearing is now scheduled for 26 October next.


Judicial Service Commission sued for negligence, says its decisions “affect only judges”

Judicial Service Commission (JSC), the constitutionally mandated body responsible for ensuring the standards of the nation’s judiciary, has said its decisions have a direct effect only on judges.

The JSC was defending against allegations of professional negligence made by Treasure Island Limited at a Civil Court hearing today.

“Treasure Island is not directly affected by the JSC decision not to investigate the complaints it made against the judges, and therefore, does not have any legal right whatsoever to bring a case against the Commission”, the legal representative for JSC, Abdul Faththah, told Judge Mariyam Nihayath.

Treasure Island has alleged that the JSC failed to execute its responsibilities by neglecting to investigate three complaints submitted in 2009. The JSC has a special sub-committee of five members, set up specifically to investigate complaints against the judiciary.

The complaints of misconduct concern two judges – Judge Ali Naseer and former Supreme Court Justice Mujthaz Fahmy, also former head of JSC. At the time Treasure Island made the complaints to the JSC, Justice Fahmy was the Comission’s deputy chair.

The cases in which Treasure Island complained of misconduct by judges involve some prominent members of the tourism industry, including the Ministry of Tourism, and a sum of money amounting to over a million US dollars.

Treasure Island complained to the JSC that Judge Ali Naseer wrongfully excluded the company’s evidence from a 2008 case in order to rule against it.

It told the JSC that at another hearing, then chief Civil Court Judge Fahmy threw out a Treasure Island case by calling an emergency sitting at 9:00pm on the evening of 14 May 2008.

Treasure Island complained that although it was summoned to the hearing, the defendants were not present when Judge Fahmy dismissed the case.

The JSC argued at today’s hearing that the constitutional right of every person, group or member of a community directly affected by administrative action to take the matter to court did not apply to Treasure Island.

“It is only the judge against whom the Commission takes disciplinary action that will be affected by the action and not Treasure Island,” Faththah argued. “Therefore, Treasure Island does not have any legal right to bring the matter to court”.

The JSC also denied the allegation that it had refused to investigate the complaints made by Treasure Island, and submitted to court a copy of its reply to the company’s first complaint. The one line response dated 28 July 2009 stated: “This is to inform you that we do not see anything in your letter to which this commission needs to respond.”

The JSC’s response to the second complaint, in August 2009, was to say that it was neither its responsibility nor within the mandate of the JSC to investigate the ruling of a judge, and reminded the complainant of appeal mechanisms available to anyone dissatisfied with a decision of the court.

In today’s hearing, the JSC’s Legal Officer, Faththah told the court that both the constitution and the JSC regulations state unequivocally that it has the choice to ignore any complaints that it does not see as valid or genuine.

The criteria for what constitutes a valid or genuine complaint is not defined in either document, and is left to the discretion of JSC members.

“To describe the commission’s decision to exercise a legally sanctioned choice as illegal is an allegation with no basis in law,” he told Judge Nihayath.

Article 163 of the Constitution also stipulates that any decision of the JSC “shall be taken by a majority of the members present and voting”. The JSC’s submission to court today did not refer to the stipulation, nor did its responses to Treasure Island make it clear that the decision not to investigate the complaints were made in the required manner.

Minivan has learned that 118 complaints against the conduct of judges have been made at the Complaints Committee of the JSC this year alone. Not one of the complaints have been investigated.

A meeting of the Committee was scheduled for 6 October 2010, a day ahead of the Treasure Island hearing in court. The meeting could not go ahead as planned, however, as only two members attended. Three members are required to attend before a meeting can be held.

Minivan has also learned that yesterday’s meeting was the first one scheduled by the Complaints Committee in the last five months despite the large number of complaints pending.

Treasure Island today refused an offer of an out of court settlement made by the JSC. Director Ali Hussein Manik told Judge Nihayath that he was tired of “going again and again to the JSC” and that he wanted a decision of the court.

Judge Nihayath adjourned the case until 17 October 2010, agreeing to a request by Manik to give him time to consider JSC’s submissions today.


JSC condemns police interference

The Judicial Service Commission [JSC] yesterday issued a statement condemning the interference of police in its efforts to reappoint 160 judges before the August 7 deadline.

‘’This action of Maldives Police Services obstructed the duty given to the commission under article 285 of the Constitution, and the act violated article number 13 of the police law,’’ said the JSC’s statement. “Therefore, we strongly condemn the act of police.’’

A statement from the Maldives Police Service (MPS) said the office was closed by police at the request of President Mohamed Nasheed, to prevent “unlawful and unconstitutional work from taking place.”

In an interview with Minivan News, JSC member Aishath Velezinee said the commission was failing in its role as an oversight body and had not examined any of the 71 complaints submitted this year, and was instead protecting the interests of  several individual judges, thus “robbing the nation of an honest judiciary.”

It was in the interest of certain elements in parliament, who were members of the former government, to retain the judiciary appointed by the former administration, she explained.

“What they are doing right now is going to kill the Constitution,” she told Minivan News last week, urging parliament’s Independent Commission Committee (ICC) to issue an injunction against the reappointments while an investigation was conducted.

In its statement yesterday, the Commission claimed that “under article number 285 [b] [d] of the Constitution it is the duty of the commission to reappoint judges within the time of two years. That deadline is August 7.’’

The JSC said it had “included the opinion” of members of the commission who disputed the criteria for reappointing judges – according to Velezinee, many of whom have only primary school levels of education –  “and now we are following a criterion that was approved by nine present members of the commission.”

‘’Under the amended criteria, 160 judges were approved by the members of the commission [who were] present,’’ the statement added.

The JSC has 10 members.

Speaker Abdulla Shahid told MPs today that the Majlis would hold a special sitting on Saturday to settle matters relating to the transition period, on the day of the stipulated deadline.


Citizen’s rights “crushed under foot”, Dr Saeed tells UK Law Society

Leader of the Dhivehi Qaumee Party (DQP) Dr Hassan Saeed has called on the UK-based Law Society to lead a mission to the Maldives to assess the erosion of the rule of law, in an interview with the organisation’s publication The Law Society Gazette.

Dr Saeed told the Society that President Mohamed Nasheed, “a former political prisoner dubbed the Maldives ‘Nelson Mandela’”, was dismantling the 2008 Constitution and trying to “crush citizens’ rights under foot”.

President Nasheed was establishing his own “public courts” to replace independent courts, the Society reported Dr Saeed as claiming, while “courts are suspended” and “judges assaulted.”

In the article, the Society’s president Linda Lee urged the Maldives authorities “to uphold and protect key constitutional principles.”

Minivan News contacted the DQP seeking clarification of the claims.

Regarding the assaults on judges, the party’s Secretary General Abdulla Ameen noted that following a ruling in a case concerning Juhmoree Party MP Gasim Ibrahim by Chief Judge of the Criminal Court Abdulla Mohamed, “a lot of people went outside [the judge’s] house and physically threatened him, and set his motorcycle on fire.”

Concerning the suspension of courts, “the government has created a culture of fear among the judiciary, and they have had to cancel sessions and hold emergency meetings because of the increase in tension.”

The government had breached the rights of individuals “by arresting people without warrants,” Ameen said, referring to the recent detention of People’s Alliance MP Abdulla Yameen on the Presidential Retreat of Aarah following accusations of bribery and treason.

He also criticised the government for leaking audio tapes appearing to implicate MPs for corruption, “despite the Constitution clearly protecting private conversations between individuals.”

Ameen said Dr Saeed had requested the Law Society send an independent delegation to investigate the issues, “but if any other [institution] is interested we would also welcome it.”

The President’s member on the Judicial Services Commission Aishath Velezinee has also appealed for the UN Special Rapporteur on Independent Judiciary and the International Committee of Jurists (ICJ) to send mediators to the Maldives.

Foreign Minister Dr Ahmed Shaheed said Dr Saeed’s claims in the Law Society article were “totally out of orbit.”

“One has to wonder what he is talking about – look at his own track record serving under former President Maumoon Abdul Gayoom [as Attorney General]. We are clearly making steady progress,” Dr Shaheed said.

“Claiming that judges are being assaulted is very irresponsible. I’m not aware of any case where a judge has been assaulted, and in such an event there are domestic remedies available,” Dr Shaheed said.

Regarding Dr Saeed’s claim that courts were being suspended, “that’s outrageous. I’m not aware of a single time this has happened.”

“When a lawyer becomes a politician, they must continue to respect certain professional ethics as well,” he said.

“They are out to tarnish [President] Nasheed’s image, and they have taken issue with his awards and his description as South Asia’s ‘Nelson Mandela’,” Dr Shaheed said. “I think this is a case of the green-eyed monster.”

The request by the Law Society that the government respect the rule of law was “a standard expectation and we respect it.”

“The government is not disregarding the law,” he said. “Look at the behaviour of the other [arms of state]. Parliament is trying to usurp the powers of the executive, and the judiciary is behaving very questionably.”

Working in such an environment, Dr Shaheed said, the President had been called upon to make “some very difficult judgments, such as [the detention and release] of MP Abdulla Yameen.”

Dr Saeed recently led a DQP delegation to the UK to present the opposition coalition’s case to UK politicians and international institutions, employing a PR company to arrange interviews with several organisations, including The Law Society. The trip was jointly funded by the opposition parties, Minivan News was told at the time.


No democracy without justice, claims Reeko Moosa

Police have the right to prevent any act violating the constitution, claimed Parliamentary group leader of the Maldivian Democratic Party (MDP) Moosa ‘Reeko’ Manik, following a police blockade of the Judicial Service Commission (JSC) yesterday morning.

The Police Integrity Commission (PIC) yesterday expressed concern over the police action against the JSC, following criticism of the commission’s intention to rush through the reappointment of 160 judges before the Constitutional deadline of August 7.

Speaking to an MDP rally today, Moosa declared that “if there is no justice, there is no need of democracy.’’

“The Constitution compels the executive to uphold the constitution, so police can stop any action that violates the constitution and can enter any place where such an action is going on,’’ he claimed.

”MDP’s parliamentary group is ready to pass the bill on judges and we have informed the [opposition] Dhivehi Rayyithunge Party (DRP) and the speaker of the parliament,” he added.

Police cordoned the Judicial Services Commission (JSC) on Monday morning, preventing its staff from working or entering the building, while the President’s Office summoned members of the judicial oversight body for questioning at an 11am meeting.

A statement from the Maldives Police Service (MPS) said the office was closed by police at the request of President Mohamed Nasheed, to prevent “unlawful and unconstitutional work from taking place.” Nasheed reportedly asked police to stand down following the meeting.


JSC quiet about charges against judges

The Judicial Service Commission (JSC) is filing charges against Criminal Court Judge Abdulla Mohamed and Civil Court Judge Mohamed Naeem, according to a story published on Miadhu today.

According to Miadhu, Judge Mohamed was charged, among other things, of obstructing the judicial procedure and for disciplinary issues, charges which he denied.

The article says the cases against Judge Naeem were charged by Maldivian Democratic Party (MDP) MP Mohamed Musthafa and President of Adhaalath Party, Sheikh Hussain Rasheed.

Sheikh Rasheed said in 2008, when he went to court over a defamation case, Judge Mohamed Naeem was the presiding judge.

Sheikh Rasheed said Judge Naeem unlawfully placed him under house arrest, and then had him arrested when he was meant to only get a warning for not showing up at his court hearing.

He then filed an official complaint against Judge Naeem. He said he had to go to the JSC every day to look at the progress of his complaint, so he withdrew his complaint today.

“I can’t waste my time,” he said.

Judge Abdulla Mohamed said he had “not yet” been informed about any charges against him by the JSC and said he had “no idea” what he was being charged of.

The JSC did not comment to Minivan News on the cases.


Lawyer suspended from court by Judge Abdulla Mohamed

Lawyer Imthiyaz Fahmy, also an MP for the Maldivian Democratic Party, has been found in contempt of court and suspended for six months by Senior Judge at the Criminal Court Abdulla Mohamed.

Fahmy was defending a man who had been accused of throwing an egg at a DRP supporter in their campaign office next to the former president’s wife’s house Enderimaagu.

Fahmy says before he began with the case, he noticed the defendant’s name was misspelled and his address was not on the charge document.

“The charge document should say who it’s against,” he said.

Fahmy said that due to procedural methods, he felt he needed to correct the matter before beginning the case, and asked the judge if this mistake could be rectified.

“The judge was taken by surprise,” said Fahmy, “and asked the prosecutor to correct the document in court. This is not how a criminal case is conducted.”

Judge Mohamed said Fahmy “did not cooperate with the court” and “just wanted to play.” He added that Fahmy “was not being serious” and was “arguing” with him and the attorney.

Maafanu North MP Imthiyaz Fahmy
Maafanu North MP Imthiyaz Fahmy

Fahmy said he was then asked to leave the courtroom by Judge Mohamed, while his client was told to remain there. Fahmy claims his client later told him that he had been asked to give his statement before another judge in his absence.

The next day, Fahmy found out through the media that he had been suspended.

“I wasn’t even informed,” he said. “I went to the court for the document on my suspension, but was denied [the document].”

Judge Mohamed says Fahmy cannot attend the court on the same case again.

Fahmy said he was “not surprised by the judge’s misconduct in court,” and he intends to make an appeal against Judge Mohamed’s decision to the High Court and the Judicial Service Commission (JSC).

The commission confirmed that Judge Mohamed is currently under investigation for issues relating to conduct.

The case Fahmy would have been defending has been dismissed.


Uz Adam Mohamed Abdulla appointed as a Judicial Service Commission member

The President appointed Uz Adam Mohamed Abdulla as a member of the Judicial Service Commission yesterday. He was elected by other judges of the High Court to serve as a Judicial Service Commission member.

There was a special ceremony at the President’s Office yesterday, where President Nasheed presented Uz Adam the letter of appointment for his new position.

President Nasheed urged Uz Adam to fulfill the member’s responsibilities in establishing justice.

Uz Adam said he would try his best to fulfill the responsibilities and to strengthen the work of the Judicial Service Commission within the boundaries of law.

Uz Adam took the oath of office before the Supreme Court Judge Abdulla Areef.