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.”


Bar Association calls for Ali Hameed suspension

The Maldives Bar Association has called for the suspension of Supreme Court Judge Ali Hameed pending an investigation into allegations over the judge’s appearance in a series of sex tapes.

Hameed’s continued presence on the Supreme Court bench contravenes the Islamic Shariah and the norms of justice, the organisation said in a press statement on Monday.

“Given the serious nature of the allegations against Ali Hameed, that the judge continues to hold trial contravenes norms of justice, conduct of judges, and established norms by which free and democratic societies deal with cases of this nature,” the statement read.

Three videos showing Hameed engaging in sexual relations with foreign women in a Colombo hotel room first surfaced in May 2013. The judicial oversight body Judicial Services Commission (JSC) set up committees to investigate the case twice – in May and December 2013.

Both subcommittees unanimously recommended the JSC suspend Hameed pending an investigation. In July 2013, the JSC disregarded the recommendation citing lack of evidence, while a JSC decision on the December subcommittee’s recommendation is still pending.

JSC member Shuaib Abdul Rahman and former member MP Ahmed Hamza have accused JSC President and Supreme Court Judge Adam Mohamed of stalling the investigation into the scandal.

The JSC’s four-month delay in a decision undermines public trust in the judiciary, the Bar Association said.

President of the Bar Association Husnu Suood, and former member of the second JSC committee set up to investigate the scandal has suggested his suspension from practicing law – handed down by the Supreme Court in January – was related to his role in the investigation.

The Supreme Court withdrew the suspension on Sunday on the condition he refrains from engaging in any act that may undermine the courts.

The Maldives Police Services had completed an investigation into Suood’s alleged contempt of court, but the Prosecutor General’s Office decided not to press charges.

Meanwhile, the police in December said it still could not ascertain if the sex tapes are genuine. Local media have claimed the Maldives Police Services have been unable to proceed with investigations due to the Criminal Court’s failure to provide two key warrants.

The Bar Association has said the JSC must expedite a decision on Hameed’s suspension to uphold public trust.

“Judgments by judge who’s integrity has been questioned is not acceptable under the Islamic Shari’a, given that even testimony from an unreliable source is not accepted,” the statement said.

Hameed contributed to a majority verdict in a series of controversial Supreme Court judgments in recent months, including the annulment of the first round of presidential polls in September 2013, stripping two opposition MPs of their Majlis membership over decreed debt, and the removal of Elections Commission president and vice president.

In May 2013, the Supreme Court requested the Ministry of Home Affairs look into the procedures by which the Bar Association was established, claiming the use of the word ‘Bar’ in the association’s name had lead to “confusion” among international legal and judicial groups.


Comment: The green-eyed judiciary and the green constitution

“If civilizations is to survive, one is driven to radical views. I do not mean driven to violence. Violence always compromises or ruins the cause it means to serve: it produces as much wrong as it tries to remedy. The state, for example, is always with us. Overthrow it and it will comeback in another form, quite possible worse. It is a necessary evil– a monster that continually has to be tamed, so that it serves us rather than devours us. We can’t do without it, neither can we trust it” (Quoted from Fiji times 17th January 2007, in Firth, Fraenkel and Lal, 2009).

Formation of judiciary

The Maldives judiciary has a long history of being under the control of the powerful and rich. In the olden days kings decided verdicts while later it came under the influence of dictatorial regime. Democracy however brought a new frontier of judiciary with a presupposition of being independent, transparent and impartial. This, however, is far from reality today and it seems judiciary is the biggest impediment for a true democracy in the small nation.

The judiciary has its evil in the way it was formed in 2008 to ratify the Article 285 of the green constitution. The Judicial Service Commission at that time also was hijacked by the bench of interim Supreme Court. Furthermore they undermined the constitution by self reorganising to re-establish as the permanent bench. Some from the bar and the Maldivian Democratic Party (MDP) immediately recognised the evil deeds of the then chief justice and immediately went on strike and locked the Supreme Court.

Even then, the current government – in opposition at the time – were sympathising with the bench and was in favour of its actions. The ramifications of this led to the formation of a bench in a haste in an extraordinary session of the Majlis. The bench formed was mainly of judges with strong sharia background with not much academic exposure to common laws practiced used in most civilised democratic countries. In addition, judge’s appointments had questionable integrity related issues. This was confirmed and well proven by the then JSC member Aishath Velazinee, and was circulated in the media.

The Litmus test

Major litmus test of judiciary came with the overthrowing of the democratically elected government in 2012. The bench in particular was faced with a major test of integrity and of serving justice. However the complacency shown by whole bench in the events before, during and after the toppling of the government was dubious.  Many suspicious people were convinced of their romance with the old dictatorial regime elements. The grassroots ran havoc on streets with no sense or awareness of rule of law.

Grassroots were blamed for attacks on law enforcement infrastructure, while their agony and pain was overlooked. Grassroots were blamed for not controlling their temper while temperament of elements of uniformed bodies that attacked civilians was justified. Also the grassroots with no sense of rule of law were led to a dilemma by not being provided guidance and legality in the toppling of the government. Instead the chief justice’s immediate action was to swear in the incumbent vice president who was alleged to be a major player of the “coup”.

This response immediately legitimised the actions of uniformed bodies before, during, and after the coup event. It also gave coup perpetrators and sympathisers powers leading to further repercussions. Till this day, the elements of uniformed bodies guilty of several crimes committed on day of coup and the following day remain immune to justice. For the grassroots and the watchful minds a clear fraternity between the judiciary and coup perpetrators was obvious.

Winners and losers

In essence the ‘coup’ of 2012 became a winner for the judiciary which was faced with heavy criticism, during the autumn of the democracy. Some even believe the fall of democracy has been a making of the judiciary. Soon after the coup the judiciary started enjoying a honeymoon, with overwhelming immunity and impunity. Their romance with dictatorial elements alleged to have perpetrated the coup, lead to erosion of rule of law and justice.

Justice in the country became a joke even to the layman. Any coup collaborators or sympathisers were proven innocent before going into courts – albeit of their corruption allegations. Anyone who was against the coup became guilty before appearing in court.  Day by day the grassroots became aware of the romancing of the judiciary with a particular political group. The public lost their trust in the whole judiciary. This was compounded by the dictatorial nature of judicial watch dog which from day one acted as the white cloak hiding the bench of its dirt.

In 2013, the election became a war of ‘coup’ perpetrators and their allies and the rest of the public. In a first round the public showed a relentless and overwhelming majority for the MDP. Fear began looming within the bench and their allies, enjoying the sweet honeymoon. The MDP became more vocal on reforming judiciary and garnered more support.  The looming fear within the judiciary and bench became obvious when they intervened to an internationally acclaimed transparent electoral process using baseless allegations.

Their allies in law enforcement and government by then cooked up a blatant litany of a report regarding elections. This became the catalyst for the bench to annul the elections, jeopardising one of the best electoral processes in the history of the nation. The grassroots later found the fallacies of this report which was heavily criticised by the Elections Commission. The election was won by the judiciary and the bench, as it turned in their favour.

The MDP garnered further support and strength from grass roots and kept their spirits alive by being consistent with their pledge to reform judiciary. Fear lurking within the bench again awakened.  Fear of the MDP winning the Maldives Majlis and the bench getting dissolved was not far from reality. The bench’s fears led to the utilisation of new tactics which involved becoming the jury, the judge, and the plaintiff in a case which even the layman and grassroots understood as injustice.

Finally the verdict to dismiss the president of the Elections Commission was given by the bench. The verdict was a clear abrogation of the green constitution. The bench once again laid down a path to remain.

The enigma

The constitution turning the judiciary evil and opening the Pandora’s Box is a misconception. The irony lies in the establishment of the bench, in abrogation of the green constitution. The root cause of evil is undermining the constitution by Majlis during the formation of the bench as reiterated by Velazinee. Additionally the international community turns a blind eye to the whole saga of appalling events.

The reactions and actions of the bench and JSC have further convinced the grassroots of their deception. One’s actions become a blessing for others in disguise. The response of the bench may garner further support for the MDP. Their slogan to reform judiciary may perhaps make them the winners, sooner or later. However, the players who made the judiciary green eyed and then white-washed it, are yet to be discovered.


JSC to investigate whether judge’s bribery claims breached code of ethics

The Judicial Services Commission’s legal section will investigate whether Judge Aisha Shujoon Mohamed’s bribery claims breached the judges code of ethics.

Speaking on Maldives Broadcasting Corporation’s (MBC) ‘Heyyambo’ show last Friday (February 14) Judge Shujoon said there was some truth to the belief judges accepted bribes in the Maldives, revealing that she had been offered a US$5 million bribe herself.

“Now we are starting the investigation,” said Judicial Services Commission (JSC) Spokesman Hassan Zaheen. “We can research and after that we will know.”

The JSC’s code of conduct states in article 4.6 that “If a judge is known to have been involved or is involved in such an activity, all action must be taken to put a stop to this.”

The code also mandates that judges “exhibit high standards of judicial conduct in order to reinforce public confidence in the judiciary and refrain from activities that jeopardize the dignity, eminence and integrity of the Judiciary.”

Spokesman Zaheen was unable to give further details as to which aspect of the code Shujoon’s comments are suspected to have breached.

Commitment to the code of conduct is one of five criteria to be used in assessing the performance of judges as part of new JSC regulations, introduced last month.

The Anti-Corruption Commission (ACC) has already announced its decision to investigate Shujoon’s claims, with President Hassan Luthfy noting that judges must inform the ACC of bribe attempts immediately.

“Concealing bribe attempts is an offense, even by the code of conduct for judges. It is an offense not to inform this commission,” Luthfy said.

Expanding on the issue of bribery last Friday, Shujoon told her interviewer that she could not say whether judges had or had not accepted bribes, but that it may happen given the salaries allocated to judges.

“It [bribes] can be very appealing if its sets you up for life, given our pay and the amount of work we have to do. So I cannot say there is no truth to that. That is because something like that happened to me,” said the judge.

Shujoon became one of the country’s first female judges in 2007, though she told MBC that she was considering retirement.

According to a study conducted by governance NGO Transparency Maldives in December, the judiciary is perceived to be among the most corrupt institutions in the country.

Approximately 55 percent of those surveyed believed the judiciary to be most corrupt, while 60 percent and 57 percent believed the parliament and political parties to be most corrupt, respectively.


ACC to probe Civil Court Judge bribe claim

Read this article in Dhivehi

The Anti- Corruption Commission (ACC) is to launch an investigation into a Civil Court judge’s claim that she was offered a US$5 million bribe.

Speaking on Maldives Broadcasting Corporation’s (MBC) Friday afternoon show ‘Heyyambo’ Judge Aisha Shujoon Mohamed said there was some truth to the belief judges accepted bribes in the Maldives, revealing that she had been offered a US$5 million bribe herself.

“I became angry and shouted at them. Then they left,” she said.

Speaking to Minivan News, ACC President Hassan Luthfy said the ACC had decided to launch an investigation as Article 4 of the Anti Corruption Act requires the penalisation of anyone offering bribes to judges. Any individual convicted faces a 10-year jail term.

Luthfy said that judges must inform the ACC of bribe attempts immediately and that keeping such a case hidden is in itself a crime.

“Concealing bribe attempts is an offense, even by the code of conduct for judges. It is an offense not to inform this commission,” Luthfy said.

According to a study conducted by governance NGO Transparency Maldives in December, the judiciary is perceived to be among the most corrupt institutions in the country.

Approximately 55 percent of those surveyed believed the judiciary to be most corrupt, while 60 percent and 57 percent believed the parliament and political parties to be most corrupt, respectively.


Speaking on ‘Heyyambo’, Shujoon said she could not say whether judges had or had not accepted bribes, but that it may happen given the salaries allocated to judges.

“It [bribes] can be very appealing if its sets you up for life, given our pay and the amount of work we have to do. So I cannot say there is no truth to that. That is because something like that happened to me,” she said.

There will always be individuals who are unhappy with verdicts, but judges can only decide on what is presented in the courtroom, Shujoon said.

“Verdicts are delivered on what is presented. Sometimes I wonder if I have truly delivered justice. But that is the way it is in front of the law and in front of me,” she said.

Shujoon is among the first female judges in the country. She said she had accepted her appointment in 2007 to prove women too can serve in the judiciary.

Shujoon further revealed that she considers her purpose fulfilled and is now deliberating on retiring from the judiciary.

The UN Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, in March 2013 expressed concern over the gap in equal representation of women in the judiciary, stating that the country’s eight female judges had “reached their positions through sheer determination and dedication since there is no policy or strategy to increase women’s representation on the bench.”


JSC to evaluate performance of judges

The judicial oversight body, the Judicial Services Commission (JSC), is to evaluate performances of all judges at least every two years under a new regulation.

The Regulation on Evaluation of Judge’s Performance came into effect on January 1, and was made public on Tuesday.

“This regulation allows the JSC to take action against non-performing judges and also provides incentives for judges who perform well,” JSC member and opposition Maldivian Democratic Party (MDP) MP Ahmed Hamza said.

Under the regulation, the JSC is to appoint a five-member subcommittee to conduct performance appraisals of all judges. Judges will be evaluated on four criteria:  work performance, commitment to the judges’ code of conduct, attendance, and extent to which the judge’s verdicts are repealed in the appeal process.

If a judge gains between 85- 100 points, he or she will be given priority in promotions to a superior court.

However, if a judge receives below 50 points in two consecutive appraisal terms, the JSC will recommend the People’s Majlis to retire the judge or transfer the judge to another position in the judiciary.

Hamza said the regulation constituted an important step in holding judges accountable, but said the judiciary intervened regularly in the JSC’s attempts to discipline judges.

“Influential judges do not want the JSC to function. They use legal loopholes to undermine the JSC’s powers,” Hamza said, referring to the recent Supreme Court’s mandamus order halting the JSC’s decision to shuffle ten superior court judges.

Article 46 of the Judges Act allows the JSC to transfer judges between courts on the request of the Judicial Council.

However, the Supreme Court has annulled the Judicial Council and taken over the council’s powers, effectively limiting the JSC’s power to transfer or appoint any judges unless authorised by the Supreme Court.

Hamza said the People’s Majlis needed to amend judiciary related laws to limit judicial interference in the JSC.

The JSC’s record on disciplining judges has been mediocre. In 2012, a series of sex tapes which appear to show Supreme Court judge Ali Hameed fornicating with three different foreign women in a Colombo hotel room were leaked on social media.

The JSC set up an investigative subcommittee twice, but has failed to follow the subcommittee’s recommendations to suspend Hameed for failing to cooperate with the investigation.

In 2011, the JSC decided to take action against Criminal Court Chief Judge Abdulla Mohamed for politically biased comments in the media. Abdulla Mohamed, however, requested the Civil Court invalidate the JSC’s decision, claiming the media had taken his statement out of context.

The Civil Court issued an injunction in November 2011, ordering the JSC to halt disciplinary action until the court had reached a verdict in the case. The High Court upheld the Civil Court’s injunction in April 2012.

Abdulla Mohamed retains his position as Criminal Court Chief Judge. He was among the ten judges the JSC had decided to transfer before the Supreme Court’s order.

Abdulla Mohamed was a central figure in the downfall of former President Mohamed Nasheed, following the military’s detention of the judge after the government accusations of political bias, obstruction of police, stalling cases, links with organised crime.

The Home Minister at the time described the judge’s conduct as “taking the entire criminal justice system in his fist” in order to protect key figures of the former dictatorship from human rights and corruption cases.


Chief Justice silent on Judge Ali Hameed’s sex tape probe

Chief Justice Ahmed Faiz Hussain has refused to comment on Supreme Court Judge Ali Hameed’s alleged appearance in a series of sex tapes, claiming the judicial oversight body will investigate offenses committed by judges.

Speaking to the press following the inauguration of a seminar on criminal procedures and sentencing at Nasandhura Palace Hotel, Faiz said: “We are speaking about accusations. The Chief Justice will comment on the matter when relevant authorities decide on the nature of the accusations. How many other’s have also faced accusations?”

However, the judicial oversight body Judicial Services Commission (JSC) has failed to take action against Hameed despite repeated recommendations for suspension by two separate sub committee set up to investigate the matter.

A second subcommittee set up in December requested the JSC suspend Hameed claiming he had refused to cooperate with the investigation.

JSC member and opposition MP Ahmed Hamza said JSC chair and Supreme Court Judge Abdulla Mohamed have refused to schedule the issue on the commission’s agenda.

Hamza has told local media he believes the JSC will delay deliberations on the issue until his membership and the People’s Majlis Speaker Abdulla Shahid’s membership expires with the inauguration of the new parliament in June. Shahid and Hamza both belong to the opposition Maldivian Democratic Party (MDP).

The 10 member commission includes representatives from the legislature, judiciary, executive, and public.

Local media in December reported that the Maldives Police Services had sent a letter to the JSC claiming the sex-tape probe had been stalled due to the Criminal Court’s failure to provide keys search warrants.

The police had allegedly sought two warrants, one to authorise the police to take a photograph of Hameed’s face for comparative analysis, and a second to search his residence.

Neither the police nor the JSC have confirmed the existence of the letter, but the police have said it was still unable to determine if the man in the three sex tapes is Hameed despite several forensic tests.

At the time, Superintendent Abdulla Nawaz said the police were awaiting key information from abroad for more clues.

Spy cam footage allegedly depicting Hameed indulging in different sexual acts with multiple foreign women surfaced on local media last July.

One such video – time-stamped January 24 2013 – showed the judge fraternising with a topless woman with an eastern European accent. At one point the figure alleged to be the judge – who was only wearing only white underwear –  leans into the camera, making his face clearly visible.

Afterwards, the woman repeatedly encourages the man to drink wine from a mini-bar. “If I drink that I will be caught. I don’t want to be caught,” the man insists, refusing.

Images and symbols depicting scenes from the sex-tape formed a prominent part of protests against the court’s repeated interference in the presidential election of 2013.

The videos appeared shortly after a film – also involving Hameed – began circulating on social media in which he appeared to be discussing political influence in the judiciary with a local businessman.

Despite public circulation of the videos and widespread media coverage of the scandal, Hameed continues to sit on the Supreme Court bench.

Following the scandal, Hameed was one of the four judges forming the majority in the Supreme Court’s decision to annul the initial first round of the 2013 presidential election, as well as the ruling that unseated two opposition MPs over a controversial case of decreed debt.


JSC shuffles nine judges “to strengthen judiciary”

The Judicial Services Commission has announced it will shuffle nine superior court judges in a bid to “strengthen the judiciary.”

The judicial oversight body said the reassignments would uphold public trust in the judiciary and were an opportunity for judges to build capacity and gain additional experience.

The nine reassignments include Criminal Court Chief Judge Abdulla Mohamed who has now been transferred to the post of the Drug Court’s Chief Judge. Judge Abdulla’s military detention in January 2012 precipitated the ousting of former President Mohamed Nasheed. He has been accused of obstructing high profile corruption cases and has been investigated for ethical misconduct.

The Prosecutor General (PG) has charged Nasheed with unlawful arrest of a government employee over Abdulla’s arrest, but the case is currently stalled after Nasheed’s legal team challenged the legitimacy of the appointment of the judges-panel to Hulhumale Magistrates Court, where the trial is being heard.

Criminal Court judges Muhuthaz Fahmy and Abdul Bari Yusuf were reassigned to the Drug Court and Juvenile Court respectively.

Yusuf was suspended in February 2013 over allegations of misconduct and the JSC told local media that despite his reassignment, Yusuf remains suspended. However, if his suspension is lifted, he will start work at the Juvenile Court, the JSC added.

The Family Court’s Ibrahim Ali was changed to the Criminal Court.

Drug Court’s judges Zubair Mohamed and Mohamed Easafulhu were reassigned to the Criminal Court while Abdul Sattar Abdul Hameed was reassigned from the Drug Court to the Civil Court.

The Civil Court’s Ali Naseer was changed to the Family Court and the Family Court’s Hassan Shafeeu was reassigned to the Civil Court. The Juvenile Court’s Mohamed Naeem was changed to the Drug Court.

UN Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul, issued a report in May 2013 expressing concern over the politicisation of the JSC and judiciary.


President appoints Shamshul Falah to JSC

President Abdulla Yameen has appointed Shamshul Falah as the president’s representative at the Judicial Services Commission (JSC) today.

Shamshul Falah served as the Secretary of Legal Affairs at the President’s Office under former President Dr Mohamed Waheed Hassan.

Falah’s appointment is the third new appointment to the JSC this month. President Yameen appointed Attorney General Mohamed Anil to the judicial oversight body earlier this week.

On November 10, former president Dr Mohamed Waheed administered the oath of office to opposition Maldivian Democratic Party (MDP) MP Ahmed Hamza who will act as the parliament’s representative.

The seat occupied by the President of the Civil Service Commission on the 10 member JSC remains vacant amidst a dispute between the Supreme Court and People’s Majlis regarding the dismissal of former CSC head Mohamed Fahmy Hassan.