Tensions escalate between executive and judiciary

The Judges Association of Maldives (JAM) has condemned President Mohamed Nasheed’s criticism of the Judicial Service Commission’s (JSC) decision on determining guidelines for the reappointment of sitting judges as “disrespectful towards the honour and dignity of judges” and indicative of the “negative view he holds of the judiciary”.

A press release issued by the association last week accuses the president of attempting to cast undue influence over the Judicial Service Commission by calling for amendments to the eligibility criteria approved last month, an act which could “render separation of powers obsolete”.

Article 285(b) of the constitution stipulates that the JSC shall determine whether or not sitting judges possess the qualification of judges specified in article 149 before August 7 2010.

The article states that judges must possess “educational qualifications, experience and recognised competence to discharge the duties and responsibilities of a judge, and must be of high moral character.”

On May 9, the JSC voted to approve as minimum standards to determine “high moral character” that judges must not have been convicted in a court of law of an offence with a punishment prescribed in the Quran, criminal breach of trust or bribery.

Following the 5-2 vote, Aishath Velezinie, President Nasheed’s member on the JSC, characterised the contentious decision as “nothing less than treason to rob the people of an honest judiciary.”

Velezinie warned that the decision could effectively give tenure to 19 judges found guilty of various offences by state institutions such as the former Anti-Corruption Board.

Two days later, the commission approved guidelines for determining educational qualifications, experience and competence.

In his radio address on May 28, President Nasheed said he believed the JSC decision could hinder the commission’s mandate of ensuring public confidence in the judiciary.

The decision was “worrying” as records showed that judges found guilty by the relevant authorities under the old constitution, or who had faced criminal prosecution and allegations of gross misconduct, were currently on the bench.

“Grade seven standard”

President Nasheed criticised the criteria for educational qualifications as setting the bar too low.

“For the standard to determine educational qualification, they are saying [judges must possess] a certificate in either law or Shariah, and even if the certificate is not accredited by the Maldives Accreditation Board, it must be a certificate of at least level three or higher accepted by the government”, he said.

Hence, he added, the minimum educational qualification for judges approved by the JSC was essentially “grade seven”.

According to the guidelines approved by the commission, said Nasheed, sitting judges would be eligible for reappointment if they have not been convicted in court of 29 criminal offences decided upon by the JSC.

The JSC also decided that sitting judges would be deemed to possess the requisite experience.

Nasheed said the criteria to determine experience and educational qualification was “inappropriate” for contemporary Maldivian society.

Moreover, taking the lack of convictions as enough to determine high moral character was “not ideal.”

An official request has been made with the JSC to review and amend the guidelines, he said.

The JSC consists of the speaker of parliament, an MP and a member of the general public appointed by parliament; a judge each from the Supreme Court, High Court and the trial courts; a practicing lawyer elected by licensed lawyers; the Chair of the Civil Service Commission; a member appointed by the president and the Attorney General.

Justice Fahmy

A statement issued by the JSC before the president’s address defended the decision as both “within the bounds of article 149” and “very fair”.

The statement signed by Justice Mujthaz Fahmy, president of the JSC, notes that differences of opinion among members only emerged over the criteria for determining high moral character.

It adds that the reappointment of judges as stipulated by article 285 was very different from the normal process of appointing or dismissing judges and magistrates.

Moreover, the commission believes the decision will “draw criticism no matter how fair it was.”

The statement goes on to condemn “efforts by certain groups to dishonour the judiciary and strip judges of their honour and dignity.”

“The commission is extremely concerned as such actions could undermine the independence of the judiciary and adversely affect society,” it reads.

While the creation of the JSC was delayed until July 26, 2009 due to “various legal problems” and its members do not work full-time, the statement assures that the commission was working “sincerely, truthfully and in line with the constitution” to fulfil its responsibilities.

“Abuse of power”

However, writing in her personal blog, Velezinie claims the statement was issued “in violation of clause 4(d) of the commission’s rules of procedure and article 163 of the constitution” as it solely represented Fahmy’s personal views.

Justice Mujthaz Fahmy had refused to either allow further discussions on the guidelines or vote on amendments, she writes.

As Fahmy was among the 19 judges with prior convictions, Velezinie claims, he faces a conflict of interest on the issue of judges’ tenure and reappointment.

Moreover, while the Supreme Court Justice was also the chair of both standing committees of the commission, the complaints committee has not been convened as of May 1.

Fahmy replaced High Court Judge Abdul Gani Mohamed as President of the JSC on February 21 when the latter was removed by a ruling from three Judges of the High Court.

Velezinie reveals that although a committee consisting of the three judges on the commission was tasked in August 2009 with formulating a draft of the guidelines for reappointment, the full committee only met once as Fahmy did not attend the second meeting.

Meanwhile, the “285 Standards Committee” formed after Gani’s expulsion and chaired by Civil Service Commission President Dr Mohamed Latheef met on three days and drafted the final guidelines during meetings that each lasted half an hour.

The sub-committee, consisting of Judges Adam Mohamed Abdullah and Abdullah Didi from the JSC as well as Chief Judge of the Juvenile Court Shuaib Hussein Zakariya and Civil Court Judge Abdullah Ali, did not consider either the previous proposals or “the purpose and spirit of the constitution and the objective of article 285.”

She adds that Fahmy’s actions were “extremely worrying” as it could cast doubt over the independence of both the JSC and the judiciary.

Moreover, Velezinie continues, failure to provide agendas and minutes of meetings to members as required by law “facilitates corruption in the commission.”

“The Judicial Service Commission, and along with it the courthouse and judges, will only gain public trust when it proves to the people with words and deeds that it is an institution that is independent from the three powers,” she entreats. “Instead of hiding behind law certificates and making decisions based on self-interest and one’s own views, [the commission has to] put national interest and public welfare first.”