The Maldivian Democratic Party (MDP)’s National Council has passed a motion calling on its parliamentary group to seek to abolish the existing Supreme Court bench and replace it with a new panel of judges, including foreign judges.
The call was made following the Supreme Court’s controversial rulings on Thursday overturning decisions made by parliament.
The Supreme Court had overturned parliament’s removal of Civil Service Commission (CSC) Chair Mohamed Fahmy Hassan on sexual harassment charges, and a decision to conduct no-confidence votes through secret ballot.
During an emergency national council meeting held on Sunday evening, the proposal by MDP national council member Mohamed ‘Sanco’ Shareef received unanimous support from all attending members, including former President Mohamed Nasheed.
“The Supreme Court is acting in such a fashion that it has now begun overtaking the powers of the parliament and in the process undermining the constitution of this country. [Therefore] this motion calls on MDP’s parliamentary group to make formal requests to parliament to immediately abolish the current bench of Supreme Court and establish a new bench that consists of honest judges.
“Also as the Maldives Constitution does not bar the Supreme Court having foreign judges, [this motion also calls] to seek qualified and educated judges from abroad,” read the motion (Dhivehi).
During the debate on the motion, MDP’s Parliamentary Group and Parliament’s Majority Leader Ibrahim Mohamed Solih described the day of the verdicts as the darkest day of Maldives’ 80 year long parliamentary history.
Solih said the Supreme Court had significantly undermined the legislative power of the state by openly challenging parliament’s power to decide on its own affairs and the bills passed by the parliament.
The Hinnavaru Constituency MP assured the council that the party’s parliamentary group under his leadership would do everything at its hand to ensure the dissolution of the existing Supreme Court bench.
“Shocking verdicts”
Speaking during the debate, former President Mohamed Nasheed expressed his support for the motion claiming that it was time to change the Supreme Court bench, as it was delivering “shocking” verdicts.
Nasheed recalled several controversial decisions made by the Supreme Court, such as its decision that eight of former President Gayoom’s political appointees be paid MVR 500,000 (US$32,425) each in compensation after Nasheed replaced them.
The Supreme Court also ruled in favour of the legitimacy of Hulhumale Magistrate Court, created by the Judicial Services Commission (JSC), after the JSC’s head – Supreme Court Judge Adam Mohamed – made the casting vote.
“It is more important that we have justice established in this country rather than myself being elected as the President. To reform the judiciary and bring the justice system of this country into the right course is something I must do,” he said.
“We will come out to the streets, we will protest. I will not take a single step back until the bench is replaced with better judges,” Nasheed vowed.
Nasheed claimed that Supreme Court had attempted to silence lawyers, by forcing them to sign a declaration which requires them to not to comment on court rulings if they want to keep their licenses to practice law.
The former President also alleged the Supreme Court was employing deceitful tactics by tempering its own verdicts before these were being made available to public.
“We know how they issue the verdict and we know how different it is on the paper to that which is made available to the public. The two versions of the verdict differ significantly. This is something I am very concerned about,” he said.
Nasheed – who has written books on the country’s history – said that Maldives had followed a “tradition” in which “the people come out to sort the problems within the court when judges go out of line in sentencing”.
Spokespersons for the government-aligned Progressive Party of Maldives (PPM) and Dhivehi Rayyithunge Party (DRP) were not responding to calls at time of press.
Controversial rulings
On Thursday, the Supreme Court ruled 6-1 that Fahmy would receive two punishments for the same crime if he was convicted at court following his dismissal by parliament (double jeopardy). Following the judgment, Fahmy would be reinstated and compensated for lost wages since December 2012.
Delivering the judgment, Supreme Court Justice Abdulla Saeed said that a person should be considered innocent unless proven guilty in a court of law and was entitled to protect his reputation and dignity.
Fahmy was alleged to have to have said to a female CSC employee that “it is not appealing when unmarried girls like you get fat”, whilst touching her on the stomach.
In November last year, parliament voted 38 – 32 to remove the CSC chair after the Independent Institutions Committee investigated a complaint of sexual harassment lodged by a female employee of the CSC.
On Thursday in its ruling on the secret ballot, the majority of the judges contended that the move contravened article 85 of the constitution as well as parliamentary principles and norms of free and democratic societies.
Article 85 stipulates that meetings of the Parliament and its committees must be open to the public.
Dissenting opinion
Meanwhile, Justice Ahmed Muthasim Adnan – the only Supreme Court justice with a background in common law – issued dissenting opinions in both cases.
On the constitutionality of the secret ballot, Justice Adnan noted that article 101(f) of the constitution states that “the regulations governing the functioning of the People’s Majlis shall specify the principles and procedures concerning a resolution to remove the President or Vice President from office as provided in this Constitution.”
Unless a clause added to the regulation was explicitly in violation of the constitution, Justice Adnan said that he believed it “could not be challenged in any court in the Maldives.”
He further noted that while article 85 of the constitution requires parliamentary proceedings to be open to the public, 85(b) states that a majority of MPs present and voting could decide to exclude the public or press “if there is a compelling need to do so in the interest of public order or national security.”
Moreover, article 85(c) states, “Article (b) does not prevent the People’s Majlis from specifying additional reasons for excluding the public from all or any part of a committee meeting of the People’s Majlis.”
He added that the secret ballot would be taken at a sitting open to the public.
In the case submitted by Fahmy contesting his dismissal, Justice Adnan’s dissenting opinion noted that article 187(a) of the constitution authorised parliament to remove members of the CSC “on the ground of misconduct, incapacity or incompetence.”
Article 187(b) meanwhile states, “a finding to that effect by a committee of the People’s Majlis pursuant to article (a), and upon the approval of such finding by the People’s Majlis by a majority of those present and voting, calling for the member’s removal from office, such member shall be deemed removed from office.”
Justice Adnan argued that an inquiry by a parliamentary committee into alleged misconduct would not be a criminal investigation. Therefore, he added, the oversight committee would not be required to prove guilt to the extent required at trial before making a decision.
He further noted that parliament’s dismissal under the authority of article 187 and a possible conviction at a late date could not be considered meting out two punishments for the same offence.
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