Tag: Sheikh Shuaib Abdul Rahman

Religious scholars warn of God’s wrath over corruption and injustice

A group of religious scholars have warned of God’s wrath on the Maldives due to rampant corruption, brutality, and injustice.

Prominent scholars including former Islamic minister Dr Abdul Majeed Abdul Bari and former member of the judicial watchdog Sheikh Shuaib Abdul Rahman described the Maldives as a country “drowning in a sea of atrocities” and pleaded with president Abdulla Yameen to heed the opposition’s calls for dialogue.

“The Maldives is on the verge of an imminent God’s wrath. The executive and the judiciary have lost its powers and trust while the nation has forgotten that God has handed down justice,” read the joint statement by 15 scholars.

President’s office spokesperson Ibrahim Muaz Ali welcomed the statement, but said there were no specific allegations to respond to.

“Everybody including the religious scholars has the right to voice their opinions and I welcome it. But if they are accusing the government of something there has to be specifics,” he told Minivan News today.

Religious scholars have not spoken out as a group against corruption in the judiciary and independent institutions so far despite low public confidence and a sex scandal in mid-2013 involving a Supreme Court justice.

The religious conservative Adhaalath Party (AP) has meanwhile come under fire for its use of religious rhetoric for political campaigning.

The opposition-aligned scholars in Tuesday’s statement also criticised the trials of former president Mohamed Nasheed and ex-defence minister Mohamed Nazim.

The accused are required to prove their innocence in some cases while in others defendants are cleared of charges because the state fails to establish guilt with sufficient evidence, they noted.

“This is not accepted even in human laws let alone the Islamic sharia,” the scholars said.

While the executive power boasts of its focus on youth development, the scholars said the government is paving the “path to ruin” for young people. Institutions that should serve the people are “rotting with corruption”, they contended.

Corruption in all ranks of the government has become commonplace, accepted, and even necessary for advancement, the scholars said.

The ministry of Islamic affairs last month issued an incendiary sermon warning corrupt judges of hellfire.

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Judicial watchdog considers probe into Drug Court Judge’s blog

The Judicial Services Commission (JSC) is considering a probe into a blog post by Drug Court Judge Mahaz Ali.

The judge’s May 8 blog post disagreed with the Attorney General’s (AG) advise on the ongoing leadership vacuum at the independent Prosecutor General’s (PG) Office.

JSC member Sheikh Shuaib Abdul Rahman said the commission had started discussions on whether to proceed with an investigation, but said a decision has not been made yet.

“I do not believe the commission should take up this matter. Article 41 of the Judges Act allows judges to engage in academic writing,” Shuaib said.

Clause 41 (a) of the Judges Act states judges may write essays and academic documents as long as they do not intend to politically benefit any party.

According to Shuaib, AG Mohamed Anil, who also sits on the JSC, had agreed with him on the matter.

In his legal opinion to President Abdulla Yameen, Anil last week said the senior most official at the PG office must takeover the PG’s constitutional obligations in the aftermath of acting PG Hussein Shameem’s resignation.

State prosecutors had stopped work at the time, bringing the criminal justice system to a halt.

Anil said prosecutors must resume work even in the absence of guidance by the PG, claiming the country was in a “state of necessity” where extra legal actions by the government could be deemed lawful.

However, Mahaz wrote that the state of necessity argument was valid only if there was no legal solution to the crisis, suggesting that there was no reason President Yameen could not propose a name for approval by the current People’s Majlis.

Yameen had said he would only submit a new nominee to the newly elected parliament, which is set to convene on May 28.

The current Majlis is in recess. It had rejected Yameen’s previous choice – his nephew Maumoon Hameed – for the position in March.

Mahaz said any criminal trials in the PG leadership’s absence is unconstitutional.

“A state of necessity is faced only when all legal avenues have been exhausted. In the current situation, the solution is to appoint a new prosecutor general. The current People’s Majlis is not in a situation where it cannot carry out its duties,” wrote the judge.

“The authority that must nominate a candidate [the President] is able to do so. Unless these two parties are in a state in which they cannot carry out their constitutional duties, a state of necessity will not be faced in the prosecutor general’s case.”

However, prosecutors were forced to end their strike on Tuesday following a Supreme Court ruling on the matter on Monday. The ruling upheld Anil’s state of necessity argument.

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Supreme Court orders JSC to halt transfer of judges

Supreme Court has released a mandamus order on Monday halting the judicial oversight body’s decision to shuffle ten superior court judges.

The order states the Judicial Services Commission (JSC) does not have absolute powers to transfer and promote judges.

Unless a court is liquidated no judge can be transferred to another court unless by the explicit decision of the Judicial Council, the Supreme Court said.

The Supreme Court has previously annulled the Judicial Council and taken over the council’s powers. The JSC has been notified of the move and hence is mandated to discuss any shuffle of judges with the Supreme Court, the order said.

“The Judicial Service Commission’s decision dated December 9, 2013 – where without any contribution of the Supreme Court – the JSC decided to transfer judges of the Civil Court, Criminal Court, Family Court, Drug Court and Juvenile Court from one court to another from January 1, 2014 is hereby overturned, and we notify Judicial Services Commission, concerned courts and other concerned authorities that it cannot be acted upon,” the order signed by Chief Justice Ahmed Faiz Hussain reads.

JSC disregarded Chief Justice’s objections

Earlier in December, the Chief Justice sent a letter to the JSC objecting to the transfer, presenting the same arguments as in Monday’s mandamus order.

The JSC had at the time decided to disregard the objections, saying it lacked legal grounds.

“Even under the constitution and the JSC Act, the commission is vested with the power to transfer the judges,” JSC representative from the parliament Ahmed Hamza said at the time.

“Order is baseless but will abide by it”

Hamza stated that the JSC still maintains that its decision is a legally justified one.

“When the next term of parliament begins, we will work on this matter from within the parliament. Meanwhile, the JSC’s position is clear: we maintain our stand that our decision to transfer judges is legal and within our powers,” Hamza told Minivan News today.

“By releasing this order, the Supreme Court has undermined the powers vested in the JSC by the constitution. I do not accept that the Supreme Court has the power to do so,” he continued.

“The Supreme Court usually overrules things when someone files a case there, not of their own initiative as in this instance. It is very surprising how this has come about.”

However, Hamza stated that as the objection has come in the form of a Supreme Court order, the JSC will have to follow it.

JSC Member appointed from the public Sheikh Shuaib Abdul Rahman stated that while the order held the same reasoning as the letter previously sent by Faiz, the JSC will abide by it as it has now come in the form of an apex court order.

However, commenting further in private capacity, Shuaib described the Supreme Court’s reasoning as “irrational”.

“The reasoning presented in the order itself is irrational, and off the topic. The only legal connection that they can show is Article 47 of the Judges Act. The thing is they are talking about the Judicial Council, which has been made void. How can they refer to something that has already been made void? The articles that the Supreme Court have pointed out in the order have nothing to do with the JSC,” Shuaib said.

Shuaib said that he does not accept the Supreme Court can adopt the duties of the Judicial Council after the council itself has been ruled void.

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Judges not informed of impending shuffle

The Judicial Services Commission’s (JSC) Secretary General Abu Bakuru Mohamed has said the commission has not informed ten superior court judges about their impending transfer on January 1, according to local media.

The JSC decided to shuffle the judges in December “in a bid to strengthen the judiciary.” However, Chief Justice Ahmed Faiz objected to the decision claiming the commission does not have the authority to shuffle judges.

Although only two days remain for the shuffle to take effect, JSC SG Mohamed has failed to inform judges or explain reasons for the delay, local media have said.

Meanwhile, JSC Members Shuaib Abdul Rahman and MP Ahmed Hamza have confirmed to Minivan News the JSC will stands by its decision to shuffle judges and has called on the SG to facilitate its implementation.

“Informing the judges is an administrative work and the responsibility of the Secretary General. I believe he will abide by the commission’s decision and notify judges prior to their date of transfer. The transferred judges must report to work at the courts where they have been transferred to starting from January 1,” Hamza stated.

The JSC has so far transferred ten Superior Court judges to other courts of the same legal calibre, including the transfer of controversial Criminal Court Chief Judge Abdulla Mohamed to the same position at the Drug Court.

JSC Senior Legal and Complaints Officer Hassan Faheem Ibrahim also said that notifying judges is the responsibility of the SG, and so he is unable to comment on the matter.

Controversy around transfer of judges

Chief Justice Ahmed Faiz Hussain termed the JSC’s decision “unlawful.” He sent a letter to the president of the judicial watchdog Supreme Court Judge Adam Mohamed stating that the commission did not have the legal authority to carry out such transfers without deliberation with the Judicial Council – a council compiled of the seven judges of the Supreme Court.

Judge Adam Mohamed himself is reported to have expressed disapproval with the decision of the remaining commission members to transfer judges and to have walked out of the commission meeting.

The commission, however, decided with majority votes to go ahead with the transfers, stating that the Chief Justice’s objection lacked any legal grounds.

“Even under the constitution and the JSC Act, the commission is vested with the power to transfer the judges as we have,” member Hamza said at the time.

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JSC member Sheikh Rahman criticises JSC decisions on Hulhumale’ Magistrate Court in parliament committee

Parliament’s Independent Commission’s Oversight Committee on Thursday separately questioned two members of the Judicial Services Commission (JSC) about the legality of the Hulhumale’ Magistrate Court and the appointment of the panel of magistrates to the case against Nasheed, for his detention of Criminal Court Chief Judge Abdulla Mohamed.

Of the nine members currently serving in the judicial watchdog, Sheikh Shuaib Abdul Rahman – the member appointed from among the public – attended the first committee session on Thursday.

Arbitrary appointment of magistrates

In response to questions posed by committee members, Sheikh Rahman stated that the JSC had arbitrarily appointed three magistrates from courts across the Maldives to Nasheed’s case, after dismissing the three names first submitted to the commission by the Hulhumale’ Magistrate Court.

“Moosa Naseem (from the Hulhumale’ Court) initially submitted names of three magistrates, including himself. This means that he had taken responsibility for overseeing this case. Now once a judge assumes responsibility for a case, the JSC does not have the power to remove him from the case,” Sheikh Rahman explained. “However, the JSC did remove him from the case, and appointed three other magistrates of their choice.”

Sheikh Rahman stated that the commission had referred to Articles 48 to 51 of the Judge’s Act as justification.

“But then I note here that the JSC breached Article 48 itself. They did not gather any information as per this article. They stated that it is due to the large number of paperwork that needs to be researched that they are appointing a panel. However, this is not reason enough to appoint a bench,” he said.

“Later, when Mazeed assumed responsibility for the Hulhumale’ Court, I remember seeing a letter he sent saying that the Hulhumale’ Court had a huge number of cases and that they needed additional magistrates to oversee the cases. However, this was after the panel was already appointed,” Sheikh Rahman stated.

“The surprising thing here is that this court has been functioning with two magistrates serving there. There have never been workload complaints. It was only after the appointment of the panel, and Mazeed going there, that this problem has arisen. This itself is a questionable matter,” Sheikh Rahman alleged.

Responding to a question posed by Maldivian Democratic Party (MDP) MP Ali Waheed, Sheikh Rahman spoke of the “questionable moves” within JSC which led to the removal of Moosa Naseem from the case.

“Two members of the JSC, if I remember correctly it was Abdulla Didi and Saleem, asked for Naseem to be removed from the panel, stating as a justification that he was ‘disturbing’ the panel. Somebody even submitted a letter to the commission saying so. The majority of the committee however dismissed this as it was believed to be not enough of a reason,” Sheikh Rahman said.

“If a Head Magistrate goes on leave, or is unable to attend work, then the JSC can appoint someone in his stead. This used to be my responsibility. Then suddenly, this responsibility was taken away from me and handed over to Saleem and Abdulla Didi. The next thing I heard was that they had replaced Naseem with Mazeed,” Sheikh Rahman alleged.

“This is in direct breach of the law. They cannot appoint someone else to the post unless it becomes vacant.”

Hearing this response, Ali Waheed then alleged conflict of interest inside the commission.

“I think it is all becoming very clear now. The MDP’s competitor, Progressive Party of Maldives (PPM) prospective presidential candidate Abdulla Yameen’s close friend, and Deputy Speaker of Parliament Abdulla Nazim’s former lawyer Ahmed Saleem is on the JSC as [President] Waheed’s appointee. They are working from inside the JSC to eliminate the candidacy of Mohamed Nasheed,” MP Waheed alleged.

Vice Chair of the parliamentary committee MDP MP Ahmed Sameer stated that according to the Judicature Act, only the Supreme Court and the High Court preside over cases with panels of judges as a norm.

He explained that it is only under rare and special circumstances that magistrate courts are allowed to form panels, and that even in such cases it is the Head Magistrate of the particular court that is mandated to make a decision on the matter.

Sameer then proceeded to ask Sheikh Rahman if, in light of these laws, he believed it was legitimate for the JSC to exclude Kaafu Atoll Huraa Head Magistrate Moosa Naseem, who was in charge of the Hulhumale’ Court, from the bench for Nasheed’s trial. He further inquired if the member believed it was a politically motivated move on the side of the JSC.

“In case a court requests more magistrates, the JSC can appoint additional judges to a court. However, I am not aware that the commission is under any circumstances allowed to assign judges to particular cases,” Sheikh Rahman responded.

“As for politicisation, I wasn’t at the meeting where this particular decision was made, so it is difficult to comment on the motivation behind it. However, I did notice from the recording that once one member proposed this idea, there was immediate approval and no amount of discussion was further carried out.”

JSC role in running “illegitimate court”

Referring to the provisions in the Judicature Act, Sameer further asked Sheikh Rahman if he believed that the JSC had acted in breach of the constitution and laws to maintain the Hulhumale’ Magistrate Court, which must be automatically liquidated following the ratification of the said act.

“At the time, I too was lacking the necessary information and voted in favour of running the Hulhumale’ Court. The documents provided by the JSC did say that there was a magistrate court in Hulhumale’ even in 2007. On later review, this too turned out to be untrue,” Sheikh Rahman stated. “I cannot say what their objective was, but there certainly was a lot of misinformation.”

“It is the JSC who decided to run the Hulhumale’ Court despite the Judicature Act. The decision was made with four votes, including that of Ahmed Rasheed. This member’s wife serves as a magistrate in the Hulhumale’ Court. This matter was then submitted to a lower court for review. However, Adam Mohamed redirected the case to the Supreme Court. He then cast the deciding vote in the Supreme Court. Do you believe this proceeded in a fair and just manner?” Sameer asked of Sheikh Rahman.

“Adam Mohamed should not have been there. I have raised the matter even in the JSC. I have also spoken with the Chief Justice about this,” the member responded.

“He said there is nothing he can do about this, and said that it had been a decision of the Supreme Court bench. I insisted that regardless of who had made the decision, there is no way a wrong can be considered otherwise,” he continued.

“The Chief Justice then said that Adam Mohamed may perhaps recuse himself from the case. However, Adam did not do so either.”

JSC Chair Adam Mohamed has responded to the committee’s summons through an official letter, refusing to be answerable to the committee as the matter in hand referred to an “ongoing case”.

However, JSC Vice Chair Abdulla Didi and Speaker Shahid spoke against the Chair’s decision, stating the commission must be answerable to its oversight body at all times, adding that Adam Mohamed had made a unilateral decision without consulting the majority members of JSC.

Shahid left on a trip abroad despite having agreed to attend Thursday’s parliamentary committee meeting.

At the committee meeting, Sheikh Rahman also stated that he did not find Adam Mohamed’s justification acceptable.

“It is the JSC which has the powers to look into complaints about this bench in question. It is also the JSC that holds the powers to dismantle the bench should need be. Hence it makes no sense to say we cannot discuss the matter at any point in time,” he stated.

Sheikh Rahman also criticised Adam Mohamed’s decisionto not attend the committee summons without consulting other members of the commission.

He further said that he did not believe the serving members of the JSC were able fulfil their duties as per the pledges they had taken, alleging that the commission had become subject to political influences.

Sheikh Rahman made similar remarks in a live television appearance last week. He is the second JSC member to blow the whistle. The first, Aishath Velezinee, challenged the JSC’s “unconstitutional” reappointment of poorly educated and ethically dubious judges in August 2010. She was subsequently stabbed three times in the back in broad daylight on Chandeenee Magu, Male’s main tourist strip.

The JSC is currently comprised of Chair Supreme Court Judge Adam Mohamed, Vice Chair Criminal Court Judge Abdulla Mohamed, Speaker of Parliament Abdulla Shahid, High Court Judge Abdulla Hameed, MP and government aligned Jumhooree Party (JP) Leader, MP and Presidential Candidate Gasim Ibrahim, lawyer Ahmed Rasheed, Attorney General Azima Shakoor, Presidential Appointee Mohamed Saleem and Member appointed from the public Sheikh Shuaib Abdul Rahman.

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