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.