JSC member calls for open public inquiry into judicial reappointments

Police cordoned the Judicial Services Commission (JSC) on Monday morning, preventing its staff from working or entering the building, while the President’s Office summoned members of the judicial oversight body for questioning at an 11am meeting.

A statement from the Maldives Police Service (MPS) said the office was closed by police at the request of President Mohamed Nasheed, to prevent “unlawful and unconstitutional work from taking place.”

Police cited Article 115[a] of the Constitution, which concerns the powers of the President and reads that he “must faithfully implement the provisions of this Constitution and the law, and to promote compliance by organs of the State and by the people.”

Sub-Inspector Ahmed Shiyam said the President requested police investigate the institution after hearing reports that the JSC had been “open all night acting illegally.”

Speaking to Minivan News, Attorney General Husnu Suood said commission members, including  JSC head and Supreme Court Justice Mujthaz Fahmy, met President Mohamed Nasheed and explained that the commission was attempting to finalise work on the reappointment of 160 sitting judges before the Constitutional deadline of August 7.

A complaint that papers had been illegally removed from the premises had proven unfounded, Suood added, noting that following the meeting the President had asked police to remove the cordon.

“I think the present criteria for judges, as determined on July 27, is acceptable, subject to the 37 judges who have been identified as having criminal records,” Suood said.

The President’s member on the JSC, Aishath Velezinee, has submitted a complaint to Parliament’s Independent Commissions Committee (ICC) alleging that the “substandards” being used to grant life tenure to judges appointed under the former administration would “rob the country of an honest judiciary, as guaranteed under Article 285 of the Constitution.”

“Most [of the current judges] haven’t completed primary school,” she told Minivan News in a recent interview.

Suood said that “If there is evidence of corruption and political fixing of the judicial appointments, then I support the President’s actions [today].”

The Attorney General added that he was not convinced of the integrity of the current Supreme Court: “I do not trust it. I see certain incidents occurring that I am having to think about,” he said.

Velezinee has appealed to the Independent Commissions Committee (ICC) to issue an injunction preventing the reappointment of judges pending an investigation of the JSC.

Minivan News understands that a meeting between the JSC and the ICC today focused on the procedural functioning of the commission, and not the complaints made against it.

Prior to this meeting on Monday, staff at the commission confided that they were ordered into the commission on Sunday night and had been kept up working until 2:00am printing letters of reappointment for the judges, Velezinee explained.

A staff member from the Supreme Court was also observed to be directing proceedings, Velezinee alleged, claiming that this was a clear violation of the JSC’s independence.

“The first to be processed was Chief Judge of the Criminal Court, Abdulla Mohamed. He was convicted in 2000 for violating the Religious Unity Act and disobeying orders,” she claimed.

The JSC has argued that convictions for crimes under the former Constitution should not be a barrier for reappointment, and should instead be determined on a case-by-case basis.

“At the same time they are trying to restore the same culture that [issued those convictions],” Velezinee stated.

“Presenting the letters of reappointment is the final step [of the reappointments]. The judges have to first perform an oath-taking ceremony arranged by the Supreme Court at the instruction of the JSC, but none of the JSC staff know anything about this. The commission members are being very secretive,” Velezinee said.

She further accused commission members of ordering the tampering of evidence submitted to the ICC.

“Two days ago the Secretary General admitted to me that recordings of meetings were edited ‘for ease of use,'” she claimed, “and recordings were cut before being sent to the Majlis so they would fit on one CD.”

It was also common practice for the commission to edit her out of the meeting minutes, she explained, and members were regularly given insufficient information on which to base their votes.

“I believe the public should have access to the full transcripts and recordings of the meetings,” she said. “The people will be outraged.”

Velezinee called for an open and transparent public inquiry into the activities of the JSC, with the participation of impartial mediators from an organisation such as the UN or the International Committee of Jurists, acceptable to both sides, “as we do not have anyone impartial enough [in the Maldives].”

“The judiciary is the foundation that will uphold the future of our country,” Velezinee said. “I want the opportunity to write a report, but have not yet been given the chance – all the evidence is available, and the public needs to hear this. If I am wrong they can shoot me.”

Minivan News attempted on several occasions to contact JSC President Mujthaz Fahmy and Speaker of Parliament Abdulla Shahid, but they were not responding at time of press.


JSC decision could “rob nation of an honest judiciary”, warns member

The Judicial Service Commission’s (JSC) decision yesterday to reappoint all sitting judges unless they have been convicted of either a crime with a punishment prescribed in the Qur’an, criminal breach of trust or bribery was “nothing less than treason to rob the people of an honest judiciary”,  claims Aishath Velezinee, the president’s member on the commission.

The decision was approved with five votes in favour, two against and one abstention.

Writing in her personal blog, Velezinee warns that the new standard for judges’ conduct could give tenure to 19 judges with either prior convictions or allegations of gross misconduct.

If the decision is validated, she writes, the country “stands to inherit” seven judges found guilty of criminal breach of trust by the relevant authorities but not convicted in court; five judges with allegations of criminal breach of trust; two judges who face prosecution for criminal breach of trust; one judge on trial for sexual misconduct; two judges found guilty of sexual misconduct but not tried at court; one judge guilty of a crime with a punishment prescribed in the Quran; and one judge guilty of sexual misconduct and accused of criminal breach of trust.

“It is indeed a sad state of affairs, and an insult to all those honest judges whose integrity and good name is compromised by today’s decision,” writes Velezinee.

Confidence in the judiciary

Velezine told Minivan News today that the JSC decision could lead to eroding public confidence in the judiciary.

Article 285 of the constitution stipulates that the JSC shall determine before 7 August 2010 whether or not the judges on the bench posses the qualifications specified by article 149.

The criteria in the constitution requires that he or she “must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a judge, and must be of high moral character”.

The JSC’s decision went “against the purpose” of the constitutional provision, said Velezinie: “I believe this was a decision taken by four men raising their hands. It is a matter of national interest as public perception will be affected if people can’t trust the honesty of judges.”

Moreover, it was of the utmost importance to inspire public trust in the judiciary “to avoid democracy failing because of a weak judiciary”.

Velezinie said official records show that some judges “have convictions from other institutions” such as the former Anti-Corruption Board.

“As you know, in the past we did not have a culture where everything was decided by the courts,” she said, adding that the judgments were passed in accordance with the old constitution.

After delaying and “failing in its primary task” of reappointing judges until August last year, a subcommittee chaired by Civil Service Commission President Dr Mohamed Latheef was formed to draft guidelines for the standards.

But, she added, the final report of the committee comprised of “four judges and Dr Latheef” was only presented last Sunday.

Abuse of power

Both Velezinee and Attorney General Husnu Suood have accused Supreme Court Justice Mujthaz Fahmy, president of the JSC, of “abusing the authority of his position” to delay and obstruct the reappointment process.

While Velezinee said Mujthaz Fahmy was among the 19 judges with prior records, Suood accused Fahmy of holding up the promotion of rival judges for “personal reasons”.

Suood said the judges on the commission were “not cooperating” with the task of reappointing judges.

Supreme Court Justice Mujthaz Fahmy
Supreme Court Justice Mujthaz Fahmy

However, Judge Fahmy has denied the allegations: “Velezinee is lying if she really said that. That’s incorrect information.”

Fahmy stressed that the process of screening judges for reappointment had not yet begun and yesterday’s meeting was to “discuss the guidelines drafted by the subcommittee”.

The commission will go through old records and judges with prior convictions in court would be “disqualified”, he said.

Fahmy said he had “complete confidence” that the process could be completed by the August 7 deadline.

Apart from reappointment, he added, the commission has been active with hearing complaints, evaluating judges for promotion and formulating regulations and a code of ethics.

On the allegations of abuse of power, Fahmy said he doubted Suood would have accused him of it as the commission’s proceedings take place in accordance with the regulations and all members have an equal say.

“I wouldn’t say that judges have an undue influence in the commission as we don’t have a majority,” he said. “There are three judges on the ten-member commission”.

“Runaway judiciary”

Meanwhile, Ibrahim Ismail “Ibra”, former MP for Male’ and chairman of the drafting committee of the Special Majlis, the assembly that revised the constitution, said the substance of the criteria in article 149 was not limited to convictions.

“The assumption is that judges will have a higher than average standard of conduct,” he said. “Judges should be exemplary figures. So even if they have not been convicted of a crime, it does not mean they automatically have the code of conduct expected from a judge. They are expected to exhibit moral standing.”

He added that the JSC’s decision was tantamount to “the lowering of the standard expected from judges”.

Moreover, he said, the JSC was not empowered to “set standards by themselves” as the constitution grants that power to the People’s Majlis.

The parliamentary committee on independent institutions could order the commission to overturn its decision, Ibra continued, or establish standards and criteria for judges’ qualifications in the Judicature Act.

Ibra predicted that the decision will lead to escalating tension between the executive and the judiciary, which would have “very negative consequences”.

“Sadly, because of the actions of some judges who want to subvert the constitution for their own purpose, the credibility of the entire judiciary will be diminished,” he said.

While the Supreme Court was making “some headway” in reforming the judiciary, the courts did not inspire “a great deal of confidence from the public”.

Ibra speculated that judges understood “a divided Majlis cannot not hold the judiciary accountable” as the “comics in there can’t agree on anything”.

In the absence of effective oversight, he ventured, the judiciary was “having its heyday”.

Parliament exercising its authority to set minimum standards for judges would not be a solution either, Ibra argued: “Because the JSC is dominated by judges and the old guard, they will disregard it and even strike down laws.”

Judicial independence

In June last year, the Judges Association called for a constitutional review to change the composition of the JSC to allow only members of the judiciary on the commission.

The procedure for the removal of judges laid out in article 154 requires the JSC to find that the judge is grossly incompetent and submit a resolution to parliament for the removal of the judge.

A judge could only be dismissed if a two-thirds majority of MPs present and voting support the resolution.

Ibra said some judges were misinterpreting the “independence of the judiciary” to mean that “judges were above the law”.

“What I see happening is that some people are arguing that no organ of the state can influence or dictate anything to the judiciary,” he said. “That is not independence. That is putting them above the law.”

After two years of the JSC, he added, most people would agree on “the wisdom of the Special Majlis” in constituting the commission.

According to Article 158 of the constitution, the JSC shall consist of the speaker of parliament, an MP and a member of the general public appointed by parliament; three judges each elected from the Supreme Court, High Court and the trial courts and a private lawyer elected among licensed lawyers; the Chair of the Civil Service Commission, a person appointed by the president and the attorney general.

“In retrospect if I could change anything in the constitution, I would argue that the time has not yet come to keep any judges on the commission,” Ibra said.

Moreover, he said, the current judiciary faced an acute lack of qualified professionals with an “adequate” grasp of the constitution and the laws of the country.

“What I see is a runaway judiciary that will become increasingly tyrannical, that will pass judgment on people and no one can hold them accountable.”