supreme court – Page 37 – Minivan News

“Supreme Court bench will prevail as long as Maldives remains a democracy”: Chief Justice

Chief Justice Ahmed Faiz Hussain has said the current seven-member bench of the Supreme Court cannot be abolished and will continue to remain as the highest court of the country as long as the Maldives remains a democracy.

The Chief Justice’s remarks come at a time where the Supreme Court has come under heavy criticism from the opposition Maldivian Democratic Party (MDP).

Last week following two controversial rulings issued by the court, the MDP’s National Council 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 party subsequently launched peaceful street protests last Friday against the court rulings. Protesters led by former President Mohamed Nasheed also called on the Supreme Court to refrain from undermining parliament and its decisions.

Speaking during a ceremony held at the Judicial Service Commission (JSC) on Sunday to swear in five new Magistrate Court Judges, Justice Faiz Hussain contended that the only way a judge from the Supreme Court could be removed was if the judge’s position became vacant.

“By the will of Allah, the Supreme Court bench will prevail as long as the Maldives remains a democracy. The bench cannot be changed. A change to the Supreme Court bench can only be brought if a judge’s position becomes vacant,” he said.

The Chief Justice also called upon all the judges to not to fear what the “people from other institutions” say, and advised the judges to not let their emotional sentiments get in the way of fulfilling their legal duties.

He added that every person is entitled with the right to file a case at the court if the person feels that his rights had been compromised, and when the highest court decides on a matter, that decision will be final and binding, and cannot be changed.

Faiz Hussain also said that the court will look into cases filed with them, and the court process would not stop. He added that while there remained the option to settle matters out of court, if a matter came to the court, it would look into that matter.

“A very noble jihad”, says JSC President Adam Mohamed

Meanwhile President of JSC and member of the Supreme Court bench Adam Mohamed followed Chief Justice Faiz Hussain in condemning the efforts of some parliament members to dissolve the court bench.

Justice Adam Mohamed contended that article 54 of the Constitution clearly states as to how a Judge can be removed from a court. Therefore, Mohamed said the efforts led by MDP MPs to change the bench through legislation were unconstitutional.

“While the constitution very clearly mentioning as to how a judge can be removed, It remains very clear that efforts to remove a sitting judge in contrast with the principle laid down in Article 54 of the Constitution is clearly unconstitutional.

The JSC President also called on state institutions to refrain from interfering with the work done by the courts or do anything that could “impact the fairness and impartiality” of the JSC.

“I call upon you not to forget the fact that you are carrying out a very noble jihad in the name of Allah in delivering justice to the people,” he told the judges.

Regarding the removal of judges, Adam Mohamed echoed Chief Justice Faiz Hussain’s remarks stating that claiming that a judge could only be removed by either retirement, resignation or if the parliament successfully removes the judge by a two thirds majority.

Every effort will be made to bring the necessary changes – MDP

During the MDP’s emergency national council meeting held last week, the motion proposed by MDP national council member Mohamed ‘Sanco’ Shareef – which concerned the removal of the existing Supreme Court bench – 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).

The meeting was called in following the Supreme Court’s decision to overturn 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.

Former President Mohamed Nasheed during the meeting stated that it was more important that there be a proper justice established in the country rather than him being elected as 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.”

Meanwhile, MDP’s Parliamentary Group and Parliament’s Majority Leader Ibrahim Mohamed Solih 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.

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MDP protest against Supreme Court

Maldivian Democratic Party (MDP) held a peaceful street protest on Friday (March 22) against the Supreme Court following two controversial rulings against parliament.

Starting from Usfasgandhu, roughly 400 protesters led by former President Mohamed Nasheed took part in the demonstration calling for authorities to refrain from undermining parliament.

Local media reported that the protesters stopped near the Supreme Court to voice their opinions, further calling for the Supreme Court bench to be abolished and the resignation of President Mohamed Waheed Hassan Manik.

On March 14, Supreme Court declared two decisions made by parliament last year as unconstitutional.

According to the court ruling, parliament’s decision to remove Civil Service Commission President Mohamed Fahmy Hassan over allegations of sexual harassment and to conduct no-confidence votes through secret ballot violated the Maldives constitution.

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Adhaalath Party President vows to dissolve parliament, force MPs to resign

Additional reporting by Neil Meritt

The Adhaalath Party has threatened to dissolve parliament for “not functioning constitutionally”, by pressuring members to resign “just as former President Nasheed was” in February 2012.

President of the Adhaalath Party (AP), Sheikh Imran Abdullah, claimed parliamentarians were not conducting themselves according to the constitution or serving the Maldivian people.

Imran was speaking during a ‘National Movement’ event held at the Artificial Beach in Male’ on March 19, reported local media.

“If the parliament continues to fail to function according to the wishes of the people, Members of Parliament will be pressured to resign in in a similar manner as former President Mohamed Nasheed,” Imran declared.

“God willing, we will dissolve the parliament if it is not conducted according to the constitution. If they don’t want that, they should follow the constitution. We want the parliament to be an honourable place,” he added.

Imran claimed the recently ratified Parliamentary Privileges Act and Political Party Bill are not constitutionally valid laws.

“The Supreme Court has the authority to declare void laws that are enacted in violation of the constitution. So the recently-made Privileges Act and Political Party Act for which protests have been held after they were returned without ratification, are void.

“No action can be taken based on the void articles in these laws. We are not concerned about being accused of violating MPs’ privileges,” he said.

President Mohamed Waheed ratified the two controversial bills – the Parliament’s Privileges Bill and Political Parties Bill – despite previous claims that the two bills had several lapses and “unconstitutional” elements.

Following the President’s initial vetoing of the two bills, parliament overruled the presidential veto by a house majority and forced the bill into law, giving the president no option but to ratify the bills – one of which would see the dissolution of his own political party.

“Not a pressing issue”: Deputy Speaker Nazim

During parliament’s session Wednesday (March 19) MPs presented the issue to the Majlis floor considering Sheik Imran’s comments, a parliamentary official told Minivan News.

“Deputy Speaker of Parliament, MP Ahmed Nazim, who was chairing the sessions, said the matter was not a pressing issue despite concerns the comments were contrary to immunity provided for Majlis members.

“Pointing to parliament’s rules of procedure, Nazim requested any concerns on the matter be forwarded to the parliamentary committee overseeing MP privileges and immunity,” the official added.

The Maldivian Democratic Party (MDP) and Dhivehi Rayyithunge Party (DRP) both reflected the parliamentary sentiments that Imran’s remarks were of no concern.

MDP Spokesperson Hamid Abdul Ghafoor dismissed Imran’s remarks while speaking to Minivan News today.

“Sheik Imran has no understanding of public opinion. Parliament is very popular and the public looks to their elected representatives to solve problems,” claimed Ghafoor.

“As usual, he has got it wrong as he found out people do not like the coup he helped pull off by radicalsing groups of police and the Maldives National Defense Force (MNDF).

“I think parliament is the only democratic institution left. The judiciary has been proven to be corrupt and my party has declared their intention to replace the supreme court bench,” Ghafoor added.

DRP Deputy Leader Ibrahim Shareef agreed, telling Minivan News that Imran’s comments were merely rhetoric.

“Imran is not serious, it’s all rhetoric with no meaning or substance. No such thing [as in the dissolution of parliament] is going to happen. All political leaders have rhetoric, it’s not something to worry about,” said Shareef.

“In fact our political climate is so polarised political leaders seek to please their constituencies. If things our political leaders said were true, we would have landed on the moon by now.

“This is not the way it should be. It does a lot of damage over the long term. It’s very sad, but has become a commonplace reality of life,” Shareef stated.

Unlike Ghafoor, Shareef maintained that the supreme court is a legitimate institution.

“The supreme court is one of the properly functioning institutions. It is not colored by the polarised political climate here,” claimed Shareef.

The “national movement” was born out of the unofficial December 23 coalition of eight political parties and an alliance of non-governmental organisations that rallied to “defend Islam” in late 2011 from the allegedly liberal policies and “secularisation agenda” of former President Nasheed.

The Adhaalath Party and Progressive Party of Maldives were not responding to calls at time of press.

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MDP demands Supreme Court bench be replaced, inclusion of educated foreign judges

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.

“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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Independent Institutions Committee votes to replace Fahmy in CSC

Parliament’s Independent Institutions Committee voted yesterday to replace Mohamed Fahmy Hassan at the Civil Service Commission (CSC) following Thursday’s Supreme Court ruling reversing parliament’s removal of the CSC chair over allegations of sexual harassment.

The proposal to appoint a replacement for Fahmy by Maldivian Democratic Party (MDP) MP Ahmed Sameer was passed with five votes in favour and none against.

Dhivehi Qaumee Party (DQP) MP Riyaz Rasheed attempted to disrupt the committee meeting on Monday afternoon and did not participate in the vote. Other government-aligned MPs did not attend the meeting.

Riyaz contended that yesterday’s meeting was called in violation of parliamentary rules of procedure and insisted at length that parliament could not challenge Supreme Court rulings.

Monday’s sitting of parliament was meanwhile called off after MDP MPs objected to the Supreme Court ruling on the grounds that the apex court overstepped its constitutional authority.

Speaking to Minivan News, MDP Spokesperson Hamid Abdul Ghafoor stated that the MDP did not believe Fahmy should hold his position in the CSC, accusing him of having an “issue of integrity”.

“The committee decided today that he [Fahmy] should go and we should continue looking for another person.

“Effectively we are ignoring the Supreme Court’s decision. The MDP will continue to raise this issue in parliament, it is a policy and it is legally non-negotiable. We cannot compromise on that.”

The sitting was first adjourned at 10:00am when MDP MPs raised points of order after Deputy Speaker Ahmed Nazim announced the Supreme Court’s decision.

In regard to the morning announcement, Ghafoor said Nazim did not make the “right call” when informing parliament of the court’s decision.

“He [Nazim] informed us of the three issues to do with the Supreme Court in a language that essentially showed an acceptance of those verdicts. We didn’t like this,” he said.

After the sitting resumed at 1:00pm, Nazim announced the cancellation as the issue was to be taken up at a meeting of the Independent Institutions Committee.

On November 20, 2012, parliament dismissed Fahmy in a 38-32 vote after the Independent Institutions Committee looked into a complaint of sexual harassment by a female employee of the CSC.

Fahmy however contested the dismissal at the Supreme Court, which ruled 6-1 on Thursday night that his removal was unconstitutional. The majority opinion contended that the Independent Institutions Committee violated due process and criminal justice procedures in its inquiry.

The majority opinion held that Fahmy would receive two punishments for the same crime if he was convicted at court following his dismissal by parliament (double jeopardy). The CSC chief returned to work on Sunday.

“Fundamental, revolutionary change”

Writing in his personal blog following the Supreme Court judgment, MP Mohamed ‘Kutti’ Nasheed – chair of the Independent Institutions Committee – argued that the Supreme Court judgment established a legal precedent that would bring “a fundamental, revolutionary change” to employment termination.

On the Supreme Court’s argument that Fahmy was accused of committing a criminal offence, Nasheed noted that sexual harassment at the workplace was not specified as a crime in Maldivian law. Legislation on sexual harassment is however currently before parliament.

In the absence of a law prohibiting the offence, Nasheed wrote, a person could not be prosecuted for sexual harassment.

Fahmy’s dismissal by parliament was therefore a disciplinary action taken by the institution with oversight powers over the CSC, Nasheed explained.

Under article 187(a) of the constitution, a member of the CSC can be removed “on the ground of misconduct, incapacity or incompetence.”

Article 187(b) 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.”

As the process to be followed by parliament was clearly specified in the constitution and parliamentary rules of procedure, Nasheed argued that the Supreme Court could not require parliament to adhere to “new conditions and new procedures”.

“While parliament has the power to remove members of the Civil Service Commission and the process to exercise that power is specified in the constitution, the problem that has risen is that the [Supreme Court] has determined that Majlis cannot use that power even in accordance with the procedure laid out in the constitution and law,” Nasheed wrote.

Nasheed further argued that parliament’s removal of former Auditor General Ibrahim Naeem in March 2010 has now been thrown into question in the wake of the Supreme Court ruling. Naeem was dismissed after the Finance Committee investigated allegations that he used an office credit card for personal benefit.

The ruling has also raised doubts over the legal status of current Auditor General Niyaz Ibrahim, Nasheed wrote.

Nasheed also criticised the Supreme Court’s interpretation of “double jeopardy” in Fahmy’s case. According to the Supreme Court ruling, a person could not be removed from his or her post as a disciplinary action unless he or she was convicted of a crime.

If an employee is accused of a criminal offence, he added, employers would no longer have the right to fire the accused before he or she was found guilty.

“If that is the case, questions have been raised over the dismissal of all police officers, army officer, civil servants and employees of other institutions over cases of misconduct or breach of ethical rules that involves allegations of a criminal offence,” Nasheed explained.

Double jeopardy does not preclude civil, disciplinary or administrative action before or after criminal prosecution, he added.

However, Nasheed argued, the Supreme Court ruling has effectively prohibited employment termination as a disciplinary action as the judgment considered such action “a punishment.”

As a result of the legal precedent established by the Supreme Court, Nasheed wrote, it was “very likely” that most people dismissed from their posts since the adoption of the new constitution in August 2008 would have to be reinstated.

“That is, considering their cases individually, it is certain that no state institution would have adhered to the standard set in this Supreme Court judgment. The standards are that high,” he explained.

Nasheed however stressed at the beginning of his post that he was obliged to accept the Supreme Court ruling as it was the highest court of appeal.

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Supreme Court overturns parliament’s dismissal of CSC Chair Mohamed Fahmy for sexual harrasment

President of the Civil Service Commission (CSC) Mohamed Fahmy Hassan has returned to office after Supreme Court ruled that parliament’s decision to remove him was unconstitutional.

The CSC confirmed to local media on Sunday (March 17) that Fahmy had returned to work after he had been dismissed by parliament in late November last year.

On Thursday (March 14), 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 reportedly 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.

Following Fahmy reinstatement, Dhivehi Rayyithunge Party (DRP) Leader Ahmed Thasmeen Ali today tweeted: “Majlis n civil servants have lost confidence in Mr. Fahmy, President of CSC. In the national interest, he should resign.”

Supreme Court ruling will encourage sexual harassment: NGO

Maldives-based NGO Voice of Women (VoW) expressed its disappointment with the Supreme Court’s ruling regarding the verdict on Fahmy’s dismissal last year.

In a statement published on its website, VoW accused the Supreme Court Justices of having let down the women of the Maldives.

“In a small country like Maldives, where women are terrified to come forward and report cases of sexual abuse, domestic violence or sexual harassment, it took great courage for a girl to step forward and report this case against Mr. Fahmy,” the statement reads.

“By reinstating Mr. Fahmy, after disregarding the Parliamentary no confidence vote, all the women working in Civil Service are in danger of being victims of sexual harassment, as women will be even more reluctant than before to come forward and report such cases.”

VoW raised further concern regarding Fahmy’s seat on the Judicial Service Commission (JSC), claiming that he is in a position to “influence the judiciary”.

“As Parliament had dismissed heads of independent commissions in the past with votes of no-confidence (eg Auditor-General on 28 March 2010) without any prior court case, VoW is extremely concerned that this ruling is highly irregular and departs from previously established norms and procedures,” the VoW statement reads.

“VoW calls upon the Parliament of Maldives to exercise its rights as per article 187 of the constitution and immediately take action to remove Mr. Fahmy (whom the parliament members as representatives of the people, do not have confidence in, and who they believe women employees will not be safe with) from his reinstated position.”

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Elections Commission to respond after Supreme Court issues injunction on dissolution of parties

The Elections Commission (EC) is to decide on how it is to proceed following Supreme Court’s temporary injunction on the dissolution of political parties.

The court issued the temporary stay order on Thursday (March 14) after Attorney General (AG) Azima Shukoor filed a case claiming that sections of the recently ratified Political Parties Act were in contradiction to the constitution.

Local media reported that Supreme Court had asked all authorities not to consider any party as dissolved until the case is decided.

President of the EC, Fuad Thaufeeq revealed that the commission would make a decision regarding what action would be taken in response to the Supreme Court’s order.

“The commission will sit tomorrow (March 17) to discuss and decide on how we shall proceed. We have to respect and obey court orders,” Fuad told Minivan News via SMS.

The Political Parties Bill – ratified by President Mohamed Waheed on Tuesday (March 12) – states that parties must now meet a minimum of 10,000 members before they can be recognised as such.

Following the bill’s approval by President Waheed, a total of 11 parties were removed of the EC’s political party registry, leaving five to compete in upcoming presidential elections later this year.

When asked whether the EC would now reinstate the parties removed off its registry prior the Supreme Court’s final decision on the case, Fuad stated: “We will follow the court’s orders.”

Out of the 16 parties that had previously existed prior to the ratification of the bill, only the Maldivian Democratic Party (MDP), Progressive Party of Maldives (PPM), Dhivehi Rayyithunge Party (DRP), Jumhoree Party (JP) and Adhaalath Party (AP) remain registered in the Maldives.

EC Vice President Ahmed Fayaz previously told Minivan News that the EC had removed parties that did not meet the required membership amount in “accordance to the law”.

“We followed procedure in accordance to the [Political Parties] bill. Within that bill there is a clause that clearly states, that when a party that has less than 10,000 members it is to become null and void,” he said.

It had been previously reported that upon ratification of the bill, political parties with fewer than 10,000 members would have three months to reach the required amount or face dissolution.

When asked about the clause, Fayaz stated it only applied to registered parties in accordance to the bill, and that therefore if a party does not meet the 10,000 limit it cannot be classed as such and is therefore exempt from the three-month clause.

Attorney General (AG) Azima Shukoor, Director Department of Judicial Administration Ahmed Maajid and Vice President of Elections Commission (EC) Ahmed Fayaz were not responding to calls from Minivan News at time of press.

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Supreme Court rules secret ballot, dismissal of CSC chair unconstitutional

The Supreme Court on Thursday ruled that contested decisions by parliament to remove Civil Service Commission (CSC) Chair Mohamed Fahmy Hassan and conduct no-confidence votes through secret ballot are unconstitutional.

On December 3, 2012, parliament voted 41-34 to approve amendments to the parliamentary rules of procedure to conduct no-confidence votes to impeach the President and remove cabinet members through secret ballot. The house rules were changed with pending no-confidence motions against President Dr Mohamed Waheed and Home Minister Dr Mohamed Jameel Ahmed submitted by the formerly ruling Maldivian Democratic Party (MDP).

In late November, parliament dismissed Fahmy in a 38-32 vote after the Independent Institutions Committee investigated a complaint of sexual harassment by a female employee of the CSC.

Both moves were challenged at the Supreme Court, which issued injunctions or stay orders to parliament to halt both conducting no-confidence votes through secret ballot and appointing a replacement to the CSC, pending rulings on the legality of the decisions.

In its judgment (Dhivehi) on the constitutionality of secret ballots for no-confidence votes, the Supreme Court ruled 6-1 to strike down the amendment to parliament’s standing orders as unconstitutional. The majority opinion 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 People’s Majlis and its committees must be open to the public.

In the second judgment (Dhivehi) on Thursday night, the Supreme Court noted that Fahmy was alleged to have committed a criminal offence and contended that the Independent Institutions Committee violated due process and principles of criminal justice procedure in dealing with the accused.

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.

Dissenting opinion

Meanwhile, Justice Ahmed Muthasim Adnan – the only Supreme Court justice with a background in common law – issued dissenting opinions in both cases.

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 added that the secret ballot would be taken at a sitting open to the public.

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.

Separation of powers

Following the injunctions issued by the Supreme Court in December 2012, MDP MP Eva Abdulla told Minivan News that the supremacy of parliament was at stake in the cases before the apex court.

“By its actions, the Supreme Court is challenging the separation of powers that underpins the constitutional basis of governance,” Eva said.

Meanwhile, Independent MP for Kulhudhufushi South, Mohamed ‘Kutti’ Nasheed, contended in his blog on December 12 that the Supreme Court did not have the legal or constitutional authority to issue the injunctive orders against parliament.

Moreover, the Supreme Court “does not have the power to even accept those cases,” he wrote.

Article 88(b) of the constitution states: “Unless otherwise specified in this constitution, the validity of any proceedings in the People’s Majlis shall not be questioned in any court of law.”

Nasheed argued that decisions made by parliament could not be challenged in court except in instances clearly specified in the constitution, which did not include dismissal of members of independent institutions and amendments to Majlis regulations.

The purpose of article 88 was to prevent parliament’s decisions being challenged or overturned, Nasheed said, as in the absence of such a clause the Supreme Court would become a “People’s Appeal Majlis” with supremacy over the house of elected representatives.

“If every decision of the People’s Majlis is appealed at the Supreme Court in the manner that any judgement by the High Court can be appealed at the Supreme Court, then there is no difference between the People’s Majlis and the High Court,” Nasheed wrote.

This was against the separation of powers envisioned in the constitution, Nasheed said, which vested legislative powers in parliament and clearly specified instances where its decisions could be challenged at court.

Former legal reform minister Nasheed is chair of the Independent Institutions Committee. Asked by the Supreme Court to hand over minutes of the committee inquiry, Nasheed had refused.

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Police Commissioner challenges Parliament Committee to Supreme Court battle

Commissioner of Police Abdulla Riyaz has declared that police officers will appear before parliament’s Executive Oversight Committee (EOC) only if the Supreme Court orders police to do so.

Riyaz made the remarks in an interview given to local newspaper Haveeru.

On Tuesday, ]Riyaz sent a letter to parliament stating that he will not appear before the EOC – which has an opposition Maldivian Democratic Party (MDP) majority – claiming that he had received advice from Attorney General Azima Shukoor not to do so.

In the letter, the commissioner contended that it was not in the mandate of the committee to hold police accountable. Instead, this was the responsibility of parliament’s National Security Committee – known as the 241 Committee – established under article 241 of the constitution.

Riyaz repeated his claim that the parliamentary committee was attempting to discredit the police. He alleged that the committee members were employing ‘bully-boy’ tactics rather than holding the institution accountable.

He also expressed disappointment over the committee’s decision to summon the police officer who struck a fleeing suspect on a motorbike, that led to the death of bystander Abdulla Gasim, 43.

A leaked CCTV footage showed a police officer stepping in front of the speeding motorcycle and appearing to hit the rider on the head with a baton.

The driver loses control and collides with Gasim sitting on his motorcycle just in front of the Justice Building entry, causing both to fly off their vehicles. The police officer retrieves an object from the ground and wanders away, as other police and a military officer rush to the scene. Gasim died of his injuries.

The initial police statement made no mention of police involvement in the crash.

Speaking to Haveeru, Riyaz questioned as to why the negligent officer should be summoned when Riyaz had appeared before the committee on his behalf.

“I have already appeared before the committee and had answered all the questions on behalf of the police, and even the Police Integrity Commission (PIC) has released its report on the incident. What is the purpose of summoning the officer who used the baton?” he questioned. “The purpose is very clear. The purpose, I believe, is to discredit the police institution. They can’t do that under my watch. I am sorry,”

Riyaz claimed that the decision not to cooperate with the parliamentary select committee was made after he observed members of the committee using “foul language” towards police, calling them “unpleasant names” and asking them “unnecessary questions”.

He added that advice from the attorney general was sought after the committee had turned itself into “a platform to harass the police”.

“After we got the advise from the attorney general, myself and other police officers have now decided not to appear before this committee. If [the committee members] want to change that, they would have to go to the Supreme Court,” he claimed.

Riyaz stated that if the Supreme Court ordered police to appear before the committee, they would adhere to the order.

“My responsibility is to assure the safety and protection to the people. That responsibility falls onto the shoulders of the police. I will not give the opportunity to anyone to harass and intimidate police officers of different ranks. That is why we sought a legal mandate to not appear before the committee,” he explained.

Meanwhile, chair of the EOC Ali Waheed said that even if the commissioner had decided to boycott the committee using the attorney general’s advice as an excuse, the committee did not feel obligated to seek counter-advice.

The Thoddoo MP noted that the Supreme Court had previously ruled that parliament committees can summon anyone and that until now, Riyaz and other government officials had accepted this fact and attended parliament committees as requested.

In March 2011, the Supreme Court ruled both the Police and the Maldives National Defence Force (MNDF) should be answerable to parliament and its National Security Committee whenever requested.

The Supreme Court in the ruling stated that, according to article 99 (a) and (b) of the constitution, it was clear that parliament was obliged to supervise every action of the security services and ensure their actions are within the constitution and law.

Article 99(a) of the constitution states – “[The People’s Majlis or any of its committees has the power to] summon any person to appear before it to give evidence under oath, or to produce documents. Any person who is questioned by the People’s Majlis as provided for in this Article shall answer to the best of his knowledge and ability”.

Article 99(b) states – “[The People’s Majlis or any of its committees has the power to] require any person or institution to report to it”.

However, the police commissioner contended that the Supreme Court’s ruling stated that the police should only appear before a “relevant committee” and he did not believe that police could be summoned by “just any committee”.

Speaking to Minivan News, EOC member MP Ahmed Easa dismissed Riyaz’s claims, stating that police had already lost the public’s respect and the confidence once held in the institution, and that there was “no point Riyaz talking about it now.”

“The police lost credibility among the public the day they came out on the streets, toppled an elected democratic government and brutalised the people they were supposed to defend and uphold,” he said at the time.

He also contended that the EOC had the mandate to summon any individual from the executive branch for questioning, and that this was very clearly mentioned in the parliament’s regulations and the constitution.

“If he does not believe what has been clearly set out in the laws of this country, that means he is no longer fit to be commissioner of police,” Easa said.

Abdulla Riyaz’s number was temporarily disconnected when Minivan News called for comment.

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