supreme court – Page 38 – Minivan News

Former CSC head claims dismissal was politicised

Former Head of the Civil Service Commission (CSC) Mohamed Fahmy Hassan has told the Supreme Court that his dismissal was politically motivated.

According to local media, Fahmy told the Supreme Court that he was dismissed because he had refused to decrease the number of civil servants to 15,000 from 32,000 and because he had raised his voice to reinstate the salaries of civil servants.

Fahmy’s lawyer told the court that the parliament conducted a criminal investigation into Fahmy despite not having the jurisdiction to conduct such investigations.

Parliament’s Counselor General Fathmath Filza was present at the court to represent the parliament.

The Supreme Court has previously ordered parliament’s independent commissions committee to send it all minutes relating to Fahmy’s case.

However, the committee decided not to send the minutes to the court the sources who spoke to the committee spoke on condition that their names would not be disclosed.

Chair of the Committee MP Mohamed Nasheed told the press at the time that if documents containing confidential information were sent to a court open to the public, the information would also be open to the public.

On November 20, parliament voted that Fahmy be dismissed from his position as the President of the Civil Service Commission (CSC), on charges of sexual harassment against a female employee.

The incident occurred on May 29, 2012, when Fahmy allegedly called the female staff member over to him, took her hand and asked her to stand in front of him so that others in the office could not see, and caressed her stomach saying ”it won’t do for a beautiful single woman like you to get fat.”

Local media at the time reported that the woman told her family about the incident, who then called Fahmy. Fahmy then sent her a text message apologising for the incident, reportedly stating, ”I work very closely with everyone. But I have learned my lesson this time.”

In response to the allegations Fahmy told Minivan News at the time that the female staff member had invented the allegations after she discovered she had not received a scholarship to Singapore offered by the CSC.

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High Court brings forward Nasheed’s appeal case

The High Court has brought forward former President Mohamed Nasheed’s appeal case, now scheduled for Sunday.

Nasheed is being tried in the Hulhumale’ Magistrate Court for the controversial detention of Chief Judge of Criminal Court Judge Abdulla Mohamed in January 2012.

The former President’s legal team lodged the appeal challenging the Hulhumale’ Magistrate Court’s ruling on three procedural issues raised during the court’s first hearing held October 9.

Speaking to Minivan News, MP Mariya Ahmed Didi confirmed the legal team had been informed of the decision to move the hearing.

“I understand from President Nasheed’s lawyers that they have received summons for February 3, as Nasheed had requested to depart the country the afternoon after the hearing. As far as I understand no particular reason was cited,” she said.

Didi however expressed concern over the High Court taking decisions on such short notice, stating that as Nasheed received legal council from abroad, such sudden changes in scheduling were inconvenient.

“These are Queens Counciler’s and their schedules are set in advance. It is not possible to reschedule at such short notice. We have requested the High Court to bear with us on that,” she said.

Didi contended it was imperative that Nasheed be given “all opportunities to defend himself as a defendant in a criminal trial”. Nasheed “should not be an exception to that,” she said.

Spokesperson for the Department of Judicial Administration (DJA) Latheefa Gasim was not responding.

Meanwhile, Nasheed’s legal team has also sought an opportunity to highlight in court the Supreme Court’s ruling concerning the legitimacy of the Hulhumale’ Magistrate Court.

The Supreme Court has declared that Hulhumale’ Magistrate Court is legitimate and can operate as a court of law, following the Judicial Service Commission (JSC)’s request that it clarify the court’s legality.

MP Mariya said Nasheed’s legal team was of the opinion that the issue decided in the Supreme Court was different from the issue put before the High Court by the legal team.

“We hope the High Court will give our lawyers the opportunity to explain the distinction and consider all issues before they give a judgment on the matter,” she said.

Following the Prosecutor General (PG)’s decision to press charges against Nasheed in the Hulhumale’ Magistrate Court instead of Criminal Court, Nasheed’s legal team initially challenged the legitimacy of the Hulhumale’ court arguing that it was created in violation of the Judicature Act.

The team raised the issue during the first hearings of the trial, along with other procedural inconsistencies, but all were rejected. They later appealed the case in the High Court along with other procedural issues.

Despite its initial rejection of the procedural points, the High Court later accepted all points made by Nasheed’s legal team except that concerning the legitimacy of the Hulhumale’ Magistrate Court. It later issued an injunction ordering the magistrate court to suspend Nasheed’s trial until a decision on the procedural points raised by Nasheed’s legal team was reached.

Controversies

The case has been subject to controversy after Nasheed’s party claimed the trial was a politically motivated attempt to bar Nasheed from contesting in the next presidential elections.

The UK Bar Human Rights Committee (BHRC) in a recent report concluded that the charges against Nasheed appeared to be a politically motivated attempt to bar the Maldivian Democratic Party (MDP) candidate from the 2013 presidential elections.

“BHRC is concerned that a primary motivation behind the present trial is a desire by those in power to exclude Mr Nasheed from standing in the 2013 elections, and notes international opinion that this would not be a positive outcome for the Maldives,” the report stated.

The report observed that the detention of the judge was “not a simple case of abuse of power”.

“Rather, the underlying narrative of the situation is that of a president desperate to bring change to a new democracy after decades of oppression, and finding himself thwarted by the inability of the organs of state set up by the constitution to deliver much needed reform,” the report stated.

Referring to “the large number of international reports” that have found the Maldivian judiciary to be flawed, the BHRC noted that the Judicial Service Commission (JSC) “failed in its twin tasks of ensuring that the judiciary has the appropriate experience and qualifications, and in bringing to book the judges who fail to fully and fairly implement the rule of law”.

“Implicit in these criticisms is that Mr Nasheed cannot be guaranteed a fair trial,” the report concluded.

Arrest of the judge

Chief Judge of the Criminal Court Abdulla Mohamed was taken into military detention of January 16, 2012 at the request of then Home Minister Hassan Afeef on the grounds that the judge posed a threat to national security.

The judge had successfully blocked investigation of his misconduct by the judicial watchdog and quashed his own police summons.

Abdulla Mohamed had “taken the entire criminal justice system in his fist,” Afeef said, accusing him of obstructing high-profile corruption cases, releasing murder suspects, colluding with drug traffickers, and barring media from corruption trials.

Judge Abdulla “hijacked the whole court” by deciding that he alone could issue search warrants, Afeef contended, and had arbitrarily suspended court officers.

The arrest triggered series of anti-governmental protests that eventually led to the sudden resignation of then President Nasheed on February 7, 2012.

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Comment: Maldives competitive, combative, yet cooperative, too

With Maldivian President Mohamed Waheed Hassan Manik returning two [the “political parties” and the “privileges” bills] of the three crucial bills passed by parliament, the stage is now set for a possible, limited confrontation between the executive and the legislature, all over again.

For the third “public assemblies” bill, the president has given his assent, but the opposition Maldivian Democratic Party (MDP) says it would defy the law if it came to that.

The president has rejected the bill that mandates 10,000-strong membership – up from the existing 3,000 – for political parties to be registered by and with the Election Commission (EC).

As the Maldivian budget allocates 0.1 percent of the GDP for the state funding of political parties, which in turn is based on registered membership, the law has serious consequences for smaller parties. Included in the list are the Gaumee Ithihaad Party (GIP) of President Waheed and the Dhivehi Qaumee Party (DQP) of his Special Advisor Dr Hassan Saeed. The DQP was the second runner-up in the first round of presidential polls in 2008.

The Maldives is a nation where democratic education and elections are a costly affair. Given the vast seas that have to be traversed for a campaign – even in individual parliamentary constituencies. as well as the small number of electorate covered in comparison to other countries – few political parties can sustain themselves without state funding.

With other political parties neck-deep in campaigning for the presidential polls due later this year, any last-minute changes in the law could have consequences for them all.

The “political parties” bill regarding privileges of parliament and MPs, which has also been returned to parliament by the president, has limited application. However, the bill assumes greater significance in the context of some government ministers and other political party leaders in the government ridiculing parliamentarians, and threatening [to remove] them from public platforms.

In the case of the religion-centric Adhaalath Party (AP) for instance, together the two bills could stall its recent efforts to project itself as the self-appointed defender of Islam among Maldivian political parties, protecting Maldivian people’s rights via their elected representatives. Needless to point out, the AP does not have any elected member in the People’s Majlis (parliament).

President Waheed aims at regulating public assemblies and rallies through the third bill. It is a reaction to the MDP rallies following the February 7 transfer-of-power, some of which turned violent. Protests and counter-protests had a tendency to multiply, and the security forces had little power or even the scope to regulate them; especially considering the distance between rival groups’ rallies.

Armed with the 2008 constitutional guarantee protecting the citizens’ rights in the matter, an air of permissiveness was threatening tranquility in the tourism-driven country.

Consensus and cohabitation

Parliament is in recess at present, and is not expected to meet again until March. It is almost a foregone conclusion that the house will vote the two bills be returned to the President, enabling a mandatory assent for both, within 14 days of such passage.

The opposition MDP as the single largest party cannot protest in the interim considering party leader and former President Mohamed Nasheed similarly returned a bill amending the Finance Act, only to grant his assent at the last-minute after the Majlis passed it a second time.

However, what is interesting is the combination of votes that each of these bills polled. Though moved by MDP members in the Parliament, the ‘political parties’ bill and the ‘privileges’ bill had the support of the Progressive Party of Maldives (PPM) and the Dhivehi Rayyithunge Party (DRP), the top two parties in President Waheed’s government.

The MDP opposed the bill regulating public assemblies, but other political parties in the government mustered their strength to have it passed.

The combination can pose an embarrassment, though not a challenge, to the government in general and President Waheed in particular, when parliament votes on the two returned bills. The MDP can then actively consider moving the no-confidence motion against President Waheed, which it has been talking about for a long time.

The government parties can be expected to rally around their President – whose term expires later this year – to deny the mandatory two-thirds vote for the impeachment of the head of state.

For the MDP, it could still serve a limited purpose – that is if they are capable of putting together a winning alliance.

Indications are that every party in the government now wants to put up a candidate for the presidential polls, and could rally round the top one in the second, run-off round. Some parties in the coalition may also develop other ideas during the second-round polls, where MDP’s Nasheed may be considered.

What needs noting at such a stage is the emergence of ‘consensus politics’ in present-day Maldives, both inside and outside Parliament, at a time when the nation is otherwise burdened by political divisions and personality clashes.

Independent of the issues involved, it could also set the tone for ‘cohabitation politics’, where the executive and the legislature would be seen as learning to live with each other. The Maldives would then have matured into a democracy capable of voting on issues, inside parliament and outside, moving away from personalities even while retaining the party-tag, to a limited extent at the very least.

Jarring notes, still?

What may send out a jarring note against this background is the MDP’s declaration that the bill regulating public assemblies could not stop the party from launching its promised ‘revolution’. Considering that the ‘revolution’ call was given by at meeting of the MDP’s National Council that had discussed the pending criminal case against President Nasheed, the two may be inter-linked. Thereby hangs a tale, as any conviction of President Nasheed on the charge of ordering the ‘illegal detention’ of Criminal Court Chief Judge Abdulla Mohamed while he was in power could disqualify him from contesting the elections.

Apart from the ‘Nasheed case’, the Supreme Court is already seized with litigation pertaining to the powers of the legislature vis-a-vie the judiciary; particularly in the summoning of sitting judges trying President Nasheed before a house committee.

Interestingly, the majority decision of the parliament, endorsed also by Speaker Abdulla Shahid, favours the sovereignty of the people under the constitutional scheme, represented by the supremacy of Parliament over the powers and independence of the judiciary. A judicial interpretation in context would have consequences that the infant democracy has to learn in the interim.

Of equal importance in the Nasheed case, in terms of the immediacy of the circumstances involved, would be any case proceeding from the second passage of the “political parties” bill, with mandatory assent from the President. The Adhaalath Party has already declared its intention to fight it out legally, but such a course would now have to wait until after the bill becomes law.

The question is if the judiciary has adequate time to adjudicate on the issue between the time the bill becomes law and the notification for fresh elections to the presidency. If not, would the status quo be maintained in the matter? If in the process, would any judicial stay of the new law pending final disposal be challenged by the legislature, but not the executive as it exists now?

Revisiting CoNI report

Even as these complicated questions beg acceptable and adaptable answers, the MDP has gone ahead with revisiting the report of the Commission of National Inquiry (CoNI), which upheld the power-transfer of February 7 last year. The MDP-controlled Parliament Committee on Government Oversight has opened investigations on the CoNI Report, which has been endorsed by the incumbent Government and the international community alike.

Under powers purportedly entrusted to it, the committee has decided to summon President Waheed and President Nasheed to appear before it. The committee has also decided to get two external experts (obviously of its choice) to comment on the CoNI report. As if tit-for-tat, a temporary committee of parliament, where the government has a majority, has decided to investigate the commissions and omissions of the Nasheed presidency with renewed vigour.

More recently, the MDP members of the committee, meeting in the absence of other party members, have directed the nation’s Prosecutor General (PG) to proceed legally against incumbent Defence Minister Mohammed Nazim and Police Commissioner Abdullah Riaz on charges of violating Article 99 of the Constitution, by their refusal to honour the panel’s summons, for their interrogation on the CoNI Report. However, the committee has spared Ahmed Shiyam, chief of the Maldivian National Defence Forces (MNDF).

The committee’s views are opposed to those of Attorney General Azima Shakoor, who had earlier written to Speaker Abdullah Shahid that the proceedings were at variance with the Majlis’ Rules of Procedure, and has failed to protect the rights and privileges of individuals summoned before it. If taken forward, this has the potential for a clash between constitutional institutions, though ultimately if approached the Supreme Court could clarify the position.

Apart from the legislative business and judicial pronouncements, such initiatives too have consequences that would cancel out each other at one level, but complicate matters otherwise.

What the political parties need to understand and accept is the fact that neither in constitutional terms, nor in political terms, are such measures expected to give them an additional advantage, either in domestic elections or with the international community.

For that to happen, they have to be seen as winning the presidential polls first and the parliamentary polls next year. The rest of it would be dismissed as fencing by their domestic constituencies and wagering by the international community.

In the process, they would have dissipated their own energies and also frustrated their constituencies, at home and afar. For they are all still working on more problems that the nation can ill-afford and is even more ill-equipped to handle, not on solutions to the existing problems, which are also of their own making.

The writer is a Senior Fellow at Observer Research Foundation

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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Supreme Court schedules hearings against key parliamentary decisions for next week

The Supreme Court will hear two separate cases filed against decisions taken within parliament next week.

According to the Supreme Court’s official website, a case lodged by former Civil Services Commission (CSC) Chair Mohamed Fahmy Hassan against parliament’s decision to impeach him over allegations of sexual harassment is scheduled for January 14.

A separate case will then be held two days later on January 16 concerning the Majlis’ decision to hold no-confidence votes against President Dr Mohamed Waheed Hassan Manik and other senior government figures through a secret ballot.

The two cases have been criticised within the People’s Majlis, with some MPs claiming the Supreme Court did not have the jurisdiction to look into matters approved by parliament.

Right to justice

Speaking to Minivan News today, opposition Maldivian Democratic Party (MDP) MP Hamid Abdul Ghafoor accused the Supreme Court of being grossly negligent in carrying out its duties as the country has switched from an autocratic system of governance to a democratic one in 2008.

Ghafoor contended that the Supreme Court’s conduct had been contrary to keeping the powers of the state both independent and separate.

“Due to this negligence, it has allowed incompetent, insincere judges to take over all the ranks of the judiciary, disregarding the article 285 of the constitution. Now, the validity of both Supreme Court and High Court is limited and restricted due to its failure to establish a proper legitimate judiciary,” he said.

“We don’t see justice being served, to be honest, the people of this country have lost their right to justice. I don’t see true justice being established in the country, not as long as they are here.”

The Henveiru South constituency MP also accused the Supreme Court of failing to specify its reasons behind decisions taken on constitutional matters.

“They are failing to grasp the intentions of the constitutional assembly that drafted the constitution. Why are they failing to refer to the meeting minutes of the assembly to understand their intentions as a tool to interpret the constitution? This is what happens when you don’t have a competent judiciary, they fail to grasp the spirit of the constitution,” he claimed.

The Supreme Court last month issued two separate injunctions ordering parliament to withhold selection of a CSC president to replace Fahmy and to halt scheduling impeachment votes against President Dr Mohamed Waheed Hassan Manik and Home Minister Mohamed Jameel Ahmed.

The Supreme Court in both injunctions claimed that it needed to review the legality of the concerned issues in line with “necessary constitutional and legal principles” that had to be followed.

Exclusive cognizance

Responding to the injunctions issued by the Supreme Court, Independent MP Mohamed ‘Kutti’ Nasheed has said in a personal press video that the powers stated in article 88 of the constitution were given to parliament to execute its duties. Nasheed added that the powers outlined in the article should not be restricted by the country’s courts.

“The article 88 (b) of the constitution is a power given to the parliament to execute its duties. It should not be confused with the recently passed privileges bill. What article 88(b) states that no court of law can question the decisions reached by the parliament,” he said.

“The Article 88(b) of the constitution states – ‘Unless otherwise specified in this Constitution, the validity of any proceedings in the People’s Majlis (Parliament) shall not be questioned in any court of law.’ It is for a reason that this clause was included in the constitution. This is a principle adopted by parliaments across the world. I don’t know the Arabic word for that, but in English it is known as ‘Exclusive Cognizance,’” he explained.

Nasheed contended that article 88 (b) outlined powers that should be exclusive to parliament and all courts of law should respect the legislature. He claimed that a failure to respect parliament could mean every decision reached in the Majlis would be challenged.

“For example, even in a football game, though a team may be very upset by a decision of the referee, the play continues. They don’t go to court and seek an injunction so that match would be halted until a court decides on the matter. Neither is the decision overruled. The game continues,” Nasheed argued.

“What is happening right now could mean that if a player is shown a red card or a yellow card, the team who is unhappy about the referee would stop playing and go to court and seek an injunction to hold the play until the court reaches a verdict. Imagine what will happen if such practice takes hold.”

Parliament decisions

Former CSC Chair Fahmy was impeached from parliament in June last year over allegations of sexual harassment against an employee. The decision was reached after a debate on the report, which was produced by Parliament’s Committee on Independent Institutions.

Following much debate in parliament, Nasheed stated that the Committee on Independent Institutions had mandate over the CSC and it did not need to conduct a criminal investigation to remove Fahmy from his post.

“What we applied are widely accepted civil standards. Based on our findings, 7 out of the 10 committee members decided that it was more likely that Fahmy had committed this act than that he did not. And that is enough to remove him from his post,” Nasheed said.

The subsequent no-confidence vote to remove Fahmy passed by a majority of 38 to 32 votes. However, Fahmy filed a case at Supreme Court contending that he was removed from his position unlawfully.

Back in October meanwhile, the MDP proposed a no-confidence motion against President Waheed claiming that the police and the military had “brutalised” its supporters on February 8 under direct orders from the president himself.

The MDP also alleged that President Waheed had destroyed the sensitive economy of the nation and adversely impacted investor confidence in the Maldives.

Other reasons, the MDP alleged, included the failure of President Waheed’s administration to curb gang violence in the country, as well as his government taking a loan worth MVR 300 million (US$19.5 million) from the Bank of Maldives (BML) without prior approval from parliament – a violation of Public Finance Act and Public Finance Regulation.

The MDP subsequently proposed the amendment to parliamentary regulation which would pave the way for a secret ballot in the vote to impeach President Waheed. However, the first attempt, despite approval from parliament’s General Affairs Committee was defeated in parliament by 39 to 34 votes.

Parliament last month passed the amendment when it was again re-submitted and approved with a 41 to 34 majority. The approval was backed by two government aligned parties, the Jumhoree Party (JP) and Dhivehi Rayyithunge Party (DRP).

The amendment was also later challenged in the Supreme Court.

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Nexbis to challenge termination of Border Control System project

Additional reporting by Ahmed Naish.

Nexbis has said it will challenge parliament’s decision instructing the government terminate a Border Control System (BCS) project signed under the previous administration.

The Malaysia-based IT group has said it will seek a court injunction preventing any attempts to cancel the agreement whilst court hearings over the contract were still ongoing.

Speaking to local media on Tuesday (December 25), Home Minister Dr Mohamed Jameel Ahmed claimed the government would respect parliament’s unanimous decision to halt the BCS project agreement with Nexbis.

Dr Jameel told local newspaper Haveeru that it was “difficult to come up with an exact figure at present” for the level of compensation the government would potentially have to pay Nexbis after prematurely terminating a contract with the company.

The home minister was not responding to Minivan News at the time of press.

Yesterday’s vote on the deal was taken after Parliament’s Finance Committee claimed there had been foul play in the agreement signed between Nexis and the Maldives immigration department.

Prior to the parliamentary vote, an official spokesperson for Nexbis told Minivan News on December 23 that the company would “challenge” any decision by the Majlis to halt the BCS contract while court hearings were continuing in the country.

“We are asking the Supreme Court to intervene with the decision as we have come to be aware that the contract cannot be legally terminated if there is an ongoing legal case. Presently we have legal cases in the Civil Court, the High Court and the Supreme Court,” the Nexbis source added.

Meanwhile, Director of the Department of Judicial Administration Ahmed Maajid today (December 26) confirmed that to his knowledge, Nexbis was currently involved in ongoing cases within the Maldives’ judicial system.

Maajid added that on a legal basis, the contract between Nexbis and the government could not be terminated until all proceedings involving the company were concluded.

“There is a provision in the Judicature Act under Law 22, 2010 that basically states no public body can terminate a contract with a company that is involved in judicial proceedings in the courts,” he said,

“The government has made their decision based on the the Majlis’ vote. But the legality of that decision can be challenged at the Civil Court if Nexbis submit a case. They have a constitutional right to do so.”

The MVR 500 million (US$39 million) BCS project moved ahead this year after a series of high-profile court battles and delays that led Nexbis to last year threaten legal action against the Maldivian government should it incur losses for the work already done on the project.

The Malaysia-based mobile security provider has come under scrutiny by political parties who claim that the project is detrimental to the state, while the Anti-Corruption Committee (ACC) has alleged corruption in the bidding process.

Nexbis has denied any allegations of wrong doing within its contract.

Unanimous vote

Amidst these concerns, parliament voted unanimously yesterday (December 25) to instruct the government to terminate the border control project agreement with Nexbis.

All 74 MPs in attendance voted in favour of a Finance Committee recommendation following a probe into the potential financial burden placed on the state as a result of the deal.

Presenting the Finance Committee report to the floor, Chair MP Ahmed Nazim explained that the “main problem” flagged by the ACC was that the tender had not been made in accordance with the documents by the National Planning Council authorising the project.

The documents were changed to favour the chosen party and facilitate the deal, Nazim said, which the ACC considered an act of corruption.

Regarding allegations of corruption within the contract, the Nexbis source told Minivan News that the company is “systematically denying” any allegations of corruption, adding that if there was any foul play within the contract “we were unaware of it”.

Nazim stressed that the Finance Committee inquiry focused on the financial burden on the state and had discovered that the government would have to pay US$166 million to Nexbis over the course of the agreement.

Conversely, he claimed that the Maldivian government would only earn US$8 million as royalties during the agreement period.

Nazim noted that the Finance Ministry informed the committee that it was yet to receive a copy of the agreement two years after it was signed.

The Finance Ministry has also not included any funds in either the 2012 or 2013 budgets to pay for the project.

Nazim also accused the then-attorney general of “negligence” in the deal as he had not provided an official legal opinion to the Immigration Department in writing.

Recommendations by the former attorney general to amend the agreement could not be found in the documentation, he added.

Nazim said the Finance Committee concluded therefore that the best course of action would be to terminate the Nexbis agreement and install a different border control system at the earliest date.

Following the Finance Committee decision, the budget review committee has included a recommendation compelling the government to terminate the Nexbis agreement.

The Finance Committee also recommended terminating the agreement over concerns it contained clauses to waive taxes to the company, Nazim said. He noted that imposing or waiving taxes was a prerogative of parliament under article 97(d) of the constitution.

During the ensuing debate, MPs from both the formerly ruling Maldivian Democratic Party (MDP) and government-aligned parties spoke in favour of terminating the agreement.

Along with the decision to terminate the Nexbis deal, the government of President Dr Mohamed Waheed Hasaan Manik late last month also opted to void an airport development agreement with India-based infrastructure group GMR.

The GMR contract, a 25-year agreement to develop and manage an entire new terminal at Ibrahim Nasir International Airport (INIA), was the single largest foreign investment project in the country’s history.

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State Finance Minister warns National Movement will “break up” parliament

Minister of State for Finance Abbas Adil Riza has accused Parliamentary Speaker Abdulla Shahid of “challenging” the Supreme Court after he tabled a no-confidence motion despite an injunction from the court.

Riza’s comments follow parliament’s announcement last week that a no-confidence motion against Defence Minster Colonel (Retired) Mohamed Nazim has been tabled despite a Supreme Court injunction ordering parliament to halt all pending no-confidence votes.

Speaking at the artificial beach on Monday (December 17) Riza, who is also a National Movement Steering Committee member, said that Shahid’s decision to “challenge” the Supreme Court was a “cowardly act”.

“Unless Shahid immediately ceases his efforts to violate the constitution while holding the post of Speaker of Parliament, the National Movement will ensure that this comes to a stop,” local media reported Riza as saying.

Furthermore, Riza warned that should the parliament try to violate the constitution, the National Movement will “break up” the parliament.

Last week, the People’s Majlis secretariat revealed that Defence Minister Nazim has been given the required 14-day notice and his ministry also duly informed by Speaker Abdulla Shahid.

Repsonding to Riza’s comments, Majlis Deputy Speaker and fellow PA MP Ahmed Nazim said that the Parliament has not challenged the Supreme Court’s injunction, noting that it has given the full 14 days notice to the court as per stated by the law.

“We believe there is still time for Supreme Court to lift the temporary injunction, and I believe they will not see this as the parliament challenging the court.

“After 14 days, the motion will be put up on the agenda for discussion by party leaders. If the injunction remains then there is a possibility for party leaders to challenge the court,” Nazim told Minivan News.

Article 101(a) of the constitution states, “At least fourteen days notice of the debate in the People’s Majlis concerning a motion under article (a) shall be given to the concerned member of the cabinet, and he shall have the right to defend himself in the sittings of the People’s Majlis, both orally and in writing.”

When asked if there was concern from parliament over Riza’s comments, Nazim revealed that the institution as a whole did not feel threatened, however there had been “concern” expressed by individual parliamentary members.

“The institution is protected by the constitution and we have protection from the Maldives National Defence Force (MNDF), however at least one individual has told us he feels threatened and believes that security needs to be increased.

Abbas Adil Riza was not responding to calls at time of press.

On December 3, 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.

MPs of the government-aligned Jumhooree Party (JP) and Dhivehi Rayyithunge Party (DRP) joined the formerly ruling Maldivian Democratic Party (MDP) to vote the amendment through.

The no-confidence motion against Defence Minister Nazim was submitted by the MDP earlier this month on the grounds that he misused his authority as acting Transport Minister by using the military to influence termination of commercial contracts.

No-confidence motion against Home Minister Dr Mohamed Jameel Ahmed

Meanwhile, a no-confidence motion has again been submitted against Home Minister Dr Mohamed Jameel today (November 17).

The Maldivian Democratic Party (MDP) submitted the same motion to parliament on a previous occasion, but withdrew it at the last minute after the voting was scheduled for parliament.

An MP told local media that this latest motion was submitted with 17 signatures including the signatures of MDP MPs, however this has yet to be officially confirmed.

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Parliament tables no-confidence motion against Defence Minister in defiance of Supreme Court injunction

Parliament announced today that a no-confidence motion filed against Defence Minister Colonel (Retired) Mohamed Nazim has been tabled despite a Supreme Court injunction ordering parliament to halt pending no-confidence votes.

The People’s Majlis secretariat revealed that Defence Minister Nazim has been given the required 14-day notice and his ministry also duly informed by Speaker Abdulla Shahid.

The move comes in apparent defiance of an injunction or stay order issued by the Supreme Court to halt conducting no-confidence votes through secret ballot, pending a ruling by the apex court on the constitutionality of the secret vote.

Speaker Abdulla Shahid and Parliament’s Counsellor General Fathimath Filza were not responding to calls from Minivan News at time of press.

The injunction (Dhivehi) was issued in a case filed by Progressive Party of Maldives (PPM) council member and lawyer of former President Maumoon Abdul Gayoom, Mohamed Waheed Ibrahim ‘Wadde’.

Waheed contended that secret votes were unlawful as article 85 of the constitution states that the People’s Majlis or any of its committees “may decide to exclude the public and the press from all or any part of the proceedings if there is a compelling need to do so in the interests of public order or national security.”

Waheed requested the Supreme Court specify the constitutional measure to determine a two-third majority of parliament – required to impeach the president – and to declare that the Majlis decision to approve a secret ballot was unconstitutional.

MPs of the government-aligned Jumhooree Party (JP) and Dhivehi Rayyithunge Party (DRP) joined the formerly ruling Maldivian Democratic Party (MDP) to vote the amendment through.

The MDP has also submitted a no-confidence motion to impeach President Dr Mohamed Waheed Hassan Manik.

The no-confidence motion against Nazim was filed with the signatures of 17 MPs, according to the Majlis secretariat.

Under article 101(a), “A motion expressing want of confidence in a member of the Cabinet may be moved in the People’s Majlis, under the hand of at least ten members, specifying the reasons.”

“Challenging separation of powers”

In a separate ruling, the Supreme Court also issued an injunction ordering parliament not to appoint a new member to the Civil Service Commission (CSC) pending a ruling on the legality of parliament’s dismissal of the CSC’s former chair, Mohamed Fahmy Hassan.

Fahmy had filed a case contesting the legality of his removal from the independent institution on November 20 on the grounds that he had allegedly sexual harassed a female employee.

“What is at stake is the supremacy of the parliament as the representative of the people. By its actions, the Supreme Court is challenging the separation of powers that underpins the constitutional basis of governance,” MDP MP Eva Abdulla told Minivan News yesterday.

In its stay orders, the Supreme Court referred to article 144(b) of the constitution, which states: “When deciding a constitutional matter within its jurisdiction, a court may in connection with a declaration pursuant to the article make any order that is just and equitable, including an […] suspending the declaration of invalidity (of a statute, regulation or action due to inconsistency with the Constitution) for any period and on any conditions, to allow the competent authority to correct the defect.”

Meanwhile, Independent MP for Kulhudhufushi South, Mohamed ‘Kutti’ Nasheed, contended in his blog yesterday (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.

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.

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Supreme Court issues injunction to withhold no confidence vote on president

The Supreme Court has issued an injunction ordering parliament to withhold the impending no-confidence motions against both Defence Minister Mohamed Nazim and President Mohamed Waheed Hassan.

The ruling was made after a case concerning the legality of the no confidence motions had been filed by Progressive Party of Maldives (PPM) council member and lawyer Mohamed ‘Wadde’ Waheed Ibrahim.

The Supreme Court in its injunction today ordered parliament to withhold the no-confidence motion until it could decide on the legality of the matter after looking into the “necessary constitutional principles that had to be followed”.

Earlier this month, Ibrahim filed the case in the Supreme Court contending that the parliament’s decision to make impeachment votes a secret ballot was unlawful.

Speaking to local media after filling the case, Ibrahim said that Article 85 of the constitution clearly articulates that a session of parliament can only be held in ‘closed doors’ only if the issue debated in parliament concerns the national security of the state and if not the sessions should be held open to public.

He said therefore parliament does not have the authority to come to a decision outside its jurisdiction laid down in the constitution and sought the Supreme Court to invalidate the decision.

No-confidence motion

The opposition Maldivian Democratic Party (MDP) had proposed a no-confidence motion against President Mohamed Waheed Hassan in October claiming that the police and the military had “brutalised” its supporters on February 8 under direct orders from the president himself.

The MDP also alleged that President Waheed had destroyed the sensitive economy of the nation and adversely impacting investor confidence in the Maldives.

Parliament this month passed the amendment when it was again re-submitted and approved with a 41 to 34 majority. The approval was backed by two government aligned parties, the Jumhoree Party (JP) and Dhivehi Rayyithunge Party (DRP).

Legality of two DRP seats

Meanwhile, Ibrahim has also raised doubts over the legality of the secret ballot decision, claiming it was passed by the votes cast by two DRP MPs Ahmed Nashiz and Ali Azim, whose seats he claimed were in question.

JP’s Policy and Legal Committee member Mohamed Haleem Ali had previously filed a case in the Supreme Court asking it to rule the concerned parliamentarians “unfit to stay in their elected seats” over the Bank of Maldives (BML)’s foreclosure on their loans.

“The Civil Court’s ruling number 935 of 2009 asks them to pay back the debts to BML. They didn’t. So I have submitted this case in accordance with subclause one of Article 73(c) and 74 of the constitution,” Haleem said at the time.

Subclause 1 of Article 73 of the Constitution of the Maldives states that a candidate for membership or a sitting member of the parliament would be disqualified if he has a decreed debt which is not being paid as per court rulings.

Article 74 states that any question concerning the qualifications or removal of a member of the People’s Majlis shall be determined by the Supreme Court.

Both MPs Nashiz and Azim were elected to parliament in 2009 general elections, the same year in which the civil court ordered them to pay the BML debts. The case was accepted by Supreme Court on December 10.

Supreme Court decision ‘void ab initio’: Ibra

Following the decision, former MP and Chair of Drafting Committee of Constitutional Assembly (Special Majlis) Ibrahim ‘Ibra’ Ismail stated that the decision was “void ab initio” (void from the beginning).

“They cannot suspend the decisions of the parliament. Parliament should not adhere to the decisions of Supreme Court,” he said.

“Parliament is free to conduct its business anyway they want to. Only the public can reprimand the parliament,” he added.

Counsel General of Parliament Fathimath Filza and Parliamentary Speaker Abdulla Shahid were not responding to calls at time of press.

No one should meddle with the courts: Supreme Court

In a previous bid, the Supreme Court issued an order quashing the decision of Parliament’s Independent Institutions Oversight Committee to not recognize the legitimacy of the Hulhumale’ Magistrate Court.

Supreme Court in the order stated that while the Maldivian constitutional system broadly entertained the principle of separation of powers, no one power of the state can go beyond the limits set out in the constitution.

“According to articles 5, 6 and 7 of the constitution that came to force on 7 August 2008, the Maldivian constitutional system has explicitly set out that the executive power, legislative power and the judicial power is independent from one another and the boundaries of each power being clearly set out, it is unconstitutional for one power of the state to go beyond its constitutional boundaries as stated in article 8 of the constitution,” read the order.

The Supreme Court also in its order maintained that as per the constitution, the judicial power of the state was the sole constitutional authority in settling legal disputes between the institutions of the state or private parties.

“The judiciary established under the constitution is an independent and impartial institution and that all public institutions shall protect and uphold this independence and impartiality and therefore no institution shall interfere or influence the functioning of the courts,” it added.

Speaking to Minivan News yesterday, Former Foreign Minister and UN Special Rapporteur on Human Rights in Iran Dr Ahmed Shaheed identified the “pathetic state of the judiciary” as one of the key human rights concerns he believed needed to be addressed in the Maldives.

“[The judiciary] is not only corrupt, but also coming under the influence of radical Islam, even to the extent of violating codified laws of the Maldives and clear international obligations,” Dr Shaheed claimed yesterday.

“Disregard for rule of law has also meant that a culture of impunity is deeply entrenched, rendering many of the human rights of the people meaningless.”

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Supreme Court criminalises offences within the exercise of freedom of assembly, expression

The Supreme Court decided in a 6-1 ruling last week that the police should investigate criminal offences carried out within the exercise of the rights to freedom of assembly and expression.

The ruling comes in a case filed by the Attorney General in September requesting the court to determine that public disturbances in the name of political protests were not within the scope of the rights guaranteed in the constitution.

These included protests outside private residences late at night, use of defamatory language and incitement to violence – “calling for people to be killed, hanged and attacked.”

The Supreme Court was asked to declare that such actions infringed upon the right to life, liberty and security of persons (article 21); the right to privacy and respect for private and family life (article 24); the right to protect reputation and good name (article 33); and special protection for children, young, elderly and disadvantaged people (article 35).

The apex court ruled that activities that violate “public safety, health, tranquillity and morality” could be considered criminal offences and falls within the purview of the security services.

The case was filed by the Attorney General following months of protests by the formerly ruling Maldivian Democratic Party (MDP) and the dismantling in March of the party’s protest camp by security forces.

President’s Office Spokesman Masood Imad told Minivan News last month that the government fully supports the right to protest, but it needs to be done in such a manner that does not adversely affect the lives of others.

“A protest should be about changing something. A protest conducted in residential areas has nothing to do with parliament. Public protest and public nuisance are two very different things,” he contended.

The MDP meanwhile likened the move to Bahrain’s efforts to outlaw protesting.

“The MDP strongly condemns efforts to restrict freedom to assembly by the government. One of the most fundamental clauses in the new constitution is the right to protest and we are witnessing democratic gains fast slipping,” said MDP Spokesperson Hamid Abdul Ghafoor.

Dissenting opinion

In his dissenting opinion, Justice Ahmed Muthasim Adnan – the only Supreme Court Justice with a background in common law – concluded that establishing a judicial guideline for the exercise of rights and freedoms was not within the remit of the Supreme Court.

He contended that such principles “should be determined in a law passed by the People’s Majlis.”

Justice Adnan noted that the case was considered ‘ex parte’ or conducted for the benefit of one party.

He noted that according to article 16 of the constitution, the rights and freedoms enshrined in chapter two were “subject only to such reasonable limits prescribed by a law enacted by the People’s Majlis in a manner that is not contrary to this Constitution. Any such law enacted by the People’s Majlis can limit the rights and freedoms to any extent only if demonstrably justified in a free and democratic society.”

It was therefore clear that rights and freedoms could only be restricted or narrowed through a law passed by parliament, Justice Adnan added.

The Attorney General’s request was not a matter to be decided by the Supreme Court, he concluded, as “these problems should be proposed to the People’s Majlis for a solution.”

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