The Supreme Court of the Maldives has declared that both the Police and the Maldives National Defence Force (MNDF) should be answerable to parliament and its National Security Committee – known as the 241 Committee – whenever requested.
The Supreme Court said the decision was made after all judges unanimously agreed on the matter, which relates to overseeing the procedures of the nation’s security forces.
The declaration was delivered after parliament, under article 95 of the Constitution, requested the Supreme Court provide legal council on the issue back in November last year, when the police and military failed to attend the Majlis for questioning when called.
Article 95 states that ”The People’s Majlis may, by resolution, refer to the Supreme Court for hearing and consideration of important questions of law concerning any matter, including the interpretation of the constitution and the constitutional validity of any statute.
The Supreme Court shall answer the questions so referred and shall provide the answers to the People’s Majlis, giving reasons for its answers.
Parliament last year attempted to summon the Commissioner of Police, Ahmed Faseeh and MNDF Major General Moosa Ali Jaleel for questioning, who then both dismissed the parliament’s requests and refused to attend the meeting.
The Supreme Court said Article 239 (b) states that ‘’the security services shall be subject to the authority of the People’s Majlis.’’
The Supreme Court also said that, according to article 99 (a) and (b), it was clear that the parliament is obliged to supervise every action of the security services and to ensure that their actions are within the constitution and laws.
It is a legal responsibility of the parliament to question cabinet ministers over their work and cabinet ministers are obliged to answer truthfully to the parliament according to the constitution, the Supreme Court said.
The Parliament’s 241 Committee is chaired by opposition Dhivehi Rayyithunge Party (DRP) MP Ali Waheed.
When the 241 committee tried to summon both the police commissioner and the MNDF’s major general last year, the committee’s scheduled meeting was cancelled after alleged clashes with some Maldivian Democratic Party (MDP) MPs.
MDP MPs then accused the 241 committee of attempting to influence bribery investigations into Jumhoory Party leader MP Gasim ‘Buruma’ Ibrahim and Peoples Alliance (PA) Party leader MP Abdulla Yamin, who were then kept under house arrest.
Yamin and Gasim are both also members of the 241 Committee.
Attorney General, Dr Ahmed Ali Sawad, has told Minivan News that a Supreme Court verdict overruling “contradicting” court orders issued by island courts over the relocation of some Atoll Council offices did not mean that the issue was as yet resolved.
”It [the Supreme Court decision] is a different ruling because two courts of the same level have issued two different court orders on the same issue,” said Dr Sawad. ”The real issue over the legality of the relocations still needs to be addressed within the Thulusdhoo Island Court and Shaviyani Funadhoo Island court.”
The Supreme Court of the Maldives has recently invalidated court warrants issued by the Kaafu Atoll Maafushi Island Court and Shaviyani Atoll Milandhoo Island Court that were deemed to have contradicted earlier rulings by local magistrates over the location of council offices.
This court actions occurred this week as the government come into conflict with members of Shaviyani Atoll and Kaafu Atoll councils over the decision to move their administrative offices to different locations. The government has claimed that the decisions were not within the legal powers of councilors.
The Atoll Councilors of Shaviyani Atoll moved from their Administrative Office in Milandhoo to a building in Funadhoo, which was formerly used as Atoll Office of Shaviyani Atoll. Kaafu Atoll Councilors moved from an assigned Atoll Office in Maafushi to a building in Thulusdhoo, which was also formerly used as the Atoll Office of Kaafu Atoll.
The government opposed these actions, sending police to the islands over concerns that the buildings were its own assets and needed protection.
The case was then brought in front of Funadhoo Magistrates Court, which ruled that the Administrative Office should be located in Funadhoo. This occurred two days before the Milandhoo Magistrate ruled that Administrative Office shall be in Milandhoo.
Likewise in Thulusdhoo, the island court of Thulusdhoo ruled that the Administrative Office shall be in Thulusdhoo, before the Maafushi Island Court ruled in favor of retaining the Administrative Office in Maafushi.
The Supreme Court said that after one court has ruled on a case, another legal institution of the same level had no authority to overturn that ruling. This made the later rulings invalid according to the Supreme Court.
Meanwhile, the High Court also concluded that there was no capacity for an appeal requested by the Attorney General to rule that the court order of Thulusdhoo Court.
The High Court said that there was no reason to believe that the actions of Thulushoo Court were against the law or correct procedures.
Recently Shaviyani Atoll Council’s Vice President Mohamed Arif has said the best way to solve the issue was by handing over the case to a higher court of law, ”as it is a legal issue.”
The Home Minister also told media this week that the government would let the country’s higher-level courts decide the matter.
The Supreme Court yesterday ruled against orders issued by Magistrate Courts in Maafushi and Nilandhoo that called for atoll councilors to move the premises of their secretariat offices back to their islands.
Haveeru reported that the decision of the Supreme Court followed the earlier verdict of the nation’s High Court backing temporary orders issued by local Magistrates in support of Kaafu Atoll councilors who opted to move their offices in Maafushi to Thulusdhoo without government approval. The High Court had also ruled in favour of council counterparts in Shaviyani Atoll, who wished to move their own office from Maafushi to Thulusdhoo.
In the ruling, judges were said to have ruled unanimously against the Maafushi and Nilandhoo Magistrates Court claiming that rulings that contradict previous judgments made at national courts of the same level were invalid.
According to the paper, judges added that the three levels of courts in the nation were a vital means of guaranteeing law and order and no court was allowed to intervene in the “special jurisdictions” of another legal institution at the same level.
The issue of relocating offices and the powers of local councils formed during local elections last month has proved to be a particularly divisive issue this week for the country’s politicians and courts, with the country’s police service also being drawn into the dispute.
Correction: The article has been amended from its original form that incorrectly stated that the Supreme Court had ruled against the High Court. Minivan News apologises for the error.
The Judicial Services Commission (JSC), the body entrusted to vet and regulate the conduct of judges in the Maldives, has failed to match the government and parliament over the last two years in operating within a constitutionally defined role, Attorney General Dr Ahmed Ali Sawad has claimed.
The claims follow the publication this week of a report by the International Commission of Jurists (ICJ) that was critical of both political interference in the judiciary by government and opposition groups, and critical of the JSC’s ability to “carry out its functions” in ensuring judges were both impartial and capable of performing their duties.
Along with outlining recommendations for the executive, the Majlis and legal bodies like the JSC to follow in order to better ensure a judiciary independent from government and opposition influence, the ICJ’s Director of Asia Pacific Operations, Roger Normand, suggested a lot of work lay ahead.
Accepting that positive developments had been made within its courts since the Maldives became a democracy, concerns remained over a number of issues, Normand said. Having spoken to stakeholders across the country’s legal system, “ordinary” Maldivians did not look to their courts for justice or to solve problems, he suggested.
The report criticised the conduct of the government during a period of crisis last year; where the government locked shut the Supreme Court questioning its legitimacy on conclusion of the interim period. The report was also critical of the JSC’s decision-making, which was perceived as being inappropriately politically influenced.
Sawad said that he welcomed the observations by the ICJ in regards to recommendations for improving efficiency in the JSC and judicial administration, but added that ultimately, all stakeholders working within the Maldivian court system were under pressure to step up accountability.
“I think there is a lot to be done by the JSC in terms of enhancing the standard of the judiciary,” the attorney general told Minivan News. “I think there is a need to inwardly look into the judiciary and all agencies related to it. That is the judicial administration, the judicial council, the JSC, the Attorney General’s Office, the Supreme Court and the High Court – it’s time they work together in bringing about perceived standards required of the judiciary in the constitution.”
Sawad said that he believed that as a judicial watchdog, the JSC had at times tended to act defensively instead of self-critically, particularly when reviewing the constitutional role it was assigned within the constitution to appoint judges and protect independence in the judiciary.
In order to try and ensure it was able to meet these roles efficiently, the attorney general suggested that it may be appropriate to have the Majlis consider reviewing the role of the JSC during the last year and a half to determine if it was functional.
However, Sawad claimed that no single entity alone should shoulder the blame in terms of perceived issues with independence in the judiciary. He added that during a seven year period allotted for education and improvement under the Judges Act, education was a key to ensuring effective changes and developments in ensuring confidence within the legal system.
“When I look at the crucial actors in this, I feel the JSC has a crucial role to play. I feel the judicial administration have a crucial role to play and I feel there is a missing link in the form of a judicial training academy,” he said. “We cannot burden the Supreme Court or the High Court of with continuously setting the standards of measure for the rest of the judiciary day-on-day.”
Ultimately, Sawad said that as one of three distinct branches of the state along with the government and the Majlis, the judiciary was required to meet the same levels of accountability as part of its independence – making the role of the JSC essential.
“What we have [under the constitution] is an accountable government and an independent judiciary,” he said. “But independence is a perception made by the people who are the beneficiaries – in this case the public. If the people do not perceive that level of independence then there is a problem.”
Sawad stressed that the perception of independent courts within the country were especially important in defining the difference between the judiciary before and after 2008, when the Maldivian Democratic Party (MDP) came to power on the promise of trying to bring more political accountability.
“Pre-2008, people knew that the judiciary was part of the executive,” he said. “Post-2008, the people need to know the judiciary is independent.”
Government criticism
Along with concerns over the impartiality of the judicial system in the Maldives, the ICJ was also critical of the handling by the government of what it called a “constitutional crisis” last year over the legitimacy of the courts and the arrest of some prominent opposition figures.
In addressing these concerns and whether the actions of the government were a setback to the democratic mandate it promised, Dr Sawad said it was unacceptable under the constitution for any branch of the state to have jurisdiction over another, whether in the case of the executive over the judiciary, or the Majlis over the executive.
The attorney general claimed that ultimately, a “culture of respect” needed to be created by different branches of the state and government that would allow these different groups to work under the mandates they were assigned.
“That is a constitutional convention that needs to be dealt with. We haven’t had that in the past,” he said. “It’s just over two years since 2008. Now a convention takes a little more than two years, but it must nevertheless be started. The commencement of that respect agenda, that’s what needs to happen.”
Sawad said that he was generally encouraged by findings in the report, which he suggested were “timely” in light of political tensions across the nation, though may have been better served if it had been released a year earlier to grant more room for maneuver (prior to the end of the interim period).
However, the attorney general claimed to be cautiously optimistic that the report would provide guidance to “tweak” the problems that had been experienced in trying to establish courts independent of political and commercial manipulation.
“When you look back at what has happened, it has been a tumultuous two years where the three branches of the state have been morphing into their own jurisdiction perimeters – there have been teething issues, but I think two years is long enough to learn respect,” he said. “I am more optimistic about the future, I think we have a permanent judiciary now and the role of the judiciary is very clear.”
The Maldives legal system is failing to serve its citizens despite many “positive developments” that have been made in an effort to depoliticise the courts; with many of judges found lacking in qualifications and independent attitude, according to the International Commission of Jurists (ICJ).
“How often do ordinary Maldivians look to the courts for justice? Is there a sense that ‘We [Maldivians] have an independent judiciary that is capable of resolving problems?’ I think the answer is no,” surmised Roger Normand, Director of the ICJ’s Asia Pacific operations.
“Historically, [independent resolution] has not been the role of judges. Judges were an outcome or a product of the executive power. This is not a controversial statement, this is an outline of what their legal role was in the previous [government],” Normand stated.
Normand’s claims were made as the ICJ published a report on the Maldives legal system that outlining a huge number of challenges to ensure the country’s courts are in the long-term transparent in their decision making. It is hoped that the developments can remove the opportunities for abuse from government and opposition politicians alike, the ICJ stated.
The report itself is highly critical of both the role of some members of government in calling for protests and gatherings outside judges’ homes, as well as the Judicial Services Commission (JSC) that it said was “unable to carry out its functions” to impartially vet and reappoint judges on the basis of qualification and background.
“To date, JSC decision-making has been perceived as being inappropriately influenced by a polarised political environment,” the report stated. “Also troubling is that members of the judiciary have been subject to threats and intimidation as well as improper inducements by both governing and opposition party members.”
The ICJ said the report, entitled ‘Securing an Independent Judiciary in a Time of Transition’, had raised particular concerns over the “constitutional crisis” that occurred last year concerning the legitimacy of the courts and judges and the conduct of the government of President Mohamed Nasheed in addressing this.
Despite these concerns, Normand claimed that while there were “significant” problems with judiciary in the Maldives, and that the structure of a watchdog body such as the JSC needed much work needed to resolve, he was encouraged that there appeared to be a political mandate to bring changes to the legal system. However, the ICJ Asia Pacific director stressed that a non-independent judiciary could not simply change directly to an independent body.
“To have a sudden change, where suddenly judges are independent – this can’t just be signed on a piece of paper or constitution, it’s an attitude and a practice,” he said. “I think it’s safe to say we don’t have those attitudes and practices in the Maldives, but I also think the size of the developments are very positive.”
According to Normand and the ICJ, part of the challenge in trying to provide an independent judiciary is to ensure public support and acceptance of the country’s legal institutions and their verdicts, which in itself was linked to transparency within the decisions of bodies like the JSC.
“Judicial accountability is key to cultivating such public confidence and is an integral aspect of judicial independence,” the report stated. “Accountability must be manifest both at institutional level, in terms of court administration and access to justice, and at the individual level. This enables judges to decide cases without fear or favour and that they strictly apply the law to the facts before them.”
Recommendations
The report recommends a number of areas, such as education and training programmes for court appointees, bringing foreign experts to assist long-term, and advise on developments that it believes the Supreme Court could adopt to boost its own accountability.
In areas such as education, the ICJ said that seven-year periods outlined under the national Judges Act was used more effectively to enhance the qualifications of judges as well as ensure that a code of ethics was introduced in line with international agreements such as the Bangalore Principles on Judicial Conduct.
In addition, the ICJ claimed that steps could also be taken to ensure the Department of Judicial Administration was used to try to provide smoother administration of justice,such as requiring all levels of court to issue written reasons for its actions and establishing a judicial database so the court and public could refer to similar case law and precedents.
Normand stressed that the Maldives was relatively unique in that its courts would turn to Sharia law where Maldivian legislation didn’t apply, but that it was not alone in such experiences.
“We would recommend [collaboration with] countries that have experience of working both with common law – using previous legal cases to set precedent – and Sharia law, Pakistan is one example, Malaysia is another,” said Normand. “There are other countries where the issues the Maldives faces have been looked at before. It’s not the first time so you need to take advantage of this.”
The ICJ also recommended steps it hoped the JSC would take to act with greater transparency after coming under criticism and allegations of possible corruption.
Beyond adopting regulations and procedures to create greater accountability into the JSC’s decision making by recording detailed minutes of its meetings, a technical secretariat could also be established by a neutral party that could limit the workload to allow the organisation to work to its constitutional requirements.
The ICJ added that these developments needed to be backed by using international experts to help oversee work, and also ensure the high “moral integrity” of judges in relation to their criminal records that is also outlined under various international treaties and agreements.
The report also outlined recommendations for the country’s parliament and government to adhere to in their conduct in relation to the courts such as launching public awareness campaigns in relations to the requirements under the constitution of various legal institutions. The government was also called on to provide funding and strengthen the faculty of law and Sharia in the country, and the Majlis were called upon to pass vital laws such as the Penal Code and Criminal Procedure Code to allow swifter and more impartial delivery of justice.
The organisation also called for reform of the JSC in relation to concerns the report and others have raised over issues of transparency.
“As a principle, the JSC must become more transparent and effective in processing the complaints by the public about judges,” added Normand. “In fact, it is important for the judges themselves that the institution of the judiciary has the confidence of the public – that you’re qualified, that you’re not a criminal – it’s important for everyone.”
Taking the example of other nations such as Indonesia that are claimed to witnessed huge problems with trying to establish an independent and efficient judicial service, Normand claimed there were positive examples of countries like the Maldives that had seen vast improvements in the impartiality of its courts.
Supreme Court rulings were far superior under “supposedly uneducated judges” during the interim period compared to those delivered by the current bench, some members of the JSC have said.
JSC members MP Afraasheem Ali, High Court Chief Judge Abdul Ghanee Mohamed, Judge Abdullah Didi and Lawyer Ahmed Rasheed also agree that arbitrary powers of the Supreme Court have increased while the standards of its rulings have fallen since the interim period ended.
The JSC members’ scandalous criticism of the country’s highest court comes at a time when it is facing legal action in the Supreme Court over its handling of recent appointments to the High Court.
The remarks were made at a secret meeting on February 6 to discuss who should represent JSC at the Supreme Court, and came to light after an audio recording of the meeting was leaked to the public via YouTube by a source calling itself ‘dhikileaks‘.
Discussing recent Supreme Court rulings during the lead up to the local council elections, Rasheed, who represents the law community at the JSC, said some of the actions would not have been possible “even under the Blue Constitution” of the “former President”.
“Not even then was such a thing [as the Supreme Court ruling on Addu City] possible,” Justice Ghanee is heard saying to general laughter among the men.
MP Afraasheem, agreeing with Justice Ghanee, is heard responding that, “One very prominent judge has told me that things have reached an embarrassing state.”
“The court’s jurisdiction has changed now with the Justice Act”, Rasheed says. MP Afraasheem agrees, “They are stronger… it is always the voice of the Supreme Court now, isn’t it?”
“When these five judges get together, anything goes,” Rasheed is heard replying. MP Afraasheem is heard pointing out that two dissenting opinions were expressed in the particular Supreme Court ruling they were discussing.
“Yes, but this type of powers…” Justice Ghanee is heard saying. The decision, he adds, was made by “consensus of the majority.” Something, he further adds, “Cannot even be seen in Arabic, an Arab nation”.
Laughing, MP Afraasheem is heard responding, “If it’s a majority decision it means there was no consensus… majority is always unanimous… things that are said!”
“That is just to make things as confusing as possible”, Rasheed adds to Abdullah Didi’s agreement.
He also says that, “during the transition period, when it was being said that judges on the bench did not have an education –the rulings they made were far superior.”
“Mujey [Interim Supreme Court Justice and former JSC Chair Mujthaz Fahmy] and them, their rulings were far superior,” Rasheed continues. MP Afraasheem Ali is heard agreeing with him, laughing, and adding that “Yes, things are far more odd now.”
Colluding to commit perjury
Throughout the conversation, the men – with the help of Acting Secretary General Abdul Faththah Abdul Ghafoor – are heard making phone calls to certain members of the JSC to solicit their approval for appointing MP Afraasheem as the JSC’s official representative at the Supreme Court.
MP Afraasheem, who is the Deputy Chair of the JSC, is successful in ringing JSC Public Member Shu’aib Abdul Rahman and Mohamed Fahmy Hassan and getting their approval to appoint him as JSC’s representative to the Supreme Court.
“The Commission majority is not present here … see the way we arrange things on the phone when that happens?” MP Afraasheem is heard saying on the phone to Shu’aib. Shu’aib confirms that he knows of this procedure, and consents to give his approval.
MP Afraasheem expresses his gratitude, and tells Shu’aib the Commission will send a written copy of the decision for him to sign.
“You don’t have a problem with that, Usthaz Shu’aib. That’s okay?” Afraasheem asks. “Yes, yes, yes”, Shu’aib is heard replying.
Once the phone call to Shu’aib is over, Afraasheem, Ghanee and Rasheed are heard discussing whom they should phone next. Ghanee is heard rejecting a suggestion by one of the men to phone Attorney General Sawad, “That will not be so good.”
The careful selection of which JSC members to phone suggests the calls were being made only to those perceived as likely to approve Afraasheem’s appointment; and to those who were unlikely to object to granting their approval on the phone – an act that directly contravenes the Constitution and JSC regulations.
Article 163 of the Constitution states that any meeting of the JSC should be attended by a majority of its 10 members, and that any decision taken by JSC should be by a majority vote cast by members present.
JSC interim Secretary General Abdul Faththah has told Minivan News that while there “should be quorum”, in time-sensitive matters such as court summons members sometimes had to make decisions outside formal meetings, with the approval of other members.
“This is not a matter so important to take a decision with the discussion of the members,” he said.
Forging documents for the Supreme Court
The JSC sent a letter to the Supreme Court, with the same date, saying that “a majority decision had been taken by members who participated in the meeting on February 6” to appoint MP Afraasheem as JSC’s representative to the higher courts.
There are six signatures on the document – that of the four men supposedly present at the meeting, and the two men – Shua’ib and Fahmy – who were absent at the meeting, but had agreed on the phone to Afraasheem’s proposal.
The document is misleading, and represents the decision as having been made by six members who were present at the meeting.
Minivan News can also confirm that the four members present at the meeting had engineered it in such a way that one of its members, Aishath Velezinee, was deliberately excluded from the meeting despite having presented herself at the scheduled time.
Velezinee, who has been the most outspoken and vocal critic of what she has called “machinations of deliberate deceit” at the JSC, had arrived for the meeting as scheduled at 7:30p.m.
After 15 minutes, when the required six members failed to attend, the meeting was cancelled as is required by JSC regulations and Constitutional stipulations. Velezinee left the meeting room, the three men and Acting Secretary General – JSC’s third appointment to the post in five months – remained behind.
Suspecting “something was amiss”, Velezinee stayed within JSC premises after the meeting was called off. The four men were still in the meeting room when she returned to check a quarter of an hour later.
She asked them what they were up to, and was told they were just wrapping things up before leaving. She left. It was after her departure that the three men began making the phone calls. The fourth, Judge Abdulla Didi, had joined some time after she left around 8.00pm, says Velezinee.
The contents of the leaked audiotape supports Velezinee’s version of events as Judge Abdulla Didi is heard saying that the meeting “was cancelled” and “we can’t order for a cancelled meeting”, when MP Afraasheem Ali asks if anyone wants refreshments.
Premeditated plan of deception
In the audio recording of the meeting the four men are also heard discussing not just which members to phone but also what should be said in order to attain the approval they were seeking.
MP Afraasheem, for instance, discusses his phone call with Shu’aib asking if had “said the right things”. Abdul Ghanee replies that it was “perfect”, and disagrees with MP Afraasheem that perhaps he should have “made things a bit shorter”.
Laughing, Ghanee says, “No, no, that is just about right.” The men also discuss whether they should first send text messages to their targeted members, and whether it is best to ring them on the Secretariat mobile phones first as they would be more likely to pick up then.
After Shu’aib, Afraasheem’s next call is to Mohamed Fahmy Hassan whom he tells he is “calling from that big phone” at the JSC.
Inquiring after how things went “during the campaign”, he laughingly tells Fahmy that “Usthaz Ghanee, Usthaz Ahmed Rasheed and Usthaz Didi” were all listening.
Afraasheem is heard requesting Fahmy’s approval to appoint him as JSC’s legal representative to the Supreme Court, and also informs him that Shu’aib had already said yes.
“If you want, Afraasheem…”, Fahmy is heard saying.
“What you are saying is that if I have no objections to the appointment, you have none. Is that so?” Afraasheem says. “Yes, yes”, Fahmy says. Afraasheem also tells Fahmy that Ghanee had suggested appointing Fahmy himself as the representative.
“No, no. Keep me at a bit of a distance”, Fahmy demurs. “In that case”, replies Afraasheem, “I will send you the decision for you to sign.” Fahmy agrees.
Fahmy has previously told Minivan News he had no comment on matters relating to the JSC.
The men also appear to be aware of the underhanded nature of their actions, saying such tactics would have been harder had the JSC Chair Adam Mohamed been present.
“It would not have been this easy to do this if Adam was here”, Justice Ghanee is heard saying referring to Adam Mohamed’s lengthy pronunciations. Abdulla Didi agrees, “Yes, that’s the problem with Adam, isn’t it?”
Adam was abroad at the time of the meeting.
Once Fahmy gave his approval, Afraasheem hangs up the phone, and is heard declaring, “This is fun!”
He continues, “Tension. Able to get rid of the tension! We have six now, don’t we?” he says, referring to the six signatures that are needed for a JSC decision to be valid and binding.
“Six,” Rasheed is heard confirming.
“We have six”, Faththah says. The audio recording ends with some muffled voices in which one of the voices, which cannot be identified, says, “So lets get this signed and done with.”
JSC’s efforts to resist judiciary reform
JSC’s criticism of the Supreme Court bench, and the broad agreement among the men that the Court functioned better during the interim period reflects a general attitude observed among some JSC members to resist bringing the judiciary in line with the 2008 Constitution.
MP Afraasheem has been at the forefront of the resistance. He has, for example, dismissed as “symbolic” Article 285 of the Constitution, which demands that all judges who do not meet its newly stipulated qualifications be dismissed after two years of it coming into force.
The two years were up in August 2010, and the JSC has failed to take the required steps to remove or replace unqualified judges, instead deciding to re-appoint the whole bench having declared it “a violation of their human rights” to remove them under a retrospective law – meaning the new Constitution.
Moreover, in December of last year, MP Afraasheem successfully sought Majlis approval for legislation that granted a lifetime pension of Rf 600,000 (US$46,700) a year to former Interim Supreme Court Justice Mujthaz Fahmy.
Fahmy was on the bench of the Interim Supreme Court, which was dissolved on 10 August, 2010. When the new Supreme Court proper was established he was not re-appointed to the bench.
Records seen by Minivan News show that Fahmy is nowhere near meeting the educational qualifications required of a judge in any court, let alone the Supreme Court, and had also been found guilty of embezzling State funds.
Fahmy lacks a basic law degree, trained a total of 217 days in the 29 years he spent in the judiciary, and possesses a ‘sentencing certificate’ obtained as his only claim to an education in law.
Some of the 217 days Fahmy spent in ‘professional training’ included time spent acquiring the skills to use a computer.
MP Afraasheem told an approving Majlis that awarding the extraordinarily generous pension to Fahmy would strengthen the country’s judiciary and ensure its honesty and integrity.
JSC and a legal black hole
Alleged irregularities in its recent High Court appointments are not the only reasons for which the JSC has been recently summoned to the courts. In January this year, Civil Court Judge Mariyam Nihayath threw out a professional negligence case against the JSC.
Treasure Island Limited had brought the civil suit against the JSC alleging that it had failed to carry out its constitutional duties by arbitrarily dismissing its complaints of misconduct against two judges in a case involving millions of US Dollars and prominent members of the tourism industry.
Although the JSC failed to satisfy Judge Nihayath that it did have a proper procedure for dealing with complaints against the judiciary, she threw out the case against it when Treasure Island was late for the court on what was to be the penultimate hearing of the case.
Shortly after, the JSC launched its process for the High Court appointments. Judge Nihayath was one of the unsuccessful candidates, and is also among three candidates who have written to the JSC requesting further details on the selection criteria.
Although Nihayath and two other judges have written to the JSC seeking clarification of the procedures for making High Court appointments, and despite the fact that the High Court is virtually suspended while the case remains pending at the Supreme Court, the JSC does not appear to be treating the matter with any real importance or urgency.
It tabled the three judges’ requests for discussion on 16 February. It was the second last matter to be discussed – before the matter of the retirement procedure for judges who are over 70 years of age, and after four other items including the matter of what legal action to take against Velezinee.
Velezinee’s alleged removal of JSC’s official documents from its premises appears to be the matter to which the JSC is according most importance, ahead of a properly functioning judicial system.
The contents of the dhikileaks audio tape has been available to the public, and broadcast in the national media, from last week onwards. The JSC is yet to pay any attention to it, despite the evidence it provides of members colluding to submit a forged document to the Supreme Court, committing perjury.
The International Commission of Jurists (ICJ) conducted a fact-finding mission in September of last year, and is due to publish its findings tomorrow.
A Supreme Court decision to allow the election of a municipal council to serve within Addu has effectively ruled in favour of government plans to provide city status to the southerly atoll, Attorney General Dr Ahmed Ali Sawad has said.
Dr Sawad said that the last minute decision taken yesterday by the Supreme Court to repeal an earlier Civil Court ruling disallowing Addu Atoll to hold city status was final and would not face the scrutiny of any additional appeals after today’s polling.
Elections set to appoint a council to serve a newly formed Addu City were cancelled by the Elections Commission earlier this week by the Civil Court, after it invalidated the criteria established by the Local Government Authority to determine cities.
Dr Sawad said that the Supreme Court had now effectively ruled in favour of the government’s aim to have Addu Atoll recognised as a city.
Haveeru reported that the five Supreme Court judges unanimously ruled that the Civil Court decision to invalid the city criteria had the potential to create conflict in Maldivian society, as well as violate the legal rights of candidates contesting the election in Addu. Following the Supreme Court order, Elections Commissioner Fuad Thaufeeq recalled an earlier decision to cancel the election in Addu – however it still remains unknown as to how the confusion impacted voter turnout.
The Supreme Court decision was met with criticism from Ahmed Thasmeen Ali, leader of the opposition Dhivehi Rayyithunge Party (DRP), who claimed that the party had been severely hindered by the short notice given to participants for the elections.
“It was clearly announced [the Addu elections] would not be today,” he said. “[The decision to hold them] has given the Maldivian Democratic Party (MDP) an advantage due to their larger finances. We should have had more time to allow constituents to return.”
Thasmeen said that the party would reluctantly follow the ruling of the Supreme Court nonetheless.
The Supreme Court claimed it has a policy of conducting trials transparency and openly to the media, after a a Haveeru journalist was ordered not cover a court trial.
The trial, which was presented to the Supreme Court by the Elections Commission, was being conducted to void the candidacy of Ibrahim Haleem, a Maldivian Democratic Party (MDP) candidate running for Raa Atoll Innamaidhoo council in the upcoming Local Council Elections.
”Although the Supreme Court decided not to conduct the hearing of the case publicly, the policy of this court is to conduct trials transparently and publicly, and to allow the media to provide coverage according to the spirit of the constitution,” said Supreme Court a statement.
However the Supreme Court said the court will “always consider the honor and sanctity of the accused.”
”If the accused states that the court [trial] will affect his honor and sanctity, the court will consider the result of publishing such hearings after considering the nature of the case,” the court said.
The local media today reported that the Supreme Court has ruled that the candidacy of Ibrahim Haleem was voided.
Meanwhile, the Maldives Journalists Association (MJA) has issued a press statement claiming the trial was not the type of trial that should be conducted confidentially.
”We are very concerned that the Supreme Court has ordered a journalist not to report the hearing of the case concerning the candidacy of Ibrahim Haleem,” said the MJA.
The MJA said the Supreme Court’s order had narrowed the right to express opinion and right to media as guaranteed by the constitution.
The Supreme Court of the Maldives has today announced that it will conduct a trial on the issue of appointing High Court judges that had originally been scheduled for the country’s Civil Court, amidst ongoing debate over the institution’s right to influence the workings of a higher authority.
The case was first filed in Civil Court last week by Criminal Court Judge Abdul Baary over concerns that there were policy and legal issues related to the Judicial Service Commission’s (JSC) appointment procedures, such as giving higher priority to appointees on the basis of gender.
Judge Baary claimed in Haveeru at the time that the JSC policy stated that if a female and a male scored even marks, higher priority should be given to the female when appointing judges for the High Court bench. This, he said, was against the Constitution and the Labour Act.
A Writ of Prohibition was issued by the Supreme Court last week in an unprecedented step against the Civil Court designed to order the institution to hand over the case to determine whether it had the authority to deal with the functions of a higher court.
The Supreme Court has today ruled that the issue was a constitutional matter and that the Civil Court did not have the authority to decide on constitutional matters such as the legality of appointing members to the High Court bench.
”If the matter was conducted in the lower court, the case would get appealed and would cause a delay in the appointment of High Court judges which will lead to a loss of basic rights for the administration of justice,” said the Supreme Court in a statement posted on their website.
High Court judges appointed by the JSC last week included Juvenile Court Chief Judge Shuaib Hussein Zakariya, former Law Commission member Dr Azmiralda Zahir, Civil Court registrar Abdu Rauf Ibrahim, lawyer of former President Maumoon Abdul Gayoom, Abbas Shareef and Civil Court Chief Judge Ali Sameer.
A JSC spokesperson was unavailable to comment on the issue at the time of going to press, though told Minivan News that the commission had not had any communication with the Supreme Court over today’s decision.
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