Removal of Supreme Court judges will have “chilling effect” on work of judiciary: UN special rapporteur

United Nations Special Rapporteur on the Independence of Judges and lawyers Gabriela Knaul has expressed serious concern about the removal of Supreme Court Chief Justice Ahmed Faiz and Judge Muthasim Adnan.

“This decision seriously undermines the independence of the judiciary in the country and will have a chilling effect on the work of the judiciary at all levels,” said Knaul.

The rapporteur called for a reconsideration of the pair’s removal, noting that it had been characterised by a “lack of transparency and due process”.

Removal of the judges followed amendments to the Judicature Act made in the People’s Majlis, which called for the reduction of the Supreme Court bench from seven to five.

The Judicial Services Commission (JSC) promptly selected Faiz and Adnan for dismissal, though the reasons for their selection were not shared with MPs who subsequently voted to dismiss both on December 14.

“The fact that the grounds for removal were not publicized is particularly unacceptable,” added Knaul in a statement released yesterday (December 22).

Knaul has joined numerous local and international organisations in condemning the move, while the political fallout in the Maldives has seen the expulsion of Majlis Deputy Speaker ‘Reeko’ Moosa Manik from the Maldivian Democratic Party (MDP).

Moosa was one of six MDP MPs who failed to attend the December 14 vote, despite a three-line whip being issued by the party.

Censure

The ruling Progressive Party of Maldives (PPM) has rounded on critics of the dismissals, with the party accusing Jumhooree Party leader Gasim Ibrahim of attempting to deceive the public when stating that the Maldives had received international censure.

Similarly, PPM Parliamentary Group leader Ahmed Nihan this week accused the US of hypocrisy after the State Department suggested the Maldives still has “issues” regarding judicial independence.

Local opponents to the move have included the opposition MDP and civil society groups, while the Civil Court bench passed a resolution stating that the Majlis had “forced” the JSC to deem Faiz and Adnan unfit for the Supreme Court bench.

Faiz himself has described his dismissal as raising doubts over the separation of powers and the continuation of judicial independence in the Maldives.

“Today will be written down as a black day in the constitutional history of the Maldives. I state this is a black day for the constitution. Taking such a vote against the constitution is, I believe, disrespectful to the constitution,” he told local media immediately after his removal.

Elsewhere, the International Commission of Jurists have called the decision an “astonishingly arbitrary” one which has “effectively decapitated the country’s judiciary”, while Commonwealth groups have expressed fears that the rule of law has been “severely jeopardised”.

Reform

In her own statement, Knaul noted that under both Maldivian and international norms judges could only be removed on grounds of incompetence or misconduct.

Knaul’s 2013 report into the the state of the Maldivian judiciary called for drastic reform, noting that the appointment of the current Supreme Court bench in 2010 had “no legal or constitutional basis” and that the JSC was unanimously regarded as “inadequate and politicised”.

“Since my visit to the Maldives in February 2013 I have been closely following a series of developments in the country that point at a serious deterioration of respect for the rule of law and the independence of the judiciary,” she warned yesterday.

UN special rapporteurs are independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective. Knaul was appointed to the position in 2009 after having worked as a judge in Brazil for over a decade.

Knaul’s 2013 report was welcomed by the Maldivian government – despite some suggestions that the country’s sovereignty was being undermined. The Supreme Court, however, has dismissed the findings.

After the Human Rights Commission of Maldives (HRCM) used recommendations from Knaul’s report in its submission to the UN Human Rights Council’s Universal Periodic Review this year, the Supreme Court initiated ‘suo moto’ proceedings against the commission in September.

The (ongoing) case against the HRCM followed similar charges against the Elections Commission (EC) in February, which resulted in the removal of the EC’s chair and deputy chair just weeks before the Majlis elections. The EC case was linked to the presidential election in 2013, in which the court was accused of “subverting the democratic process” by United Nations High Commissioner for Human Rights Navi Pillay.

Following the HRCM case, former Justice Minister Ahmed ‘Seena’ Zahir suggested the country was facing a “judicial dictatorship”, calling for immediate reform to end misinterpretation of the constitution.

Pro-government MPs have suggested the removal of the two judges is a move towards reform of the courts.

Attempts to obtain comment from officials at the President’s Office and the PPM were unsuccessful at the time of publication.



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PPM parliamentary group leader Nihan criticises US for comments on judiciary

Ruling Progressive Party of Maldives (PPM) parliamentary group leader Ahmed Nihan has suggested the United States should look closer to home before passing comment on the Maldives’ judiciary.

While speaking at a ceremony in Gaaf Dhaalu Thinadhoo yesterday, Nihan said the majority of the countries issuing statements on the Maldivian judiciary do so without considering their domestic circumstances.

“They are afraid to talk about their own courthouses and the rights of their citizens. For example America, one of the biggest critics, is at the verge of killing black people on sight,” Haveeru has reported Nihan as saying.

“The countries which remain quiet, even as Israel continues to kill off people in the Middle East, Al-Quddus area – they are pointing their fingers at others,” he continued.

Speaking with Minivan News today, the Villimalé MP has suggested his words had been taken out of context by local media, though he defended them as being based upon facts, defending his right to freedom of expression.

Nihan’s comments appeared to refer to two recent incidents in the US in which individuals died at the hands of police officers, prompting nationwide civil rights protests.

During a visit to the Maldives this week US Assistant Secretary of State for South and Central Asian Affairs Nisha Biswal said that judicial independence is still an issue in the Maldives, despite the young democracy’s accomplishments.

The comments came just days after the removal of two Supreme Court judges by the People’s Majlis, in a move condemned as unconstitutional by both local and international civil society groups, as well as the Maldives’ Civil Court.

Numerous Commonwealth organisations said the move had “severely jeopardised” the independence of the judiciary, while the International Commission of Jurists said the “astonishingly arbitrary” decision had “effectively decapitated the country’s judiciary”.

Nihan told Minivan News today that there was no reason why the Maldives should act upon “planned and political” statements from European countries either.

The government, and President Yameen in particular, has heavily criticised the EU for what it regards as interference in the internal affairs of the country, suggesting it had prompted the Maldives to look increasingly to China as a development partner.

When asked about the impact of his comments on diplomatic relations, Nihan said that he believed that there should be no impact as Maldives has the right to defend itself from its critics in the international arena.

Meanwhile, a PPM press release on Thursday (December 18) had slammed what it termed attempts to bring the Maldives into disrepute by Jumhooree Party (JP) leader Ibrahim Gasim, who suggested that Maldives was facing international censure over the removal of Supreme Court judges.

“We’re giving a bad signal. [We are] talking about comments made about the Maldives looking at statements from America and the commonwealth,” the business tycoon was quoted as saying in local media.

Chief Justice Ahmed Faiz and Justice Muthasim Adnan were removed following the passage of government-sponsored amendments to the Judicature Act, which proposed reducing the number of judges on the apex court from seven to five.

Following ratification of the amendments by President Abdulla Yameen, the Judicial Service Commission (JSC) promptly recommended the dismissal of Faiz and Adnan, which was approved by parliament on December 14 with 53 votes in favour and 21 against.



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Chief justice and police commissioner discuss police obstruction and assault cases

Chief Justice Abdulla Saeed and Commissioner of Police Hussein Waheed met on Thursday and discussed measures to expedite cases involving assault of police officers and obstruction of police duty.

According to a statement by the Maldives Police Services, Saeed pledged to take the necessary steps and said law enforcement officers must receive due protection and security.

Appreciating the service of policemen, Saeed said the nation came first before the individual, and said the Supreme Court bench would not engage in any act that may cause harm to the Maldives.

Waheed said “attacking law enforcement officers is a crime in civilized countries,” and spoke about the need for expediting cases involving attacks on police officers.

Hundreds of individuals were arrested from protests on charges of obstruction of police duty and assault of police officers during the anti-government protests following the controversial transfer of power in February 2012.

An individual found guilty of the offense may be fined up to MVR12,000 (US$778) and/or sentenced to six months in jail.

According to statistics published by the Prosecutor General’s Office, in 2013, 101 individuals were charged with obstruction of police duty. In 2012, 65 individuals were charged with obstruction of police duty and 59 were charged with assaulting a police officer. Figures were not available for 2014.

The police have not published statistics on the number of individuals arrested on these charges.

According to the police statement, Saeed and Waheed also discussed measures to reduce crime rates in the Maldives.

Saeed was appointed as the Chief Justice following the controversial and sudden dismissal of former Chief Justice Ahmed Faiz and Justice Muthasim Adnan after a People’s Majlis amendment to the Judicature Act reducing the seven-member Supreme Court bench to five judges.

Supreme Court Justices Ali Hameed and Dr Ahmed Abdulla Didi and Deputy Commissioners of Police Ahmed Saudhy and Mohamed Sodiq also participated in the meeting.

Meanwhile, Prosecutor General Muhthaz Mushin has requested the police speed up investigation in cases involving arrest from unlawful protests and submit charges for prosecution within 48 hours.



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PPM accuses JP of misleading public, bringing government into disrepute

The Progressive Party of Maldives (PPM) has slammed alleged attempts by the Jumhooree Party (JP) to deceive the public and bring the government into disrepute.

In a press release on Thursday (December 18), the ruling party condemned “completely unfounded and false” public remarks from the estranged coalition partner after JP Leader Gasim Ibrahim suggested the Maldives was facing international censure over the removal of Chief Justice Ahmed Faiz Hussain and Justice Muthasim Adnan from the Supreme Court bench.

International condemnation of the move was a “red light” for foreign investors, Gasim contended at a ceremony last week to mark the signing of Independent MP Muaz Mohamed Rasheed to the JP.

“We’re giving a bad signal. [We are] talking about comments made about the Maldives looking at the statements from America and the Commonwealth,” the business tycoon was quoted as saying in local media.

While the International Commission of Jurists (ICJ) described the dismissal of the justices as “astonishingly arbitrary,” the Commonwealth Legal Education Association (CLEA) and the Commonwealth Magistrates’ and Judges’ Association (CMJA) in a statement on Tuesday called it unconstitutional and a clear breach of the Commonwealth Principles.

“The superficial legislative and administrative manoeuvres used to get rid of them [the judges] were grossly unfair and in flagrant violation of the Maldivian Constitution, UN and Commonwealth standards on independence of the judiciary, and the obligations of the Maldives under international law,” read the ICJ statement.

The pair were removed following the passage of government-sponsored amendments to the Judicature Act, which proposed reducing the number of judges on the apex court from seven to five.

Following ratification of the amendments by President Abdulla Yameen, the Judicial Service Commission (JSC) promptly recommended the dismissal of Faiz and Adnan, which was approved by parliament last Sunday with 53 votes in favour and 21 against.

The PPM statement meanwhile argued that weakened international relations have been repaired through the efforts of the current administration.

A number of friendly nations offered assistance during the recent water supply crisis in the capital, the party noted, while the government has launched major development projects in collaboration with foreign partners in recent months.

Foreign investors were presently carrying out projects in the country while expressing interest in further projects, the statement added.

Meanwhile, speaking to the press last week, Gasim also denied making a deal with the PPM to allow a free whip for the JP’s 12 MPs to vote as they saw fit in the removal of the Supreme Court justices.

While five out of 12 JP MPs voted to dismiss the pair, Gasim himself voted against the move.

However, PPM Deputy Leader Ahmed Adeeb had thanked Gasim on social media for “letting JP MPs vote as agreed for free whip today.”


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ICJ says Majlis has “decapitated the country’s judiciary”

The International Commission of Jurists (ICJ) has called this week’s removal of two Supreme Court judges an assault on the independence of the judiciary.

“The Maldivian parliament and executive have effectively decapitated the country’s judiciary and trampled on the fundamental principles of the rule of law and separation of powers in a democratic State,” said Sam Zarifi, ICJ’s Director for Asia and the Pacific.

Zarifi went on to call for the reinstatement of Chief Justice Ahmed Faiz and Justice Muthasim Adnan, labelling their removal by the People’s Majlis “astonishingly arbitrary”.

The two judges were removed following amendments to the Judicature Act passed last week, requiring a reduction of judges on the Supreme Court bench from seven to five.

After the Majlis approved the changes, the Judicial Services Commission (JSC) recommended the following day (December 11) that Faiz and Adnan be removed. The reasons for the decision have yet to be made known to either the public or the Majlis, which nevertheless voted to remove the judges on Sunday (December 14).

Article 154 of the 2008 Constitution says a judge can only be removed if the JSC finds them guilty of gross incompetence or misconduct.

Established in 1952, the ICJ is formed of 60 judges from around the world who utilise their legal expertise to develop and strengthen national and international justice systems.

“The superficial legislative and administrative maneuvers used to get rid of them [the judges] were grossly unfair and in flagrant violation of the Maldivian Constitution, UN and Commonwealth standards on independence of the judiciary, and the obligations of the Maldives under international law,” read today’s ICJ statement.

Both the Civil Court and private lawyers have unsuccessfully attempted to block the judges’ removal, with the Civil Court saying that the “unconstitutional” decision had the potential to “destroy judicial independence” in the Maldives.

While the Supreme Court ordered that the Civil Court hand over any files related to the opposition Maldivian Democratic Party’s complaint, the High Court has told private lawyers that it does not have the jurisdiction to rule on the matter.

Meanwhile, Commonwealth institutions have released a statement saying that judicial independence and the rule of law had been “severely jeopardised” by the decision.

Locally, the Maldivian Democracy Network has called the decision “a travesty in the guise of upholding the Constitution”, while Transparency Maldives also expressed concern:

“The impartiality and independence of the Supreme Court is not solely decided by the number of Supreme Court Justices but rather by the upholding of judicial integrity and principles,” said the anti-corruption NGO.

Immediately following his dismissal, Faiz – previously a stern critic of international commentators on judicial reform – said the move raises doubts over the separation of powers and the continuation of judicial independence in the Maldives.

“Today will be written down as a black day in the constitutional history of the Maldives. I state this is a black day for the constitution. Taking such a vote against the constitution is, I believe, disrespectful to the constitution,” he told local media.

The ruling coalition maintains the amendments – which include the breaking up of the High Court into regional bodies – will strengthen the judiciary and facilitate judicial reform.



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Comment: Mutiny of the State – Maldives gets away with another Coup D’etat

Article first published on Dhivehi Sitee. Republished with permission.

A year ago the Supreme Court of the Maldives reigned supreme. The court, and at times the chief justice alone, ran wild with ‘the powers of the Supreme Cour’, citing Article 145 (c) for Supreme Court interference in all manner of issues.

Article 268 on supremacy of the Constitution binds the Supreme Court too – but both the Supreme Court andparliament majority were wilfully blind to this as they got their way, citing the Constitution to justify outrageous breaches of the Constitution.

Few among the general public in a polity with a history of authoritarian rule and unfamiliar with the concept of the rule of law understood contraventions of the Constitution, especially when the breaches were blatantly defended by the Supreme Court. In the absence of a culture of democracy it was often reduced to whatever the ‘majority’ decide – by hook or by crook.

To win was the ultimate goal in elections as well as in litigation, no matter how. Reason by the minority was drowned out and, with the Supreme Court politicised and the parliament majority with the president, an executive dictatorship reigned in the shadow of the supreme Supreme Court.

The gravity of the situation became visible to the public and the international community during the 2013 presidential elections, when the court repeatedly intervened in the election process, often working the graveyard shift to issue midnight decrees and directives to control the elections. Polls were nullified and voting was repeatedly rescheduled to ensure an election win for Abdulla Yameen Abdul Gayoom, half-brother of the 30-year dictator Maumoon Abdul Gayoom.

Why the Supreme Court may have had an interest in seeing Yameen as the president may be seen in Yameen’s statement to the Commission of National Inquiry (CoNI) that decided the 7 February 2012 coup was not a coup

Soon after the presidential elections, the Supreme Court also facilitated a win for President Yameen’s Progressive Party of Maldives (PPM) in parliamentary elections, removing the Elections Commissioner and his deputy in the country’s first suo moto case. The Elections Commissioner was accused of contempt of the court and undermining its powers.

During the election campaign President Yameen, like PPM MPs in their campaigns, pledged to protect the judiciary from interference, condemning the local and international calls for judicial reform as “interference”. The Supreme Court is the highest authority, the bearer of the last word in all matters of law, and none had the power to criticise or demand reform of the judiciary – both the Supreme Court and President Yameen agreed.

Dismissive of all expert reports on the Maldives judiciary, the Supreme Court adopted contempt of court regulations to prohibit media and public criticism and went as far as to initiate court action against the Human Rights Commission of the Maldives (HRCM) in suo moto vs HRCM – charging all members of the HRCM with high treason for their 2014 report to the Universal Periodic Review for noting that the Supreme Court unduly influences and controls the judiciary.

Chief Justice Ahmed Faiz Hussain played his cards to win. From giving the oath to Vice President Dr Mohamed Waheed without question and legitimising the 7 February 2012 coup d’état, to guaranteeing a win for coup-leader Yameen in the 2013 elections, facilitating a PPM majority in parliament and remaining silent while the PPM majority systematically undermined the Constitution and ruled by law instead of upholding the rule of law, Faiz never faltered.

None of this mattered, however, when on December 14 – following an amendment to the Judicature Act which required the Supreme Court bench to be reduced from seven to five justice, the PPM majority in parliament removed both Faiz and Justice Muthasim Adnan — the only voice of reason, and often only voice of dissent from majority opinion in the court.

Supreme Court Justice and Chief of the Interim Supreme Court Abdulla Saeed – who I maintain engineered hijacking of the judiciary in 2010 in what I have since called the silent coup – was rewarded with the title of chief justice. Solemnising the historic oath of the new chief justice was none other than Supreme Court Justice Ali Hameed, whose dirty laundry made international headlines after the court ruled against display of white underpants in public protests. The white pants became a protest prop against Hameed after videos appearing to show the judge with foreign sex workers in a hotel in Sri Lanka went viral on the internet.

The Final Nail in the Coffin

Amendments to the Judicature Act were passed by the parliament majority on Wednesday and ratified by President Yameen on Thursday.

Under the new amendments, the bench was to be reduced from seven to five justices, and the High Court bench is to be chopped into three equal parts, with three of the nine justices assigned to three geographical regions. A total of 43 MPs voted for the change, all members of PPM – the government majority, and errant members of the opposition.

Within hours of ratification, the Judicial Service Commission (JSC) who had staunchly refused to assess or remove a single judge as required for the de facto transition under Constitution Article 285, announced a decision to submit names Faiz and Adnan for removal. No reasons were given as to why or how the JSC reached the decision to remove them. The media was simply told it was a secret decision and that the commission had decided not to reveal procedure or reason.

On Saturday, while the opposition, senior lawyers, commentators, media, social media activists, civil society, the public, and even the Civil Court declared the amendments to the Judicature Act unconstitutional and illegitimate, politicians bargained to win the two-thirds simple majority required to remove a judge.

On Sunday morning, while opposition-led protests were kept at a distance by Police barricades around the parliament building, government MPs voted to remove the  pair. The MDP issued a three-line whip to reject the dismissal of the justices, but with at least five opposition MPs making themselves absent from the proceedings, the required two-thirds vote was guaranteed.

MDP MPs and some JP MPs raised the matter of the unconstitutionality of the amendment to Judicature Act — the fact is that Article 154 of the Constitution, under which the Majlis had scheduled to remove the justices, does not permit the removal of a judge except where the JSC finds the person grossly incompetent, or guilty of gross misconduct.  MPs also noted no such report  from the JSC regarding the two judges who were to be removed had been made available to them, nor was it on record with the parliament.

It was noted that the only documentation before parliament was a three-line note from the JSC seeking the removal of Faiz and Adanan, and that this was forced upon the JSC by parliament via the unconstitutional amendment to the Judicature Act.

The parliament majority leader spoke for the government, laughing at opposition claims of unconstitutionality, and citing Constitution’s Article 70 and the powers of the parliament therein to “make any law on any matter and any manner, whenever and wherever Parliament wish”. The fact that there are limits upon the parliament, and that the parliament may not enact a law detrimental to the Constitution was lost upon him.

The vote was won and, on Sunday afternoon, it was reported that JSC had proposed Supreme Court Justice Abdulla Saeed for the post of Chief Justice. Sunday evening, Parliament was back in session and Abdulla Saeed was appointed the new Chief Justice with 55 votes. Before midnight, Abdulla Saeed had taken oath.

Corrupting of the Judiciary

In 2010, the JSC – supported by the then-opposition parliament majority – refused to execute Article 285 and re-appointed all sitting judges en masse. Further, both the JSC and opposition MPs misled the public on the commission’s actions leading up to the collective judges’ oath on 4 August 4, 2010.

The JSC published what it called the  ‘legal reasoning on the Article 285 decision‘ speaking of the “human rights of judges” and citing Constitution section 51 (h), and ICCPR Article 14:2, and UDHR Article 11 on rights of the accused, to explain why no sitting judge may be removed for misconduct or failing to be of good character.

“No one can be penalized (dismissed) by a retrospective law,” the JSC claimed in 2010 – the “law” referred to here by the JSC being the 2008 Constitution.

The JSC’s decision stood as few protested against it, and complaints to parliament oversight committee, the Anti Corruption Commission and the Human Rights Commission on the JSC’s treason were ignored or covered up.

The appointment of the Supreme Court itself was a political decision influenced by the existing power balance in the parliament and the pressure from the international community for “political negotiation and peace”.

Reports of the International Commission of Jurists, who probed the issue following appeals in 2010, and the UN special rapporteur on independence of lawyers and judges, and FIDH – who made inquiries after the February 2012 coup d’état – all recognise fundamental mis-conceptualisations in the appointment of judges and in the use of concepts like independence of the judiciary and the rule of law in the Maldives.

Rule By Law: Precedents in the Maldives

The removal of Faiz and Adnan from the Supreme Court bench through amendment legislation is not the first breach. A number of similar unconstitutional actions where political ‘majority’ power reigned supreme have set the precedent. Some major comparable instances are found in the following:

  • The removal of the chair of the JSC, High Court Chief Justice Abdul Ghani Mohamed through a High Court decree on January 21, 2010. The decision was taken by three of the five High Court justices while the fourth was on leave, and, without the knowledge of Abdul Ghani himself. The move contravened democratic principles. The JSC did not investigate the misconduct and abuse of power by the three High Court judges – despite the adoption of a motion to do so – and appointed two of the said three High Court justices to the Supreme Court, and the third as chief justice of the High Court.
  • The legitimisation of JSC’s breach of Constitution Article 285 by the Judicature Act of August 10, 2010, which brought down the standards and qualifications stipulated in the Constitution for judges.
  • The amendment to the Judicature Act on 10 August 2010, the same day it was passed and ratified, to qualify Dr Ahmed Abdulla Didi for the Supreme Court bench.
  • The legitimisation of the 7 February 2012 coup d’état by majority power in parliament.
  • The removal of the Auditor General through amendment to the Auditor General’s Act in 2014.

Another coup d’état?

If a coup d’état is understood as hijacking of state powers, and bringing down of legitimate Constitutional government, and/or the derailment of Constitutional government, the Maldives has once against carried out a coup d’état, this time going full circle to complete what I have called earlier the silent coup.

With Monday’s move, all state powers are once again with the president who has got himself parliament majority with the power to write and rewrite law; and the shamelessness to do so without regard to the Constitution, democratic principles, public outrage, or international criticism.

With the Supreme Court secured, parliament is now on fast track, undoing the Constitutional rights and safeguards. Next step will be the elimination of all opposition including independent voices, all by Court order and verdicts, once again by the powers of the Constitution.

Where do the people of Maldives go with this case of the mutiny of the state against it’s own Constitution and people?

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 takes control of MDP’s Civil Court complaint on Faiz, Muthasim dismissal

The Supreme Court last night took control of a complaint lodged with the Civil Court regarding a judicial watchdog resolution recommending the removal of Chief Justice Ahmed Faiz and Supreme Court Judge Muthasim Adnan.

The opposition Maldivian Democratic Party (MDP) had filed the complaint with the Civil Court on Sunday morning, ahead of an extraordinary Majlis sitting to vote out Faiz and Adnan.

The first hearing was scheduled at 8:30pm, but the Supreme Court’s registrar Mariyam Sham’a Ismail sent a writ of prohibition at 8:40 pm ordering the Civil Court to halt proceedings on the case.

The writ ordered the Civil Court to “to hand over case files, with all relevant documents, to the Supreme Court before 20:45 tonight, 14 December 2014, and to immediately annul any action that may have been taken on the matter.”

MDP had requested the Civil Court to review the legality of the watchdog Judicial Services Commission’s (JSC) letter to the Majlis declaring the two judges guilty of misconduct and incompetence. The complaint also asked the court to issue an injunction against the Majlis vote.

However, a two-third majority of MPs voting removed the two judges before the Civil Court could examine the request for a stay order.

A lawyer who wished to remain anonymous questioned the legality of the writ of prohibition, claiming such an order could only be issued following a sitting of the Supreme Court bench led by the chief justice.

At the time of the writ’s issue, the position of chief justice was vacant. The Majlis only approved Supreme Court judge Abdulla Saeed to the position at an extraordinary vote at 9:30pm.

The apex court’s registrar cannot issue orders on the Civil Court in the absence of a chief justice, the lawyer claimed.

The Supreme Court also had a conflict of interest in the case as it asked for the review of a JSC ruling on the removal of two Supreme Court judges, the lawyer said. Further, Supreme Court Judge Adam Mohamed heads the JSC – the defendant in the case, leading to further conflict of interest, the lawyer said.

Faiz and Muthasim’s dismissal follow amendments to the Judicature Act reducing the seven-member Supreme Court bench to five judges. The revised law ordered the JSC to recommend two judges for dismissal within three days of its enactment.

Judicial independence

The Civil Court had on Saturday night condemned the move and said the Majlis had “forced” the JSC to deem Faiz and Adnan unfit for the Supreme Court bench without due process.

The Civil Court Chief Judge Ali Rasheed Hussein, and Judges Aisha Shujoon, Jameel Moosa, Hathif Hilmy, Mariyam Nihayath, Huseein Mazeed, and Farhad Rasheed said the move was against principles of natural justice and several international conventions, and could “destroy judicial independence” in the Maldives.

“We believe we are obliged to comment on the issue for the sake of the democratic and judicial history of the Maldives, and we believe keeping silent at this juncture amounts to negligence” the bench said.

However, the ruling Progressive Party of the Maldves (PPM) maintains the bench reduction would facilitate judicial reform and strengthen the judiciary.

Faiz and Muthasim often formed the dissenting opinions in several controversial cases including the decision to annul the first round of elections held in September 2013. Muthasim was the only judge with a background in common law on the bench.

Faiz has since called his dismissal unconstitutional, and said the move raises doubts over the separation of powers and the continuation of judicial independence in the Maldives.

“Today will be written down as a black day in the constitutional history of the Maldives. I state this is a black day for the constitution. Taking such a vote against the constitution is, I believe, disrespectful to the constitution,” he said.

The Human Rights Commission of the Maldives has also sent a letter to Speaker Abdulla Maseeh and Attorney General Mohamed Anil expressing concern over the sudden dismissal of Faiz and Muthasim

How the state acts in the case sets an important precedent in establishing public trust in the judiciary, the commission claimed.

President Yameen’s nephew Shaheen Hameed and two lawyers have also asked the High Court to annul the amendments to the Judicature Act.



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Transparency Maldives notes “grave concern” over undemocratic trends

Transparency Maldives (TM) has called upon the state and political parties to operate within the Constitution, and to respect democratic norms and principles.

“Transparency Maldives notes with grave concern the increasing trend of undermining democratic practices and institutions by the State,” read a statement from the NGO today.

TM cited the attempts to reduce the number of judges in the Supreme Court, the sudden removal of the auditor general by the parliament, and the resolution  of the opposition Maldivian Democratic Party (MDP) calling for the presidency to be handed over to Jumhooree Party (JP) leader Gasim Ibrahim.

The MDP, private lawyers, and civil society groups have also heavily criticised the – now successful – attempts to remove Chief Justice Ahmed Faiz and Justice Muthasim Adnan from the Supreme Court.

In a statement released prior to the Majlis decision to remove the pair, TM argued that their removal would further undermine the independence of the judiciary.

“The impartiality and independence of the Supreme Court is not solely decided by the number of Supreme Court Justices but rather by the upholding of judicial integrity and principles,” argued the anti-corruption NGO.

TM said the decision to dismiss the pair without publicising the criteria used to deem them guilty of gross misconduct or gross incompetence – as required in Article 154 of the Constitution – raised questions about the fairness of the process.

“The criteria used must be objective, based on merit, transparent and well-publicised so that any public concerns about the process may be addressed.

The NGO suggested that amendments to the Judicature Act also denied the judges in question the right to defend themselves prior to their dismissal – a point also made today by the Maldivian Democracy Network.

Auditor General removal

Similarly, Auditor General Niyaz Ibrahim was removed from his post in October after pro-government MPs introduced amendments to the Audit Act.

“TM notes that the recent amendment to the Audit Act which abruptly ended the tenure of the sitting Auditor General, before the Constitutionally mandated seven-year term serves to undermine the independence of the Auditor General’s Office,” said today’s statement.

The press release further noted that the removal of the auditor general is only constitutionally allowed for proven misconduct, incapacity, or incompetence.

Niyaz’s removal was justified on the grounds that the Audit Act predated the 2008 Constitution and thereby did not include the current responsibilities, powers, mandate, qualifications, and ethical standards required for the post holder.

Niyaz chose not to stand again for the post, requesting the High Court to place an injunction against the new amendment – though his replacement was sworn in on November 24, within on hour of his approval by the Majlis.

“It must be noted that the passing of the amendment and the consequent removal of the Auditor General coincided with the release of an incriminating audit report against a Government Minister.”

The same day the Majlis authorised Niyaz’ removal, Niyaz had signed an audit report which implicated Minister of Tourism Ahmed Adeeb in a US$6million corruption scandal.

Adeeb – also Progressive Party of Maldives deputy leader – was quick to dismiss the report as politically motivated, while the government appears to have taken no further action in the case – despite pre-election pledges to root out corruption.

“TM calls on state authorities to ensure that heads of independent state institutions are given the autonomy to do their mandated work free from insecurity.”

MDP Gasim decree

Finally, TM denounced the MDP’s resolution which called on President Abdulla Yameen to hand power to JP leader Gasim Ibrahim.

The position taken by the party’s national council last week was condemned by TM as an “attempt to destabilize the elected government and infers overriding the electoral processes stipulated in the Constitution.”

The MDP leadership suggested that growing gang violence – which has resulted in four murders in the capital this year – coupled with the water crisis meant the president should step down.

“The president is not fulfilling presidential duties and ruling in absentia. So it is better for him to handover governance to Gasim Ibrahim,” said former President Nasheed during the meeting.

“TM reminds that any change in government should only be brought by a vote of the people and calls on state parties to not undermine the electoral processes of the country.”

The PPM responded to the resolution last week by accusing the MDP of attempting to disturb peace and unity during the water shortage.

The PPM also characterised the national council decision as an “undemocratic and uncivilised” attempt to topple a legitimately elected government.



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MDP asks Civil Court to halt Majlis decision on judges’ removal

The Maldivian Democratic Party (MDP) has requested a stay order to stop the Majlis vote this afternoon to remove two of the country’s seven Supreme Court judges.

The opposition has asked the Civil Court to halt the 1:30pm vote and examine the process by which the Judicial Services Commission (JSC) recommended the dismissal of Chief Justice Ahmed Faiz and Justice Musthasim Adnan.

The Civil Court yesterday issued a resolution condemning the move, stating that the People’s Majlis had “forced” the JSC to deem Faiz and Adnan unfit for the bench through an “unconstitutional” amendment to the Judicature Act.

Amendments to the act were passed in the Majlis last week calling for the reduction of the Supreme Court bench. The JSC – given three days to decide upon the judges to be removed – opted for Faiz and Adnan within 24 hours.

Former JSC member and whistleblower Aishath Velezinee has said: “The fact that JSC has taken a decision – and that within hours of ratification – shows this is a pre-decided conclusion, a political decision and is not based on any legitimate reasoning.”

“The constitutional duty of JSC is to protect independence of judges and, in my opinion, the JSC should have challenged the unconstitutional amendment. The JSC could have petitioned the High Court to decide on the constitutionality of the amendment.”

Private lawyers have today taken up the case in the High Court, with Hasaan Maaz Shareef, Mohamed Faisal, and Shaheen Hameed also asking for the vote to be halted and for the annulment of what they consider to be unconstitutional changes to the Judicature Act.

Meanwhile, former Attorney General Husnu Suood has also said the amendment is illegal.

“The most important aspect of judicial independence is security of tenure. The amendments brought to the Judicature Act eliminate this attribute. There will be no judicial independence if the Supreme Court judges are at the mercy of the People’s Majlis and the executive.”

“If the Majlis and the president can change the bench as they see fit, this fundamental basis is lost. There will never be judicial independence in the Maldives.”

Security of tenure was introduced in the 2008 Constitution in order to create an independent judiciary, although further requirements to improve the ethical and educational standards of judges were bypassed after the failure of the JSC to implement Article 285.

MDP MP and Majlis Deputy Speaker ‘Reeko’ Moosa Manik last week described the formation of the current Supreme Court bench as a “shameful” political bargain between the MDP and then–opposition parties in 2010.

Civil Society groups have also released statements today expressing alarm at developments, pointing out that the decision will undermine the independence of the judiciary, as well as compromising the judges’ right to defend themselves.

The Maldivian Democracy Network (MDN) has described the proposed removal of the judges as being in contravention of constitutional procedures – “a travesty in the guise of upholding the Constitution”.

“The aforementioned decision has been made contrary to the standard of incompetence for judges issued by the JSC itself. A procedurally irregular decision, such as this, cannot be considered legally binding,” stated the NGO.

MDN also questioned additional amendments to establish High Court branches in the north and south of the country, suggesting that the manner in which the authority to transfer High Court judges had been moved from the JSC to the Supreme Court “gives room to suggest that such changes are politically motivated”.

Meanwhile, Transparency Maldives (TM) – in a statement expressing alarm persistent infringement of the constitution – has questioned the sincerity of what pro-government MPs have described as a move toward judicial reform.

“Any move to reform the judiciary must be sincere and look at the entire judicial system, especially the judicial watchdog body, JSC, so that meaningful and real reform may take place,” said the anti-corruption NGO.



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