Why didn’t you take this matter to Supreme Court?

It is surprising how fast things change in a heated political scene. When I wrote my last article, what led Judge Abdulla to Girifushi, I still had a glimmer of hope that the Government may be able to get out of the hole they have dug themselves into.

With regret it does not seem to be the case. This is where I seriously wonder who is advising the President on political and legal matters and to who’s advice he takes.

The leaked audio of the President’s addressed to MNDF personnel, has dashed my hopes of seeing an early closure to the crisis. It is evident from the content and tone, that the President does not even consider that his government may have been wrong in this case. Instead he is preparing for a bigger confrontation and the purpose of the speech is obvious.

He criticised the Judicial Service Commission regarding the confirmation of the Judges who held office prior the the enactment of the New Constitution and disclosed his intention of withholding their salaries and not enforcing the judgments of these judges. [The enforcement of Court Judgements are a sworn duty of the Maldives Police Service, regardless of the consent of the executive.]

The President is likely referring to Chapter XIV of the Constitution on Transitional Matters. He stressed that he was not a lawyer and that he was acting on the legal advice he has received. He did not mention that The Peoples Majlis could not be elected as stipulated in the Constitution. It is clear that the writers had put utmost importance on meeting the dates specified in the Transitional chapter, as they had put in a clause that no amendment to the Constitution can be made until, the newly elected Majlis sat.

Though the dates passed, a solution acceptable to all stake holders was found for the election of the new parliament.

In his Radio address of 27th January 2012 (today), he stated :

“The Supreme Court Judges were appointed in accordance with the Constitution and law. The High Court bench was appointed in accordance with the Constitution and law.

However, it is hard to say that the lower court Judges were appointed as per the Constitution and law,” added the President

JSC was tasked with the appointment of judges in accordance with a vetting criterion established under a statute relating to the Judges, JSC had reappointed judges before the parliament approved the required statute.

In his own words, he is accepting the Supreme Court and High Court as appointed accordance with the Law, hence if the President was so concerned about the decision of the JSC:

Why didn’t he direct the Attorney General to challenge the decision in the Supreme Court?

Why were the judgements of the same judges enforced by the relevant government authorities since 27^th July 2010 when the JSC voted for the confirmations?

What has changed so much in the Judiciary in the last 6 months for this drastic action?

And most of all, why is his Government not heeding to the Orders of the Supreme Court and High Court?

His argument that the JSC was tasked with appointment of Judges in accordance with a vetting criterion established under a statute relating to the Judges may be how we would like to have it. However it is not specified as clearly in the Constitution. In fact Article 148 – Appointment of Judges does not even mention the word “law”. However Article 149 – Qualification of Judges (a) states

A person appointed as a Judge in accordance with law,  must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of high moral character.

The JSC on 4th August 2010 made a public announcement giving the legal grounds for their action. I am not even going to try to justify who is right or wrong.

It is clearly a matter of the Executive and the JSC reading the same Article to mean different ways, hence it is very clear that the next avenue if to be sought any further, would have been the Supreme Court, which is the institution the Constitution has given the final say. So once again I have to ask you, Sir, if you felt so strongly about this why didn’t you take this matter to the Supreme Court? 

H.E. President Nasheed. The army barrack is not the right forum to address or discuss this issue. You are not getting the best legal advice. Please get better legal advice and re consider your stand for the sake of this nation, and address this issue through the Supreme Court and the Parliament.

Technorati Tags: Maldives,Constition,Judge,Court,President Nasheed,JSC

What led Judge Abdulla to Girifushi?

For a neutral who has observed the situation in Maldives for the last ten odd days, it is indeed a sad story. The Chief Judge of the Criminal Court is detained by the MNDF (Maldives National Security Force) We have the President himself, his spokesperson, Ministers and MPs from the ruling MDP, who are adamant that the Government has disobeyed no laws, no done anything which contradicts the Constitution of Maldives.

At the same time, almost everyone who is not aligned to the ruling MDP, including some within the Government, most notably the Vice President disagrees. Their view is that the arrest/abduction or whatever the correct word to be used to the incident of Judge Abdulla Mohamed taken away from his home at midnight, is illegal and contravenes the Constitution. While those who are on this side of the debate are pointing out article by article and relevant laws to justify their stand, the Government’s stand is but one, that the President is the Head of State and the overseer of the Constitution, hence has the authority to do whatever necessary to protect the Constitution. Even the Attorney General has failed to come up with a reasonable legal justification citing relevant laws.

Does the Constitution need protection?

As everything else in Aneh Dhivehi Rajje (The Other Maldives promised by Pr.Nasheed), it all depends on who you ask. The Opposition, regardless of party would say no, and anyone associated with MDP would say yes. It may not be as straight forward.

What is the danger? The State as per the 2008 Constitution consists of three arms of the State, The Executive, The Legislature and The Judiciary. If any one of this fails, the chances of following the Constitution gets lower and lower. We have a problem in the Judiciary.

In this case, the strongest arguments and lobbying was and is done by the former member of Judicial Services Commission (the watch dog for the Judiciary), Ms.Aishath Velezinee. I have not seen anyone else focused solely on this purpose long before Abdulla Mohamed became a familiar name in Maldivian households. She has been advocating and trying her best to reach the public as much as she can, to a level where it can be even said fanatical,  giving clear arguments justifying her stand. Had some action been taken on what she presented, we will probably not be in this situation today.

Article 285.

 

(a) All Judges in office at the commencement of this Constitution except for the Chief Justice shall continue in office until such time as a determination pursuant to this Article.

(b) The Judicial Service Commission established pursuant to Article 157 of this Constitution, shall within two years of the commencement of this Constitution determine whether or not the Judges in office at the said time, possess the qualification of Judges specified in Article 149.

(c) Where it is determined as provided in article (b) that a Judge does not possess a qualification or the qualifications specified in Article 149, such Judge shall cease to hold office.

(d) Where it is determined as provided in article (b)that a Judge possesses the qualifications specified in Article 149, such Judge shall be appointed as a Judge under this Constitution.

(e) Except as provided in article (c), Judges may only be removed from office as specified in Article 154 of this Constitution

Velezinee’s point, from very early on has been about Article 285 of the Constitution. She even started a Facebook page dedicated to educate people on why the Article 285 was important, and why it was so important to vet the Judges being confirmed. Once confirmed, a Judge will be in the bench for life, unless removed through the required legal procedures. This was as much of a challenge as impeaching the President, probably more so.

This is the point where I note, the conflict between the Judiciary and the Executive started. Ms.Velezinee was the President’s appointed member, and she was not satisfied on the criteria set by the JSC This is obvious as Pr.Nasheed wrote to JSC on 27^th May 2010, requesting them to re-think the criteria for re-appointment of Judges, and from her various interviews and writings around that time.

The Confirmation of Judges.

2nd Aug 2010 – Oath taking ceremony of the reconfirmed Judges.

However, the JSC did not reconsider the criteria, and went ahead for a vote, which passed 5-4. On June 7^th 2010, Velezinee’s blog indicates that the deciding vote was controversial . However one of the points I noted most was the comment “The ‘criteria’ JSC has announced would pass them all as having the Good Character expected of a judge despite criminal records of fraud, sexual offences, etc…” in her blog. In the original report I saw that these were covered under Section 4 under 29 different offences listed in JSC’s criteria on Character. However this section was amended on 27^th July 2010, roughly translated to read as following.

If any Judge has been convicted of a crime stipulated in Article 149 (b) 3, [has not been convicted of an offence for which a hadd is prescribed in Islam, criminal breach of trust, or bribery.], he will be considered not to have met the standards of Good Character.

For other past criminal convictions and/or investigations, disciplinary actions by a Government Agency, the Commission will decide on a case to case basis.

The JSC published a 12 page legal justification on their stand. Read it here if you have the time.

The Peoples Majlis

If any one body can be pointed out, The Peoples Majlis , should probably be accountable to the Maldivian public for the current crisis. A large part of the current sitting Majlis Members were part of the Special Majlis, who drafted and voted for the current Constitution, and should understand why each and every point of Article 149 and 285 were included, and what they wanted to achieve. Individual Members were made aware of what was happening and the Majlis President sits in the JSC. They could have taken steps earlier on, before the confirmations. They could have amended the Constitution limiting the period of transitional judges to a reasonable time, for proper vetting to be carried out. Did they really want 5 of the 9 members of JSC to be able to decide on which Judges can sit in our new Judiciary, regardless of having a conviction, and give judgements despite having a criminal conviction? I don’t think so.

What has been done is done. It is quite clear, that something has gone wrong in the way the Judges were confirmed for life! The Executive has been given the burden of maintaining peace and harmony with a Judiciary antagonised at the Government for trying to restrict their confirmations. I would not say the actions of the JSC were against the Constitution, but it definitely is not ethical as far as I am concerned, and goes against the principles of why Article 285 was written.

The Majlis is the only place which can rectify this. They can change the law, and if necessary amend the Constitution. I am confident, given proof of wrong doing of the Judges in question; the Government will be able to gather enough support to pass an amendment.

Arrogance will not work in this situation. Most educated people in Maldives believe that the Government acted against our Laws and Constitution. The Government also need to accept that the majority of the people on the streets are not to over throw the Government, but expressing their Constitutional right in demanding freedom for Judge Abdulla Mohamed who was arrested in violation of his Constitutional rights. His action as a Judge or as an individual does not give the Government a licence to violate the Constitution.

Having said that I am sure there will be people like me who truly sympathise the Government for the position they have been forced into.

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Article 149. Qualification of Judges.

(a) A person appointed as a Judge in accordance with law, must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of high moral character.

(b) In addition to the qualifications specified in article (a), a Judge shall possess the following qualifications:-

1. be a Muslim and a follower of a Sunni school of Islam;

2. be twenty-five years of age;

3. has not been convicted of an offence for which a hadd is prescribed in Islam, criminal breach of trust, or bribery;

4. be of sound mind.

(c) A person appointed to be a Judge of the Supreme Court, shall be at least thirty years of age; possess at least seven years experience as a Judge or practicing lawyer or both as a Judge and a practicing lawyer, and must be educated in Islamic Shari’ah or law.

(d) The People’s Majlis shall pass a statute relating to Judges.

The members of the Judicial Service Commission (26/7/2009)

- Mr Abdulla Shahid, Speaker of the People’s Majlis
- Uz Mujthaz Fahumy, a Judge of the Supreme Court elected by the judges of the Supreme
- Uz Abdul Ghanee Mohamed, a Judge of the High Court elected by the judges of the High Court
- Mr Abdulla Didi, a Judge of the Trial Courts elected by the judges of the Trial Courts
- Dr Afrasheem Ali, a Member of the People’s Majlis appointed by it
- Sh. Shuaib Abdul Rahman, member of the general public, appointed by the People’s Majlis
- Dr. Mohamed Latheef, President of the Civil Service Commission
- Ms Aishath Velezinee, member appointed by the President
- Uz Husnu Suood , Attorney General

Technorati Tags: JSC,Judge arrest,Judiciary,Maldives,Velezinee,Girifushi,MNDF

Adulation or Constructive Criticism?

Most people are reluctant to given opinions openly because of the fear of being summoned to the Ministry of Defence, Rather than adulation, the Government will benefit more with constructive criticism.

Click to download. Sangu 1 March 1990 P10

Inspirational writings from past.

The article was written by an aspiring young writer and published on Sangu Magazine – 15th March 1990. You will need Adobe Reader to read the file.

Click the link to download.

Comittee Sangu 15 March 1990 P49

HRCM – Compromised?

 

Following is the statement from Human Rights Commission of Maldives today. The Commission failed to note the most important fact that Judge Abdulla Mohamed human rights as ascertained and published in their website are being violated.

Freedom from arbitrary arrest or exile

Among Human Rights ascertained, all the rights enshrined in the Bill of rights of the Maldives Constitution are also included.

 

STATEMENT FROM HCRM

Human Rights Commission of the Maldives has this morning (20th January 2012) met with and inquired about the wellbeing of the Chief Judge of the Criminal Court Mr. Abdullah Mohamed who was detained by the Maldives National Defense Force. The meeting at Kaafu Atoll Girifushi, the premise where he is being detained, fulfills the prerequisite of the Human Rights Commission as mandated in the HRCM Act as well as the duties and responsibilities at the National Preventive Mechanism of the Maldives. This includes the ascertainment that people detained under State care are in satisfactory condition and their basic human rights are respected and fulfilled and that no inhumane and degrading treatment has taken place against the person detained.

Technorati Tags: Humanrights HCRM Abdullagazi Judge Maldives

The meeting confirmed that Mr. Abdullah Mohamed was in good health and that his basic needs were met with proficiency. The meeting also ensured that he had not suffered from any form of degrading or inhumane treatment or torture whilst under the detention of the Defense Force.