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Maldives: Removal of Inconvenient Judges- Another set back to Democracy

Paper No. 5847                  Dated 18-Dec-2014

By Dr. S.Chandrasekharan

On 15th  December, President Yameen sacked the Chief Justice of the Supreme Court Ahmed Faiz and another Judge Muthasim Adnan on the recommendation of the Judicial Commission and approved by the Majlis all within a space of five days.

Article 154 of the Constitution states that a judge can be removed only after the Judicial Service Commission finds the judge to be guilt of gross incompetence or misconduct.  

What is curious is that the Judicial Commission’s report on the recommendation has not been made public and no specific reasons have been given for their removal.  It is learnt from the dismissed judges themselves that they were not given a chance to defend themselves- an elementary procedure in law in any country other than in communist dictatorships!

Curiouser still is the fact that one judge who should have been removed on known misconduct ( I refer to the alleged sex tapes -see papers 5701 and 5805) not only remains in the Supreme Court Bench but was also  given the honour of administering the oath of office to the new Chief Justice- Abdulla Saeed.

The two judges happened to be giving “inconvenient decisions.”  They were the dissenting judges in the decision of the Supreme Court Bench to annul the first round of Presidential elections which allowed President Yameen sufficient time to recoup and win over his one time bete noire  Gasim Ibrahim! .  

There were also allegations that MPs  were offered huge amounts of cash to stay out of the parliamentary sessions that gave two thirds majority to approve the removal and the appointment of a new Chief Justice.  

The whole drama unfolded first on the 10th of December when the People’s Majlis amended the Judicature Act to reduce the seven member bench of the Supreme Court to that of five.  Ironically, the motion was first proposed by the opposition member Ibrahim Shareef who himself voted against the resolution on a whip from the party chief of MDP.  

Former President Nasheed had opposed the move to reduce the number of judges as he feared that it will allow the current President Yameen to stack the Supreme Court Bench in his favour. This is what happened finally.

On the 11th December within twenty-four hours of the amendment to the Judicature Act by the Majlis, the Judicial Service Commission recommended that the Chief Justice Ahmed Faiz and Justice Musthasim Adnan be dismissed from the bench.  They were dismissed and not just retired though they have been promised a generous amount as retirement benefits! The alacrity with which the names were recommended showed that it was planned well in advance!

On 14th December, the opposition MDP filed for a stay order in the Civil Court on the amendment and the action that followed for the dismissal of the judges.

 On the same day the Supreme Court struck again.  It issued a “writ of prohibition” to consider the case and halt all proceedings.  The court order directed the civil court “to hand over case files with all relevant documents to the Supreme Court before the 20.45 PM, 14-Dec 2014 and to immediately annul any action that may have been taken in the matter.”

The next morning, on 15th December, the Majlis approved the recommendation of the JSC by 53 votes in favour with 21 against.  One Member of Parliament abstained and six of the Jumhooree party MP s voted in favour of the proposal though its leader Gasim Ibrahim himself voted against the recommendation.  ( Gasim claims that no “whip” was issued and it looks that it was a deliberate omission.)

 It was learnt that six members of the Parliament of opposition MDP did not attend the Majlis meeting that day.  Obviously, they were won over by the ruling party. 

The same night at 9.30 PM orders were issued appointing Abdulla Saeed as the new Chief Justice.

The whole issue from way the Judicature Act was restructured to the  removal of  two judges all done in a hurry and within a space of five days looks very suspicious.  Rightly it has come in for criticism from many quarters.

The Maldivian Democracy Network (MDN) has described the removal of judges as a “travesty of justice”— a procedurally irregular decision.

Transparency Maldives said that the “decision to dismiss without publicising the criteria used to deem them of being guilty of gross misconduct or gross incompetence as required under article 154 of the Constitution raised question about the fairness of the process.”

The dismissed Chief Justice Faiz’s criticism was more subdued.  He said “Today will be written down as a black day on the constitutional history of Maldives”.  He called it as an action that is disrespectful of the Constitution.

Former President Nasheed alleged that the ruling party is trying to unify the judiciary with the executive power of the State.

With the way, President Yameen had manipulated the legislature (the Majlis), it looks that all the three pillars of democracy- the judiciary, the executive and the legislative are firmly under his control. 

This to me is a dangerous development.  In a hypothetical case where he finds it inconvenient to continue with his policy either because of  the judiciary or the legislative I have no doubt in my mind that he would cross all limits and assume full powers. 

 At that time his efforts to get close to China- the silk maritime route or in the development of the Ibrahim Nasir Airport or in the building of a bridge to Male from Hulhulu island would come in handy and  bring in results by way of “firm support” if other countries choose to condemn his actions.  We know what happened in Myanmar.