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Page added on January 29, 2012

Civil Court injunction stops us taking action against Abdulla Mohamed: JSC

Civil Court injunction stops us taking action against Abdulla Mohamed: JSC thumbnail

Judicial Service Commission (JSC) President Adam Mohamed has claimed the body is “impatient” to take action against the Criminal Court Chief Judge Abdullah Mohamed, and claimed that the only thing preventing the move is the Civil Court injunction filed by Abdulla Mohamed ordering the judicial watchdog not to take any action, until the court decided otherwise.

Adam Mohamed made the statements in response to questions asked at the Saturday’s meeting of parliament’s independent institutions committee where the JSC members, including opposition MP Gasim Ibrahim and Speaker of Parliament Abullah Shahid, were summoned to clarify the reason for delay in taking action against the judge.

In the committee meeting, broadcasted live, Mohamed restated that  it would be a “violation of law” to take any action against Chief Judge before the Civil Court injunction was overruled, stating that and the commission has to proceed within the legal bounds.

“If we take action against Judge Abdullah, we will be in violation of law. [Because] violating a ruling is violating the law. We are very cautious,” said Mohamed, the Supreme Court’s representative on the judicial watchdog.

“We are impatient to take action [against chief judge] within the legal bounds” he claimed, adding that the case had now been appealed in High court.

The civil court granted the injunction in November 2011 – on the judge’s request – during the 30 day period he was given to respond to the report completed by JSC in which was found guilty of violating the Judge’s Code of Conduct for making politically contentious statements on a local TV channel.

According to the JSC, a total of 11 complaints have been submitted against the judge.

While the JSC’s decision remains stalled due to the injunction, questions have been raised as to whether the civil court has the jurisdiction to rule against its own watchdog body.

Aishath Velezinee, former president’s member at the JSC, argues that “if the judicial watchdog can be overruled by a judge sitting in some court somewhere, then the JSC is dysfunctional. But that’s what has been happening,” she asserted.

While the injunction issued last November was appealed at the higher courts, JSC also cited that the commission does not consider that the civil court has authority to hear the case.

The JSC first appealed the case at Supreme Court, which instructed it to forward the matter to the high court.

The high court scheduled its first hearing on the case last Thursday, but was cancelled by the judge who decided the case cannot be heard in absence Judge Abdulla Mohamed, after the Maldives National Defence Force (MNDF) refused to produce him. He remains under MNDF custody on the training island of Girifushi.

The military arrested the judge on January 16 after he attempted to block his own police summons – subsequently all the courts , JSC, Prosecutor General Ahmed Muiz, and later Vice President Dr Mohamed Waheed called for his immediate release citing the arrest as unlawful.

President Mohamed Nasheed met with some of the JSC members at a meeting held at the president’s office on Sunday to discuss his concerns related to the judiciary, local media reported.

UN calls for judge’s release

Associated Press (AP) has meanwhile reported that the United Nations (UN) has called for the Maldives to release the judge from custody or charge him with a crime, as the  body considers a government request for help resolving a dispute with the country’s judiciary.

“While acknowledging the challenges Maldives faces in reforming and strengthening its judiciary, we believe that Judge Abdulla should either be treated with due process, meaning he should be properly charged moved from military detention, and brought before a court, or released,”  Ravina Shamdasani, a spokeswoman at the UN human rights office told AP on Saturday.

She also observed that the officials are still discussing how to respond to the request made by the Foreign Ministry last week, requesting international legal assistance.

The government has meanwhile listed 14 cases of obstruction of police duty by Judge Abdulla, including withholding warrants for up to four days, ordering police to conduct unlawful investigations and disregarding decisions by higher courts.

Afeef accused the judge of “deliberately” holding up cases involving opposition figures, and barring media from corruption trials.

Afeef said the judge also ordered the release of suspects detained for serious crimes “without a single hearing”, and maintained “suspicious ties” with family members of convicts sentenced for dangerous crimes.

The judge also released a murder suspect “in the name of holding ministers accountable”, who went on to kill another victim.

“We have been working to improve the judiciary since we came to power, but we have not succeeded,” said Foreign Minister Ahmed Naseem last week, calling for a delegation from the United Nations Human Rights Commission (OHCHR) to help resolve “an issue of national security.”

The first complaints were meanwhile filed against  Mohamed in July 2005 by the Attorney General at the time time Dr. Hassan Saeed, president of the minority opposition party, which is leading the call for judge’s release.

The allegations  included, misogyny, sexual deviancy, and throwing out an assault case despite the confession of the accused.

Meanwhile, group of lawyers have  sent a case to the International Criminal Court (ICC), appealing that the judge’s detention is an “enforced disappearance” under the ICC’s Rome Statute  - while opposition activists have  taken the fight to free the judge to the streets, as protests continue for a second week.

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22 Comments on "Civil Court injunction stops us taking action against Abdulla Mohamed: JSC"

  1. Mahp on Sun, 29th Jan 2012 8:29 PM 

    It seems there is no law here ane more..i wonder if this continues how many criminals will be roaming the streets..Mps who have court cases r now not appearing taking the reason that the president has announced the judges wore sworn illegaly…wat will happen to our country…GOD HELP US

  2. Ahmed bin Addu bin Suvadheeb on Sun, 29th Jan 2012 8:32 PM 

    I am lost for words. I really do not understand how the “independent” commission that’s charged with overseeing the Judiciary can be stopped in its tracks by a ruling from the very same Judiciary! Surely, we were not moronic enough to have placed such a catch-22 into our legal framework. Perhaps we were and I won’t be surprised.

    This is just total madness. That effectively makes the JSC a dysfunctional body wasting valuable public money, since they are totally powerless. First of all, this ridiculous situation needs to be rectified; or otherwise, dissolve this so-called “independent” institution and donate the money to more deserving citizens.

    I think someone else pointed out this before. We set up these commissions and institutions without regard to either their effectiveness or even usefulness. Honourable members of the Maldivian Parliament need to earn their pay by going back to the drawing board on these matters.

  3. aishath on Sun, 29th Jan 2012 8:46 PM 

    Would the good office of the UN Human Rights tell this poor country exactly where this judge should be taken for due process. He uses the court system like it is his own private business to get rulings in his favor. Why is the UN system quiet on the issue of ordinary Maldivian citizens not getting due process and infringement of their rights because of a dysfunctional judicial system in this country. We do not want UNs high handedness at such a time of crisis in this country.

  4. Salim Waheed on Sun, 29th Jan 2012 9:13 PM 

    I’m sorry, this still does not explain how the Civil Court has any authority what so ever to do anything against the JSC. The JSC is a constitutionally mandated body that is outside of the judicial system. They have absolutely no legal right to put an injection against a body that is meant to oversee them.

    The problem here is that the JSC is made up of many people, including JUDGES! One judge from each of the courts is represented there, including the supreme court and their legal interpretation is that the JSC has to be beholden to Judges’ rulings.

    This is a complete fallacy. There is no reason that the JSC should be controlled, manipulated and violated by the courts! There is no reason that courts should have the authority to erode their constitutional mandate!

    This is what happens when the others on the JSC blindly agree with the legal interpretations of the Judges who sit on the JSC.

    That it would be “unlawful” for the JSC to ignore the civil court is absolutely ridiculous and every single JSC member should be held accountable for this inaction.

  5. Ahmed on Sun, 29th Jan 2012 9:23 PM 

    The old guard are corrupt sticking together like a pack of criminals that they are. The mask of a defunct constitution should not over ride common sense and justice. He law is there to protect the general public not the previous corrupt regime.

  6. Ahmed bin Addu bin Suvadheeb on Sun, 29th Jan 2012 9:54 PM 

    “In the committee meeting, broadcasted live, Mohamed restated that it would be a “violation of law” to take any action against Chief Judge before the Civil Court injunction was overruled, stating that and the commission has to proceed within the legal bounds.”

    Indeed, this is so much old horse shit, it needs to be turned into manure right away. Mohammed is either deliberately misleading Parliament or he doesn’t know the law, in which case, he is not qualified for his own job!

    I do sincerely hope that Parliament digs deeper into this question, next time they put these guys infront of them. We need to know the “law” that Mohammed is talking about. Afterall, Parliament passed ALL the laws of the land!

  7. peasant on Sun, 29th Jan 2012 11:16 PM 

    To summarize, not only are the judges (as members of JSC) involved in disciplining themselves, they can overrule the JSC – just incase the non-judge members push through any reform inconveinent to their ilk.

    The defendant is not only part of the prosecution team, he is also the Chief Judge with the final say in his own trial.
    He also has the audacity to raise both arms in despair and claim he can’t prosecute himself, because he is legally held back by an injunction to halt proceedings against himself by himself.

    That’s brilliant!

  8. Shafeea on Mon, 30th Jan 2012 4:14 AM 

    Yes, what IS this law that Mohamed is talking about that allows courts to obstruct the work of the JSC? And why has this law not been changed? Why has this man who has been appointed to manage the integrity of our judiciary not brought this to the attention of parliament, and the executive before Why has he not done anything to change the structures that allow people like Judge Abdulla Mohamed to sabotage our justice system.

    How does the Chair and members of the JSC sleep at night knowing that this judge was making a mockery of justice and more importantly, how do they go home with their allowances when they are not doing their job?

    Perhaps its time the parliamant moved to review our constitution. It seems to me that practically all our problems in governance has been coming from difficulties with the constitution.

  9. manik on Mon, 30th Jan 2012 5:06 AM 

    Bin Addu I like your style. I really think we are moronic enough to do this. Look at the number of imbeciles in our institutions. People like Gasim, Reeko Moosa and then as politicians like Mahloof, Umar Naseer and the Gayoom’s driver Arif.
    These are the people who are trying to run Maldives. No wonder we are in this state. Actually I think we are lucky that it is not worse at all.

    The whole of JSC should be thrown out and new members who are not Judges should be nominated.
    It seems that Nasheed is right after all. JSC has now accepted that they tried to investigate him and he blocked them. And they accepted this. What imbeciles! This Mohamed should be relieved immediately and really I cannot see how any one with any sense could say that Abdulla judge should be released.

  10. c-bag on Mon, 30th Jan 2012 10:35 AM 

    so, tell me how this is going to work. the JSC has three judges and two members of parliament investigating judges’ misconduct. plus, JSC decisions are overruled at the Civil court. so, why do we have a JSC if it has so much influence? the JSC should consist of civilians based on application and appointed by the Parliament. otherwise the judiciary is never going to be independent.

  11. Maldivian in Africa on Mon, 30th Jan 2012 1:27 PM 

    I have never commented on this platform, but as a young person who loves my country, I cannot help shedding a tear for it. I cry for my country, even if it will never cry for me.

    It is absurd that the JSC cannot take disciplinary action against a judge because of a court injunction. Surely, if that is how it is structured to work, then it is nothing but a toothless dog. I would have imagine that because the JSC is meant to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice, then it would have other mechanisms – not the court process – for resolving issues such as those facing Judge Abdullah. As practiced in other countries, where a judge fails the accountability and ethical test, the JSC would ideally advise the President of the country to form a tribunal that would undertake independent investigations. The tribunal would then recommend the final course of action to the President. Such a recommendation could be dismissal of the judge, and where required, initiating of criminal or civil charges in a court of law.

    Based on this Judge Abdullah saga, I have remembered an incident that one of my college professors told us to consider at the beginning of this semester. As a Maldivian doing my post-graduate studies in South Africa, I have had the privilege of seeing many similarities between what my beloved country is facing and those other developing counties, including in Africa, are facing. In this case, the current saga is not dissimilar to that being faced by an African country that is much lesser democratic than ours and that just a couple of year ago was almost burning. Do not lash at me for comparing the ‘developed’ Maldives with an ‘undeveloped’ African country but look at the lesson. There are some similarities to our country in that the country, Kenya, enacted a new Constitution after rising from the brink of civil war in 2008, signaling a new dispensation. Our nation also enacted a new Constitution after years of dictatorial rule and to some extent a mini civil upraising.

    In Kenya, the country’s Deputy Chief Justice has been forced to resign for something that many Maldivians would consider no reason to resign. Apparently she had pinched the nose of a security guard at a shopping mall. For that alone, the Kenyan JSC formed a committee to investigate the incident and recommend the way forward. The committee recommended that the due process be followed. The JSC advised the President to suspend the Deputy Chief Justice and establish a tribunal to investigate the matter and recommend the final course of action. The Deputy Chief Justice and her accuser will now face the tribunal. The tribunal could recommend for the sacking of the Deputy Chief Justice. And that is for pinching the nose of a security guard! Imagine if the accusations were as many as those facing Judge Abdullah!

    The legislation establishing our JSC as well as the foundational Constitutional clause need to be strengthened so that we have a JSC that can effectively perform its role. No Government institution should be left to be a law unto itself. Not the Executive, not the Legislature and definitely not the Judiciary. There need to be checks and balances to prevent excesses by each arm.

    Sadly, these recent developments have revealed that we have a long way to go in terms of having a dependable Constitution and related legislations that uphold and protect democratic principles. The Executive has resorted to excesses which many are justifying, but which in reality are a mutilation of our most fundamental law. The Legislature has become even a worse circus of members who are not driven by the love for our nation, but by protecting individual interests. The Judiciary has become this… No more words, to say the least. I cry for my country.

  12. Ben Plewright on Mon, 30th Jan 2012 2:39 PM 

    @Maldivian in Africa:

    Thanks for your creative input. Your Tears of love for your nation can never be wasted, even if your nation does not cry for you, you have a Creator who transforms your tears into pearls. No tear, no pain born for the betterment of humanity will be wasted, though, in most instances, we have to wait for the Aqira see this truth.

    Hope and pray your your studies are a success and that you can one day use them to help your ppl realize justice and freedom from fear, freedom from hatred, and peace.

    Your nation needs your compassion and your wisdom. Please don’t lose it.

    Stay strong in the fire of injustice.

    When your heart is broken by leaders who exploit your hunger for justice and liberty, yet turn out to only be using you, they will spit you out so that they can enjoy their gain by themselves, you will reveal true treasure, treasure of pure motive of compassion. Your people need to se this, they need to see true moral fortitude, because, all they see of morality and leadership is dirtiness.

    I know that you will be true because you have said, that you will cry for your nation even if your nation does not cry for you.

    This is a very, very profound, a very beautiful expression of the richest, most beautiful thing in the Universe, the wealth of true, self sacrificial love, which no human can perform without the assistance of the Rahim of Allah, which you evidently have been gifted with.

    All who still care about the Dhivehin, in this fire, please, may we all stay strong, true to our ideals, despite the overwhelming pressure to simply abandon morality and embrace pure altruism…

  13. Ahmed bin Addu bin Suvadheeb on Mon, 30th Jan 2012 4:50 PM 

    manik and Maldivian in Africa, you’re both right in your calls. I’ve been thinking about this for a long time. I’ve been trying to find a reasonable explanation for why we’ve ended up where we are.

    I do remember that during the drafting of the Constitution, the outside experts gave a warning that it will be very difficult to implement the Constitution as the country did not have the skilled manpower to perform all the duties required by it.

    I belive that this is the crux of the matter. You see, the average level of education among the judges is about Grade 7, or that of a 13 year old. What’s the average educational standard of an MP? Hard to tell, but my guess is that it’s a bit better, but not good enough.

    As a result, I fear that our judges probably do not think that they’re doing much wrong. As the saying goes, a little education is a very dangerous thing. These guys are barely educated to that dangerous level. As anyone who has studied at tertiary level or beyond will know very well, the more one takes his or her education, the more one begins to understand the vast universe of God, and how little we understand it. One appreciates to be humble about what one doesn’t know and begins to respect the process of learning as much as the wisdom of others.

    I seriously think that President Nasheed does understand and see this as well (but a large portion of his party activists probably won’t understand this!). It will take a generation to rectify this. We need to start now to train our future judges and legal professionals and provide them the best education we possibly can.

    The Foreign Ministry shouldn’t be calling for emergency help from outside when our arse is on fire! We should be preparing ourselves by training the future guarantors of the Constitution that we fought so hard to attain.

  14. tsk tsk on Mon, 30th Jan 2012 5:11 PM 

    Young Maldivian in Africa,

    I believe the JSC reports to the Parliament and not the President.

    Our institutions certainly need further refinement. For example;

    - The Cabinet appointed by the President should not require Parliamentary approval in a Presidential system such as ours. It just unnecessarily complicates the process.

    - The Parliament should be more effective in holding the government accountable. This means less politicization and more effective assessment of government programs. For example, the 2012 budget was passed with minimal and ineffective input from the Parliament.

    - The Executive should facilitate the development of institutions. When devising the budget it should strategically allocate funds for the strengthening of institutions in the country. Also it should promote dialogue and consensus among institutions rather than creating conflict.

    - The appointment system to the Supreme Court bench and the boards of independent institutions should clearer and more transparent. Educational qualifications and experience should be assessed objectively and Q and A sessions with candidates should be held more openly. Of course politics would figure into these things yet we have to place as many safeguards as possible.

    - Presidential prerogative powers should be subject to the law as well. For example, the incorporation of State Enterprises should be constrained within laws structured to ensure that the President cannot create State Enterprises on a whim without proper assessment of the effect on the GDP by such incorporation.

  15. Skeptical Inquirer on Mon, 30th Jan 2012 5:35 PM 

    If the JSC pathetically believe that their hands are tied, who do they expect would untie their hands? The president, protesters or the parliament?

    These guys should all resign if they cant do their job.

  16. manik on Mon, 30th Jan 2012 5:43 PM 

    Shafeea, there is no law that prohibits the JSC from investigating the Judge. There is no law that stops the Police from investigating anyone either.
    The courts have no jurisdiction on investigation. They cannot issue criminal injunctions.
    Someone has to file a case for injunction before the court can approve it even in civil cases.
    This is not a civil act but a criminal act. The JSC has the absolute authority to investigate this matter.

    But may be there is a silver lining in all of this. But the Government is also stupid and would not know how to push this forward.

    This Mohamed has already made the case for the Government in the Majlis. Are they capable of taking this forward and convince everyone that it is time the JSC was reformed from to to bottom?
    Knowing past history of this government and Zuhair I do not think they would be able to push this forward.

    The JSC should not contain even one Judge on it. They should be people of good character and not politicians at all. This ensures that it is fairly independent.
    Give them a salary too and ensure that it is a fair process. This is the only way the JSC is independent. We do not need lawyers or judges on it as what they are investigating is not the legal aspects of the courts but the character of the judges and their behaviour and operational procedures.

  17. Loiii on Mon, 30th Jan 2012 6:13 PM 

    A small group of Lawyers of highly questionable pedigree namely Shaheen Hameed, Azima Shukoor and Hassan Saeed, key players in the Gayyoom Dictatorship standing up for a corrupt Judge Abdullah Ghaazee will not surprise a Maldivian. Their activism simply reinforce their standing and convince us of their irrelevance

  18. manik on Tue, 31st Jan 2012 12:45 AM 

    Bin Addu and tsk, you are absolutely right. I have talked to a lot of MPs and they have no clue about anything at all. I mean you need to understand a foreign language to read anything of any value.
    How many of them are able to read even an Enid Blyton story. Not most probably. Certainly there would be a significant number of MPs who would not be able to read it.
    So there is the clue. We made Gasim a man who cannot even speak English( forget about reading) the Finance Minister. How on Earth has he got any clue about Economics etc?

    Then the Judges. The less said the better. Nasheed was right in that the Government wanted the Judges to have a certain level of academic background but some how these judges got appointed.
    He says the constitution does not allow it. Let us all see what the constitution says then. Let the Chief Judge Faiz come out and quote the constitution that says the judges were appointed lawfully.

    We need to get rid of people like Gasim, Umar Naseer, Reeko Moosa, Mustapha, Mahloof, etc and get some people who have some character and some education.

    Given then people like Shaheen Hameed, Azima Shakoor, Hassan Saeed do have the education and I am shocked that Shaheen Hameed is involved in this. Is he involved in this as an advocate for Judge Abdulla as his business? If so as a lawyer he is within his rights to do that but morally it is wrong for him.

    Tsk just look at the MPs and the committees. Who are the people there? Just a bunch of idiots with some clever people like Yameen thrown in and it is obvious that Yameen would manipulate things.

    I think what should also be done is reduce the salary of the MPs(or deduct from it) and give that as a salary to an aide. Each MP must appoint an aide and the aide gets paid by the Government using the MPs salary. In this way each aide gets the same salary and we also increase the jobs and the aide should have certain academic qualifications.

    The only way we can strengthen the institutions is by putting educated people to manage and run these institutions.
    If our institutions are strong and honest then the Presidential powers get curtailed automatically too and he is held accountable.

  19. tsk tsk on Tue, 31st Jan 2012 7:43 AM 

    Manik;

    On the issue of judges, human resource is seriously lacking and private practice is highly profitable for young promising lawyers therefore filling the benches with highly qualified justices overnight is not feasible. However we must celebrate the fact that over the past 7 years several justices of note have joined the judiciary. Look at Ms. Aisha Shujoon, Hathif Hilmy etc. etc.

    A decent vetting process would not harm however of course it should be fitted into our local context.

    On the subject of the Parliament, we do not have 77 educationally qualified, politically strong persons with the necessary pull among the public to fill the seats in Parliament. Lack of human resource and the freedom of choice in a democracy means we have to bear with certain elements in Parliament until and unless we decrease the number of MPs and or our people progress to the point that they pressure political parties to put forward decent candidates.

    Qasim Ibrahim is one of the most powerful persons in our country, we cannot and should not get “rid” of him.

  20. Mikalo-O on Tue, 31st Jan 2012 1:07 PM 

    @ Maldivian in Africa.
    Thanks for your comment. Enlightening and encouraging.
    Wish you all the best and pray you do good.
    Agree with the many for justice and a good governance system.
    There is no question about our judiciary needing an over haul!

    @ Tsk, wish Gasim remained the powerful, clever and loving person he was! He could have over come and return; but now, not likely anymore!

  21. Ben Plewright on Tue, 31st Jan 2012 2:12 PM 

    Oh, I meant, we feel pushed by pain and exploitation to abandon altruism, and embrace hedonism, but we should cling to ideals as BEST as what is humanly possibly.

  22. manik on Wed, 1st Feb 2012 3:47 AM 

    tsk, when I say get rid of Gasim I mean from the Majlis democratically. And I do not mean by “doing away” with him.
    He is a big business man and he should remain and do his business. Why does he want to get involved in politics? You see a lot of big business people in Maldives and they do not get involved in politics.
    Politics is for not for business people.

    Gasim as the Finance Minister destroyed the economy of the country and we are still trying to recover from it.


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