BATTLE OF LETTERS
JSC Chair Adam Mohamed Abdulla vs JSC member 158(a), Speaker Abdulla Shahid.
NOTE: This is an attempt to read local
media reports from a constitutional and governance perspective, and re-frame current debates within
the constitutional democratic framework. The purpose is to expose existing
politics that overshadow the real fundamental issues and provide information on the constitutional governance framework and the de facto practices that would help re-frame and re-read the "news" provided by the Judicial Service Commission.
Reading the Media
On Thursday, 2 May
2013 Haveeru http://www.haveeru.com.mv/news/48771 reported
that the High Court had scheduled the second hearing of the case, former
President Mohamed Nasheed vs the Judicial Service Commission (JSC), following
"a request from the JSC" to expedite the case.
In other related news, on Friday, 3 May 2013 mvyouth
online http://www.mvyouth.mv/live/52497/ reported a battle of letters
between the JSC President, Supreme Court Justice Adam Mohamed Abdulla. It is
reported that the Speaker Abdulla Shahid who sits on the Commission as an
ex-oficio member had written a letter to the President of JSC saying the Chair
cannot write to the High Court to expedite the case (former President) Mohamed
Nasheed vs. the JSC.
It is reported in mvyouth online that the "JSC President had
given a rebuttal to the Speaker" in a letter defending where JSC Chair
Justice Adam Mohamed Abdulla defends his own actions in sending a letter in the
name of the Commission to the High Court requesting expedition of President
Nasheed's trial as being first within the powers held by the Chair of
Commission, and second, as being within the parameters of previous
decision-making and practice in the Commission.
The mvyouth story frames the letter from JSC member 158(a) to JSC
Chair as a letter sent by "Speaker Shahid who recently joined MDP in
defence of the MDP presidential candidate, Mohamed Nasheed."
It is further quoted in mvyouth online that JSC Chair, Supreme
Court Justice Adam Mohamed Abdulla had continued to say that "it is hoped
this letter will clarify the process of the letter that is the subject raised
by the Speaker's leaving no room for suspicion or dustrust."
Sun Online http://sun.mv/english/12098 reported
"the Judicial Service Commission (JSC) has said
that it had been approved to give the president and the secretary general of
the commission the power to send letters to courts to request to expedite cases
concerning the commission," and had "sent a copy of the letter, as
well as a copy of the document detailing the decision made by the commission on
2 January 2012 to give the commission’s president and secretary general the
power to send letters to courts to request to expedite cases, to media
groups."
Sun noted that, "the letter sent to Shahid by President of JSC Adam Mohamed Abdullah states that JSC has requested the Civil Court and the Supreme Court to expedite cases filed against the commission also on several occasions in the past" and elaborated that, "in the letter, Adam Mohamed Abdullah said that according to article 8 of the JSC Act, work shall be assigned to the commission members by the commission president. He also highlighted article 9 of the Act, which states that the Vice President of the commission shall perform the duties assigned by the President."
Re-framing the Debate.
1.
The letter from Abdulla
Shahid to Adam Mohamed Abdulla, placed within the constitutional framework, is
a letter from a commission member to the chair of the commission, raising
concern on a matter that is in the member’s opinion is a breach of trust, an unlawful
act and outside the powers vested in the Chair of the Commission. In fact, JSC
president’s letter to the High Court is an act exceeding the powers of the
Judicial Service Commission, and amounts to abuse of Office and trust by the
JSC Chair, an attempt to influence the Court and trial.
2.
JSC’s “news brief” quoted
in the media show the
Commission confessing to acting unconstitutionally; and explaining that the
Commission itself had decided to forego it’s constitutional duties and trust it
to the arbitrary decisions of the Chair and
the Secretary General who is the administrative
head of the commission.
3.
Further it is cause
for serious concern that the date of the
decision referred to by the Chair of the JSC as having given the Chair himself all the powers of the
Commission and the power to act outside JSC’s
mandate is 2 January 2012; days before the 7 February 2012 coup de tat.
4.
Section
163 of the Maldives Constitution (2008) states; “A majority of the members shall constitute a
quorum at a meeting of the Judicial Service Commission, and any decision of the
Judicial Service Commission shall be taken by a majority of votes of the
members present and voting. JSC does not have the power to decide another model
of decision-making.
Abdulla Shahid’s letter and the response of JSC Chair Adam Mohamed
Abdulla has once again shown the depth of the crisis facing the Judiciary; and
the unfitness of the JSC to perform it’s Constitutional duties and functions in
an independent impartial manner.
It has also highlighted the politics within JSC that has led to
the nullification of Article 285 and the loss of an Independent Judiciary, and
the subsequent loss of rule of law.
