Just three weeks to the
Maldives’ presidential elections scheduled for September 7, Chief Justice Ahmed
Faiz Hussain has announced a mutiny in the Supreme Court!
In a statement issued
on Thursday, the Chief Justice declared an injunction order issued by the “Supreme
Court majority” of four judges on Thursday to be unlawful, issued without due
process by the secret collusion of four members of the seven member bench, without
the knowledge of himself and two other justices.
The injunction order
is to stop the appointment of a Civil Service Commission (CSC) member to
replace the disgraced CSC Chair Mohamed Fahmy Hassan, who was removed from
Office and CSC membership by Majlis earlier this year for sexual assault of a
staff. He had continued to sit in Office despite the removal, while politicians
haggled and MPs pointed the finger at each other and outside to explain his impunity
and the absence of rule of law. No one appeared to understand that it is the Majlis
that has the power to appoint and remove CSC members, the CSC Act having been
amended in 2010 for Majlis to take full powers of appointment, oversight and
removal of CSC members or that squatting in public office after removal is a
crime.
Also unnoticed, or
deliberately ignored in public discussion, are the wider connections of the
Fahmy case to the silent coup and the hijack of the judiciary in 2010 with the CSC
Chair being an ex-officio member of the Judicial Service Commission (JSC); and
the serious and dangerous implications of the Supreme Court mutiny on the
upcoming elections.
Discussed in the
Maldives, on political platforms, media, social media and other public fora is “bad
man Fahmy” - the removed CSC Chair at the centre of the controversy; “bad man
Ali Hameed” - the Supreme Court justice who has continued to sit on the bench
protected by both the JSC and Majlis despite his public expose in the sex tapes
scandal where he is seen having sex with multiple foreign women in a Colombo
hotel room; and “bad man Abdulla Saeed” – the interim, self declared “Chief
Justice” who is said to “lead the majority in the Supreme Court”.
Democracy, in the
Maldives, is simplified to a struggle between The Majority and The Minority,
with majority by any means deciding all, be it in the Majlis, the High Court,
the Supreme Court or elsewhere. Democratic principles and standards, due process
and rule of law, transparency and accountability, are all dismissed, the focus
of all being on majority building by any means to have their way.
The report of the UNSpecial Rapporteur on the Independence of Judges and Lawyers issued in May 2013Ms Gabriella Knaul, highlights the critical issues in Maldives engagement with
democracy, and provides insight to the coup of February 7, 2012 like no other
report but remain ignored by government, opposition, civil society and other
actors.
A Precedent: Mutiny in
the High Court, 21 January 2010
On Jan 21, 2010 a similar mutiny took place in
the High Court, in my opinion the first of the many mutinies that had
eventually led to the coup of Feb 7, 2012 and the fall of legitimate government
with the forced resignation of President Mohamed Nasheed, the first President
elected through democratic process.
had attacked the JSC, with three members of the five-member High Court bench colluding and issuing a public decree to remove the JSC Chair who was the then Chief Judge of the High Court, Abdul Ghani Mohamed.
The High Court decree accused High Court Chief Judge of every nameable misconduct and delivered the Commission to the then Vice
Chair of the JSC, now removed Justice of the interim Supreme Court, Mujthaaz
Fahmy who had cleverly manipulated the Commission, committed high treason using
public office and the powers of JSC, hoodwinked the public, and delivered the
full Judiciary intact to the former President Maumoon Abdul Gayoom and his
allies.
The High Court mutiny
was never investigated by the JSC despite a unanimous decision in the
Commission in January 2010; the modus operandi of Mujthaaz Fahmy being to give
in when challenged in a public display of concession and going behind the back
to corrupt any decision he did not agree with.
The first Inquiry
Committee appointed by the JSC to investigate the High Court Mutiny never sat, and
I, a JSC member at the time, was informed by the Commission that it was due to
the non appearance of Inquiry Committee member, then interim Supreme Court
Justice, Ahmed Faiz Hussain who is now the Chief Justice who has declared “the
majority” has gone behind his back and there is a mutiny in the Supreme Court!
The Inquiry Committee
never sat, and there was no investigation or action against the judges in the
High Court mutiny and eventually they were rewarded with lifetime appointments
to the Supreme Court under the careful management of the Majlis majority.
Ironically, but to no
surprise, those in the Supreme Court mutiny today are the same “judges” in the
High Court mutiny of January 21, 2010, who had been appointed to the Supreme
Court on August 10, 2010 in a political deal reached by the political leaders
and the sitting interim Supreme Court who had by then declared themselves
permanent.
The international
community itself played by the politicians without a single independent
observer to comment, had itself played a role pushing for “calm” and haste over
due process and trust, ignoring the politics of it all, and the serious and
lasting negative impact on democracy in the Maldives.
The Maldives is today
more an active crime scene than a State, and whilst free and fair elections are
a necessary first step to come out of the current situation, return to Constitutional
rule, and begin rebuilding the democratic State we failed to build in the first
attempt, there is little reason to expect a smooth electoral process.
The final word on the
results of the September 7, 2013 elections will surely come from Court and not
votes; and it is imperative that the political leaders and the international
community come to an agreement on an alternative dispute resolution mechanism
leaving the corrupted judiciary out of the process. Ignoring the serious issues,
hoping for the best, and relying on the possible good will of the judges given
the power of numbers voting, is, unfortunately, no guarantee of a fair verdict.
