The Judicial Service Commission (JSC) is mandated by Article 285 of the Constitution to determine whether or not the Judges in office at the commencement of the Constitution, possess the qualification of judges specified in Article 149. The Constitutional deadline for this to take place, 7th August 2010, is now nearly upon us.
Article 285 no doubt provides the country with a unique opportunity to further strengthen the Maldivian Constitution and Democracy by ensuring that the Judiciary and ensure that it is an institution which enjoys the trust and confidence of the Maldivian people. The successful consolidation of democracy and the protection of Human Rights granted in the 2nd chapter of the Constitution depend on the country not letting this opportunity pass it by.
The Judicial Service Commission (JSC) on 11th May released a statement specifying the criteria for evaluating the eligibility of judges under Article 149 of the Constitution. The criteria have caused much consternation and concern among various sectors of society. While some have questioned the appropriateness of the educational standard set in the criteria by the Commission, others, including this organization, have been particularly worried about the Commission’s interpretation of the term ‘high moral character’ stipulated in Article 149 of the Constitution as a necessary attribute for Judges.
According to a press release by the JSC on the 27th 26th of May 2010, the only criterion for evaluating whether a Judge meets the ‘high moral character’ stipulation is whether the Judge has been convicted in a Court of Law of an offence for which a hadd is prescribed in Islam, criminal breach of trust, or bribery. If the a Judge has any othera criminal convictions in a Court of Law for an offence not specified in Article 149(b)3, , then s/he will be reviewed by the JSC before a decision on his/her eligibility is made. – This criteria defeats the purpose and object of Article 285 as pre-Constitution 2008 a number of issues related to judges conduct including criminal offences were dealt with by the then authorized Government authorities such as the Ministry of Justice and the Anti-Corruption Board and judges were permitted to continue as judges despite these convictions.
This decision by the JSC raises some interesting questions to which this organization feels the JSC should provide the Maldivian people with answers.
1) What does ‘being convicted’ mean? Under the previous Constitution not all criminal cases would necessarily be taken to a court of law. It would have been possible for a case to be investigated, decided and punished and decided by other authorities such as the Justice Ministry, Anti-Corruption Board and the President’s Office. . Does this then mean that Judges with such convictions who have had their cases decided in such a manner (if there are any) would still satisfy the ‘high moral character’ stipulation? The Maldivian Democracy Network (MDN) wrote to the JSC in the public interest on 3 occasions requesting information on the criminal records of Judges under the Right to Information enshrined in Article 29 of the Constitution. MDN is yet to receive a response to this request from the JSC. In the absence of such information, it is all the more imperative that the criteria used by the JSC ensure the trust of the public in the Judiciary.
2) What of those judges who have had criminal cases filed against them in courts by the Attorney General (under the previous Constitution) and the Prosecutor General (under the current Constitution) but were not convicted in court? Is it unreasonable for the people to demand that such allegations warrant not disqualification but at least a review of the case by the JSC to ensure that the Judge in question meets the ‘high moral character stipulation’?
3) What of those Judges who have cases pending against them at the JSC itself? Is it not appropriate that the JSC review and decide these cases before deciding whether the Judge in question meets the ‘high moral character’ requirement?
MDN has brought together a coalition of 12 concerned NGOs (Madulu, Maldives Aid, Maldives NGO Federation, Huvadhoo Aid, Maldives Youth Action Network, Strength of Society, Rights for All, Huvadhoo Association for National Development, Society for Women Against Drugs, Journey, Nadella Island Development Society) who have launched the Just (Insaaf) Campaign, calling on the JSC to address concerns regarding the criteria. The petition drive launched by the Campaign is now underway in Male’ and some Atolls. The Just Campaign urges all concerned citizens to read the petition (available at www.mvdemocracynetwork.org) and if you agree with it, send in signed copies to MDN (fax: 330 2598, email: office@mvdemocracynetwork.org). The Campaign also has tables at the main entrance to the Carnival in Male’ and on Boduthakurufaanu Magu behind Dharubaaruge. The tables will be in place until Thursday 10th June from 1630 to 2230hrs.
The JSC has been mandated with one of the most crucial tasks to be performed during the transitional period. The Maldivian people now look to the Commission to ensure a Judiciary in which they can trust and a Judiciary which can protect the tenets of Islam, the principles of democracy and the basic rights of the Maldivian people. No democracy can function effectively if there is a deficit of trust between the people and any of the three pillars of democracy, of which the Judiciary is one.