JSC's "legal reasoning" on Article 285: Flawed and Frivolous?

Saturday, 12 January 2013

 

Legal Reasoning on Article 285 announced and published by the JSC on 3 August 2010

JSC’s “legal reasoning on Article 285 decision of the Commission” announced on 3 August 2010, the day after Majlis summoned JSC to the Independent Commissions Committee following repeated requests for an Inquiry, is a false reading of the Constitution and International Human Rights Conventions, and confirms JSC’s treason on Article 285. It also provides every reason to redress Article 285 and re-appoint an Independent Judiciary through an independent, transparent, open process.

An unofficial English translation of JSC’s reasoning published on the Commission website in the original Dhivehi is included here. No independent legal review of it has been undertaken, nor has Majlis carried out the Inquiry promised on 2 August 2010.

QUOTE

The purpose of this document is to state the main criteria and the constitutional points used in determining those criteria for the eligibility or ineligibility of judges at the time of commencement of the Constitution. The determination of these criteria is necessitated under Article 285 and specified in Article 149 regarding the judiciary. These criteria were initially passed by the Commission on 11 May 2010 and subsequently Article 4 of these criteria was amended on 27th of July 2010.

1)     Before these criteria were passed unanimously by the Commission on 11 May 2010 , they have been debated by the 10 members of the Commission.

2)     When these criteria were passed by the Commission on 11 May 2012 the only objections raised by members were against point number 4

3)     Two members had initially objected to point number 4 of the criteria. During the Commission meeting on 27th July 2010 there were 9 members present out of 10. It is to be noted that these 9 members included the 2 members that had initially objected to point number 4.  Thus the amended point number 4, as passed on 27 July, was accepted and agreed upon by the two members who initially objected.

4)     Under Article 285 (b) pursuant to Article 157 of the Constitution the Judicial Service Commission (JSC), within 2 years of commencement of the Constitution was to determine if the judges fulfilled the qualification criteria as specified by Article 149. According to Article 299 (a) of the Constitution the Executive, the People’s Majlis, the Judiciary, the Independent Commissions and persons in Independent Offices, all State institutions, all persons in any State post and all citizens shall comply with the provisions of the Constitution upon its commencement. The nonexistence of a law should not be an excuse for the infringement of any fundamental right or freedom guaranteed under the Constitution. Article 285 (b) states that The JSC established pursuant to Article 157 of the Constitution, should within two years of the commencement of this Constitution determine whether or not the Judges in office at the said time, possess the qualification of Judges specified in Article 149. It is clear from the laws above and in order to be compliant with Article 285 it is the duty of the JSC to determine the qualification criteria for judges and it is also clear that there is no necessity of a law to determine these criteria as this determination pertains to guaranteeing of the fundamental rights and freedoms under Article 299 (a).

5)     According to Article 149 (a) a person appointed as a Judge in accordance with law, must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of high moral character. Even though this Article does not  refer to a name or Article number, there is no legal hindrance to infer that this Article refers to “Judicial Service Commission” 2008/10 of the Constitution as ratified by the President of Maldives on Thursday the 4th of September 2008. According to Article 21 which clearly states the JSC’s responsibilities and powers include (a) to appoint, promote and transfer Judges other than the Chief Justice and Judges of the Supreme Court, and to make recommendations to the President on the appointment of the Chief Justice and Judges of the Supreme Court. The beginning of (b) is “to make rules [as mentioned below]”. The point number 1 under (b) is “all things regarding schemes for recruitment and procedures for the appointment of Judges” and point number 3 is “providing for such matters as are necessary or expedient for the exercise, performance and discharge of the duties and responsibilities of the Commission”. As explained above it is reasonable to infer that the law referred to in Article 149 is the law relating to the “Judicial Service Commission”.

6)     If one objects to the inference that the law referred to in Article 149 (a) is the “Judicial Service Commission” 2008/10 and states instead  that it refers to (d) regarding “statute relating to judges” then the following points will show that there is no legal basis for such an objection:

(a)   Article 149 (a) states that a person appointed as a Judge in accordance with law, must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of high moral character; Article (b) states that “in addition to the qualifications specified in Article (a), a Judge shall possess the following:-”. Thus the qualifications required of a judge as mentioned in 149 (a) are general and baseline requirements and thus these same qualifications can be taken to apply to judges under Article 285. This is further supported by Article 149 (b) and  (c )  which states additional qualifications required of the judges in all courts of the judiciary.

(b)   The interim  Supreme Court established at the commencement of the the Constitution had its judges appointed by the JSC using the criteria stated by article 149. The Commission sent a list of eligible candidates for judges, under article 149, to the President who subsequently forwarded it to the People’s Majlis. The People’s Majlis passed the list even though there was no “statute relating to judges”.  Acceptance and approval of the list of candidates for judges by the People’s Majlis, which represents all the citizens of Maldives, is proof that there is no need of a “statute relating to judges” and that a selection process of judges based on Article 149 is sufficient.

7)     Article 149 (a) states that judges must be of high moral character but does not specify the attributes to be measured. Article 51 (h) states that everyone charged with an offence should be presumed innocent until proven guilty beyond a reasonable doubt. If a judge on the bench at the commencement of the Constitution has no conviction under Article 149 (b) 3., it is also necessary to verify if that judge has the good moral character as stated in Article 149 (a). It is the right of every judge to refer to Article 51 (h)  since this Article is under fundamental rights. Article 68 states that when interpreting and applying the rights and freedoms contained within this Chapter, a court or tribunal shall promote the values that underlie an open  and democratic society based on human dignity, equality and freedom, and shall consider international treaties to which the Maldives is a party. The JSC is an important body commissioned under the Constitution  to deal with matters of the judiciary. The JSC in  evaluating the eligibility criteria of judges under Article 285 is required to follow relevant international treaties as stated under Article 68. Hence it should follow the “International Convention on Civil and Political Rights (ICCRP)” Article 14;2 which states “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law” and it should also follow “Universal Declaration of Human Rights” Article 11 which states that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”. The aforementioned points show that all the judges on the bench at the commencement of the Constitution had all the rights guaranteed to them under the Constitution.Therefore any judge who has not been proven guilty in a court of law is guaranteed to be presumed innocent under Article 51 (h).

8)     Article 51 (h) of the Constitution and ICCRP Article 14;2 and “Universal Declaration of Human Rights” Article 11;1 all guarantee a person to be presumed innocent until proven guilty
beyond a reasonable doubt in a court of law. The final version of the eligibility criteria for judges (initially passed by the Commission on 11 May 2010) with the amendment of Article 4 on 27th of July 2010 reads as “if a person has been convicted in a court of law as stated under Article 149 (b) 3. then it is determined that this person does not fulfil the good morality clause as stated previously. If there is any criminal conviction against a person other than as stated under Article 149 (b) 3., or if an action has been taken against a person after being accused of a criminal activity, by an institution which has been empowered by the Constitution to take such an action, then the Commission is to decide on the eligibility of this person as a judge”. This amended version has been agreed upon and passed by all 9 members (out of a total of 10) who were in attendance during the meeting held on 27 July 2010 and is documented in the minutes and other records of the proceedings. It is noted that included in the members who were in attendance on 27 July 2010 and who agreed and voted to pass the criteria in its present form were the Presidential appointee, Aishath Velezinee and the member of the general public appointed by the People’s Majlis, Sheikh Shuaib Abdul Rahman.   The criteria for determining good moral character has been fortified further in the current version as compared to the previous, is keeping in line with the Constitution and all 9 members were unanimous in their agreement.

9)     Article 149 (a) states that a person appointed as a judge in accordance with the law must possess the educational qualifications necessary to discharge the duties of a judge, however, the details of the these qualifications are not stated. The final version of the eligibility criteria for reappointment of  judges after the commencement of the Constitution (Article 285 (b)) was initially passed by the Commission on 11 May 2010 with subsequent amendment of Article 4 on 27th of July 2010 states. It is to be noted that on 11 May 2010 when the criteria were initially passed it was agreed upon unanimously by all the members of the Commission and when Article 4 of the criteria was amended and passed on 27 July 2010 it was agreed upon by all 9 members who were in attendance on that day, including the Presidential appointee, Aishath Velezinee and the member of the general public appointed by the People’s Majlis, Sheikh Shoaib Abdul Rahman. The specific educational qualifications as stated in number 1 of the eligibility criteria were agreed upon and passed by all 9 members in attendance on 27 July 2012 out of a total of 10, therefore no member should be able to object to the criteria. It should be further noted that specifics of the educational criteria were proposed by the Presidential appointee, Aishath Velezinee. Even though there were initial objections and discussions on the specifics of the educational criteria as stated in number 1, the criteria stated in number 2 were all in compliance with Article 149 (a) of the Constitution and is non refutable. Since most of the judges in the islands other than Male’ do not possess a degree or a diploma, it is not be noted that if the Commission abruptly decides that a degree or a diploma is a requirement to be eligible as a judge then almost all the courts in the islands other than Male’ will come to a standstill and will be unable to dispense justice to the citizens. If that happens then a large group of the Maldivian citizens will not have the fundamental right of a fair and transparent hearing as guaranteed by article 42 (a) of the Constitution.

10)  Article 37 (a)  under “Fundamental Rights and Freedoms” states that every citizen has the right to engage in any employment or occupation of their choosing. Article 270 states that acts done pursuant to or in accordance with any law which is repealed upon the commencement of this Constitution due to its inconsistency with this Constitution, remain valid. Therefore the judges, who fulfill the  eligibility criteria for judges compiled by the Commission which are not in conflict with the criteria stated in Article 149, have a right to continue in office as guaranteed by Article 37 (a) and Article 270.

11)  Article 285 (d) states “where it is determined as provided in Article (b) that a Judge possesses the qualifications specified in Article 149, such Judge shall be appointed as a Judge under this Constitution”. Therefore at the commencement of the Constitution, as stated under Article 285 with its reference to Article 149. regarding the qualifications of judges, there is no indication that any further qualifications need to be sought.  In the Commission’s evaluation of judges’ qualifications under Article 285 (d) it is clear that the Commission does not need to see if there is a statute relating to judges. This is further clarified if one looks at the wording in Article 285 (d)  “if in possession of the qualifications specified in Article 149 under this Constitution.”

12)  If one analyses and thinks about the aforementioned points it will be clear that the criteria for reappointment of judges passed by the commission, who were on the bench at the commencement of the Constitution, is fully in compliance with Article 285 and there is no room to dispute and say it is non compliant with the Constitution. Also the Commission believes that the criteria it passed is compliant with the stated human rights and the exalted laws of Islamic Shariah.

UNQUOTE

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