by Nazahath Ahmed, Associate
The Independence of the Judiciary is integral to the separation of powers and rule of law. The concept is set out in the International Bar Association’s Minimum Standards of Judicial Independence (1982) and in the Basic Principles of Independence of the Judiciary adopted by the General Assembly of the United Nations in 1985, which lays down the basic guidelines for appointment and removal, and for tenure, conduct and discipline to ensure that the impartial administration of justice.
To ensure judicial independence, a variety of methods of judicial discipline such as executive action, address, impeachment, recall, defeat at election, bar association action, removal by judicial action, action by a permanent judicial disciplinary commission have been employed throughout history. Although, most of these methods have now been abolished for various reasons such as the unfair nature of the procedures, prohibitive costs and ineffectiveness, methods such as impeachment and actions through judicial disciplinary commissions are practised widely today.
With the electoral promise of attaining an independent Judiciary in the Maldives, a lot of dialogue has gone on about the process of removal of Judges in the Maldives. Here, I will give a brief account of judicial impeachment and the current practice in the Maldives.
The enjoyment of the right to office during good behaviour is the generally accepted principle upon which the independence of the judiciary is underscored. Where a judge who is found to deviate from this principle is dismissed and removed from office on the grounds of misbehaviour, it is called impeachment.
Impeachment as a disciplinary tool rooted from the late fourteenth century. It was highlighted in medieval history as the event where the House of Commons prosecuted the most powerful and highest officers of the Crown before the House of Lords. It was later incorporated in the United States where it became the most common method for dealing with judicial misconduct.
In the modern world, impeachment practices carried out in different jurisdictions differ vastly in their procedure. For instance, in the UK Judges hold office during good behaviour and in the USA, judges are given tenure for life and can be removed for treason, bribery or other high crimes and misdemeanours. In both the UK and USA, the bill intended to remove judges is first tabled in the lower house of their parliament and finally decided upon in the Upper House. In India, the bill can be placed in any house of the Indian Parliament. If it is placed in the Upper House (Rajya Sabha), approval of 50 members is required. However, if it is placed in the Lower House (Lok Sabha) approval of 100 members is required. Upon approval from the parliament, an enquiry committee investigates the matter and if and when the committee recommends the removal of the judge. Then the committee report is placed in the Parliament for voting and once the motion is adopted by both houses, the president then orders to remove the judge.
Judicial Impeachment in the Maldives
The Constitution of the Republic of Maldives specifies the provisions regarding tenure and removal of judges. Although the Constitution does not use the word ‘impeachment’, it is used to refer to the proceedings under Article 154, which states that a judge shall hold office during good behavior and compliance with judicial ethics and can be removed from office only if the Judicial Service Commission (JSC) finds the judge grossly incompetent, guilty of gross misconduct, and submits to the Parliament a resolution supporting the removal of the judge, which is passed by two thirds of the majority of members of the Parliament present and voting.
Second amendment to the Judicial Service Commission Act
The second amendment to Judicial Service Commission Act (Law Number 10/2008) enacted on 03rd September 2019 brought about huge changes to the procedure prescribed by the law upon JSC to take disciplinary action against the sitting Judges.
By the virtue of this Act, JSC is vested with the power to investigate complaints filed against judges. The Commission can also take upon Suo Moto investigations against judges.
The most noticeable amends made to the Judicial Service Commission Act include that of the changes made to Section 21 and the inclusion of Section 31-1 as a new provision. Also, provisions regarding due process have been addressed in the amendment.
After the second amendment, Section 21(b) has been specifically drafted to include the Chief Justice, Justices of the Supreme Court. Earlier, the provision read that the Commission had the jurisdiction to investigate complaints filed against ‘Judges’ and take necessary action against them and inform the relevant authorities to dismiss or remove judges.
Prior to the amendment, Section 39 of the Judges Act of Maldives (Law Number 13/2010) laid down the disciplinary measures that can be taken against Judges. These included (a) counselling; (b) caution; (c) demotion; (d) transfer to a court of similar status; and (e) submission of removal from office. This provision was abolished in the second amendment to the Judicial Service Commission Act. Currently, Section 31-1 of Judicial Service Commission Act lays down the disciplinary measures as (a) Counselling and participation in a training program selected by the Commission; (b) demotion; (c) Suspension for a period of not more than 3 (three months) with or without salary and other benefits; and (d) submission of removal from office. It is to be noted that under the second amendment, Section 31-1 (4) of the said Act expressly restricts transfer to a court of similar status as a disciplinary measure.
Earlier, the Judicial Service Commission Act was silent on the provisions regarding due process. Currently, in the event the commission is investigating a case, it is a requirement that the judge who is the recipient of the complaint be served the summon to attend the hearing together with the details of the complaint 12 hours prior to the hearing. Where the judge requests the assistance of a lawyer, the Commission has to allot a period of not less than 24 hours to appoint a lawyer. Additionally, the judge shall be given an equal opportunity to question witnesses and present witnesses.
The second amendment further prescribes that, where the investigation is concluded, the report of the Commission and the investigation records must be submitted to the relevant committee of the parliament. Also, a copy of the report must be forwarded to the recipient judge of the case. Upon this submission, the Commission is legally-mandated to offer a period of 7 days to respond to the investigation report. Where the Commission finds it necessary, the judge can be granted an extension on the time period to comment on the report. Prior to the enactment of the second amendment, recipient judge of the case was allotted a 30 day period to provide a response to regarding the investigation report.
Following this, where the Commission recommends dismissal in the report, an impeachment motion is sent to the Parliament, where it shall be passed by two-thirds of the majority of members of Parliament present and voting, in order to remove the judge from office.
Judges impeached by the Parliament so far
1. Former magistrate of Gaafu Dhaalu Thinadhoo, Ibrahim Rasheed
Ibrahim Rasheed was dismissed by the parliament in the 13th sitting of the 19th Majlis, on 26th June 2019. An investigation against Ibrahim Rasheed was launched in the year 2013 after a complaint was lodged against him accusing him of verbal harassment and falsely accusing a woman of adultery.
A total of 70 parliamentarians voted in favour of his dismissal.
2. Former Supreme Court Justice, Abdulla Didi
The impeachment motion of Abdulla Didi sent by JSC was passed in the 43rd sitting of the 19th Majlis, on 28th August 2019. JSC commenced investigation against Abdulla Didi due to the probing investigation carried by the Maldives Police Service for his alleged involvement in the MMPRC Scandal.
JSC conducted Public hearings where Abdulla Didi was given a fair chance to present his case. Although Abdulla Didi denied the allegations, his dismissal motion was passed by 72 votes.
3. Former Chief Justice, Dr Ahmed Abdulla Didi
The impeachment motion of Dr Ahmed Abdulla Didi sent by JSC was passed in the 67th sitting of the 19th Majlis, on 18th November 2019. In a press release by JSC on 12th November 2019, it was mentioned that JSC was then investigating a total of 18 complaints against Dr Ahmed Abdulla Didi.
Dr Ahmed Abdulla Didi was dismissed on account for instances where the Supreme Court violated the constitution and usurped the powers of parliament and other independent institutions. A total of 69 parliamentarians voted in favour of his dismissal.
4. Former Supreme Court Justice, Adam Mohamed Abdulla
Adam Mohamed Abdulla was also dismissed on the same date as Former Chief Justice, Dr Ahmed Abdulla Didi. The JSC press release mentioned that JSC was then investigating a total of 16 complaints against Adam Mohamed Abdulla.
A total of 69 parliamentarians voted in favour of his dismissal.
To sum up, it is it understood that the ‘good behaviour’ provision is a universally accepted fundamental factor that determines the tenure of judges in most jurisdictions. The current amendments to the Judicial Service Commission Act, promises plausible changes in the Maldives with regard to the impeachment of the judges. The inclusion of the due process provisions will ensure greater transparency, which in effect will mitigate the difficulties in attaining judicial independence in the country.
However, further caution should be taken in order to make sure that composition in the JSC stays neutral as a politically bias JSC can promote Judicial selection which in turn would jeopardize the independence of the judiciary.