The Bar Council has urged President Dr. Mohamed Muizzu against ratifying the government legislature passed on Wednesday to downsize the Supreme Court bench from seven to five justices, asking him to reject the bill and sent it back to the Parliament for revisions.
The amendment to the Judicature Act was submitted on Sunday night by Holhudhoo MP Abdul Sattar Mohamed – a member of the ruling People's National Congress (PNC) - who hold a supermajority in the Parliament. The bill was presented, debated on and accepted into the Parliament on Tuesday, and the Judiciary Committee passed it without any changes in a meeting held shortly after the vote.
The Parliament took the floor vote on the bill on Wednesday morning after ejecting three parliamentarians from the main opposition Maldivian Democratic Party (MDP) who protested against the legislature as well as the decision to ignore concerns raised by Counsel General Fathimath Filza.
The bill passed with a majority vote of 68-9.
In a statement on Wednesday afternoon, the Bar Council said that it has major legal concerns with the bill linked to public interest, and has shared these concerns with President Muizzu, the Parliament, the Parliament’s Judiciary Committee, the Attorney General and the Judicial Service Commission (JSC).
The Bar Council said the government has not made clear the purpose of the amendment to the Judicature Act or the outcome it seeks to achieve from the amendment.
The council said that it is crucial that the purpose of such a legal amendment linked to one of the executive powers of the state is made clear to the people in order to uphold the values of a transparent and democratic society.
The Bar Council stressed that the Constitution is clear that Supreme Court justices may only be removed through the Parliament if the JSC find them guilty of misconduct.
The council expressed concern that the Maldives is backtracking on the progress it has made and falling back on its dark history of removing Supreme Court justices through legislative changes.
The Bar Council said it finds the amendment to be in violation of articles 148, 149 and 154 of the Constitution.
This is an unconstitutional amendment that interferes in and influences judges, said the council.
The amendment to the Judicature Act is designed to downsize the Supreme Court’s bench from seven to five justices – meaning that two incumbent justices will need to be removed.
Three Supreme Court justices who were suspended (From R-L): Husnu Al-Suood, Mahaz Ali Zahir and Dr. Azmiralda Zahir.
The amendment requires JSC to determine two justices to be incompetent and submit their names to the Parliament within five days the legislature takes effect. And the Parliament is required to make a decision regarding their removal within seven days.
The Bar Council said that this is something in blatant violation of the Constitution and the Judicial Service Commission Act.
“…As this council finds the bill to be unconstitutional, we have sent a letter to the President of the Republic asking him to reconsider the bill instead of ratifying it, and send it back to the People’s Majlis for revision. We also sent a letter to the Attorney General asking him to urge against the passage of the bill,” said the Bar Council.
The Bar Council said it also sent a letter to the representative of lawyers elected to the JSC, urging him to honor his responsibility as an attorney-at-law to uphold the fundamental principle of establishing justice.
The move to submit a bill to reduce the Supreme Court bench followed weekslong allegations by the MDP that the government is seeking to dismiss some of the members of the top court’s bench to influence a case challenging a contentious amendment to add anti-defection provisions to the Constitution.
The constitutional amendment in question was submitted, passed and ratified in quick succession on November 20. The controversial amendment added three more circumstances where parliamentarians will lose their seat, including if they are expelled from their political party.
Former Kendhoo MP Ali Hussain, an attorney-at-law, filed a constitutional case with the top court on November 24, arguing that the amendment violates key provisions of the Constitution, as well as the basic structure doctrine.
Hearings in the case began on February 17 – nearly three months after the case was filed. The state filed a motion to have the case tossed out, arguing that the Supreme Court does not have the jurisdiction to hear it. But the bench decided on February 18 to proceed with the case, and gave the state 10 days to build their case.
Opposition parties, including the MDP and the Democrats have questioned the timing of the bill, and accused the government of attempting attemting to influence the country's highest judicial authority and subvert judicial independence.
The rushed passage of the bill comes one hour ahead of a hearing scheduled at the Supreme Court regarding a request for an injunction to suspend the enforcement of the anti-defection clauses.
But shortly before the hearing had been set to begin at 11:00 am, the JSC announced that three Supreme Court justices – Husnu Al-Suood, Dr. Azmiralda Zahir and Mahaz Ali Zahir – had been suspended in light of criminal investigations against them by the Anti-Corruption Commission (ACC).
With the suspension of the justices, the key constitutional case is now stalled.