The Commonwealth Lawyers Association (CLA) has urged the Parliament’s Judiciary Committee to carefully scrutinize the recommendation by the Judicial Service Commission (JSC) to dismiss Supreme Court justices Dr. Azmiralda Zahir and Mahaz Ali Zahir, and reject it if it fails to meet the substantive procedural and evidentiary requirements.
On February 26, Azmiralda, Mahaz and then-Supreme Court justice Husnu Al-Suood were suspended by the JSC, citing an ongoing investigation by the against them by the Anti-Corruption Commission (ACC). All three were hearing a case challenging the controversial move by the ruling People’s National Congress (PNC) – who hold a supermajority in the Parliament - to write anti-defection clauses into the Maldivian constitution.
Suood resigned from the top court in protest of JSC’s decision, and the commission later opened misconduct cases against Azmiralda and Mahaz, accusing them of conspiring to influence the Criminal Court.
On May 4, the JSC asked the Parliament to approve their dismissal. The Judiciary Committee, which is reviewing the recommendation, decided on Saturday to deny Azmiralda and Mahaz the chance to defend themselves against the allegations against them.
The same day, the CLA issued a statement expressing deep concern over the move to dismiss Azmiralda and Mahaz – both of whom claim that the allegations against them are baseless and that the investigations by the JSC were tainted by the denial of due process to them.
In the statement on Saturday, the CLA stressed that removal of judges is a very serious form of judicial accountability, and should not be resorted to unless it is based on grounds and process that are clearly discernible from the legal framework under which they serve and further meet the requirements of international standards.
“… it is imperative that the Committee is satisfied that the recommendation of the JSC is founded on cogent and incontrovertible evidence. If the Committee finds that the findings of the JSC are grounded on evidence that has been contrived or distorted or misinterpreted, the recommendation must be rejected,” said the CLA. “It is further critical that judges facing removal are accorded due process.”
Three Supreme Court justices who were suspended (From R-L): Husnu Al-Suood, Mahaz Ali Zahir and Dr. Azmiralda Zahir.
The CLA said the Judiciary Committee must ascertain whether the judges were given due notice and particulars of the allegations against them; whether they were given sufficient time to prepare their rebuttal to the allegations; whether they were given the opportunity to present their evidence and where relevant to cross-examine witnesses; the right to legal representation; and the reasons for the decision of the JSC.
“A denial of any of these rights constitute a violation of fundamental principles of procedural fairness, and a breach of the rule of law. On this basis also, the Committee should reject the JSC’s recommendation,” said the CLA.
The CLA urged the Judiciary Committee as well as the Parliament to ensure that the independence of the judiciary of the Maldives is not eroded and compromised by disciplinary action against judges that are based on unsubstantiated or arbitrary grounds, or which is contrary to due process.
The CLA also urges the Judiciary Committee and Parliament to be mindful of its own constitutional and statutory requirements for the removal of judges, and further respects and adheres to the stringent international standards to protect judicial independence.
“The CLA further urges the Committee and Parliament to carefully scrutinize the recommendation by the JSC and reject the recommendation if it fails to meet the substantive procedural and evidentiary requirements,” said the CLA.
The CLA said they will continue to monitor the matter and engage with the Bar Council of Maldives, international and regional law organizations, the Commonwealth Secretariat and United Nations Special Rapporteur on the Independence of the Judiciary in promoting and defending the rule of law in the Maldives.
Suood, Azmiralda and Mahaz' suspension by the JSC on February 26 had come less than one hour ahead of a hearing scheduled at the Supreme Court regarding a request for an injunction to suspend the enforcement of controversial anti-defection clauses that were written into the Constitution last year. It also came shortly after the ruling PNC used its supermajority in the Parliament to push through amendments to the Judicature Act to downsize the Supreme Court bench from seven to five justices.
Meanwhile, the ACC has declined to provide any information regarding the their criminal investigation against the trio, which had triggered their suspension in the first place.