The supreme court has overturned a lower court ruling against the government in a long-running resort lease dispute and sacked the civil court judge who delivered the judgment.
In separate orders issued around 11pm on Thursday night, the apex court struck down the order for the government to hand over the island of Bodumohora in Vaavu atoll to Marine Technology Maldives and declared that Judge Mariyam Waheed has “lost the legitimacy, legal capacity, and authority” to remain on the bench.
Waheed “does not have any capacity to preside over trials in any Maldivian court,” reads the unprecedented order.
Earlier on Thursday, the judge had ordered the government to hand over the island within a week after entering a lease agreement as stipulated in a joint venture deal signed in January 2014.
But the judgment was deemed contrary to a previous supreme court ruling, which held that the government was not legally obliged to lease Bodumohora for resort development.
The supreme court was asked to overturn the civil court order by Attorney General Mohamed Anil.
According to the order that declared Judge Waheed unfit, her alleged defiance of a supreme court ruling amounted to a breach of the constitution, the Judicature Act and the Judges Act as well as trial procedural rules and ethical standards of judges.
The abrupt sacking has caused an uproar in the legal community.
According to the constitution, a judge can only be removed if the Judicial Service Commission finds that she is either grossly incompetent or guilty of gross misconduct. A two-thirds majority of the parliament must then approve a resolution submitted by the judicial watchdog.
Opposition lawmakers, former attorneys general, and lawyers took to social media to express outrage over the judge’s apparent arbitrary dismissal.
This order by Supreme Court usurps exclusive jurisdiction of Parliament2 remove judges.This in practice means SC can remove The President https://t.co/8dG0qnYneD
— Fayyaz Ismail (@faya_i) February 16, 2017
Tonight SC decision destroys constitutional guarantee provided to the judges! https://t.co/u39Pi0Cszr
— Abdulla Riyaz MP (@riyazabdulla) February 16, 2017
SC sets its own precedent that can hit them back, sack them & even prosecute them https://t.co/cbe4Unmab7
— 𝐈𝐦𝐭𝐡𝐢𝐲𝐚𝐳 𝐅𝐚𝐡𝐦𝐲 (@Imthiyazfahmy) February 17, 2017
R.of law dictates procedural fairness.If JSC hasn't recommended Majlis 2 remove J. Waheed, incapacitating a sitting judge by SC is bizarre! https://t.co/u1KUEchsdL
— ahmad ali sawad (@DrSawad) February 17, 2017
A decision iIF wrong is overturned by the NEXT level of the appeallate courts & a judge is never dismissed for an error. pic.twitter.com/p0uEoxuYhZ
— Dhiyana 🎈 (@dhiyanasaid) February 16, 2017
Its ashame to see another women judge being kicked out from judiciary out of the few we have.
— Shidhatha Shareef (@shidhatha) February 17, 2017
Still grappling with the issue of one judge sacking another. I'v no words to describe the gravity & enormity of Abdulla Saeed's wrongdoing
— Dhiyana 🎈 (@dhiyanasaid) February 18, 2017
Waheed was one of the few female judges in the Maldivian judiciary. In May last year, Dr Azmirelda Zahir resigned from the high court in protest against her transfer to a regional branch. Judges Mariyam Nihayath and Aishath Shujune resigned from the civil court in 2015 and 2014, respectively.
The Bodumohora case has meanwhile been locked in litigation since early 2012. The island was leased to Marine Technology Maldives by the administration of former President Mohamed Nasheed in exchange for undertaking corporate social responsibility projects.
According to a blog post on the case history by lawyer Mahfooz Saeed, the company first sued the government after Nasheed’s successor decided not to proceed with resort lease agreements signed under the CSR policy.
In late 2012, the civil court ruled in favour of Marine Technology and ordered the government to abide by the lease agreement.
The government initially appealed the judgment at the high court but withdrew the case in January 2014 and formed a joint venture company called Bodumohora Investment. But a separate agreement needed to hand over the island to the JVC was not signed.
Marine Technology sued again after the government decided to terminate the joint venture agreement. In May 2015, the civil court ruled in favour of the company and ordered the government to sign the lease agreement within 45 days.
The government appealed but once again withdrew the case in January 2016 before the high court issued a ruling.
Then in March 2016 – after the deadline for appealing the civil court judgment lapsed – the attorney general’s office filed the Bodumohora case at the supreme court as “a constitutional case,” which deals with the constitutionality of laws or regulations.
On February 2 this year, the supreme court registrar informed the AG office that the apex court could not hear the case.
But according to the “decision on the request to file an appeal,” the supreme court justices noted that that the government has the “discretionary power” to decide whether to sign a lease agreement.
The decision is not available on the apex court’s website.
Noting that the supreme court did not conduct hearings on the case, Mahfooz stressed that the opinions of the justices that were relayed by the registrar do not constitute a higher court ruling that is binding on the civil court.
After the supreme court declined to approve the AG’s request to appeal, Marine Technology sought a judgment to enforce the previous civil court orders, which was duly granted on Thursday by Judge Waheed.
Waheed was appointed to the bench in April 2016.
The Maldivian judiciary has faced widespread criticism over “politicisation” and the lack of conformity to international fair trial standards.
After the judiciary came under fire during an examination of the Maldives’ human rights record in May 2015, the government accepted numerous recommendations put forth at the UN Human Rights Council on reforming the judiciary.
In a 2013 report on the Maldivian judiciary, the former UN Special Rapporteur on Independence of Judges and Lawyers, Gabriela Knaul, had noted with concern that the supreme court was “perceived as not following due process in many of its decisions.”
“It is also troublesome that some of the supreme court’s interventions are perceived as arbitrary and as serving the judges’ own personal interests,” she added.
“The Special Rapporteur heard several complaints about internal tensions in the judiciary, where lower courts are left with the feeling that the supreme court only works for its own interests, without taking into account the situation of other judges and magistrates.”
The Maldives’ representative to the Human Rights Council subsequently accused the special rapporteur of undermining the sovereignty of the country.
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