News Desk
The Bar Council of Maldives has raised serious legal and constitutional concerns over the recent passage of the 5th Amendment Bill to the Courts of Maldives Act (Act No. 22/2010). Passed on February 26 during the 9th Session of the 20th Parliament, the amendment, proposed by MP Abdul Sattar Mohamed, has sparked controversy for its lack of clarity and perceived violations of judicial independence. The Council has called the move unconstitutional, citing conflicts with key articles of the Maldives Constitution, and has urged the President to return the bill to Parliament for reconsideration.
Here is an unofficial translation of the Bar Council Press Release regarding this matter.
Number: 2023/005
Press Release
Regarding the passage of the ‘Bill’ to amend Act No. 2010/22 (Courts of Maldives Act)
The Bar Council of Maldives is an independent body established under Act No. 5/2019 (Legal Profession Act of Maldives) and is responsible for expressing opinions and providing information on legal or constitutional issues and matters of public interest. The 5th Amendment Bill to Act No. 22/2010 (Courts of Maldives Act), moved by the Honorable Member of Parliament for Holhudoo Constituency, Abdul Sattar Mohamed, was passed during the 9th Session of the 20th Parliament held on 26 February. The Executive Committee of this Council and members of the legal profession as a whole have serious legal and constitutional concerns in the public interest. The Council has shared this information with the President, the Parliament, the Judiciary Committee, the Attorney General, the Judicial Service Commission (JSC), and the elected member from the Bar Council to the JSC.
The 5th Amendment to the Courts of Maldives Act passed by the Parliament does not clearly state the reason for the amendment or the purpose it is intended to achieve. The Council believes that a clear understanding of the objective is essential for acting in a transparent democratic society.
Under Chapter IV (The Judiciary) of the Constitution of the Republic of Maldives, Article 148 clearly states the procedure for appointing the Chief Justice and the Judges of the Supreme Court. They are appointed by a majority of the members present and voting, in consultation with the Judicial Service Commission. The judges so appointed are not appointed for a fixed term but may retire upon reaching the age of seventy years. Article 149 of the same chapter states that persons shall be appointed to the post of judge in accordance with the law and shall have the necessary education, experience, and competence to perform the duties and responsibilities of the judiciary.
Article 154(a) of that chapter states that a judge shall not be removed from office as long as he does not deviate from the code of conduct and rules to be followed by judges. Under subsection (b) of that section, a judge may be removed from office by a two-thirds majority of the members present and voting in the Majlis if the Judicial Service Commission is satisfied that the judge is unfit for office or has committed an act unbecoming of the office. There is no judge appointed to the Supreme Court of Maldives who fits the above provisions. The Council is deeply concerned about the resumption of past practices in the dismissal of judges by amending the Courts Act, as done by previous administrations. These actions are extremely regrettable and a matter of concern for this Council. Therefore, the Council considers that the proposed amendments to the Courts of Maldives Act are contrary to Articles 148, 149, and 154 of the Constitution and to legal and constitutional norms.
Articles 141(c) and 141(d) of the Constitution state that public authorities and all persons in charge of public affairs shall assist the courts by means of laws, regulations, and other measures to safeguard their independence. The Council considers that the amendment to the Courts of Maldives Act is unconstitutional and influences the work of the judges in violation of Articles 141(c) and 141(d) of the Constitution.
The amendment to Article 5(g) of the Courts of Maldives Act refers to Article 145(b) of the Constitution without any amendment to the provisions of Article 145(b) of the Constitution. The Council does not believe that there is a constitutional basis for the State to grant the “special benefits and privileges” provided for in Articles 26(b) and 26(c) of Act No. 13/2010 (Judges Act), as determined by the Judicial Service Commission, for those who are deprived of their duties under this Act.
Article 159(b) of the Constitution empowers the Judicial Service Commission to investigate complaints against judges, take necessary action against them, and propose the removal of such persons from office. The Judicial Service Commission has the power to assess the competence and performance of the Chief Justice, the judges of the Supreme Court of Maldives, and the judges of the courts of Maldives, to examine complaints against judges, and to take appropriate action against them. The amendment to the Courts Act of Maldives provides that any two of the seven judges currently serving in the Supreme Court of Maldives can be deemed ineligible for the post of judge and that they are to be removed, with the matter to be notified to the Parliament within three months. The Council considers these amendments to be in violation of the Constitution and the Judicial Service Commission Act.
Article 268 of the Constitution states that every law or part of a law deemed unconstitutional shall be null and void at that point, and such law or part of a law shall have no effect. Therefore, this Council considers the 5th Amendment Bill to Act No. 22/2010 (Courts Act), passed by the 9th Session of the 20th Parliament, to be unconstitutional. Yesterday, the Council asked the President to send the bill back to Parliament for reconsideration.
Article 133(a) of the Constitution states that the Office of the Attorney General shall perform political or judicial duties and responsibilities required by the Constitution and law. Article 133(a) further states that the Attorney General shall abide only by the Constitution and the law in the performance of his responsibilities and duties and that no other person or agency shall have any power or influence over him. However, the Attorney General has requested, in a letter, to pass the proposed amendment to the Act.
Furthermore, the proposed amendment to the Courts Act violates the Constitution, the Judicial Service Commission Act, and the principle of compliance with the Lawyers Act, specifically the responsibility of lawyers to administer justice and maintain professional conduct. Participation in such contraventions is prohibited for the ordinary members of the Bar Council and the Executive Committee of the Bar Council, and this has been communicated in writing to the member representing the Bar Council at the Judicial Service Commission.
