Maldives: Institution-building, the why and how of it
Former
President Mohammed Nasheed was on a six-day-long visit to India, pressing
his case for early elections and reiterating his position on the need for
reforming the nation's 'independent institutions'. During his three years in
office, cut short from the mandated five following his sudden resignation on
February 7, and later, too, he has laid a great stress on the need for
reforming the Judiciary, Election Commission, Human Rights Commission and
also the legislative aspect of the People's Majlis or Parliament. His
detractors, now in power, are using the same arguments of his to try and
deny him the early presidential polls that Nasheed and his Maldivian
Democratic Party (MDP) have been demanding since his resignation. President
Waheed Hassan and his multi-party coalition Government say that they needed
to 'empower', not 'reform' independent institutions, and enact laws to check
against 'Executive interference' as happened under the Nasheed regime.
The MDP has never hidden its reservations about working with Judges and
members of independent commissions, once appointed by then entrenched
President Maumoon Gayoom. It wanted them removed, and critics say that the
party and the Nasheed Government 'invented' reasons to paint the entire lot
of Government employees black. Critics also say that the MDP perception was
based on the anti-Gayoom mood of the nation's people and voters when Nasheed
won the presidential polls, again as a part of an informal coalition ahead
of the second, run-off round in October 2008. The party refused to
acknowledge that three years down the line and less than two years to
presidential polls, Nasheed, not Gayoom, would be the electoral issue 每 and
sought to keep the electoral focus still on the latter.
There is some truth in the political argument of both sides. There is
however a need to revisit the MDP-offered specifics dispassionately, for the
nation to arrive at a consensus on capacity-building at all levels of
governance. It can start at the top-most, where in the absence of
established norms and democratic precedents, whims of every kind, have
passed for Executive discretion. Given that the President has always been
chosen in a direct election, whether multi-party or not, there was greater
respect for the institution. This translated into excessive loyalty for the
person of the President, and a blind adherence to the policies initiated in
his name. This did not find much change under the MDP, too. Familiarity with
the forgettable past led to status quoism, though of a different kind, and
breaching the comfort zone became difficult after a point.
Appealing to the youth
In their time, both President Gayoom and President Nasheed were in their
early 40s when they assumed office. They appealed to the youth of the day,
addressed their immediate concerns and quenched their aspirations, however
limited their efforts were by Maldivian circumstances and economy. They
sounded genuine and were readily accepted as the man for the time. In his
early days as President, Gayoom focussed on education and employment, the
former by opening schools in atolls and islands across the country and the
latter by promoting resort tourism, an imaginative economic initiative,
taking Maldives beyond the limitations imposed by fishing on both counts.
All of these efforts stood in the name of Gayoom's predecessor, the late
Prime Minister Ibrahim Nazir, who did not stay on in power for long. Yet, to
President Gayoom should go the twin-credits of not discontinuing the good
work done by his predecessor 每 a common trait otherwise across South Asia
每 and also building on the same.
Ironically, educational opportunities, though only up to the Cambridge
A-Level also meant that Maldivian youth would not be satisfied with the
status or lack of it attaching to resort jobs. The salaries were also low
compared to what was on offer in the Government. Lest they should go astray
in a nation that was already concerned about increasing incidence of
drug-addition in the lower age-groups, and lest he too should lose the
emerging rank of youthful voters ahead of the first multi-party presidential
polls of 2008, the Gayoom leadership appointed more Government employees
than may have been justified 每 adding up to 10 per cent of the nation's
350,000 population. The trend has continued in a way, though the Nasheed
presidency scraped 20 per cent of all Government jobs through a voluntary
retirement scheme (VRS), as a part of the IMF-guided economic reforms, but
created more for political appointees, though through elections after
intervening ad hocism. The Gayoom leadership could not grow with its
beneficiaries in terms of thinking for the new generation of youth, born to
governmental largesse or social benefit that was new and welcome to an
earlier one. The inevitable stagnation attaching to entrenched leaderships,
whose communication with the governed often gets stifled owing to a
personality-driven administration and the inevitable sycophancy in the
existing climate proved to be the electoral bane of President Gayoom. The
cry for human rights and multi-party democracy were all products of a new
generation approach to issues in a new era where global communication and
exposure had become relatively easy and equally resolvant.
The successor-Government has since alleged that the Nasheed administration
created a multiplicity of Government corporations and a plethora of elected
provincial councillors, under a privatisation and decentralisation scheme.
The former owed to IMF reforms, and the latter was flagged as an achievement
of democracy and constitutional reforms. The elected councillors took the
place of island-councillors, nominated in President Gayoom's time.
Government officials now claim that the new scheme provided for salaries for
elected members and board members of public corporation, denting the
exchequer much more than what the job and salary-cuts saved. In President
Gayoom's time, as some recall, even parliamentarians held only a part-time
job, their sources of income coming either from the Government jobs they
held, or the businesses they were associated with.
The 20 per cent cut in salaries and jobs introduced by the Nasheed
presidency also meant that the Government was at logger-heads with the
constitutionally-mandated Civil Services Commission (CSC). Creation of
nominated provincial and island councillors ahead of election to these
bodies in March 2011, replacing those nominated by President Gayoom under an
atolls-based scheme instead, critics argued, was aimed at circumventing the
existing processes, including the role of the CSC in Government
recruitments, appointments and transfers. Under the nominated scheme,
followed by elections later, the Nasheed leadership, it was argued, had
brought in MDP cadres in the place of Gayoom loyalists at all levels.
In a way, it was a clash of interest between the entrenched Gayoom-appointees
and the new-found power at the hands of youthful MDP cadres that was said to
be at the bottom of the crises that successively rocked the Nasheed
Government. When a promotion-level appointment of Deputy Ministers in
individual departments under the earlier dispensation was 'compromised'
through political nominations under the Nasheed leadership, non-partisan
observers in Maldives claimed that the Government and its Ministers,
inexperienced and unexposed as many of them were, might not have been able
to extract the right inputs and advice from the permanent civil service as
would have been the case otherwise.
Otherwise, too, the Nasheed leadership, in a hurry to fast-track reforms
much of which was required, rather than learning to work with and within the
system, and on it, chose to work against the system. Near-wholesale change
of officials at all levels as was being hinted was not on, but that was what
the proposed course ended up being seen as. Worse still, unbiased observers
in Maldives saw the replacement of Gayoom loyalists, whose other
qualification at the lower-levels of islands-administration in particular
could not be questioned, being replaced by MDP foot-soldiers. The
legitimisation of the process through the decentralisation scheme in
particular did not go down well. With the result, even the well-meaning
measures of the Nasheed Government on governance reforms, by addressing
specific cases involving top people in various institutions, came to be
viewed with a jaundiced eye.
Capacity-building in
judiciary
The story was no different in the case of the Judiciary. In a country where
quality education means and stops with the A-Level, equivalent to Plus-Two
in India, there could not have been many with legal qualification and
background to prefer the Bench to the bar. At one stage during the
Executive-Judiciary deadlock in 2010, it was pointed out that of the
170-plus judges across the country, only 30 or so had undergone legal
education in the modern sense. The rest, the Government of the day merrily
argued, had not passed even the eighth grade in some cases. The Gayoom camp,
which had to accept responsibility, would point out that many of them were
well-versed in the Shariat. Thereby hangs a tale, still.
In a way, the provocation for the police protests 每 no one contests that,
though there are different opinions about calling it a coup or mutiny 每
flowed from the arrest of Criminal Court Chief Judge, Mohamed Abdulla. The
armed forces, namely the Maldivian National Defence Force (MNDF) arrested
him on January 16, after the police chief wrote to the latter that the Judge
was a threat to national security. Critics argue that there was a flaw in
institutional responsibilities on this count, despite the Gayoom Government
too having initiated action against the said Judge. At present Presidential
Advisor, Dr Hassan Saeed as Attorney-General under the Gayoom dispensation
had initiated action, but nothing moved beyond a point, for a variety of
reasons, not all of them political.
The question remains if the MNDF should have been called into service to
handle the case. That was also the contention of both the protesting police
men and soldiers, whose numbers however were fewer than that of the former.
The former feared lack of trust in the police and the latter said the MNDF
was being misused for duties it was not mandated or equipped to handle. This
was the case when President Nasheed used the MNDF to arrest two leading
Opposition leaders on corruption charges, and more importantly to shut down
the Supreme Court for a day, in mid-2010. In the Abdulla case, however, the
Nasheed camp is right in arguing that even the Judicial Services Commission
(JSC) had upheld his Government's contention for the Judge not to discharge
judicial duties. Incidentally, both the High Court and Supreme Court had
stayed the proceedings against the said Judge, as empowered under the law.
There is a clash of concepts between the status quo system and the modern
thoughts of the Nasheed leadership, on all fronts. In the Judiciary, the
reformists argued that the status quo legal and judicial systems, which at
times sounded arbitrary in the absence of codified laws that applied to all
and derived from one another, was refusing to give place to common law
practices, as understood elsewhere. The confusion also derived from the
cross-cultural integration that the Islamic nation had achieved to a
substantial level in other walks, but not fully in some other. In a nation
dependent on resort tourism and imported goods and services for sustaining
its economy and society, the dichotomy of free repatriation of the dollar
earned by the former and the absence of internationally-accepted banking
laws made things difficult for global players. It may have also owed to the
absence of laws governing repatriation and a role for the Maldivian
authorities to intervene in the processes over the past three decades and
more.
The stagnation was striking, independent of the absence of attractive scope
of mega-investments outside of tourism industry. Given the inherent
limitations imposed by Maldives' geographical location, human resource, and
a local market for goods and services that would interest big-time investors
from South Asia and elsewhere, credit facility for local investors is a
pragmatic route in the local context. The beneficiary has been the local
creditor and the loser, international banks, including India's SBI. In the
absence of enforceable legislation, they were often left to be cautious than
overwhelming with extending credit facilities, after an initial spurt.
During Prime Minister Manmohan Singh's bilateral visit to Male in November
2011, when he participated in the SAARC Summit at southern Addu, the two
sides signed an agreement for India to help Maldives in improving its
banking laws and practices. There is a need for simultaneous reforms of laws
relating to transfer of property and crimes of credit default, if
international banks are to evince an interest in supporting Maldivian
economy.
Reforms on the legal front in Maldives often boils down to marrying common
law practices with the Shariat. No other country has achieved satisfactory
results on this score, particularly in the immediate South Asian
neighbourhood than India. The evolved Indian scheme ensures protection under
theShariat as far as the Muslim personal law goes. It covers marriage and
divorce, inheritance and the like. More importantly, the Indian scheme have
imbibed the Shariat practices in its laws and judicial pronouncements, so
much so lawyers and judges in India, educated and trained under the common
law scheme, practice the same without they having to study these laws in
madrasas or confining their knowledge and expertise only to the Shariat.
Even while criticising the nation's judiciary while in power, the MDP and
President Nasheed did acknowledge the amended provisions of the Judges Act
to equip and educate the judiciary in the country on the reforms that need
to be undertaken, over a seven-year period. The unstated understanding is
that the judges who had not equipped them under the new scheme would have to
go at the end of seven years. Two years have already passed by, but the
Nasheed Government was not known to have taken any serious step to reform
the judiciary 每 though updating/modernising the judiciary would have been a
better and more acceptable term. Capacity-building is the name of the game
in modern parlance. The Nasheed Government could not be blamed for not
trying in approaching the UN agencies and India, among others, for helping
with capacity-building in Judiciary and other areas of administration, but
the follow-up was lacking, however.
The other problem pertaining to the judiciary, as pointed out the MDP since
Nasheed assumed the presidency in 2008, relates to the life-long tenure for
judges. For a nation that had borrowed the US model of Executive Presidency
without the attendant checks-and-balances, the Maldivian scheme suffers from
internal contradiction that are natural to adapting alien models without
thought. The checks-and balances scheme took roots in the US for historic
reasons. The US also takes pride in protecting the individual accountability
and collective responsibility of institutions. Neither this, nor the 'French
model' of shared powers between the directly-elected President and a Prime
Minister as under the Westminster scheme, for instance, could have been
transplanted into another system, without nation-wide acknowledgement and
discourse, and a commitment flowing from it.
In the Maldivian context, the Executive Presidency from the Gayoom era was
accompanied by live-tenure for judges, without self-accountability on the
latter's part. Under the scheme, the Legislature too being a tool of the
Executive did not protest violations or protect the common man's interests.
The MDP in general and President Nasheed in particular wanted this situation
changed. What transpired however was a Government in hurry wanting to change
everything over-night. With the Opposition-controlled Parliament in no mood
to amend the laws to grant a fixed or age-barred tenure for the judges, the
Nasheed Government started painting all appointees of the Gayoom
administration in black, leaving no room for shades of grey.
This also applied to members of other independent institutions, including
the Election Commission, Judicial Services Commission, Civil Services
Commission and the Human Rights Commission. In a more recent response to a
legislative proposal to amend Article 53 of the Civil Services Act, which
stipulates that civil servants wanting to contest elections should quit
their post six months in advance, Mohamed Fahmy Hassan, CSC president, said
that professionalism of the civil service can be maintained only of if the
civil service is established as a non-political establishment. What needs to
be achieved is a measure of legislative changes, which do not always go in
favour of the Government of the day, particularly when it lacked
parliamentary majority. The MDP Government was in a hurry to do too many
things in too short a time, and seen as having revamped the system in time
for their second presidential poll under the multi-party scheme. In the
process, they bit more than they could have chewed.
Anti-incumbency &
coalition from start
All sections of the nation's polity should share the blame for writing the
Constitution with an individual, and not institutions, in mind. Through the
debates of the Constituent Assembly (2007-08), the unacknowledged assumption
was President Gayoom would either thwart the effort or ensure his electoral
victory even under a multi-party system. His Government in a way fed such
apprehensions on the side of the multi-party Opposition. The Gayoom camp
favoured the Westminster system of government. As the polling pattern in
2008 proved, he would have continued in office under the scheme, he having
polled 40 per cent of the popular vote in the first round of presidential
elections. Against this, Nasheed polled only 25 per cent with two other
Opposition candidates, Hassan Saeed and Gasim Ibrahim obtaining 17 and 15
per cent of the votes, respectively. Anticipating some game-plan up
President Gayoom's sleeve, and also understanding the awaiting complexity,
the Opposition parties preferred the Executive Presidency through direct
elections and 50-per cent-plus share of the popular vote for the winner.
Written into the script even at the time was the inevitability of an
anti-Gayoom candidate pooling the votes of other runners-up in the second
round, if he had tobe elected President. Deals were struck by parties behind
the back of the people, who in turn were excited about the prospects of
multi-party democracy. The 40-per cent youth population was overwhelmed by
vote for 18-year-olds.Nasheed's victory thus implied a contract for the
winner to accommodate the runners-up in the Government and in the
parliamentary elections under the new constitutional scheme. When that part
of the deal was not kept, the inherent coalition, inevitable to the
Maldivian scheme of the time, broke. It also implied that anti-incumbency of
the kind that beleaguered President Gayoom in electoral terms after
multi-party democracy became possible, would haunt his successor, too. Or,
with the electoral focus turning towards the new President, other parties
would 'gang up', as they did against President Gayoom, if they felt being
let up the garden path or that the mood of the voter had changed, since.
Elsewhere, particularly in directly-elected Executive Governments,
coalitions of the non-incumbent/anti-incumbent kind are often represented in
terms of 'interest groups' within an umbrella organisation of a single
political party. In such instances as post-Independent India or Sri Lanka in
the immediate neighbourhood, such umbrella organisations had splintered and
fractured with passage of time, to form other political parties,
representing individual interest groups, within which commonality could
suffer further erosion under specific circumstances. In democratic Maldives,
such 'interest groups' have had ready representation in different political
parties even at the commencement of the process.
Barring the main player, the President of the nation and the party that he
led and/or represented, the rest of them all have remained constant. There
are visible signs of some of the political parties weakening and others
strengthening themselves at the cost of the rest. A clearer picture will
take time to emerge, with each election for the presidency, Parliament and
local councils, throwing up different permutations and combinations, in the
interim. All this would go on to prove that democracy is a dynamic process,
eternally changing and reshaping itself. Maldives and Maldivians, starting
with their divided polity, have to accept that there is no constancy or
permanency in democracy after a point 每 and that all would have to accept
this reality and be prepared to make sacrifices.
At present, as in the pre-democracy past, the leadership of various
political parties, and by extension, the Government also remains
Male-centric, and thus represents the urban elite. It could not have been
different in the short span, though early signs of the Maldivian polity
moving away from urban Male for leadership have become visible in the
democracy years. As has been happening in older democracies elsewhere in the
Third World, particularly in the rest of South Asia, the trickle-down effect
of democracy would swarm not only the population in terms of socio-economic
benefits but would also throw up a new class of rural elite, and non-elite
among the political party, and consequently government leadership in due
course. Maldives has to prepare itself to accept this reality. So should
Maldivians be prepared for the same. Yet, given the urban-islands divide 每
it's urban-rural divide, elsewhere 每 and the reality of urban population
centres having a disproportionately high share of the votes, the transition
and consequent transformation could be more painful than elsewhere, and more
than what the young democracy has been subjected to, already.
Institution-building, as democratic traditions, is time-consuming. Once
built, it would be left to the practitioners of the scheme, politicians and
bureaucrats in this case, to protect what they have given themselves and the
nation. In a contemporary history whose current life is only three years or
even less, institution-building in Maldives could not be 每 and should not
be -- compared to those in older and thus more matured democracies. The
nation will also have to marry the traditions learnt from elsewhere with the
cultural and civilizational ethos of a proud people, whose geographical
insulation in this communications era needs to be balanced, carefully and
patiently. It is not that it could not be achieved, but the tweaking and
tempering takes time 每 at times running to several years. After all, Rome
was not built in a day, nor can Maldivian democracy and democratic
institutions be, particularly when they have been inherited from another
scheme of governance that were in force in another era even in the global
context 每 and cannot be, and should not be wished away, either.
(The writer is a Senior
Fellow at Observer Research Foundation)