Maldives: Seeking to put judiciary in a spot
N Sathiya Moorthy
On specifics they may differ, but
a common view seems to be slowly emerging on the imminent need for effecting
reforms to the nation's judiciary among the divided polity in Maldives. Included
in the discourse is also the role of the Judicial Services Commission (JSC),
whose membership has also come under question, as should have been anticipated
at the drafting of the 2008 Constitution.
To the Opposition Maldivian Democratic Party (MD)
of former President Mohammed Nasheed, everything that could go wrong with the
judiciary and the JSC have gone wrong. The party often identifies its immediate
concerns with the ongoing trail against Nasheed in the 'Judge Abdulla abduction
case' when he was in power in January 2012. A conviction accompanied by a prison
term not less than one year could cause his disqualification from contesting the
presidential polls, slated for September this year.
Yet, the MDP's larger concerns over judicial
reforms pre-dates the 'Judge Abdulla' arrest, which contributed to the pervasive
mood when power-transfer occurred a couple of weeks later. President Nasheed
went to the extent of ordering the Supreme Court shut down for a day - a rarity
this in any democracy - until he had got the seven-Judge Bench of his choice
when the mandatory two-year term ended for reconstituting the same after the
commencement of the new Constitution.
The party did have to make compromises, and
compromises are also what democracies are all about. It is not unknown to
democracies that Judges with political leanings often get elevated to the
respective Supreme Courts in particular. In the US, whose presidential model
Maldives has adopted under the 2008 Constitution, the political branding of
Supreme Court Judges are so very complete that analysts would identify them
either as 'conservative' or 'liberal' in their judicial approach.
Both the ideological background of the Judges and
their branding are inevitable, too. In a two-party system where most people
choose to enroll as members of either of the two majors, namely, the Democrats
and Republicans, students grow up to become lawyers, to be elected or elevated
as Judges. Whether they try to be non-partisan in ideological terms, starting
with abortion but extending to State ownership and intervention, heir past
accompanies them as an unburdened baggage.
Gayoom legatees, all
In Maldives, everything government and everyone
in Government other than President Nasheed could be effortlessly branded as a 'Gayoom
legatee'. Most Nasheed aides, political and otherwise, belong there, too, but
their timely cross-over may have helped the larger 'democratic cause' when it
all unfolded. It is another thing to paint the whole judicial system and
individual judges but in bulk with the same brush can cause greater trouble for
democracy than can solve any of the existing problems, real and imaginary.
Not that the current scheme did not foresee the
possibilities and problems. It has provided a seven-year term for 'retraining'
of judicial officers at all levels in the country. Neither President Nasheed,
nor his present-day successor President Waheed Hassan seems to have taken any
serious step in this direction. The slanging-match, which contributes to the
discrediting of the nation's judiciary alone keeps cropping up time and again.
The MDP continues to claim that the three-Bench
trial Bench of the suburban Hulhumale' court is illegal, unconstitutional and
biased against President Nasheed, despite the Supreme Court dismissing its plea
in the matter. The party has since sought the reconstitution of the seven-Judge
Supreme Court Bench itself. At an official function, Chief Justice Ahmed Faiz
Hussain flatly ruled out any such reconstitution, saying that the present Bench
would continue as long as democracy existed in Maldives. Where a vacancy arose,
it would have to be filled, he said.
President Nasheed reportedly added a new element
when he publicly claimed that Chief Justice Hussain has been meeting regularly
with President Waheed, and discussing the 'Judge Abdulla case' with him. From a
public platform, he declared that he had never ever called the Chief Justice(s)
of his time for any consultation whatsoever. Neither the judiciary, nor the
Government, nor the President's Office is known to have joined issue with him.
Row over JSC membership
Under the Constitution, Parliament has its
nominee on the Judicial Services Commission (JSC), in turn entrusted with the
appointment of Judges and the overseeing of their conduct and acquittal as
Judges. Jumhoree Party founder and presidential nominee is a member of the JSC,
along with Parliament Speaker Abdulla Shahid, which chose the three-Judge Bench
to try President Nasheed.
The MDP, after challenging the authority of the
JSC in the matter, has since questioned the impartiality of the Bench, chosen
with Gasim as member. The office of Parliament Speaker has however been kept out
of what is essentially a political controversy. The two incidentally had
participated in the JSC when it chose the seven-Judge Supreme Court Bench, after
President Nasheed and his Government insisted on the Executive having its say in
the matter.
Advocate-General Azima Shakoor opined that given
the sensitivity of the issues involved, Gasim Ibrahim could have kept out the
selection of the judges trying President Nasheed. She however clarified that the
Constitution having provided for Parliament to nominate a member to the JSC, it
was neither illegal, nor unconstitutional on Gasim's part to have participated
in the selection process.
One too many?
Larger questions remain. For starters, for a
country of its size and population, the 2008 Constitution provides for one too
many 'Independent Institutions' aimed at overseeing the functioning of various
arms of the Government. The JSC is only one of them. The idea of having a
Parliament's nominee on the JSC was a creation of the new Constitution. So were
so many committees of Parliament, tasked to oversee the functioning of the
Government and its arms.
Whether intended or not, some of these committees
and some of these Independent Commissions have assumed 'sky-high powers'. Their
disposition has been as much political as they could have been expected to be at
birth. On occasions, their positions have changed with the changes in the
political scenario and equations. These are inevitable consequences of
democracy, particularly when politicians are consciously made part of the
process where they are expected to be insulated from the rough and tumble of
politics outside.
The problem with the Maldivian scheme, if any,
owes to the political perception that underlay the thinking of various
stake-holders at the time they comprised the Special Majlis to
draft a new Constitution. With President Maumoon Gayoom on the defensive after
30 long years of unbroken rule, the co-sponsors of various constitutional
provisions aimed at checking another 'autocrat' in power. This included a
possible return of President Gayoom through what was being planned to be a
'multi-party democracy'.
Given the over-arching run-up to the presidential
polls, followed by Parliament elections next year, the time may not be just
right or ripe for a review of the working of the constitutional scheme, that too
with an open mind. Yet, with multi-party democracy taking deep and permanent
roots in the country, and the emergence of an anticipated autocracy ruled out
mostly, it may already be time for the new Government and new Parliament to set
in motion an open-ended process aimed at addressing some of the present
concerns, gained out of the working experience of the five years that have gone
by.
Any final judicial verdict in the 'Judge Abdulla'
case, impacting on President Nasheed's candidacy one way or the other, has
consequences for the nation and the constitutional scheme as a whole. That would
just be the beginning of a new beginning - and not necessarily the end of
anything gone-by. Any process of the kind could serve its purpose if the
political stake-holders look not at the immediate present alone but at the
wholesome future, where they will be remembered not for what they ought to have
been, but did not - but for what they actually proved to be.
(The writer is a Senior
Fellow at Observer Research Foundation)
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