Originally Published 2013-06-06 00:00:00 Published on Jun 06, 2013
In Maldives, legal and judicial process may be in for another season of controversies, ahead of the presidential polls in September. It is also in transition, from a not-so-democratic past to a democratised future. It is too early to say which way it would go.
Maldives: Judiciary in 'crisis' or 'transition'?
With the Judicial Services Commission (JSC) ordering the indefinite suspension of High Court Chief Justice Ahmed Shareef on May 30, 2013, Maldives may be in for another season of controversies involving the judiciary, ahead of the presidential polls in September. The suspension comes at a time when a UN body has reported to the UN Human Rights Council that the judiciary in the country is in the midst of a 'crisis', which none seems to deny nearer home.

According to Sun Online, "the suspension comes at a time when the JSC is investigating complaints against the chief judge submitted to the commission about a year ago by a number of judges from the High Court. The JSC has also collected Judge Shareef's statement regarding the matter". According to other media reports, the issue related to Justice Shareef meeting with officials of the Malaysian company, Nexbis, after the Government of President Mohammed Waheed Hassan Manik cancelled the multi-million border-control system contract, awarded by the predecessor administration. Nexbis had challenged the contract-cancellation in the Maldivian courts.

More recently, all brother-Judges of the Chief Justice had complained to the JSC that he had unilaterally suspended the criminal case hearing against former President Mohammed Nasheed in the suburban Hulhumale trial court, pending disposal of his petition in the matter. Nasheed had challenged the constitution of the trial court, and the High Court order came, according to reports, when the nation's Supreme Court was already seized of the matter. The Chief Justice, it was said, had not taken any of the brother-Judges into confidence, nor had he constituted a Bench comprising more than one Judge (that was himself) to hear Nasheed's petition.

On the day the JSC acted against Chief Justice Shareef, the High Court also cancelled the hearing on the petition filed by President Nasheed, scheduled for the day, after one of the presiding Judges reportedly had to take a day's leave. The Nasheed trial itself flows from the charge of illegal detention of Criminal Court Chief Judge Abdulla Mohammed on January 16, 2012, when the former was President. At the time, Nasheed's Maldivian Democratic Party (MDP) had referred to pending probe reports and Supreme Court orders to defend his Government's action in the matter.

Incidentally, Judge Abdulla's arrest and allegations of solitary confinement had galvanised an already protesting political Opposition of the day into taking up his cause in a larger context, all culminating in President Nasheed's exit from office on February 7, 2012. However, days before that occurred, President Nasheed had ordered the release of Judge Abdulla Mohammed, who returned to office without much loss of time. A jurisdictional matter involving the constitution of a suburban court in Hulhumale', as Chief Judge Abdulla had to recuse himself from hearing the Nasheed case, also came in for judicial consideration.

'Intimidation' and 'obstruction'

In the present instance, the JSC faced public protests by MDP cadres a week ago, after it began inquiring into the year-old complaints against Chief Justice Shareef. The Minivan News reported that the "party marched on the streets of Male to protest against JSC Chair and Supreme Court Justice Adam Mohamed Abdulla's alleged attempts to unduly influence" the Nasheed trial. The JSC, in a Press statement, dubbed the protest as an "obstruction" of the commission's "legal and constitutional responsibilities".

The MDP said that the JSC move against Chief Justice Shareef "amounted to intimidation of judges and undue influence on judicial processes", the Minivan News reported.

According to the news site, the party called upon the JSC to cease its "dirty and cowardly" efforts as the Commission was the adverse party or respondent in the High Court case. As the MDP pointed out, the JSC had contested the High Court's jurisdiction in determining the legality of the trial court against Nasheed, as the matter was pending before the Supreme Court.

In an obvious response to the MDP's protest, the JSC statement noted that the Constitution and Judicial Service Commission Act of 2008 mandated the Commission to investigate complaints against judges and enforce disciplinary measures. There were "no legal or constitutional grounds" to interpret the Commission's work as intimidation or exerting undue influence on judges, Minivan News quoted the JSC as saying. The JSC statement concluded by calling upon all parties to "not commit any act or participate in any activity that could obstruct the constitutional and legal responsibilities and duties of the commission", the media report said further.

One too many?

The JSC is one of the 'Independent Institutions' created under the pro-reforms 2008 Constitution. This came after an overzealous Special Majlis' tasked to draft the new Statute in the light of the existing politico-administrative dispensation under then President Maumoon Abdul Gayoom, saw them all as a part of the intended process of 'accountability'.

However, the JSC members being either political nominees or politicians -Parliament Speaker and an MP-nominee of the House among them -it has not been bereft of controversies, as has been the case with most other 'Independent Institutions'.

The JSC's image suffered further after the Governance Oversight Committee of Parliament, controlled by the MDP, summoned all three Judges chosen by the Commission to try President Nasheed at the Hulhumale' court. The three judges did not honour Majlis' summons, citing independence of the Judiciary as among the reasons. The House panel would not relent on the issue of the supremacy of the people, as represented by Parliament, outlined often by Speaker Abdulla Shaheed. The Supreme Court and the JSC stood by the position taken by the three trial judges.

An occasional clash between the Judiciary and the Legislature and/or the Judiciary and the Executive is not alien to emerging or existing democracies. Maldives' should not have been an exception but for the current controversy flowing from the Nasheed trial, that too ahead of the presidential polls in September. If convicted and sentenced to a prison term exceeding one year, Nasheed will be disqualified from contesting elections. The MDP has reiterated many a time that the party, with the single largest membership, both inside and outside Parliament, and visibly agitated cadres, would not participate in the presidential polls if Nasheed was disqualified from contesting.

International political and public opinion is also seem veering round to the view that all candidates wanting to contest the presidential polls should be afforded an opportunity to prove their popular acceptance -or, lack of it. This owes to perceptions that democracy in Maldives is still toddling, and nothing should be done to cause any reversal. The Indian neighbour too holds the same view, but New Delhi's involvement in the matter stops there. New Delhi also made its position clear after Nasheed, only hours before his having to appear before the trial court, staged a dramatic, unilateral stay-in at the Indian High Commission in Male. He had to vacate the High Commission after India took a serious view of the matter even while discouraging Maldivian authorities from entering the premises -as that too would have set a wrong precedent.

The JSC has named a sitting High Court Judge to act as the CJ. It has clarified that Justice Shareef would be entitled to his pay during the suspension. The High Court, for its part, has since posted the 'Nasheed petition' for hearing in July. The MDP was visibly agitated at the last-minute cancellation, which however was reportedly caused by a Judge having to take leave at the last-minute. As the party pointed out, Nasheed has been campaigning for the presidential polls across the country, and cancellation of hearing in the case could jeopardise his plans, as well. The party welcomed the July adjournment, as it would still give him adequate time for planning his campaign, and presence in the court, as well. Incidentally, such delayed hearing of the case could lead to a situation when the 'Judge Abdulla arrest case' may not be taken up by the trial court before the Election Commission notified the September polls for the presidency, by July 15, as expected.

'Significant backlog'

As coincidence would have it, the JSC action against Chief Justice Shareef comes not long after Gabriela Knaul, the UN Special Rapporteur on Independence of Judges and Lawyers, found a "significant backlog of complaints with the Judicial Service Commission that are not dealt with or at least are perceived as not being dealt with. Some judges that have several complaints and cases for misconduct against them are still sitting". In her recent report to the UN Human Rights Council after a week-long stay in Maldives in February, she quoted 'several judges' and said that "disciplinary procedures before the Commission lead to public humiliation and damages to their reputation" and that "the principle of presumption of innocence is not respected".

In this context, Knaul sought "appropriate measures to enforce the code of conduct of judges in a transparent and consistent manner, with full respect for the fundamental guarantees of fair hearing and bearing in mind the importance of the reputation of judges and magistrates". Critics nearer home, however, point out that Knaul's report does not refer to the 'public humiliation and damage to the reputation' of Criminal Court Chief Judge Abdulla Mohammed when the erstwhile Nasheed Government ordered his arrest and solitary confinement in an island. There is, however, no reference in such criticism to the preceding probes into Judge Abdulla Mohammed's conduct, including an Attorney-General's submissions before the Supreme Court, and the latter's observations.

At the centre of it all

Independent of the JSC action against Chief Justice Shareef and the UN Special Rapporteur's observations and recommendations, the Maldivian judiciary is in the thick of the unfolding political drama attending on the upcoming presidential polls in particular. A conviction for President Nasheed, with a sentence running beyond one year in the 'Judge Abdulla detention case', has the potential to deny him the chance to contest the elections, with its nation-wide fallout. The law also provides for fines, as an alternative to imprisonment. There is no legal prohibition for Nasheed to contest, if he is convicted and is let off with a fine, and not imprisonment.

For all it is worth, the Election Commission in Maldives will be bound not by national sentiments, or international opinion. It is bound only by the local court orders in the matter. The situation will become clear when the Election Commission expectedly comes up with the official notification for the presidential polls by mid-July. It is unclear if the Commission would be bound by any court order after the poll notification had been issued. It is even more unclear if any higher judiciary's stay of a trial court order of conviction would be confined only to the sentence or would extend to the conviction part as well. For his part, Nasheed is on record that he was ready to stand trial after the presidential polls were over, but critics point out that if elected, he would enjoy constitutional immunity in the matter.

For now, the Maldivian Supreme Court is seized of the Nasheed trial matter. The court has also taken over a case filed by dismissed Human Rights Minister Dhiyana Saeed, pending before the civil court, seeking a ruling that the transfer of power on February 7, 2012 was 'illegitimate'. The Apex Court order followed an Attorney-General's submission, for a clarification on the civil court's jurisdiction in the matter. According to the AG's office, the subordinate court under the Maldivian scheme did not have the authority to decide on constitutional matters that the case entailed. It is so in most democracies.

A former Attorney-General under President Nasheed, who had also named her the SAARC Secretary-General before she made a to-and-fro political move through the first part of 2012, Dhiyana Saeed had submitted her petition initially to the High Court, which ruled it did not have the jurisdiction in the matter. She then moved the lower court, which however proceeded to hear the case, against the AG's office submissions. The Supreme Court's present order thus halts the proceedings before the civil court. Proceedings and subsequent findings of the Supreme Court are now awaited.

Independent of the Dhiyana Saeed's case and others possibly of the kind, UN Rapporteur Knaul has reported that it was "troublesome that some of the Supreme Court's interventions are perceived as arbitrary and as serving the judges' own personal interests". The Knaul report also claims that the "Supreme Court is said to have taken away cases directly from the superior courts before they were adjudicated, without explaining which criteria or procedures were applied".

As may be recalled, political parties in the country have been agitating for judicial reforms and reforms in the nation's judiciary as part of the pro-democracy protests, preceding the 2008 Constitution. The MDP in particular continued to agitate, and be agitated over the issue even after President Nasheed assumed office. With the Constitution providing two years for Parliament to pass enabling legislation on judicial matters, the Nasheed Government ordered the nation's defence forces, MNDF, to shut down the Supreme Court (which stopped with a day) to resolve what essentially became a political issue on the constitution of a new JSC, and the consequent nominations to the SC Bench.

The Government did not relent until it had its way in the choice of the new Chief Justice. The deadlock yet provided an occasion for the political parties that were either openly or otherwise involved in the process to arrive at a consensus, through negotiations and mutual accommodation of a desperate kind, if only to save the situation -and the nation, thus. In a significant observation, Chief Justice Ahmed Faiz Hussain, the nominee of the Nasheed Government, declared as recently as March 2013 that the "Supreme Court would prevail as long as Maldives remained a democracy" -and with that clearly charting out a future course for the nation.

Today, legal and judicial process in Maldives are as much in transition, from a not-so-democratic past to a democratised future, as it is in the midst of a crisis. It is too early to say which way it would go, but the presidential elections this year and the parliamentary polls in May next are expected to throw some light. At the time, the question thankfully is not about the future of democratisation of the legal and judicial processes in the country, but with the judicial processes that Maldives should follow in a democracy -including the question if the Executive or the Legislature should have unfettered freedom to interfere in the judicial processes just as there may a need to codify through law or court orders, how some of the existing procedures need to be modified and/or regulated.

(The writer is a Senior Fellow at Observer Research Foundation)

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