The Judicial Services Commission (JSC), the body entrusted to vet and regulate the conduct of judges in the Maldives, has failed to match the government and parliament over the last two years in operating within a constitutionally defined role, Attorney General Dr Ahmed Ali Sawad has claimed.
The claims follow the publication this week of a report by the International Commission of Jurists (ICJ) that was critical of both political interference in the judiciary by government and opposition groups, and critical of the JSC’s ability to “carry out its functions” in ensuring judges were both impartial and capable of performing their duties.
Along with outlining recommendations for the executive, the Majlis and legal bodies like the JSC to follow in order to better ensure a judiciary independent from government and opposition influence, the ICJ’s Director of Asia Pacific Operations, Roger Normand, suggested a lot of work lay ahead.
Accepting that positive developments had been made within its courts since the Maldives became a democracy, concerns remained over a number of issues, Normand said. Having spoken to stakeholders across the country’s legal system, “ordinary” Maldivians did not look to their courts for justice or to solve problems, he suggested.
The report criticised the conduct of the government during a period of crisis last year; where the government locked shut the Supreme Court questioning its legitimacy on conclusion of the interim period. The report was also critical of the JSC’s decision-making, which was perceived as being inappropriately politically influenced.
Sawad said that he welcomed the observations by the ICJ in regards to recommendations for improving efficiency in the JSC and judicial administration, but added that ultimately, all stakeholders working within the Maldivian court system were under pressure to step up accountability.
“I think there is a lot to be done by the JSC in terms of enhancing the standard of the judiciary,” the attorney general told Minivan News. “I think there is a need to inwardly look into the judiciary and all agencies related to it. That is the judicial administration, the judicial council, the JSC, the Attorney General’s Office, the Supreme Court and the High Court – it’s time they work together in bringing about perceived standards required of the judiciary in the constitution.”
Sawad said that he believed that as a judicial watchdog, the JSC had at times tended to act defensively instead of self-critically, particularly when reviewing the constitutional role it was assigned within the constitution to appoint judges and protect independence in the judiciary.
In order to try and ensure it was able to meet these roles efficiently, the attorney general suggested that it may be appropriate to have the Majlis consider reviewing the role of the JSC during the last year and a half to determine if it was functional.
However, Sawad claimed that no single entity alone should shoulder the blame in terms of perceived issues with independence in the judiciary. He added that during a seven year period allotted for education and improvement under the Judges Act, education was a key to ensuring effective changes and developments in ensuring confidence within the legal system.
“When I look at the crucial actors in this, I feel the JSC has a crucial role to play. I feel the judicial administration have a crucial role to play and I feel there is a missing link in the form of a judicial training academy,” he said. “We cannot burden the Supreme Court or the High Court of with continuously setting the standards of measure for the rest of the judiciary day-on-day.”
Ultimately, Sawad said that as one of three distinct branches of the state along with the government and the Majlis, the judiciary was required to meet the same levels of accountability as part of its independence – making the role of the JSC essential.
“What we have [under the constitution] is an accountable government and an independent judiciary,” he said. “But independence is a perception made by the people who are the beneficiaries – in this case the public. If the people do not perceive that level of independence then there is a problem.”
Sawad stressed that the perception of independent courts within the country were especially important in defining the difference between the judiciary before and after 2008, when the Maldivian Democratic Party (MDP) came to power on the promise of trying to bring more political accountability.
“Pre-2008, people knew that the judiciary was part of the executive,” he said. “Post-2008, the people need to know the judiciary is independent.”
Government criticism
Along with concerns over the impartiality of the judicial system in the Maldives, the ICJ was also critical of the handling by the government of what it called a “constitutional crisis” last year over the legitimacy of the courts and the arrest of some prominent opposition figures.
In addressing these concerns and whether the actions of the government were a setback to the democratic mandate it promised, Dr Sawad said it was unacceptable under the constitution for any branch of the state to have jurisdiction over another, whether in the case of the executive over the judiciary, or the Majlis over the executive.
The attorney general claimed that ultimately, a “culture of respect” needed to be created by different branches of the state and government that would allow these different groups to work under the mandates they were assigned.
“That is a constitutional convention that needs to be dealt with. We haven’t had that in the past,” he said. “It’s just over two years since 2008. Now a convention takes a little more than two years, but it must nevertheless be started. The commencement of that respect agenda, that’s what needs to happen.”
Sawad said that he was generally encouraged by findings in the report, which he suggested were “timely” in light of political tensions across the nation, though may have been better served if it had been released a year earlier to grant more room for maneuver (prior to the end of the interim period).
However, the attorney general claimed to be cautiously optimistic that the report would provide guidance to “tweak” the problems that had been experienced in trying to establish courts independent of political and commercial manipulation.
“When you look back at what has happened, it has been a tumultuous two years where the three branches of the state have been morphing into their own jurisdiction perimeters – there have been teething issues, but I think two years is long enough to learn respect,” he said. “I am more optimistic about the future, I think we have a permanent judiciary now and the role of the judiciary is very clear.”
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