Comment: Institutions crying for reforms faster than expected?

With Maldives Supreme Court serving a ‘contempt of court’ notice on all four remaining members of the nation’s Election Commission (one had quit closer to the presidential polls last year), a case can be for a review of the statutory provision pertaining to the rights, powers, and responsibilities of what in constitutional nomenclature has come to be termed as ‘independent institutions’.

While such a need has been acutely felt over the five-year infancy of the 2008 constitution that ushered in multi-party democracy, increasing differences and purported diffidence involving the Supreme Court and the Elections Commission (EC) have made a case for a review without further delay.

For a nation of its size, population, and requirements of ‘good governance’, the Maldives may have saddled itself with more ‘independent institutions’ than may have been required. In a politically-polarised society, where the presidential polls late last year witnessed a turnout of 91.41 percent and a narrow victory-margin in the second round, it is hard to claim that every member manning these constitutional institutions is ‘independent’.

Even while ‘independent institutions’ and their individual members may be impartial, it has not been uncommon for political players to make sweeping charges of partisanship, at times reiterated ad infinitum without substantive evidence. Given the small population (350,000) and the thin density/spread outside of two or three ‘urban centres’, the advent of private television news and social media have not contributed to a healthy discourse on politics and public administration.

Some of the legitimate concerns of the nation’s polity at the time of constitution-making were based on the societal desire – particularly of the new IT-era generation – to usher in ‘good governance’ as understood in industrialised and democratised nations. ‘Accountability’ thus became the watch-word for the Special Majlis entrusted with the task of statute-making.

In turn, most, if not all members of the Special Majlis were also under watch for their past deeds, either as administrators, or parliamentarians – or both – under then-incumbent President Maumoon Abdul Gayoom.

Final arbiter, or law-maker too?

The current urgency for fast-tracking a possible review of ‘independent institutions’ flows from the Supreme Court’s notice to EC members for contempt of court. In doing so, five of the seven Supreme Court judges, constituting a bench under Chief Justice Ahmed Hussain Faiz, have noted that EC members had been making comments “in various forums on the court’s decisions and orders that are contemptuous of the court”.

As the court reportedly told the EC counsel in the first hearing of the case on 12 February, the commission had in a way defied the judicial pronouncement for restoring the registration of ‘small parties’ with 3,000 registered members and less after the EC had de-registered eight of them, based on a parliamentary amendment that pushed up the figure to 10,000.

Law and practice in the country is clear on this count – that the Supreme Court is the ‘final arbiter’ of the constitution and laws made by parliament and its interpretations and orders on this count have to be acknowledged and acted upon. To that extent the EC may have erred, even if it were to hold that it was only enforcing a law (or, an amendment in this case) passed by Parliament. For the EC (and/or its members) to argue otherwise could frustrate the ‘constitutional scheme’ and democratic traditions.

In this case, however, the issue does not stop there. While hauling up the EC members for ‘contempt’, the Supreme Court has purportedly drawn its powers from a unilateral regulation that it had passed only days earlier. According to Minivan News, the “new regulations, titled ‘Suo Moto’ and publicised on 6 February, allow the Supreme Court to initiate trials against any organisation or individual”. It says that the “defendants must be allowed the right to defend themselves” and adds that the Supreme Court “must refer to how free and democratic countries act in such cases, in a manner that does not contradict the Constitution of the Maldives”.

Under the regulation, the full seven-judge bench of the court should hear such petitions, “unless the Supreme Court decides otherwise”. It is not clear at this stage if this is an administrative decision, to be handled by the chief justice on his own, or a judicial procedure, wherein the opinion, if not presence of all seven Judges should be sought for the chief justice to implement the majority-decision. It is also unclear why only five of the seven judges were present at the first hearing of the case.

Other questions remain. Firstly, can the court seek to punish individual members of the EC, for a ‘collective decision’ of the commission as an ‘independent institution’ under the constitution. If so, what if the court were to initiate contempt proceedings after some or all individuals had ceased to be members of the EC?

In the reverse, is there any provision for the court to ‘penalise’ a constitutional body like the EC for contempt, other than by ensuring that its judicial pronouncements are meant to be acted upon, not contested through word or deed? Where there is a conflict of positions, the court could at best seek the intervention of either the executive or the legislature, or both, to set right matters and ensure that judicial orders are enforced, in letter and spirit.

In this context, the contending parties should now acknowledge that for democratic institutions to function properly and democracy to take roots in the country, there is the urgent need for individuals and others to follow the diktats of the ‘final arbiter’ that is the Supreme Court. In a situation where the legislature were to re-enact a law that had been thrown out by the judiciary, and the executive were to assent to the same, then a constitutional deadlock would arise, with no solution possible.

Secondly, and more importantly, by empowering itself through the mechanism of ‘Suo Moto’ regulations on initiating contempt proceedings, has the court aquired for itself law-making powers, which otherwise rest exclusively with the legislature? It is more accepted for the judges to take it up with the legislature, through the good offices of the executive or the attorney general, or for parliament to legislate on contempt of court.

It is also conceivable that, while pronouncing on a piece of legislation passed by the legislature, the Supreme Court’s orders could create a new or an amended law, which may remain in force until the legislature intervenes appropriately at appropriate times. It is entirely another thing for the courts to initiate procedural regulations of the present kind, particularly when the judiciary is also a party to the legal proceedings – as the plaintiff in this case.

At least Minivan News’ reporting of the Supreme Court’s regulation does not provide for examination or evidence and documents, or cross-examination. It is not as if courts elsewhere have not initiated contempt proceedings, Suo Moto, but in most –  if not all such cases – the law for the purpose had been made by the legislature and given assent by the executive.

In some cases, either the government’s top law officer, namely the AG has been granted such powers to move a ‘contempt of court’ petition of a general or specific nature (the latter flowing from a judicial order, not enforced either by an individual or the government). In the none-too-distant past, the Supreme Court had not shown any aversion to communicating directly with the legislature, though at the latter’s initiative, though it had directed trial court judges not to appear before parliamentary committees (as it may have interfered with their judicial functions on hand, and thus be seen as ‘influencing’).

In the normal course, parliament – now in recess – is not expected to get into the act of law-making. Nor is it feasible for any legislature, new or old, to wrap up larger issues of the kind overnight. The problems regarding ‘independent institutions’ are not confined to the Supreme Court and the Election Commission.

There is an urgent and unavoidable need for a free and frank national discourse on various institutions, including the presidency and parliament, judiciary and other ‘independent institutions’, of which the EC is only one of many. In the process, there may also be a need to review the greater relevance of some institutions, and the merger of a few others, at least in the interim, to avoid/minimise duplicity of responsibilities and/or to cut down governmental costs.

For now, on the submission of the EC lawyer, the Supreme Court has adjourned the hearing of the contempt case, without assigning a new date for the next hearing, to facilitate the EC members to study the papers. It is unclear why the court could not have waited until after the parliamentary polls, as it could have helped avoid charges of the kind now being made by Nasheed and other MDP leaders.

In the interim, all institutions of the Maldivian state should consider other institutions – similar creatures of the very same constitution – as equals. For instance, the Supreme Court and the EC have specific roles, functions, and powers under the constitution. They need to constantly remind themselves that, like all other arms of the government and the creations of the constitution, they also serve and constitution. They must provide enough space for one another, and thrash out the differences and difficulties as a part of the collective nation-building exercise, which is still incomplete.

The writer is a Senior Fellow at the Observer Research Foundation

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