Comment: Seeking to put the judiciary in a spot

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 has 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 the 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, the presidential model of which the 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 the 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 seem 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-member 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. The 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 the 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.

Attorney 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 the Observer Research Foundation

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