Judiciary has failed to keep up with parliament and the executive, says Attorney General

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.”


8 thoughts on “Judiciary has failed to keep up with parliament and the executive, says Attorney General”

  1. If all this works properly ONLY FEW WILL survive. seems to be NO one IS following laws,rules and regulation.They all will be guilty if it starts to work properly.MEANS NO GOVERNMENT,NO COURTS AND NO OPPOSITION PARTIES WILL EXIST.Its the present Maldives.Most the of individuals are trying to take the advantage of their job or duty.
    The only way is to find professionals for the job.Feels bad to be a Maldivian now.Most of the people at high raking jobs in the Maldives are uneducated, unprofessional and without any experience of the field.
    If someone is with a degree or PhD it does not mean they have ability to manage and do the job accordingly.This is what we see in this country today.Too many mouths to talk without proper knowledge and understanding of what they talk and do.We need to appoint capable people with full experience for all high ranking levels.We need to work for this nation by keeping party spirit on one side.Im looking and waiting it to happen in this small country.To reach the common goals for all of us.When we travel around those developed nation i feel that how hard their forefathers has worked for the nation to build it and reach it to the level that we see today.If we show that spirit then only our next generation can have brighter and better future in the Maldives.if not we suffer and the generations to come will suffer as well.Where is our mission and vision.
    I urge all Maldivians to get together and work together for the nation.Please do not divide the community and individuals.Lets work to erase corruptions and all the other bad habits that we are facing now.Take all those people to justice and do punish them for what they did.This can only be possible through independent judiciary system. May Allah bless us all.

  2. Maldivians expect their judiciary to do their duty to defend and promote the democracy that we won for ourselves in 2008. At the moment, I am not at all proud of the Maldivian judiciary.

  3. JSC has continuously displayed ignorance, arrogance, and an adversarial attitude towards anyone, group or institution that has questioned its’ competency. Today, the deception of JSC has become a very public secret, and a matter of embarrassment.

    Minivan News readers would recall the case of Treasure Island vs JSC which came to an abrupt close with its’ dismissal on a technicality at a point when it was impossible to ignore JSCs attempts to mislead the Court. Did the judge not dare rule against JSC? The matter is complicated when it is understood that the judge sitting over the case against JSC was herself seeking the approval of JSC to go on the High Court bench.

    Most recently, the leaked audios of JSC Vice Chair, Sheikh and Politician Dr. Afrasheem Ali and some JSC members conspiring to fool the Supreme Court with a doctored Resolution giving themselves the power to “defend JSC” in Supreme Court, has raised further concerns.

    All hearings on the High Court appointments case were over and a verdict due in days, if not hours, when JSCs far-fetched attempts to mislead the Supreme Court became public. Two weeks since, the matter is pending in Supreme Court with no decision.

    Finally, the International Commission of Jurists has been added to JSCs list of “Enemies of Justice” for raising concerns over JSC's internal governance issues and lack of democratic reform.

    JSC's reaction has been a complete lock-up of JSC, barring access to members, and granting absolute powers to the Chair in another carefully manipulated meeting.

    Justice will not be served by dishonest men.

  4. We, the people of this beautiful island country calls upon the Majlis Members to pass all the Bills in the Majlis that belongs to the Judiciary or Courts.

    We also call upon the Majlis to make our Judicial Service Commission (JSC) as per ICJ recommendations so that we have a world-class JSC (now we have a JSC that is working for our Businessmen and for the Notorious figures of the 30 year old DICTATORSHIP.

    We call upon the relevant authority to set up an Academy for Judges training without any further delay.

    We call the Head of State to look into the issues like the Dollar crisis...those authorities or businessmen selling dollars in the black-market and the Murder cases....those Murder suspects and Drug Dealing suspects coming back to the society due to the poor Judicial administration and so on...

    Head of State, AG, the Chief Justice and the Head of Parliament must not watch and see when the country is moving towards a BLOODBATH and majority of the people migrating to the neighboring countries as they cannot tolerate any more

  5. DR. Sawd the Attorney General is a member of Judicial Service Commission (JSC). So what is he talking about. Who is he making responsible to what he is saying.

  6. @Ahmed
    Sawad is not the only one in JSC. Majority rules and obviously Sawad is asking for accountability for the actions and decisions made by JSC. Sawad and Vel together doesnt have the majority to make the right decisions.
    So he is asking the rest of the members to take responsibility for their actions stupid!

  7. @Ahmed. He wants the others (too) like him to be self critical of the JSC. May be you can start with the people your boss Yaammenu has planted there like Fahumy and Afrasheem

  8. The Faculty of Shari'ah & Law (FSL) served as a judicial training academy in the past as it does now to a certain extent. It can be strengthened further with a bit of effort in order to make it a functional institute of learning. However, at present, there are a host of issues plaguing FSL which is now a school of the Maldives National University (MNU). Some of the issues mentioned are;

    - Lack of technical expertise in the planning of the only degree course offered (LLB).

    - Lack of administrative efficiency resulting in unnecessary tensions between students, both enrolled and prospective.

    - Limited resources overall. A dearth of qualified lecturers which decreases the quality of teaching. The lack of extensive literature on the subject.

    - Contradictions between the medium of instruction and the requisite study of Arabic as a second language. Common law subjects are exclusively taught in English (as it should be due to the available literature) while Shari'ah is taught in Divehi (which limits access to texts and materials). Arabic is a requisite part of the course while at no point in the course is it applied.

    - Lack of options of study. Students are burdened with both Shari'ah & common law while the legal field provides work which requires no skills in either of the subjects.

    - Lack of professionalism with respect to complaints procedures.

    - Strict disciplinarian attitudes which creates an atmosphere which is not conducive to the necessary intellectual freedom.

    - A focus on spoon-fed learning rather than critical engagement.

    The list goes on....


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