Comment: Institution building in the Maldives

Former President Mohammed Nasheed was on a six-day-long visit to India, pressing his case for early elections and reiterating his position on the need for reforming the nation’s ‘independent institutions’.

During his three years in office, cut short from the mandated five following his sudden resignation on February 7, and later, too, he has laid a great stress on the need for reforming the Judiciary, Election Commission, Human Rights Commission and also the legislative aspect of the People’s Majlis or Parliament.

His detractors, now in power, are using the same arguments of his to try and deny him the early presidential polls that Nasheed and his Maldivian Democratic Party (MDP) have been demanding since his resignation. President Waheed Hassan and his multi-party coalition Government say that they needed to ’empower’, not ‘reform’ independent institutions, and enact laws to check against ‘Executive interference’ as happened under the Nasheed regime.

The MDP has never hidden its reservations about working with judges and members of independent commissions, once appointed by then entrenched President Maumoon Gayoom. It wanted them removed, and critics say that the party and the Nasheed government ‘invented’ reasons to paint the entire lot of government employees black. Critics also say that the MDP perception was based on the anti-Gayoom mood of the nation’s people and voters when Nasheed won the presidential polls, again as a part of an informal coalition ahead of the second, run-off round in October 2008. The party refused to acknowledge that three years down the line and less than two years to presidential polls, Nasheed, not Gayoom, would be the electoral issue and sought to keep the electoral focus still on the latter.

There is some truth in the political argument of both sides. There is however a need to revisit the MDP-offered specifics dispassionately, for the nation to arrive at a consensus on capacity-building at all levels of governance. It can start at the top-most, where in the absence of established norms and democratic precedents, whims of every kind, have passed for executive discretion. Given that the President has always been chosen in a direct election, whether multi-party or not, there was greater respect for the institution.

This translated into excessive loyalty for the person of the President, and a blind adherence to the policies initiated in his name. This did not find much change under the MDP, too. Familiarity with the forgettable past led to status quoism, though of a different kind, and breaching the comfort zone became difficult after a point.

Appealing to the youth

In their time, both President Gayoom and President Nasheed were in their early 40s when they assumed office. They appealed to the youth of the day, addressed their immediate concerns and quenched their aspirations, however limited their efforts were by Maldivian circumstances and economy. They sounded genuine and were readily accepted as the man for the time.

In his early days as President, Gayoom focussed on education and employment, the former by opening schools in atolls and islands across the country and the latter by promoting resort tourism, an imaginative economic initiative, taking Maldives beyond the limitations imposed by fishing on both counts. All of these efforts stood in the name of Gayoom’s predecessor, the late Prime Minister Ibrahim Nasir, who did not stay on in power for long. Yet, to President Gayoom should go the twin-credits of not discontinuing the good work done by his predecessor, a common trait otherwise across South Asia, and also building on the same.

Ironically, educational opportunities, though only up to the Cambridge A-Level, also meant that Maldivian youth would not be satisfied with the status or lack of it attaching to resort jobs. The salaries were also low compared to what was on offer in the government. Lest they should go astray in a nation that was already concerned about increasing incidence of drug-addition in the lower age-groups, and lest he too should lose the emerging rank of youthful voters ahead of the first multi-party presidential polls of 2008, the Gayoom leadership appointed more government employees than may have been justified, adding up to 10 per cent of the nation’s 350,000 population.

The trend has continued in a way, though the Nasheed presidency scrapped 20 per cent of all Government jobs through a voluntary retirement scheme (VRS), as a part of the IMF-guided economic reforms, but created more for political appointees, though elections after intervening ad hocism. The Gayoom leadership could not grow with its beneficiaries in terms of thinking for the new generation of youth, born to governmental largesse or social benefit that was new and welcome to an earlier one.

The inevitable stagnation attaching to entrenched leaderships, whose communication with the governed often gets stifled owing to a personality-driven administration and the inevitable sycophancy in the existing climate proved to be the electoral bane of President Gayoom. The cry for human rights and multi-party democracy were all products of a new generation approach to issues in a new era where global communication and exposure had become relatively easy and equally resolvant.

The successor-government has since alleged that the Nasheed administration created a multiplicity of government corporations and a plethora of elected provincial councillors, under a privatisation and decentralisation scheme. The former owed to IMF reforms, and the latter was flagged as an achievement of democracy and constitutional reforms. The elected councillors took the place of island-councillors, nominated in President Gayoom’s time.

Government officials now claim that the new scheme provided for salaries for elected members and board members of public corporation, denting the exchequer much more than what the job and salary-cuts saved. In President Gayoom’s time, as some recall, even parliamentarians held only a part-time job, their sources of income coming either from the government jobs they held, or the businesses they were associated with.

The 20 percent cut in salaries and jobs introduced by the Nasheed presidency also meant that the government was at logger-heads with the constitutionally-mandated Civil Services Commission (CSC). Creation of nominated provincial and island councillors ahead of election to these bodies in March 2011, replacing those nominated by President Gayoom under an atolls-based scheme instead, critics argued, was aimed at circumventing the existing processes, including the role of the CSC in Government recruitments, appointments and transfers. Under the nominated scheme, followed by elections later, the Nasheed leadership, it was argued, had brought in MDP cadres in the place of Gayoom loyalists at all levels.

In a way, it was a clash of interest between the entrenched Gayoom-appointees and the new-found power at the hands of youthful MDP cadres that was said to be at the bottom of the crises that successively rocked the Nasheed Government. When a promotion-level appointment of Deputy Ministers in individual departments under the earlier dispensation was ‘compromised’ through political nominations under the Nasheed leadership, non-partisan observers in Maldives claimed that the Government and its Ministers, inexperienced and unexposed as many of them were, might not have been able to extract the right inputs and advice from the permanent civil service as would have been the case otherwise.

Otherwise, too, the Nasheed leadership, in a hurry to fast-track reforms much of which was required, rather than learning to work with and within the system, and on it, chose to work against the system. Near-wholesale change of officials at all levels as was being hinted was not on, but that was what the proposed course ended up being seen as. Worse still, unbiased observers in Maldives saw the replacement of Gayoom loyalists, whose other qualification at the lower-levels of islands-administration in particular could not be questioned, being replaced by MDP foot-soldiers. The legitimisation of the process through the decentralisation scheme in particular did not go down well. With the result, even the well-meaning measures of the Nasheed Government on governance reforms, by addressing specific cases involving top people in various institutions, came to be viewed with a jaundiced eye.

Capacity-building in judiciary

The story was no different in the case of the judiciary. In a country where quality education means and stops with the A-Level, equivalent to Plus-Two in India, there could not have been many with legal qualification and background to prefer the Bench to the bar. At one stage during the Executive-Judiciary deadlock in 2010, it was pointed out that of the 170-plus judges across the country, only 30 or so had undergone legal education in the modern sense. The rest, the government of the day merrily argued, had not passed even the eighth grade in some cases. The Gayoom camp, which had to accept responsibility, would point out that many of them were well-versed in the Shariat. Thereby hangs a tale, still.

In a way, no one contests that the provocation for the police protests – though there are different opinions about calling it a coup or mutiny – flowed from the arrest of Criminal Court Chief Judge, Abdulla Mohamed. The armed forces, namely the Maldivian National Defence Force (MNDF), arrested him on January 16, after the police chief wrote to the latter that the judge was a threat to national security. Critics argue that there was a flaw in institutional responsibilities on this count, despite the Gayoom government too having initiated action against the said judge. At present Presidential Advisor, Dr Hassan Saeed, as Attorney-General under the Gayoom dispensation had initiated action, but nothing moved beyond a point, for a variety of reasons, not all of them political.

The question remains if the MNDF should have been called into service to handle the case. That was also the contention of both the protesting police men and soldiers, whose numbers however were fewer than that of the former. The former feared lack of trust in the police and the latter said the MNDF was being misused for duties it was not mandated or equipped to handle. This was the case when President Nasheed used the MNDF to arrest two leading opposition leaders on corruption charges, and more importantly to shut down the Supreme Court for a day, in mid-2010.

In the Abdulla case, however, the Nasheed camp is right in arguing that even the Judicial Services Commission (JSC) had upheld his government’s contention for the judge not to discharge judicial duties. Incidentally, both the High Court and Supreme Court had stayed the proceedings against the said judge, as empowered under the law.

There is a clash of concepts between the status quo system and the modern thoughts of the Nasheed leadership, on all fronts. In the judiciary, the reformists argued that the status quo legal and judicial systems, which at times sounded arbitrary in the absence of codified laws that applied to all and derived from one another, was refusing to give place to common law practices, as understood elsewhere.

The confusion also derived from the cross-cultural integration that the Islamic nation had achieved to a substantial level in other walks, but not fully in some others. In a nation dependent on resort tourism and imported goods and services for sustaining its economy and society, the dichotomy of free repatriation of the dollar earned by the former and the absence of internationally-accepted banking laws made things difficult for global players. It may have also owed to the absence of laws governing repatriation and a role for the Maldivian authorities to intervene in the processes over the past three decades and more.

The stagnation was striking, independent of the absence of attractive scope of mega-investments outside of tourism industry. Given the inherent limitations imposed by Maldives’ geographical location, human resource, and a local market for goods and services that would interest big-time investors from South Asia and elsewhere, credit facility for local investors is a pragmatic route in the local context.

The beneficiary has been the local creditor and the loser, international banks, including India’s SBI. In the absence of enforceable legislation, they were often left to be cautious than overwhelming with extending credit facilities, after an initial spurt.

During Prime Minister Manmohan Singh’s bilateral visit to Male in November 2011, when he participated in the SAARC Summit at southern Addu, the two sides signed an agreement for India to help Maldives in improving its banking laws and practices. There is a need for simultaneous reforms of laws relating to transfer of property and crimes of credit default, if international banks are to evince an interest in supporting Maldivian economy.

Reforms on the legal front in Maldives often boils down to marrying common law practices with the Shariat. No other country has achieved satisfactory results on this score, particularly in the immediate South Asian neighbourhood than India. The evolved Indian scheme ensures protection under theShariat as far as the Muslim personal law goes. It covers marriage and divorce, inheritance and the like. More importantly, the Indian scheme have imbibed the Shariat practices in its laws and judicial pronouncements, so much so lawyers and judges in India, educated and trained under the common law scheme, practice the same without they having to study these laws in madrasas or confining their knowledge and expertise only to the Shariat.

Even while criticising the nation’s judiciary while in power, the MDP and President Nasheed did acknowledge the amended provisions of the Judges Act to equip and educate the judiciary in the country on the reforms that need to be undertaken, over a seven-year period. The unstated understanding is that the judges who had not equipped them under the new scheme would have to go at the end of seven years. Two years have already passed by, but the Nasheed Government was not known to have taken any serious step to reform the judiciary, though updating/modernising the judiciary would have been a better and more acceptable term. Capacity-building is the name of the game in modern parlance. The Nasheed government could not be blamed for not trying in approaching the UN agencies and India, among others, for helping with capacity-building in judiciary and other areas of administration, but the follow-up was lacking.

The other problem pertaining to the judiciary, as pointed out the MDP since Nasheed assumed the presidency in 2008, relates to the life-long tenure for judges. For a nation that had borrowed the US model of executive presidency without the attendant checks-and-balances, the Maldivian scheme suffers from internal contradiction that are natural to adapting alien models without thought. The checks-and balances scheme took roots in the US for historic reasons. The US also takes pride in protecting the individual accountability and collective responsibility of institutions. Neither this, nor the ‘French model’ of shared powers between the directly-elected President and a Prime Minister as under the Westminster scheme, for instance, could have been transplanted into another system, without nation-wide acknowledgement and discourse, and a commitment flowing from it.

In the Maldivian context, the executive presidency from the Gayoom era was accompanied by live-tenure for judges, without self-accountability on the latter’s part. Under the scheme, the legislature too being a tool of the executive did not protest violations or protect the common man’s interests. The MDP in general and President Nasheed in particular wanted this situation changed. What transpired however was a government in a hurry wanting to change everything overnight. With the Opposition-controlled Parliament in no mood to amend the laws to grant a fixed or age-barred tenure for the judges, the Nasheed Government started painting all appointees of the Gayoom administration in black, leaving no room for shades of grey.

This also applied to members of other independent institutions, including the Election Commission, Judicial Services Commission, Civil Services Commission and the Human Rights Commission. In a more recent response to a legislative proposal to amend Article 53 of the Civil Services Act, which stipulates that civil servants wanting to contest elections should quit their post six months in advance, Mohamed Fahmy Hassan, CSC president, said that professionalism of the civil service can be maintained only of if the civil service is established as a non-political establishment. What needs to be achieved is a measure of legislative changes, which do not always go in favour of the Government of the day, particularly when it lacked parliamentary majority.

The MDP government was in a hurry to do too many things in too short a time, and seen as having revamped the system in time for their second presidential poll under the multi-party scheme. In the process, they bit more than they could have chewed.

Anti-incumbency & coalition from start

All sections of the nation’s polity should share the blame for writing the Constitution with an individual, and not institutions, in mind. Through the debates of the Constituent Assembly (2007-08), the unacknowledged assumption was President Gayoom would either thwart the effort or ensure his electoral victory even under a multi-party system. His Government in a way fed such apprehensions on the side of the multi-party Opposition. The Gayoom camp favoured the Westminster system of government. As the polling pattern in 2008 proved, he would have continued in office under the scheme, he having polled 40 per cent of the popular vote in the first round of presidential elections. Against this, Nasheed polled only 25 per cent with two other Opposition candidates, Hassan Saeed and Gasim Ibrahim obtaining 17 and 15 per cent of the votes, respectively. Anticipating some game-plan up President Gayoom’s sleeve, and also understanding the awaiting complexity, the Opposition parties preferred the Executive Presidency through direct elections and 50-per cent-plus share of the popular vote for the winner.

Written into the script even at the time was the inevitability of an anti-Gayoom candidate pooling the votes of other runners-up in the second round, if he had tobe elected President. Deals were struck by parties behind the back of the people, who in turn were excited about the prospects of multi-party democracy. The 40-per cent youth population was overwhelmed by vote for 18-year-olds. Nasheed’s victory thus implied a contract for the winner to accommodate the runners-up in the Government and in the parliamentary elections under the new constitutional scheme. When that part of the deal was not kept, the inherent coalition, inevitable to the Maldivian scheme of the time, broke. It also implied that anti-incumbency of the kind that beleaguered President Gayoom in electoral terms after multi-party democracy became possible, would haunt his successor, too. Or, with the electoral focus turning towards the new President, other parties would ‘gang up’, as they did against President Gayoom, if they felt being let up the garden path or that the mood of the voter had changed, since.

Elsewhere, particularly in directly-elected executive governments, coalitions of the non-incumbent/anti-incumbent kind are often represented in terms of ‘interest groups’ within an umbrella organisation of a single political party. In such instances as post-independence India or Sri Lanka in the immediate neighbourhood, such umbrella organisations had splintered and fractured with passage of time, to form other political parties, representing individual interest groups, within which commonality could suffer further erosion under specific circumstances. In democratic Maldives, such ‘interest groups’ have had ready representation in different political parties even at the commencement of the process.

Barring the main player, the President of the nation and the party that he led and/or represented, the rest of them all have remained constant. There are visible signs of some of the political parties weakening and others strengthening themselves at the cost of the rest. A clearer picture will take time to emerge, with each election for the presidency, Parliament and local councils, throwing up different permutations and combinations, in the interim. All this would go on to prove that democracy is a dynamic process, eternally changing and reshaping itself.

Maldives and Maldivians, starting with their divided polity, have to accept that there is no constancy or permanency in democracy after a point, and that all would have to accept this reality and be prepared to make sacrifices.

At present, as in the pre-democracy past, the leadership of various political parties, and by extension, the government also remains Male-centric, and thus represents the urban elite. It could not have been different in the short span, though early signs of the Maldivian polity moving away from urban Male for leadership have become visible in the democracy years. As has been happening in older democracies elsewhere in the Third World, particularly in the rest of South Asia, the trickle-down effect of democracy would swarm not only the population in terms of socio-economic benefits but would also throw up a new class of rural elite, and non-elite among the political party, and consequently government leadership in due course.

The Maldives has to prepare itself to accept this reality. So should Maldivians be prepared for the same. Yet, given the urban-islands divide – an urban-rural divide, elsewhere – and the reality of urban population centres having a disproportionately high share of the votes, the transition and consequent transformation could be more painful than elsewhere, and more than what the young democracy has been subjected to, already.

Institution-building, as democratic traditions, is time-consuming. Once built, it would be left to the practitioners of the scheme, politicians and bureaucrats in this case, to protect what they have given themselves and the nation. In a contemporary history whose current life is only three years or even less, institution-building in Maldives could not be, and should not be, compared to those in older and thus more matured democracies. The nation will also have to marry the traditions learnt from elsewhere with the cultural and civilizational ethos of a proud people, whose geographical insulation in this communications era needs to be balanced, carefully and patiently.

It is not that it could not be achieved, but the tweaking and tempering takes time, at times running to several years. After all, Rome was not built in a day, nor can Maldivian democracy and democratic institutions be, particularly when they have been inherited from another scheme of governance that were in force in another era even in the global context, and cannot be, and should not be wished away, either.

The writer is a Senior Fellow at Observer Research Foundation.

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