State of crisis

MALDIVES IS REDEFINING DEMOCRACY in a way similar to the version the Maumoon Abdul Gayoom presidency had in place for many decades before the country held its first multiparty presidential election in 2008. Just as Sri Lanka has shown how executive presidency is autocracy by another name, the developments in Maldives over the past year have clearly indicated that all the gains made in 2008 are being wiped out. Ironically, in most of its acts undertaken to undermine the democratic Constitution of 2008, which include dismissing election commissioners, annulling the results of the first round of a presidential election, suspending presidential elections three times and removing the Auditor General, the legislature and the judiciary have been accomplices.

The latest such act is the decision of the Peoples’ Majlis (the country’s Parliament) to dismiss two judges, including the Chief Justice, from the Supreme Court, and reappoint a former Chief Justice as the new Chief Justice on December 14.

The hurry in going through the entire process indicates a degree of impunity that seems to be the new norm in the island nation. Step one: the heavily politicised Judicial Services Commission (JSC) recommends on December 11 the removal of Chief Justice Ahmed Faiz Hussain and Justice Muthasim Muizz Adnan for gross misconduct and incompetence and the reduction of the strength of the Bench from seven to five. Step two: President Abdulla Yameen accepts the recommendation in a jiffy. Step three: The Majlis gets three days to decide on the fate of the judges (until December 14). Step four: The Majlis dismisses the two, and appoints Abdulla Saeed (who was the Chief Justice of the interim Supreme Court between 2008-2010), with the vote of 55 members of the Majlis. Within an hour of this decision, Justice Saeed is sworn in as Chief Justice.

The ruling Progressive Party of Maldives led by former President Gayoom, which is slowly but surely entrenching itself in all aspects of administration, and its coalition partners maintained that the move would strengthen the judiciary and facilitate judicial reforms.

President Mohamed Nasheed appointed Justice Faiz as the country’s first Chief Justice in 2010. After Nasheed lost power, Justice Faiz and Justice Muthasim started giving dissenting opinions in several sensitive, high-profile and political issues, including the court’s decision to annul the first round of the presidential election in September 2013. Nasheed’s Maldivian Democratic Party (MDP), which is the main opposition party, carries a grudge against Faiz and Muthasim, though, for not doing enough to help Nasheed come back to power after he resigned under controversial circumstances in February 2012.

Although the 2008 Constitution prescribes unambiguously how a sitting judge can be removed, none of these procedures was followed in letter or spirit. Section 154 of the Constitution, roughly translated, says: “A judge may be removed from office only if the Judicial Service Commission finds that the person is grossly incompetent, or that the judge is guilty of gross misconduct, and submits to the People’s Majlis a resolution supporting the removal of the judge, which is passed by a two-thirds majority of the members of the People’s Majlis present and voting.”

“The decision by the JSC to remove Chief Justice Ahmed Faiz and Justice Muthasim Adnan without publicising the criteria against which they were evaluated raises questions about the transparency and fairness of the process,” Transparency Maldives, a civil society organisation leading the fight against corruption, said in a statement on December 14 soon after the Majlis vote. “TM also notes that the amendments to the Judicature Act allows JSC to override due procedure denying the right of Supreme Court Justices to defend themselves before their dismissal. TM calls on state authorities to refrain from any action that will further undermine the independence and integrity of the judiciary,” it added.

Local media reported that Justice Faiz condemned the Majlis vote as unconstitutional and said the move raised doubts about the separation of powers and the continuation of judicial independence in the country. “Today will be written down as a black day in the constitutional history of the Maldives. I state this is a black day for the Constitution. Taking such a vote against the Constitution is, I believe, disrespectful to the Constitution,” he said.

The MDP’s international spokesperson Hamid Abdul Gafoor said: “The Judicial Service Commission’s decision [to remove the judges] was made public just days after the ruling coalition, with their majority in the Peoples Majlis, steamrolled an amendment to the Law on Judges, to decrease the [strength of the] Bench of the Supreme Court to five from seven…. It is of continuing serious concern to the Maldivian Democratic Party that there has been no action by state institutions as well as the executive to follow up on recommendations made by international institutions on effecting urgent reforms to the Maldives judiciary.”

The MDP also wanted international well-wishers of the country to prevail upon the government and state institutions to revise the composition and functioning of the JSC in line with international principles of independence and accountability of the judiciary and encourage dialogue between the three branches of the government to address the challenges to the independence of the judiciary and the proper functioning of the justice system. In this context, a round table or seminar on the justice system with good participation by members of the domestic judiciary as well by international experts would provide an avenue to start such discussions and an opportunity for all actors concerned to show their concrete commitment to the system, and express their concerns and reservations about the unconstitutional removal of Justices Faiz and Muthasim.

Maldives has a three-tier system for the administration of justice—the lower courts, the High Court and the Supreme Court. The lower courts, which include at least one magistrate’s court, are located in each inhabited island. Four specialised lower courts—the criminal court, the civil court, the family court and the juvenile court—are located in the capital city, Male. The High Court hears appeals from the lower courts and also cases in the first instance where prescribed by the law, or in exceptional circumstances. The Supreme Court is the final authority on the interpretation of the Constitution, laws or any other matter dealt with by a court of law.

The Supreme Court of Maldives is headed by the Chief Justice, who is the head of the judiciary as well. At the interim stage, the President appointed five judges, who were approved by Parliament. Under the 2010 Judicature Act, two more judges were added to this panel. Supreme Court judges are appointed in consultation with the JSC and upon confirmation by the voting members of the People’s Majlis. The JSC appoints judges for the other courts.