It’s the judiciary, stupid

by Azra Naseem

We had information that on 8 February Mohamed Nasheed would close other courts in the Maldives, send all judges home, and acting on his own, would establish a Judicial Reform Commission. From then onwards, it would be this Commission that would appoint all magistrates. ~2013 Presidential Candidate, Umar Naseer (PPM).

I learned about President Nasheed’s intention to establish a Judicial Reform Commission—or in whatever name it maybe—only after the government changed. ~ 2013 Presidential Candidate, Abdulla Yameen (PPM)

We don’t know for sure whether Mohamed Nasheed was planning to form a Judicial Reform Commission on 8 February 2012 or not. But, leaders of the National Alliance, especially PPM, have made it clear what motivated them most to be out on the streets protesting until Nasheed’s government ended was the prospect of Nasheed making changes to the judiciary .

Many ‘intelligence-based’ reasons were offered  for the National Alliance’s opposition to the expected changes: Nasheed’s Judicial Reform Commission was going to be totally under his control; it was a way for Nasheed to usurp judicial power; it was Nasheed’s means of destroying the judiciary.

Truth of the matter is all parties in the National Alliance would have been opposed to judicial reform in whatever form it came.

To regard  all attempts at reforming the judiciary as undue interference is to believe that the existing judiciary is as should be—independent, just, equal. This is far from the truth. To begin with, an overwhelming majority of current judges were sworn in extra-constitutionally, in violation of Article 285 which demands new, higher, ethical and professional standards from judges. As former Judicial Service Commission (JSC) member Aishath Velezinee exposed, the Commission colluded with authoritarian loyalists to dismiss Article 285 as ‘symbolic’.

Ignoring the constitutional requirement for a complete overhaul of the judiciary has allowed unqualified, unethical and downright criminal individuals to remain on the benches long past the constitutional deadline. Neither the Executive nor the Majlis took appropriate action to stop the oath-taking then; nor have they taken any steps to remedy the situation since. Many of these judges—spread out across low, higher and highest courts—were appointed by, and continue to be under the influence of, pre-democracy leaders. Chief Judge of the Criminal Court Abdulla Mohamed [Ablow Ghaazee] is the icing on the authoritarians’ unhealthily large share of the judicial cake.

His removal and any other change in the carefully engineered set-up would mean less protection for those facing serious torture and fraud charges dating back to the dictatorship. The PPM-led National Alliance protests, seen this way, can be described as intended to ‘protect the judiciary’ from reform rather than keeping interference at bay.

It is now over a year since the National Alliance’s protests saw out the end of the country’s first democratically elected government. If judicial independence is what the protests were about, tackling the problems head-on would have been the new government’s first priority. On the contrary, every effort has been made to sustain the status-quo which preceded Nasheed’s drastic decision to have Abdulla Mohamed arrested.

“I thought he [Abdulla Mohamed] should be released, but I don’t think he should be allowed on the bench until all investigations pending against him have been satisfactorily investigated,” Dr Waheed, the current president said in his CoNI testimony.

Yet, Abdulla Mohamed is not just on the bench, he is back as Chief Judge of the Criminal Court, the main man sitting over the trial of Nasheed for his arrest. Indeed, reinstating Ablow Ghaazee was the first order of business for the new regime. Presidential Candidate Gasim Ibrahim (JP) [who, ‘incidentally’, is also a member of the JSC], meanwhile, dismissed UNSR Gabriella Knaul’s recommendations for judicial reform as lies and levity.

The government’s reaction to all such recommendations has been to either ramp up nationalistic rhetoric and play the sovereignty card, or wilfully ignore the expert advice, or both.

As noted in the UNSR report, ‘all branches of the State and all institutions have a role to play and responsibilities regarding the consolidation of democracy.’ But, sadly for the Maldives, it is not just the executive failing in its responsibilities towards judicial independence, but the Majlis, too, seems unable (or unwilling) to appreciate the absolute indispensability of judicial independence for regaining democracy.

MPs like Mahloof and Nihan of PPM who so ‘valiantly’ fought on the streets of Male’ to ‘protect the judiciary’, for instance, have yet to raise any judicial reform issues in parliament. Apart from a few individual MPs advocating for reform on other platforms, the Majlis as a collective body has been actively negligent of its duties towards the judiciary.

Otherwise, by now, it would have held the entire JSC accountable for dismissing Article 285 of the Constitution as symbolic. MDP MPs, and others, should have pushed not just for the removal of Gasim Ibrahim from the Commission, but every member of the JSC that colluded in the decision to violate the Constitution.

Long before Majlis summoned Speaker Abdulla Shahid to ask about the HulhuMale’ magistrate court, it should have asked him to explain what he saw, witnessed and participated in while in the JSC that allowed Article 285 to be deemed irrelevant. Even when the Parliamentary Oversight Committee had Shahid in front of them last Tuesday, not only did it fail to ask him about his role in the dismissal of Artical 285, it also failed to interrogate him on how the HulhuMale’ Court bench was illegitimately appointed by the JSC on his watch. “I was not present at the meeting,” is not a reason for absolving any JSC member, Speaker of Parliament or not, from responsibility.

The constant failure by the Majlis to hold JSC accountable for its crimes against judicial independence suggests: a) it is incompetent; and/or b) it colluded with the JSC in violating Article 285 of the Constitution.

All MPs, no matter what party affiliation, must collectively exercise the right and responsibility of the Majlis to hold the JSC accountable, and to work towards redressing Article 285, and all that needs done to ensure we have the kind of judiciary envisaged by the 2008 Constitution on which the Maldivian democracy is based.

Without judicial reform, it is hard to see how the upcoming elections could be free and fair nor how life after elections could be democratic.