The Maldives adopted a new Constitution with the hope of establishing a better system of governance and an effective judiciary. The Constitution embodied a detailed bill of rights and entrusted all legal and constitutional affairs to the judiciary.
by Dr Mohamed Jameel Ahmed
Holders of the judiciary were given security of tenure through the appointment of Magistrates and judges by an independent commission. Supreme Court justices recommended by Judicial Service Commission and nominated by the President were appointed by the Parliament. Holders of the office of the judiciary were further secured with the provision that they could only be removed by a two third vote of the Parliament. The legislatures pinned their hopes of establishing an independent judiciary. It was the desire of the nation to see not only an independent judiciary but also competent professionals leading it, and who are able to fulfill the expectation of a nation on the verge of embracing new found democracy, and whose inhabitants have over the years acquired knowledge and skills in various professions.
Although the road leading to the adoption of the new constitution was somewhat turbulent, the citizens had hoped that the new constitution will make way for the peace and stability they have yearned for many years. Sadly, the country has witnessed an element of disappointment and despair since adopting the new constitution. The judiciary has become the central point of conversation in many official and private discussions and debates across all walks of life and all ages.This debate ranged not only on the way the new judiciary has espoused the tasks entrusted to it but also extended to the constitutional framework of the judiciary, appointment of judges to apex courts, the remuneration and continued demands to increase personal comforts and privileges.
Discussions over coffee tables, around government meetings and in the social media, amongst the young and old, centres passionately around issues relating to the judiciary, either raising their dissatisfaction or expressing disappointment of the way access to justice has been increasingly difficult for ordinary citizens in the county or of the way how the judiciary has become detached from more ordinary lives of our folks, to the extent even expressing dismay about the arrogance of judges, purposefully and often deliberately ignoring procedures and judicial rules.
On the constitutional framework of the judiciary, during the drafting stage of the present constitution, I submitted a detailed letter expressing my concern about the proposed composition of the Judicial Service Commission (JSC), as I did not find many jurisdictions having similar compositions. Unfortunately, my proposal met stern resistance from all corners including the Chair of the Committee at the Constitutional Assembly. Regrettably, today the JSC as an institution, has acquired a name for being besieged by political views of its members, or in some instances viewed an entity to serve and secure personal interests of particular members. It has become an entity which is over represented by divergent groups including legislatures, Chair of the Civil Service Commission and an elected lawyer besides members of the judiciary and presidential appointees. It has come to light that the Commission can do little or nothing at all when a magistrate at Hulhumale’ court repeatedly returns back a case to the Prosecution citing lack of jurisdiction as a relationat the Commission will almost certainly defend the position.
At the same time Judiciary seems to be operating in wanton as the Chief Justice finds nothing abhorrent in the way lower courts or other tiers of judiciary behaves. In one instance a Civil Court Judge has been continuously striking out a civil litigation involving several millions of dollars of claim against a state and state company. Each occasion “invent reasons” which are unheard of in civil proceedings, while the litigant is left to suffer a daily bank charges amounting over several thousands of dollars on the subject matter of the claim. For a nation badly in need of foreign investment these are hardly encouraging news. At the same time, news about appellate court judges and their internal bickering has surfaced in different forms including allegation of improper conduct.
On some occasions in the past, the Supreme Court assumed the mantle of the constitutional guardian, and was seen scurrying to assert its authority in matters of elections, creating absolute chaos in the rights of electorates and granting at least one atoll status and position which are otherwise legally devoid of any reason. Some of these swift judgments strained public confidence with the apex court and many at times were understandably frustrated by its approach and attitude. Though some brave judgments of the Court have ensured individual liberty and freedom from arbitrary arrest and detention, it has since drawn dull on many issues including preventing lower court judges from exercising inconsistent procedures, denying access to justice by preventing litigants from hearing.
The Judicature Act of the Maldives lays out the supervisory jurisdiction of the Supreme Court to prevent usurpation of the courts as envisaged by section 11 of the said law. The stance adopted by the Hulhumale’ Court demands some form of supervisory intervention by the Supreme Court to give relief and ameliorate the full blown legal crisis that threatened to further erode confidence of the public with the judiciary. Some relief either in the form of declaration, an interdict or mandamus was required in ensuring and safeguarding fairness and judicial process.
Judicial failure to address such fundamental and essential issues will leave it weak and susceptible to strong criticism from all quarters, it may deem safe and secure to leave matters of this nature to die down on its own, but not attending on such issues,the judiciary is left without guidance in an age where position demands appropriate services to the public.
Today judiciary is given adequate provisions to meet its demands; with a comparatively high remuneration, an independent budget, large pool of staff it has seen almost overnight a paradigm shift in its fortune. The office of the judiciary has become competitive with very bright and talented youths vying to join it, security of the tenure for life-time, lucrative offers for further development of skill. However, the quality of services delivered by the judiciary remains disappointingly gloomy. They are paid to conduct themselves in holding judicial office in a way that would not affect public confidence in the impartiality of the judiciary. The conduct of senior judiciary is said to be extremely political with justices seen sitting along with former President in pure political functions, while High Court judiciary openly displays disrespect to each other.
All these hardly enhance public confidence in the judicial system of the Maldives.
The function of magistrates and judges is often a thankless job, but holders of the office of the judiciary must be aware of public expectation, degree of transparency, the importance of public education of judicial and legal system, (as there are many misconceptions about the judiciary in the public) and socio-political reform of the country, and most importantly they must not engage in any activity that may bring disrepute to their office. The public still retain some amount of confidence in those disciplined judges who do not conduct themselves inappropriately. Thoughtful and experienced judges carry a glimmer of hope for the future of the judiciary.
Our judiciary has some bright minds, but that does not exempt it from scrutiny; judiciary in the Maldives, with the exception of few courts and judges, the judiciary as a whole has earned a deservedly bad reputation for its inconsistent judgments, lack of leadership, lack of competency and being out of touch with modern laws and views of the society.
Resistance by the judiciary to any form of review on the conduct of judges both in and out of office may not only be perilous for the judiciary, but it may lead to total collapse of the confidence in the judiciary. Judges should not devote anymore time on deliberating on ways to increase remuneration, acquiring more space and other facilities, but rather concentrate on building public confidence by speeding trials, by adhering to consistent procedures, and by being more transparent and thoughtful.
They would have to work to reform and re-label the judiciary, build its character and reputation and endeavor to fulfill the hopes and aspirations of the people of this newly earned democracy in the country, and go to all lengths to bring peace and stability to our beloved nation, a nation so unique and beautiful bound together as a single community by its exclusive language, race and religion- Islam.
Note: Dr Mohamed Jameel Ahmed is the present Home Minister of the Maldives