MoreJudiciary needs reform – not a knock-out punch
Jun 21, 2012 - 11:38
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Supreme Court of the Maldives. FILE PHOTO
As the current European football moves towards its knock-out stages, a knock-out blow has been delivered to former President Nasheed's claim to be the only 'true Democrat' in the Maldives.
by Dr Hassan Saeed
The recent revelation in Haveeru that Mr. Nasheed was intending to abolish all courts by executive decree is something we should all be alarmed at. They were to be replaced by a ‘commission’, which is interesting considering the hostility of the MDP towards the current National Commission of Inquiry! More interestingly Mr. Nasheed did not invite members of the international community or the then opposition to sit on his commission.
If the former regime of Mr. Gayoom had taken this extreme action, I'm sure we can all envisage the sort of attacks on the move there would have been from the MDP. If President Waheed were suddenly to do this now, I would imagine there would not just be protests in the Maldives, but we would be inundated with visits by international legal bodies and a Commonwealth investigation teams.
However enough consideration of the sheer hypocrisy. The constitution does not confer one arm of the state the power to chop off the other arm of the state. Governments and presidents who dismiss judges without due process and abolish courts at will are worst form of dictators.
And what about the practicalities of such a move by Mr. Nasheed? It is not clear what would have happened to existing and new legal cases (including marriage, divorce, custody – to name a few) that came up in the absence of a judiciary, since some two hundred over judges/magistrates could not, after all, be replaced overnight! Indeed, we simply do not have such a surplus of legally trained people in this country. Thus as well as the abuse of Presidential powers we would have seen a vast administrative problem and uncertainty over the administration of redress and the rule of law. This would have seriously impacted on investment in businesses and damaged the Maldives' economic competitiveness.
It is perfectly reasonable to argue that our judiciary needs reform. But a democratic approach is required rather than that attempted by Mr. Nasheed. Of course, we need to address issues such as delayed cases, skills and competence of our judges and ensure transparency. At the end of the Gayoom years, as we did move to democracy, the focus was on making judges independent. Mr. Nasheed and his supporters were at the forefront of this debate. We perhaps naively felt that this would solve all our problems –but it was an understandable reaction to the control Government had on the courts. Other elements were perhaps given less priority. Thus judges are appointed for life; are hard to dismiss; and are not sufficiently accountable for their performance, despite their large public salaries.
Mr. Nasheed's solution was simply to 'blame the judges' when they had been given independence as part of the same process that brought him to power. His MP's were as strong advocates of judicial independence as other drafters of the Constitution. He and his supporters cannot rewrite history now.
We need to look beyond Mr. Nasheed's simple but reckless approach and look at it more widely. There are two further issues to consider.
First, courts seem overloaded with the 'wrong' sort of cases. People too often go to law to resolve political problems because, despite its slowness it is still more likely to give a definitive view than sometimes even slower legislative and executive arm decision-making. The courts themselves are very accessible. It is often easier to go to court to resolve political issues than to introduce a bill to Parliament or persuade politicians or MPs to take a principled stand. However the priority that courts give to political cases then means that other cases, such as commercial cases, family cases or even normal criminal cases are often delayed. So perhaps our politicians and the news media need to consider their role in driving decision-making, best done elsewhere, to the courts.
Mr. Nasheed was completely wrong to intend the abolition of courts by executive decree. There is no constitutional or legal basis for that. There were alternative approaches open to him that still apply now. We should commission international constitutional law experts to recommend reforms that will ensure accountability and transparency. A key element will no doubt be the strengthening the Judicial Services Commission.
Ramadan is an opportunity for reflection. Perhaps politicians and media should use the coming period to reflect as to where in the three branches of governance the right decisions should be made?
Note: Dr Hassan Saeed is currently the Special Advisor to President Dr Mohamed Waheed Hassan Manik
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