Volume 21 Issue 11 November 2017
 
 


 


“Man’s passion for freedom is great but this passion has often been limited by the ruling authorities. Sometimes even the bare minimum of freedom needed by those in power, is concentrated in the hands of a single individual or a small group of people. As legislatures and executives are generally dominated by the same party, they also enact and act without any regard to the people’s will and interests. In this situation the judiciary remains the only institution to which individual may appeal for help and once the verdict goes against such an enactment, the executives and legislature are expected to retrace their steps if the democratic norms have to survive”

—Anonymous

Democracy in civilized countries thrives on the strength of judiciary that is responsible for upholding and defending the guiding principles of their constitution. In the midst of World War II when London was being bombarded by the Germans, Winston Churchill is said to express his optimism in the fact that if justice was being disseminated and the courts were functioning, nothing could go wrong. Such is the level of confidence in the power of judiciary. However, in countries with nascent democracies, especially those that were formerly under colonial rule, a totally different situation prevails as apparent from various judicial pronouncements which tend to protect a handful of so-called democratically elected leaders in utter disregard of the constitutional provisions and at the expense of their people’s disappointment in the system.
In 1968 after a referendum, the Maldives government shifted from a sultanate to a republic, making Ibrahim Nasir, former prime minister, the president. From here starts the constitutional history of the country that witnessed amendments during 1970, 1972, 1975, 1997 and the latest constitution ratification in 2008. Although, this opened the avenues for multi-party elections but left in its wake many questions regarding decisions of the judicial system that is showing a clear tilt towards political interests rather than imparting justice and upholding the Constitution. Despite the public’s demand of retributive action against judges involved in corrupt practices, there appears no will on the part of the Judicial Service Commission to take concrete measures to defend its judges.

As a result, on August 30, 2017, a group of fifty six lawyers signed and tried to present a petition to the Supreme Court to attract the attention of the government towards addressing their concerns with respect to some crucial issues related to the judicial system of the Maldives. Among the many grievances of the legal fraternity the most emphatic one is the high-handedness of some judges who, instead of redressing complaints and criticisms about the courts’ malfunctioning, retaliate by issuance of press releases threatening dire consequences. According to the petitioners, the judiciary should reclaim the public’s trust by showing a dignified attitude and genuinely passing orders that are not politically motivated or have indications of corrupt practices. These are indeed very serious allegations but are not without any basis. The 2008 Constitution clearly lays down, among many other rights, non-discrimination (Article 17), fair administrative action (Article 43), rights of the accused (Article 51), etc. and if these are not observed, it would clearly tantamount to violating the supreme law of the land as mentioned in the petition. Observations of members of the public to this effect cannot be ignored, especially if these are supported by substantial evidence from real life, like some mentioned here:
• Over a span of the last four years, cases of high profile politicians were decided in closed proceedings within a short period and without fulfilling the norms of justice, equality or fair trial as required under the constitution. Hurried trials together with announcement of verdicts at midnight speak volumes about partiality on the part of courts.

• Despite contrary provisions of the Terrorism Act, allegations of terrorism were proven against political adversaries in a slipshod manner that was tainted with mala fide intentions by the peculiar nature of trials conducted day and night and at the expense of delaying justice to the common man.

• The courts have been accused of remanding political prisoners merely on reports submitted by the police and ignoring the conditions envisaged in article 49 which reads as follows:
“No person shall be detained in custody prior to sentencing unless the danger of the accused absconding or not appearing at trial, the protection of the public, or potential interference with witnesses or evidence dictate otherwise….”

• The Constitution vide Article 51 forbids a court from sentencing in absentia, yet judgement against a political figure was passed at midnight while he was hospitalized for fainting in the court. According to the petition, the court, in its enthusiasm was unable to wait until sunrise which evidences the fact that the legal system is poised in favour of political agenda rather than defending the supreme law of the land.

• There are instances of judges being pressurised by ruling institutions with unfair tactics, including threats of suspension, removal from posts, transfers, etc. To aggravate matters, persons of questionable character and competence are appointed to serve vested interests.

• The Supreme Court is accused of over-stepping its jurisdiction and exerting undue influence on the body of lawyers that was earlier being managed by the office of the Attorney General. Consequently, matters related to issuance of licences to new graduates are unnecessarily delayed, outspoken lawyers are being victimized while no action is taken against the delinquent ones.

• There is a general belief that the Judicial Service Commission has been organized to serve political interests. In other words, the judicial system has become hostage to the whims of political masters, who are ruthlessly undermining the prestige of this noble institution. The much needed increase in the number of High Court judges is still awaited while the quality of magistrates is obvious from the fact that many are not conversant with the Penal Code.
• The role of both the Attorney General and the Prosecutor General has been highly criticized as they have failed to fulfill their obligations under the Constitution to safeguard rights of the people. They are accused of harping political tunes instead of establishing rule of law.

In their attempt to present this petition to the Supreme Court, the Department of Judicial Administration that operates under its supervision, suspended 54 lawyers for an indefinite period pending contempt of court hearing. They were accused of, “…interfering with the work of the Judiciary, attempting to exert influence, writing an unlawful document in violations of the jurisdiction, procedures and judgements of the courts, signing that document [and] creating difficulties for the Maldivian Judiciary.”

Article 27 of the Constitution gives freedom of thought and the freedom to communicate opinions and expression in a manner that is not contrary to any tenet of Islam; while Article 32 permits freedom of peaceful assembly without prior permission of the State; yet these protesting lawyers which include the former Attorney General, were harshly treated by government functionaries. The four-party Opposition coalition headed by former President Maumoon Abdul Gayoom claims that the suspended lawyers represent 30% of licenced practitioners in the Maldives which would prevent individuals unfairly targeted by President Yameen’s regime from finding effective legal counsel.

These events clearly indicate that the country with democracy still in its teething stage is prone to be maligned with the dictatorial tendencies of the elected leaders, particularly for the purpose of restraining political opponents and stifling protesting voices. The ability not to take criticism constructively proves beyond doubt that the underlying motive of these measures is to establish dictatorship in the name of the public at the expense of usurping their rights, guaranteed under the Constitution.



The writers, lawyers and partners in HUZAIMA & IKRAM, are Adjunct Faculty at Lahore University of Management Sciences (LUMS).

 
 
 
 
 
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