Legal Opinion Politics

Abusive judicial discretion in the Maldives

May 13 13:47 2017

By Shamsul Falaah

Eight years ago, the Maldives adopted a new constitution, which was claimed to be a democratic constitution promising a nomocracy with the cardinal features of a modern constitution: protection of fundamental rights and freedoms(1); separation of powers(2); popular sovereignty(3); supremacy of the constitution(4); free and fair elections(5); and judicial independence(6).

As is usual in any other case of constitutional supremacy, broad powers are vested in the courts, from the deciding of trivial matters to the declaration of any statute or regulation or decision unconstitutional and the making of any order(7). Despite this established constitutional mechanism, the Maldivian courts have restricted the media’s right(8) to report court proceedings(9) and the individuals’ freedom of speech(10); thus eroding the principles of open justice(11) and the popular sovereignty that is guaranteed in the Constitution. In particular, the Supreme Court has interfered in the autonomy of the constitutional organisms and of the legal profession.

Severe criticism has been poured on the intemperate decisions of the Maldivian SC; this criticism stems from the reactions of the public to the opinions expressed by public officials and also of the individual opinions expressed that were based on grounds of contempt of court.

One of the landmark cases was the Suo Moto action against the Elections Commission(12), in which the SC dismissed both the Commissioner and the Deputy Commissioner of the EC and gave a suspended jail sentence(13) for criticising the court’s interference in presidential elections, by repeatedly postponing elections with a guideline which was alleged to have undermined the independence of the EC(14). Among the critics, the then High Commissioner for Human Rights, Navanethem Pillay also raised concerns stating, “I am alarmed that the Supreme Court of the Maldives is interfering excessively in the presidential elections, and in so doing is subverting the democratic process and violating the right of Maldivians to freely elect their representatives.”(15)

This decision was disturbing on several grounds: the court relied on the privileged statements made by the electoral commissioners in the Majlis as evidence(16), and the court removed the commissioners from their posts; this was solely within the mandate of the Majlis(17).

The second occasion was when the Suo Moto action was taken against the Human Rights Commission of the Maldives(18), wherein the SC ordered the HRCM to respect the Constitution(19) over a report(20) produced by the HRCM to the Universal Periodic Review process of the UN Human Rights Council. The SC laid down eleven guidelines(21), which restricted the HRCM’s capacity to work with foreign bodies(22), undermining the independence(23) and the immunity granted by the Constitution and law to the HRCM and its members(24).

The decision engendered an outcry from both the local(25) and international bodies(26). Raising concerns about the decision, the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein stated that “[t]he Supreme Court judgement is yet another example of the judiciary undermining human rights protection in the Maldives.”(27)

Lawyers were also routinely disbarred for criticising or expressing their opinions. The former UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, also raised concerns over judges threatening lawyers with contempt of court and disbarment(28), and recommended the establishment of a self-regulating independent body to oversee the legal profession(29). Most recently, on 25 October 2016, the High Court of the Maldives summoned and questioned a senior lawyer, former Attorney General Husnu Al-Suood for having tweeted a photograph of the Registrar of the HC with Mohamed Shahid MP and Abbas Wafir who appealed a controversial decision of the Civil Court with the HC. After five days, the Department of Judicial Administration(30) disbarred Suood and Ali Hussain(31), and the SC threatened the lawyers with temporary and permanent disbarment(32).    

This judicial activism in the Maldives is reminiscent of the Indian Supreme Court’s judicial activism with regard to the issuing of guidelines and its decisions concerning the constitutionality of parliamentary proceedings and decision-making, in some circumstances resembling judicial supremacy over the constitutional supremacy which is the bedrock of the Constitution. There is an understanding that apex courts can issue guidelines for certain circumstances, particularly where there is a possibility of a constitutional interregnum or a legal-vacuum; however, it is questionable as to whether any court can lay down guidelines when a clear constitutional and legal framework has already been established by the legislature.

It is hurtful to see the abuse of the contempt of court power vested in the courts while freedom of expression is being negated, lawyers, in particular, are being rendered ‘toothless’. This is not only a violation of the domestic legal regime, but also a violation of the Maldives’ international obligations. The public expects the judicature to be noble, sincere, and impartial; equally, the judicature is expected to be tolerant of the diverse opinions in a democracy and to enable the public’s expectation of nobleness, sincerity, and impartiality to become a reality. It is beyond the shadow of a doubt that the public does not expect the judicature to be cynical and to foolishly debunk the judiciary by acts of judicial adventurism and the abuse of judicial discretion.

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Source URL:  Maldives Independent

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