The judicial system has been at the centre of political controversies in Maldives since it embarked on a transition to adopt democracy. Three decades of authoritarian regime has vitiated the institution of judiciary to the extent that the United Nations Human Rights Committee (UNHRC) expressed serious concern over the independence and professional quality of Maldives’ judiciary when it met with the representatives of the Government of Maldives between 12 and 13 July 2012 in Geneva. This commentary attempts to analyse and question the reform process in the institution of judiciary in Maldives against the backdrop of swelling political tension and dwindling religious freedom entwined with a skewed interpretation of a democratic order.
A reluctant judiciary
The judiciary in Maldives evolved within the confines of institutional solidity coerced by a paternalistic governance of a rigorous, and at times imprudent, authoritative regime of Maumoon Gayoom. The legacy of this regime has blinded the present occupants at the helm of the judiciary in the country to the accountability, responsibility and independence of the institution in its new democratic make-up. The Maldivian justice system that incorporates both common law and sharia is witnessing reluctance among the legal fraternity to adopt an open-minded and a tolerant approach toward the values, culture and principles of democracy. This reticence has been possibly triggered by their lack of orientation to the ideals of democracy. In December 2011, the Chief Justice of the Supreme Court reinforced the need for lawmakers to gain knowledge about sharia punishments at a time when banishment and flogging as punitive actions in Maldives are being contested by human rights groups across the world. Also, the members of the judiciary are compelled to stay within the deeply woven informal network of clienteles to protect their underperformance and deficiencies from being exposed to the public. This informal network illustrates a cobweb designed through Gayoom’s personal, and often, elusive business relations involving his coterie of political and religious elites.
On assuming power in 2008, former President Mohammed Nasheed established the Judicial Services Commission (JSC) under Article 157 of the Constitution - an independent institution entrusted with the task of reforming the judiciary to ensure its independence and accountability to citizens. The commission was to initiate ethical and professional standards in the legal system in accordance with democratic principles. Crucial to the reform process was the removal of unqualified judges as required by the Constitution (Himal Magazine, April 2011). Unfortunately, the JSC proved to be dysfunctional with the commission comprising of jurists who thrived under Gayoom’s regime. According to the disclosure made by Aishath Velezinee, formerly the President’s Member on the JSC, the commission reappointed 160 judges regardless of the fact that a quarter of them were found to have past criminal records (Minivan News, 30 July 2010). As an upshot, young Maldivian law graduates waiting to embrace a reformed judiciary in Maldives are being deliberately sidelined (Himal Magazine, April 2011). Velezinee further states that about 50 per cent of the judges in Maldives have attended school only till grade VII. Even so, they received a ‘sentencing certificate’ under Gayoom’s rule enabling them to qualify as judges. The JSC became a defence shield for these unqualified judges to counter public outrage and constitutional provisions. Moreover, the opposition in the Majlis (Parliament of Maldives) fiercely guarded these judges who protected the parliamentarians facing criminal charges against them- a fact explicitly illuminated in the demeanours of Abdulla Mohamed, Chief Judge of the Criminal Court. The conduct of Chief Judge Abdulla Mohamed has been under the scanner since 2005. He reportedly opened the Criminal Court outside its working hours to grant immediate release orders to two high-profile members of Majlis, Abdulla Yameen, half-brother of Gayoom, and Gasim Ibrahim, who were arrested on charges of corruption. Following this, Nasheed ordered the arrest and illegal detention of Chief Judge Abdulla Mohamed - a decision that cut short his tenure as the first democratically elected head of the state.
Debacle of a hasty reform
A culture of democracy is understandably fostered through evolving process of discussion and deliberation to accommodate the aspirations of different groups. The significant question that remains unanswered is if the space for nurturing this culture did ever surface in the socio-political fabric of Maldives. The answer perhaps is in the negative. This is because the transition toward democracy, for Maldivians, was essentially drawing a curtain on Gayoom’s authoritarian reign. It inevitably marks their commitment to change but not necessarily an understanding of the language of democracy.
Nasheed, an Amnesty International prisoner of conscience in 1991, was indubitably keen on swiftly reforming the judiciary in tune with emerging democracy. Unfortunately, Nasheed failed to realize that the process of reforms did not create a parallel free space for the people of Maldives to interact, deliberate and negotiate the enigmatic ideals of democracy. ‘If London took three hundred years to build its first city wall, and three hundred years more to acquire a bishop’ as Gabriel Márquez observed in his Nobel Lecture in 1982, it should not be a surprise if Maldivians are unable to rapidly accept and adjust to the ideas of a democratic system required to reform any institution of governance in Maldives.