By Laraib Fatima Hassan
The idea of an independent judiciary in the Maldives has long been the desire of the Maldivian people, and much work has been done to attain this goal. But much of it has been undone within the span of the last two years.
The Judiciary has always been an important institution within the Maldivian Government. Going back as far as the days of the monarchy, the independence of the Maldivian judiciary has always been ensured by the Kings and Queens of the Maldives.
Inevitably, following the codification of the first Constitution of the Maldives in 1932, the independence of the Maldivian judiciary was for the first time under question following the growing influence by the ruling government. The 2008 Constitution of the Maldives was codified with high expectations by the public to ensure an independent judiciary in line with the modern times and one which could ensure the rights of the common people.
The codification of the 2008 Constitution of the Maldives also paved the way for the creation of the Supreme Court of Maldives. According to this new constitution, the Supreme Court of Maldives was the body that was given the task of clarifying all issues about the implications of the articles of the constitution. In addition to this, the Parliament of the Maldives along with the general public were also entitled to request the Supreme Court of Maldives to clarify any arguments regarding the implementation of the Constitution of Maldives.
Uncertainties on the Impartiality of the Maldivian Judiciary: The independence of the Maldivian Judiciary is dictated in Article 7 of the new Constitution of the Maldives which clearly emphasized the doctrine of separation of the three powers of the state. This is further empowered in chapter 6 of this constitution in which article 141 (C) states that both the public and the government shall not interfere or influence the functioning of the Maldivian Judiciary in any way or any capacity.
But the recent allegations of influence on the Maldivian Judiciary by the current administration have once again raised the question that whether the Judiciary is truly independent and whether this is an issue caused by the flaws within the Constitution of the Maldives or due to abuse of law.
The answer to these questions lies within the tabulation of the articles of the constitution which ensures the independence of the Maldivian judiciary – that is the formation of the judicial watchdog in the Maldives. The formation of the Judicial Service Commission was meant to remove the political influence over the judiciary by creating an impartial watchdog to provide oversight for the judiciary.
However, the subject of the issue in hand is being enabled with the abuse of process with Article 158 of the Constitution which dictates the appointment of members for the Judicial Service Commission of the Maldives. The commission which according to the Maldivian constitution has the legal mandate of providing oversight for the Maldivian judiciary has become the latest ground for enabling political persecution and violations of human rights in the Maldives through their influence on the Maldivian Judiciary. The appointment of political activists and their attorneys with an extensive history of political activism in the Judicial Service Commission of the Maldives is at the core of all issues which is fueling the current allegations of influence on the Maldivian Judiciary.
The appointment of 5 ruling party members, i.e. the Speaker of the Parliament, his party member and long time attorney, an appointee by the President and the Attorney General of Maldives who sits in the ruling government’s Cabinet to the Judicial Service Commission eliminates any chance of establishing a functioning independent judiciary and as long as the current composition of the Judicial Service Commission of Maldives remains, the Maldivian Judiciary will continue to be subjected to political influence by the ruling party.
Constitutional Solution For The Maldivian Judiciary: Though Article 7 and Article 141 of the Constitution of Maldives extensively emphasize the independence of the Maldivian Judiciary, yet the current composition of the Judicial Service Commission according to Article 158 of the Constitution will continue to be an impediment for the Maldivian Judiciary for independent functioning and will continue to provide grounds for questions regarding its impartiality.
The current ruling Maldives Democratic Party won their super-majority within the Parliament after pledging to amend Article 158 of the Constitution to ensure the independence of the judiciary. However, with the current status quo in regards to the state of affairs in the Maldives, their lack of action in implementing the promised amendments is inexcusable.
Since 1932, under every administration and Parliament, influence to the Maldivian Judiciary continues to seep through the cracks of the constitution. Today, the judiciary continues to linger in fear of political influence from the current ruling party just like before 2008 when the “Ministry of Justice” kept a check on the Judiciary and the situation right now is on par if not worse than that time.
