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Maldives: Judicial independence and democracy cannot be restored without regime change

Male', Maldives.
The fledgling democracy of the Maldives, carried into place by Gayoom and his DRP, has been well and truly killed by President Nasheed and his militant party, Maldives Democratic Party.

Nasheed this week compromised the independence of the judiciary by arbitrarily arresting and holding in isolated detention, Senior Judge of the Criminal Court, Abdulla Mohamed. Chief Justice Ahmed Faiz, Prosecutor General Ahmed Muizzu, Attorney General Abdulla Muizzu, Maldives Lawyers Association, Human Rights Commission of Maldives, and top lawyers around the country have called the act a violation of the constitution and laws.

President Nasheed today broke his total silence on the matter, by trying to justify his military action compromising the independence of the judiciary as an action he was required to take in order to uphold the constitution. Nasheed claimed that the Constitution gave him the parental role of protecting and upholding it. His arrest of Judge Abdulla, he said was due to uphold the constitution because of Judge Abdulla's misconduct and violation of oath of office and powers, in giving court verdicts and in setting the court agenda of cases.

Nasheed claimed that these allegations against Judge Abdulla had been sent to the Judicial Services Commission (JSC) several times by his office, and had been ignored or delayed by the JSC. Nasheed said that the Constitution could not be implemented by allowing Judges to have a say in decisions regarding the misconduct of fellow judges.

Unfortunately for President Nasheed, his justification of Judge Abdulla's arrest as upholding the constitution, does not rescue him from the legal noose tightening around his neck. The Constitution stipulates that "No officials performing public functions, or any other persons, shall interfere with and influence the functions of the courts" (Section 141 (b)).

President Nasheed is a public official, subject to the Constitution and laws. He has violated Section 141 (b) as he has interfered with the functioning of the courts by arresting a Senior Judge, putting the rest of the judges of all courts into a state of fear over their imminent arrest.

The Constitution states that, "The principles of governance of the State being
determined by this Constitution, the President shall uphold, defend and respect the
Constitution, and shall promote the unity of the State" (Section 106 (c)). Clearly, President Nasheed has not upheld Section 141 (c) of the Constitution.

The Constitution puts bounds on the President's Executive powers by stating that, "The President shall exercise Executive authority as provided for in the Constitution and law". No where in the Constitution does it provide the President with Executive authority over the Judiciary. Section 115 which outline the Executive responsibilities of the President does not give any authority over the Judiciary.

In fact, the Constitution states the exact opposite, that, "The Judges are independent, and subject only to the Constitution and the law" (Section 142). Nasheed's arrest of Judge Abdulla violates this stipulation, as the Judges cannot be independent if they can be arrested at will merely because the President or his administration or his party are displeased with their court verdicts.

The Constitution clearly entrusts the Judicial Services Commission with the responsibility of appointing all judges apart from the Judges of the Supreme Court (Section 148 (b)).

The process of removal of judges is similarly clearly stipulated in Section 154. "A Judge shall not be removed from office during good behavior and compliance with judicial ethics" (Section 154 (a)).

"A Judge may be removed from office only if the Judicial Service Commission finds that the person is grossly incompetent, or that the Judge is guilty of gross misconduct, and submits to the People’s Majlis a resolution supporting the removal of the Judge, which is passed by a two thirds majority of the members of the People’s Majlis present and voting" (Section 154 (b)).

Again, nowhere here is there room for interpreting that the President has the authority to remove Judges from office.

The JSC too is protected from undue influence by the President or the Parliament. The Constitution stipulates that, "the Judicial Service Commission is an independent and impartial institution" (Section 157 (b)). The JSC constitutes of a balanced representation from the President, Cabinet, Majlis, lawyers, judges at various court levels, civil service commission and the general public. President Nasheed is attempting to influence the JSC by damaging its good reputation of the JSC with his allegations that JSC has not acted upon proven misconduct by Judge Abdulla.

In fact, the Constitution puts the investigation of complaints about the Judiciary also beyond the long arm of the President and his Police. Section states that, the JSC has the responsibility and power "to investigate complaints about the Judiciary,
and to take disciplinary action against them, including recommendations for dismissal". Thus, the initial summons served by Maldives Police Service to Judge Abdulla to investigate Nasheed's allegations about his misconduct was also an unconstitutional act, and hence an act that Judge Abdulla had the constitutional right to disobey.

In short, Judge Abdulla's arrest on January 16th 2012, constitute gross violations of several Sections of the Constitution by President Nasheed, Home Minister Afeef, Defence Minister Tholhath, Police Commissioner Faseeh and Chief of Defence Forces Moosa Jaleel. A fact that Prosecutor General Muizzu is well aware of, and must action regardless of whether Nasheed now releases Judge Abdulla or not. The Constitution was overturned by President Nasheed when he arrested Judge Abdulla, it now remains up to the organs of the state such as the Parliament and independent commissions such as the PG, JSC and HRCM to restore the constitution by making Nasheed and all who aided and abetted him accountable to the constitution and laws of the country. Judicial independence and hence democracy cannot be restored without regime change.

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