Follow @southasiaanalys

Maldives: The Tyranny of the Judiciary-The Supreme Court Strikes Again.

Paper No. 5805                                     Dated 16-Oct-2014

By Dr. S.Chandrasekharan

It may be recalled that the Judiciary in Maldives on the eve of the parliamentary polls in March this year framed charges against the Chairman of the Election Commission and his deputy with contempt of court and went on to dismiss them from their jobs.

It was an unprecedented move where the Judiciary intervened in the functioning of constitutional duties of the Election Commission. Also the sacking is to be done only by the President and not by the judges of the Supreme Court!

What was more surprising-  there were no protests from the public or even from the administration. The ruling party and the President meekly endorsed the move as it suited them well then.

The Supreme Court again in June this year authorised the courts functioning under them to penalise individuals for "any expression, action, gesture or piece of writing inside or outside a court room that could be considered as contempt of court."

In another issue of again an over reach- the Supreme Court issued a circular directing all the state institutions not to communicate to individual courts regarding any information relating to the Judiciary except through the Supreme Court.

The above orders have been creating difficulties for many institutions and this was the one that created problems for the Human Rights Commission that had to collect data from the judiciary.

Apparently the Supreme Court is taking cover under three sub clauses of the Maldivian Constitution-

Article 141 b states that the Supreme Court shall be the highest authority for the administration of justice in Maldives.

Article 141c states that no officials performing public functions or any other persons shall interfere with and influence the functions of the courts.

Article 141 d states that persons or bodies performing public functions through legislative and other measures must assist and protect the courts to ensure the independence, eminence, dignity, impartiality, accessibility and effectiveness of the courts.

What the Supreme Court has tried to do is to consolidate its control over administrative affairs of the judiciary which is perfectly understandable but what it has sought to do is also to completely marginalise the role and functions of the Judicial Service Commission. It is also well known that some of the judges have not conducted themselves in their private lives to deserve to be termed as "eminent and dignified."

In the instant case, the Supreme Court has hauled up the five members of the Human Rights Commission for contempt for suggesting that the Supreme Court ‘s control over the judiciary was undermining the powers of the lower courts.The case is going on in the Supreme Court with all the judges particiapting in the trial.

In a report on the judiciary in the Maldives, the United Nations Special Rapporteur for the Independence of Judges and Lawyers, Gabriela Knaul rightly pointed out that centralising administrative decision in the hands of the Supreme Court has undoubtedly contributed to the strong impression that the lower courts are excluded from the administration of justice and decision-making process.

The report is still in the draft stage and is yet to be discussed in the UN but the Supreme Court appears to be in an unusual hurry to initiate suo motu proceedings against the members of the Commission.

The Universal Period review is done every four years by the UN of all the 193 UN member states based on submissions of the government, the UN, the NGOs and Human Rights Commissions. Maldives’ turn is coming up only in April or May 2015.

The Human Rights Commission has not sent its report directly to the UN either. All it has done is to forward the review report to the Department of Judicial Administration and sought its feed back. There was enough time to amend the report or even completely delete the so called adverse observation that the Supreme Court’s orders were undermining the powers of the lower courts.

The Judges of the Supreme Court in the proceedings in courts said that the statements made in the review were "dangerous, irresponsible and poorly researched"

The Human Rights members in their defence only said that their report was not that of the institution but that of the observations of the UN Rapporteur Knaul, reports by International Commission of Jurists and local NGO- the Transparency Maldives.

Interestingly the Department of Judicial Administration has not responded to the report either and yet the Supreme Court with great alacrity has initiated proceedings against the members of the Human Rights Commission.

Unfortunately the Supreme Court decisions or actions in Maldives cannot be challenged anywhere.

In a report on Maldives the United Nations Human Rights Council in 2012 had said that it was "deeply concerned about the state of the judiciary in the Maldives." It went on to say that the "the State had admitted this body’s independence is seriously compromised— the judiciary is desperately in need of more serious training, and higher standards of qualification— the Court in particular is in need of radical adjustment— this must be done to guarantee just trials and fair judgements for the people of Maldives"

That was in 2012 and it continues in 2014 also with no change whatsoever!