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In Maldives, now it's legislature vs judiciary?
N Sathiya Moorthy
26 October 2012

After three years of continuous confrontation between the executive and the judiciary, Maldivian democracy is now getting exposed to the inevitability of an issue-based confrontation between the Legislature and the Judiciary. The clash may have flowed from the on-going criminal case against former President Mohammed Nasheed, but central to the emerging row could be the question of comparable supremacy of the Judiciary and the Legislature, an issue that has been basic to other democracies too. In an infant multi-party democracy that Maldives is, it would be interesting to note how the constitutional institutions take forward the cumulative concerns of nation-building in areas where other emerging democracies had handled near-similar situations with abundant caution and accompanying maturity.

The current controversy flows from President Nasheed purportedly ordering the arrest of Criminal Court Chief Judge Abdulla Mohammed on January 16, and holding him 'captive' in an island away from the national capital of Male, the latter's place of ordinary residence. With the change of Government on February 7 now has come the criminal case against President Nasheed and a host of others serving his Government at the time. However, the involvement of a judge in this case should not distract from the issue on hand.

What is material to the present situation, however, is the summoning of the three judges of the suburban Hulhumale Court by the Parliament Subcommittee on Government Accountability, dominated by members of President Nasheed's Maldivian Democratic Party (MDP). The judges, first asked to appear before the committee, almost around the same time as President Nasheed had been summoned to appear before the three-judge bench, stayed away once. They have stayed away a second time, since. Media reports quoting committee sources claimed that on neither occasion did the judges assign any reason for not appearing before the committee.

In the ordinary circumstances, this has the potential to trigger an all-out confrontation between Parliament, or the People's Majlis, and the judiciary. In this case, however, circumstances may have conspired already to make it even more complex. The fact that these are possibly the only judges to have been summoned by the said parliamentary committee under the new constitutional scheme of 2008 has not gone unnoticed. Nor has the fact that they were trying President Nasheed when they were summoned by the committee has also not been over-looked. A government party member on the committee also went to town soon after it decided on the summoning of the judges that many of the non-MDP members were held up in a Parliament voting when the decision was taken. The implication was still that the government party members may not subscribe to the decision taken by their MDP counterparts, who have a majority representation on the committee.

Not much is known about the immediate causes surrounding the summoning of the judges. Prima facie, it is said that they were required to depose before the committee on matters flowing from the Report of the Commission of National Inquiry (CoNI), submitted to President Waheed Hassan Manik in August-end. While upholding the constitutional validity of the power-transfer after President Nahseed resigned on February 7, the multi-member body with international representation had recommended the further strengthening of the 'independent institutions' under the constitutions. However, it is argued that any furtherance of the goal could not be achieved by Parliament or any of its committee, by summoning members of the subordinate judiciary. It has to be at higher-levels, be it in terms of policy-review, execution or supervision.

Ruling Progressive Party of Maldives' (PPM) member of the Committee, Ahmed Nihan Hassan Manik, said, without much loss of the time when the judges were first summoned, that the panel had exceeded its mandate. Pointedly, he referred to the pending criminal case against President Nasheed, and said that neither any parliamentary committee nor the full House could discuss any case pending before any court in the country. "The MDP says that they do not accept Hulhumale court's jurisdiction. Parliament committees do not have the mandate to summon judges in relation to this accusation. I think MDP members did this because they are emotionally charged," Nihan had said on that occasion.

Cat-and-mouse or hide-and-seek game?

The Supreme Court, whose directions the three judges were believed to have sought, reportedly advised them against appearing before the parliamentary committee. The Judicial Services Commission (JSC), another 'independent institution' under the 2008 Constitution, was even more forceful in its defence of the judges' decision not to appear before the committee. Citing specific provisions, the JSC said that the Majlis should stop interfering in the judiciary and should respect the separation of powers as guaranteed under the constitution.

The JSC cited Article 141 (c) of the constitution, which reads thus: "No officials performing public functions, or any other persons, shall interfere with and influence the functions of the courts." It further referred to Article 21 (b) of the Law on the Judicial Services Commission and said that it was the sole authority for holding judges accountable to their actions. Further, the JSC has also Article 9 of the Bill on Judges as legal foundation for its arguments against judicial interference by the Majlis. The JSC may have a point, considering that 'Institution Commissions' such as this one were given constitutional protection only to free subordinate organs of the Government from perceived interference and influence by the Executive and the rest.

MDP members on the parliamentary committee have denied any linkage between the case against President Nasheed and the summoning of the trial judges. MDP's Parliamentary Group Deputy Leader Ali Waheed, chairing the committee, has also described the actions of the judges and the JSC as well as the Supreme Court's encouragement of their behaviour as a "cat-and-mouse" game played by the Judiciary. "What we are witnessing is a 'cat-and-mouse' or a 'hide-and-seek' game being played between Parliament and the judiciary. If that is the case, we are going to play the cat-and-mouse chase, because we are not going to step back from our responsibilities," Minivan News quoted him as telling a news conference after the Judges failed to appear before the committee.

Ali Waheed denied that they were summoning the three judges "to settle scores or for a personal vendetta or to destroy their reputations", but within the course of executing their legal duties. "As the chair of Parliament's Government Oversight Committee, I shall continue to execute my duties and we believe the constitution allows us to summon anyone with regard to our concerns and we will do so. So I sincerely urge them not to hide behind a constitutional clause dictating the responsibilities of the judges," Waheed said, maintaining that the committee's intentions were sincere and that it was being very "respectful" and "patient".

According to Minivan News, Ali Waheed went on to add: "These people are those who must lead by example (in upholding the law) but what we see is that neither the Anti-Corruption Commission, nor the Auditor-General, not even Parliament is being allowed to hold these people accountable. They can't be above the law and should not even think they are," he continued. "What we are repeatedly reassuring them is that we will not allow committee members to question them on matters not in their mandate."

Waheed's fellow MDP parliamentarian Ahmed Hamza argued that the judges' decision was in contrast to principles of rule of law, which were fundamental to a democratic State. "In every democracy it is the people from whom the powers of the State are derived. Parliament represents the people, and their actions reflect the wish of the people, so all authorities must respect the decisions," he said. Hamza, according to Minivan News, reiterated that the current system of separation of powers holds the three arms of the State accountable to one another through a system of checks-and-balances.

Hamza dismissed the claims made by pro-government parties that the committee was attempting to influence the on-going trial of President Nasheed. "We are not trying to defend Nasheed, all we are trying to do is to carry out our duties and responsibilities vested in the constitution. We will not question them about any ongoing trial, nor will we comment on their verdicts and decisions," Minivan News quoted Hamza as saying further.

Democratic precedents

The committee's summons for the three Judges was formally routed through Parliament Speaker Abdulla Shahid, thus conferring the authority of the Majlis. For an infant democracy, the current controversy has the potential to create a constitutional deadlock of a new kind, after President Nasheed in mid-2010 ordered the closure of the Supreme Court by the nation's armed forces for a day. The period also witnessed a deadlock of sorts between the Executive and the Legislature, where the present-day ruling parties were in the Opposition and held a collective majority. However, the current deadlock has greater potential for inflicting deeper constitutional wounds than the rest. At the centre of the issue however would be the Executive, which prima facie has no role to play but may be called upon to resolve the issue, nonetheless, particularly if the situation were to go out of hand in the coming days and weeks.

It is not as if other democracies have not faced similar or near-similar problems. What is, however, unique to the Maldivian situation is that in the absence of political, legal and constitutional precedents of its own, the temptation for each arm of the State to assert its relative supremacy and consequent paramountcy against one another could be too tempting to test and also resist. Elsewhere, there have been many instances of the kind, though even there does not seem to be any parallel of the Maldivian kind ? where judges have been summoned before a parliamentary committee to comment on issues after they had assumed judicial offices.

In the US and many other western democracies, Parliament and parliamentary committees have both the right and responsibility to vet prospective judges to superior courts nominated by the Executive, and also vote on such nominations, where required. It is so in those countries when it comes to other senior governmental appointments, including envoys to foreign countries. Maldives follows such a scheme, yet in the case of Judges, as the 2010 controversy showed, the differences were over nominations to the JSC, not of individual judges, particularly at the subordinate levels. Incidentally, in none of the western democracy is there a known precedent of a serving member of the subordinate judiciary being summoned by a parliamentary committee. They are often left to the administrative control of the higher judiciary, which only is subject to the option of impeachment of its individual members by the Legislature.

In neighbouring India, which is the world's largest and possibly a more complex democracy at work than its western counterparts, issues involving the judiciary and the legislature are confined to two broad-spectrum spheres, other than in matters of 'impeachment' (which was effectively used twice since Independence, with 50 per cent success rate). In India, the judiciary and the legislature have often come into conflict over the former staying the operation of any legislative ruling in terms of actions initiated against individuals called to bar. Where a final verdict is available, the Legislature concerned has often abided by the judicial verdict even in such matters.

Judicial intervention in legislative action in India otherwise has been confined mostly to the Speaker's rulings or initiatives in matters pending before him under the anti-defection law. The law came into force in the mid-Eighties, close to 40 years after Independence, and opened up a new chapter on legislative jurisprudence of the kind. While holding the law, empowering the Speaker of the legislature concerned, as the final arbiter of what constituted 'defection' by an individual member or a group in a parent party, the higher judiciary applied a kind of checks-and-balances in the application of the rule to individual cases, based on facts and circumstances. The Supreme Court's judgment in the 'Manipur Assembly Speaker case' defined and restricted the role of the Speaker under the anti-defection law. This was however followed by the Apex Court's verdict in the 'S R Bommai case' (1994) which in fact sought to expand the scope and role of the Legislature in deciding a government's floor majority.

As coincidence would have it, almost every Third World, South Asian democracy seems to have witnessed issues involving the Judiciary and the Legislature, with the executive coming to be willy-nilly involved, by extension. In Pakistan, the supremacy of the Judiciary ultimately dictated that the Legislature's pro-confidence resolution did not have the required legal and constitutional binding, with the result, Prime Minister Yousaf RazaGilani quit on court orders. His successor, Raja Pervez Ashraf, after indicating to go Gilani's way has obliged the Supreme Court's directive in writing to the Swiss Government on the bank accounts of the nation's President, Asif Ali Zardari.

In 'revolutionary' Nepal, incumbent Government promptly followed the Supreme Court directive on holding fresh elections to the Constituent Assembly without seeking to extend its term further. In Pakistan and Bangladesh, over the past couple of years, the respective Supreme Court have held preceding constitutional amendments passed under the military regime unconstitutional, and no section of the incumbent Legislature has contested the same. More recently in Sri Lanka, the Legislature was said to be in a seeming conflict with the Judiciary, but on record, senior Ministers were deployed to annul all such apprehensions.

It is in the larger context that Maldives has to view the emerging controversy involving the Legislature and Judiciary, which if left unaddressed adequately, has the potential to rock the constitutional boat further. Considering however the telescoping of the democratic process that Maldives has adopted unintentionally, as the events and consequent constitutional issues have shown, the possibility of further clarity on the overall spectrum appearing at the end of the tunnel on this core issue too cannot be ruled out. Either way, the stake-holders need to handle the issues and the attendant controversies with the knowledge, accommodation and sensitivity that they demand.

(The writer is a Senior Fellow at Observer Research Foundation)