Jus­tice in the Dock

The courts may deem them­selves to be the fi­nal in­ter­preters of the con­sti­tu­tion and the ul­ti­mate cus­to­di­ans of the law. But their pow­ers are limited by the writ­ten pro­vi­sions of the con­sti­tu­tion.

Southasia - - CONTENTS - By Hus­sain H. Zaidi

The Supreme Court of the Mal­dives is in the lime­light fol­low­ing the sacking of two of its judges.

The Supreme Court of the Mal­dives is once again in the lime­light fol­low­ing the sacking of two of its judges, in­clud­ing the chief jus­tice. Have the judges been shown the door fol­low­ing due process of law? Or is their re­moval ar­bi­trary and rep­re­sents an at­tempt to scale down the in­de­pen­dence of the ju­di­ciary?

The Mal­dives' apex court has been at the cen­tre of one con­tro­versy af­ter an­other over the past cou­ple of years. It started when in 2012 Pres­i­dent Mo­hamed Nasheed, who had de­feated the erst­while ruler Mau­moon Ab­dul Gay­oom in the na­tion's first mul­ti­party elec­tions, stepped down in the face of anti-gov­ern­ment protests. Nasheed's deputy Mo­hamed Wa­heed was sworn in pres­i­dent by Chief Jus­tice of the Supreme Court, Ah­mad Faiz Hus­sain. On the face of it, ev­ery­thing went as per the let­ter of the 2008 Con­sti­tu­tion.

How­ever, Nasheed later came out with the ac­cu­sa­tion that he had been ousted in a coup led by Wa­heed. In the event that Nasheed's al­le­ga­tion was valid, his re­moval and the pro­mo­tion of Wa­heed to the of­fice of the pres­i­dent was un­con­sti­tu­tional and thus ad­min­is­ter­ing the oath to him by the CJ amounted to le­git­imiz­ing the coup. Although a com­mis­sion of in­quiry sub­se­quently ruled that Nasheed's re­moval did not con­sti­tute a coup, the rul­ing was widely dis­puted.

The Supreme Court was also charged with over­step­ping its author­ity to en­sure the victory of Yameen Ab­dul Gay­oom, the brother of Mau­moon Ab­dul Gay­oom, in the 2013 pres­i­den­tial elec­tions. Not only that, the apex court was ac­cused of hav­ing con­trib­uted to the victory of Gay­oom's party in the en­su­ing par­lia­men­tary elec­tions by, for in­stance, dis­miss­ing the elec­tion com­mis­sioner avowedly for contempt of court.

Mean­while, al­legedly with a view to in­su­lat­ing it­self from the charges of over­step­ping its author­ity, par­tic­u­larly with re­gard to the ex­er­cise of suo motu pow­ers, the Supreme Court adopted contempt of court reg­u­la­tions and even ini­ti­ated high trea­son pro­ceed­ings against the Hu­man Rights Com­mis­sion of the Mal­dives for re­port­ing that the apex court in­flu­enced the sub­or­di­nate ju­di­ciary be­yond its man­date.

All along, the Supreme Court jus­ti­fied its ac­tivism on the strength of Ar­ti­cle 145 (c) of the Con­sti­tu­tion, which reads: "The Supreme Court shall be the fi­nal author­ity on the in­ter­pre­ta­tion of the Con­sti­tu­tion, the law, or any other mat­ter dealt with by a court of law." That pro­vi­sion was used to ar­gue that while there are lim­its on the pow­ers of the Supreme Court, the court it­self is the ar­biter of what it can law­fully do and what it can't.

In De­cem­ber 2014, how­ever, the pen­du­lum swung to the other ex­treme with the amend­ment to the Judicature Act. Ar­ti­cle 145 (a) of the Con­sti­tu­tion pro­vides that "The Supreme Court shall con­sist of the Chief Jus­tice and such num­ber of Judges as pro­vided by law."

Newspapers in English

Newspapers from Pakistan

© PressReader. All rights reserved.