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.
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."