Abusive judicial discretion in the Maldives

By Shamsul Falaah

Eight years ago, the Maldives adopted a new constitution, which was claimed to be a democratic constitution promising a nomocracy with the cardinal features of a modern constitution: protection of fundamental rights and freedoms(1); separation of powers(2); popular sovereignty(3); supremacy of the constitution(4); free and fair elections(5); and judicial independence(6).

As is usual in any other case of constitutional supremacy, broad powers are vested in the courts, from the deciding of trivial matters to the declaration of any statute or regulation or decision unconstitutional and the making of any order(7). Despite this established constitutional mechanism, the Maldivian courts have restricted the media’s right(8) to report court proceedings(9) and the individuals’ freedom of speech(10); thus eroding the principles of open justice(11) and the popular sovereignty that is guaranteed in the Constitution. In particular, the Supreme Court has interfered in the autonomy of the constitutional organisms and of the legal profession.

Severe criticism has been poured on the intemperate decisions of the Maldivian SC; this criticism stems from the reactions of the public to the opinions expressed by public officials and also of the individual opinions expressed that were based on grounds of contempt of court.

One of the landmark cases was the Suo Moto action against the Elections Commission(12), in which the SC dismissed both the Commissioner and the Deputy Commissioner of the EC and gave a suspended jail sentence(13) for criticising the court’s interference in presidential elections, by repeatedly postponing elections with a guideline which was alleged to have undermined the independence of the EC(14). Among the critics, the then High Commissioner for Human Rights, Navanethem Pillay also raised concerns stating, “I am alarmed that the Supreme Court of the Maldives is interfering excessively in the presidential elections, and in so doing is subverting the democratic process and violating the right of Maldivians to freely elect their representatives.”(15)

This decision was disturbing on several grounds: the court relied on the privileged statements made by the electoral commissioners in the Majlis as evidence(16), and the court removed the commissioners from their posts; this was solely within the mandate of the Majlis(17).

The second occasion was when the Suo Moto action was taken against the Human Rights Commission of the Maldives(18), wherein the SC ordered the HRCM to respect the Constitution(19) over a report(20) produced by the HRCM to the Universal Periodic Review process of the UN Human Rights Council. The SC laid down eleven guidelines(21), which restricted the HRCM’s capacity to work with foreign bodies(22), undermining the independence(23) and the immunity granted by the Constitution and law to the HRCM and its members(24).

The decision engendered an outcry from both the local(25) and international bodies(26). Raising concerns about the decision, the United Nations High Commissioner for Human Rights, Zeid Ra’ad Al Hussein stated that “[t]he Supreme Court judgement is yet another example of the judiciary undermining human rights protection in the Maldives.”(27)

Lawyers were also routinely disbarred for criticising or expressing their opinions. The former UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, also raised concerns over judges threatening lawyers with contempt of court and disbarment(28), and recommended the establishment of a self-regulating independent body to oversee the legal profession(29). Most recently, on 25 October 2016, the High Court of the Maldives summoned and questioned a senior lawyer, former Attorney General Husnu Al-Suood for having tweeted a photograph of the Registrar of the HC with Mohamed Shahid MP and Abbas Wafir who appealed a controversial decision of the Civil Court with the HC. After five days, the Department of Judicial Administration(30) disbarred Suood and Ali Hussain(31), and the SC threatened the lawyers with temporary and permanent disbarment(32).    

This judicial activism in the Maldives is reminiscent of the Indian Supreme Court’s judicial activism with regard to the issuing of guidelines and its decisions concerning the constitutionality of parliamentary proceedings and decision-making, in some circumstances resembling judicial supremacy over the constitutional supremacy which is the bedrock of the Constitution. There is an understanding that apex courts can issue guidelines for certain circumstances, particularly where there is a possibility of a constitutional interregnum or a legal-vacuum; however, it is questionable as to whether any court can lay down guidelines when a clear constitutional and legal framework has already been established by the legislature.

It is hurtful to see the abuse of the contempt of court power vested in the courts while freedom of expression is being negated, lawyers, in particular, are being rendered ‘toothless’. This is not only a violation of the domestic legal regime, but also a violation of the Maldives’ international obligations. The public expects the judicature to be noble, sincere, and impartial; equally, the judicature is expected to be tolerant of the diverse opinions in a democracy and to enable the public’s expectation of nobleness, sincerity, and impartiality to become a reality. It is beyond the shadow of a doubt that the public does not expect the judicature to be cynical and to foolishly debunk the judiciary by acts of judicial adventurism and the abuse of judicial discretion.

However, in a system where the apex court issues a judicial directive to the media ordering it to address the justices of the SC in a specific way and disbars lawyers for a mere tweet, the fate of the legal profession is questionable and the abuse of power is beyond imagination – even writing an article such as this may result in the disbarment of its author.

All comment pieces are the sole view of the author and do not reflect the editorial policy of The Maldives Independent. If you would like to write an opinion piece, please send proposals to [email protected]

Shamsul Falaah is a PhD Candidate at the University of Auckland’s Faculty of Law. Falaah is also an Advocate of the High Court of the Maldives.

1. Constitution of the Republic of Maldives, II (2008)
2. Id. at 5,6,7.
3. Id. at 4.
4. Id. at 8, 268.
5. Id. at 26.
6. Id. at 42, 141, 142.
7. Id. at 144.
8. Id. at 28.
9. Courts have banned journalists from covering the court hearings, in some cases, such journalists are from a particular news agency. The International Federation of Journalists (IFJ), Three journalists detained while covering protests in the Maldives, March 30, 2015, http://www.ifj.org/nc/news-single-view/backpid/33/article/three-journalists-detained-while-covering-protests-in-the-maldives/ (last visited Nov 2, 2016); Asian Forum for Human Rights and Development (FORUM-ASIA), The Maldives: Arrest of Journalists Condemned; Protect Freedom of Press Asian Forum for Human Rights and Development (FORUM-ASIA) (2016), https://www.forum-asia.org/?p=20529 (last visited Nov 2, 2016); Shafaa Hameed, Raajje TV latest to be banned from criminal court, Maldives Independent, March 6, 2016, http://maldivesindependent.com/politics/raajje-tv-latest-to-be-banned-from-criminal-court-122591 (last visited Nov 2, 2016).
10. Constitution of the Republic of Maldives, supra note 1 at 27.
11. Id. at 42.
12. Suo Moto Case Against the Elections Commission, (2014) This was the first Suo Moto case in the Maldivian apex court.  This Suo Moto case was initiated only after a month after the Supreme Court had framed the regulations on Suo Moto cases.
13. The sentence was suspended for three years. Id.
14. Commonwealth Observer Group, Maldives People’s Majlis election, 22 March 2014. 18 (2014); United Nations News Centre – Maldives Supreme Court undermining democratic process – UN rights chief, UN News Centre (2013), http://www.un.org/apps/news/story.asp?NewsID=46375#.WBkH2MlFoqR (last visited Nov 1, 2016).
15. United Nations News Centre – Maldives Supreme Court undermining democratic process – UN rights chief, supra note 14.
16. According to the Article 90(a) of the Constitution, no person shall be liable to any proceedings in any court, inquiry, arrest, detention or prosecution for anything said, produced, or submitted to the Majlis or to any of its committees. Constitution of the Republic of Maldives, supra note 1 at 90(a).
17. Id. at 177.
18. Suo Moto Case Against the Human Rights Commission of the Maldives, (2015).
19. The SC also ordered the HRCM to refrain from repeating the act of providing false information about the SC and the judiciary. Id.
20. Human Rights Commission of the Maldives (HRCM), HRCM Submission to the Universal Periodic Review of the Maldives 1–14 (2014), http://www.hrcm.org.mv/Publications/otherdocuments/UPR_submission_Sept_2014.pdf (last visited Nov 2, 2016).
21. This approach of issuing guidelines was first started in the controversial case which nullified the first round of the Presidential election of 2013. See Jumhooree Party v Elections Commission, (2013).
22. See Guideline 8 Suo Moto Case Against the Human Rights Commission of the Maldives, supra note 18 at 15.
23. Constitution of the Republic of Maldives, supra note 1 at 189; HUMAN RIGHTS COMMISSION ACT, 20, 21, 22 (2006).
24. HUMAN RIGHTS COMMISSION ACT, supra note 23 at 27.
25. Maldivian Democratic Party, MDP Raises Concern Over Supreme Court Verdict Undermining the HRCM (2015), http://mdp.org.mv/archives/70155 (last visited Nov 2, 2016); Minivan News, The Supreme Court’s “power grab” (2015), http://minivannewsarchive.com/politics/outrage-over-supreme-court-guideline-for-human-rights-watchdog-99876#sthash.0MG3oxZp.dpbs (last visited Nov 2, 2016); Ahmed Naish, Human rights watchdog defends restrictions imposed by Supreme Court (2016), http://maldivesindependent.com/politics/human-rights-watchdog-defends-restrictions-imposed-by-supreme-court-123077 (last visited Nov 2, 2016).
26. International Service for Human Rights (ISHR), Maldives: Withdraw charges and end reprisals against national human rights commission ISHR (2014), http://www.ishr.ch/news/maldives-withdraw-charges-and-end-reprisals-against-national-human-rights-commission (last visited Nov 2, 2016); International Service for Human Rights (ISHR), Reprisals | Groundbreaking legal proceedings filed against the Maldives (2016), https://www.ishr.ch/news/reprisals-groundbreaking-legal-proceedings-filed-against-maldives (last visited Nov 2, 2016); UN High Commissioner for Human Rights, Supreme Court judgement gravely undermines Maldives Human Rights Commission – Zeid (2015), http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16106&LangID=E (last visited Nov 2, 2016); United Nations News Service Section, Maldives court decision undermines human rights protections in country, warns senior UN official UN News Service Section (2015), http://www.un.org/apps/news/story.asp?NewsID=51205#.WBlG7clFoqR (last visited Nov 2, 2016); International Service for Human Rights (ISHR), supra note; Office of the United Nations High Commissioner for Human Rights (OHCHR), Maldives: UN experts urge Supreme Court to reconsider decision against Maldivian Human Rights Commission (2015), http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16101&LangID=E (last visited Nov 2, 2016); Asia Pacific Forum, Supreme Court decision undermines human rights protections | Asia Pacific Forum (2015), http://www.asiapacificforum.net/news/maldives-supreme-court-decision-undermines-human-rights-protections/ (last visited Nov 2, 2016).
27. UN High Commissioner for Human Rights, supra note 26.
28. Gabriela Knaul, Report of the Special Rapporteur on the independence ofjudges and lawyers on her mission to Maldives 16, 18 (2013), http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session23/A-HRC-23-43-Add3_en.pdf.
29. Id. at 23.
30. The regulatory body of the legal profession which operates under the SC.
31. Deparment of Judicial Administration, Announcement (2016), http://judiciary.gov.mv/viewer.html?file=/documents/Iulaan/Iulan-198-L-2016-144-lawyers-husn-al-suood-ali-hussain-suspenstion.pdf (last visited Nov 2, 2016) Ali Hussain is also an MP and is active on social media criticising the judiciary and the government.
32. Supreme Court of the Maldives, Announcement of the Supreme Court of the Maldives (2016), http://www.supremecourt.gov.mv/mediafolder/press_release_31_october_2016(1).pdf (last visited Nov 2, 2016).