Chief Justice Dr Ahmed Abdulla Didi on Tuesday criticised the Maldivian Democratic Party’s plans to curtail the powers of the Supreme Court as part of sweeping changes for judicial reform.
Speaking at the opening of a two-day conference on judicial independence and reform, Didi characterised the MDP’s proposals as “efforts to render the Supreme Court of the Maldives powerless and rob it of its status as the highest authority of the judiciary in order to achieve a political purpose in the name reforming the judiciary.”
The MDP’s legislative agenda includes amending laws to remove powers exercised by the Supreme Court to appoint and transfer judges, suspend lawyers, and take over cases from lower courts.
But the chief justice argued the Supreme Court must have “supervisory jurisdiction” over lower courts.
Quoting former US Supreme Court Justice James Wilson, he said there should be a top court to “superintend and govern” the rest of the judiciary. Its guardianship was necessary to “ensure uniformity” and “make sure that lower courts function well within their jurisdictions,” Didi said.
The Maldives could not have democracy, justice and rule of law if politically motivated changes are brought to the justice system, he added.
He contended that allowing the judiciary to formulate administrative rules and regulations was “modern best practice.” While it was the legislature’s mandate to pass enabling laws on criminal and civil justice procedures, enacting detailed rules should be left to the courts, he said.
The MDP also proposed taking away the Supreme Court’s powers to “advise” lower courts and appoint the chief judicial administrator. The Department of Judicial Administration presently functions under the direct supervision of the apex court.
Under the MDP’s changes, the chief administrator would be appointed by parliament and answerable to a parliamentary oversight committee. The top official would have the power to appoint and dismiss registrars, who in turn would be authorised to accept or reject cases without influence from judges, assign cases, and empanel a bench of judges to hear appeals.
The Supreme Court would also be required to hold open hearings before issuing rulings or orders.
Since its inception in 2008, the top court has annulled an election, unseated lawmakers, and initiated “suo moto” proceedings to dismiss members of independent commissions. Lawyers who criticise the judiciary are suspended and barred from appearing in courts.
Pursuing judicial reform was a key campaign pledge of President Ibrahim Mohamed Solih, with politicisation, inadequate qualification of judges, and lack of conformity to international fair trial standards among longstanding concerns.
– External influence –
At a function held Monday night to launch the 2019 judicial year, President Solih called for judges to be held accountable and urged the judiciary to accept constructive criticism.
He criticised stalling trials for years and the practice of holding closed-door hearings, which he said was not a discretion afforded to judges by the constitution.
A survey in 2014 found that 71 percent of Maldivians preferred to settle disputes outside of court due to lack of confidence, he noted.
Solih backed reforms to the legal framework and urged a review of the composition of the Judicial Service Commission, a 10-member oversight body tasked with investigating complaints and taking disciplinary action against judges.
The JSC is comprised of three judges nominated by their peers from the Supreme Court, the High Court, and the trial courts as well as the attorney general, a presidential appointee, the chair of the Civil Service Commission, the speaker of parliament, a lawmaker nominated by parliament, a member of the public chosen by parliament, and a lawyer elected by licensed practitioners.
The former UN Special Rapporteur on the Independence of Judges and Lawyers in 2013 reported near-unanimous consensus that the composition of the JSC was “inadequate and politicised,” which was blamed for external influences and the watchdog’s inability to function properly.
In his remarks, Chief Justice Didi concurred with the president about the importance of freeing judges from external or political influences.
Legal action should be taken against those who try to exert influence and judges should be protected from “influences, pressure and acts of intimidation,” he said.
In order to ensure independence, the judiciary should not have to “beg” for finances and resources, he added, noting that the budgets approved for the last two years were substantially smaller than requested.
Space constraints in courthouses and lack of judges also hinder access to justice, he said.
There are presently 58 island courts without magistrates and only 14 out of 187 magistrate courts have legal staff.
The superior courts in Malé have a backlog of 16,657 cases, he said. At the end of 2018, there were 42 judges in five trial courts, each of whom were assigned 398 cases on average.
“Such a high caseload is one of the biggest reasons for delays in concluding cases,” he said.