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Wednesday, February 26, 2020

In Yameen vs court in Maldives, a battle to control and subvert the Constitution

The Indian Express explains the history and context of the extraordinary crisis currently playing out in the Indian Ocean archipelago

Written by Shubhajit Roy | Updated: February 6, 2018 9:43:54 am
In Yameen vs court in Maldives, a battle to control and subvert the Constitution Maldivian police block the way of opposition protesters demanding the release of political prisoners in Male last week. (AP Photo)

The political crisis in the Maldives reached a flashpoint Monday evening, as President Abdulla Yameen declared a 15-day state of Emergency in the country, suspending many citizen’s rights, and giving the security forces sweeping powers to arrest and detain protesters and dissidents. The announcement capped a dramatic standoff between the government of Yameen and the Maldivian Supreme Court, which last week ordered the release of political prisoners — a directive that the President has refused to follow.

On Monday, Yameen wrote to the judges, asking them to reverse their decision — the court had carried out an “infringement of national security and public interest”, and must “review the concerns” of the government, he said. The President is required to inform Parliament about a declaration of Emergency within two days, but the legislature currently stands suspended indefinitely.

What is the background of the crisis? Where does the Supreme Court draw its authority from? Where do the judges and the President stand in relation to each other?

How did the current crisis begin?

The Maldives Supreme Court Thursday night ordered the immediate release of high-profile prisoners including former President Mohamed Nasheed and former Vice-President Ahmed Adeeb. It also reinstated 12 Members of Parliament who had earlier been stripped of their seats — in effect giving the opposition coalition a majority, and making President Abdulla Yameen vulnerable to impeachment. The court said it believed in free and fair trials that were conducted without undue influence. The court annulled all proceedings against the jailed political prisoners, and ordered their release until a fair retrial was held. But it did not order the dismissal of the charges against them.

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Did the court have the powers to do this?

“The Supreme Court has extraordinary powers granted to it by the Constitution. That is a given. But the structure of the Constitution depends on institutions using their powers within the spirit of the Constitution. While the Supreme Court has the highest authority in administering justice, justice itself must be done through due process, which we hopefully will see within the next few days or weeks,” Aryj Hussain, a human rights and constitutional lawyer told the Maldives Independent.

What is the history of the development of the Maldives judiciary?

Up until 2008, Maldives was ruled by autocratic governments in which the President was the supreme executive and judicial authority. Following mounting pressure from civil society and the population, democratic reforms were initiated, which culminated in the adoption of a new Constitution on August 7, 2008, in which were enshrined the principles of separation of powers and independence of the judiciary. In October 2008, Mohamed Nasheed won the first democratic presidential elections in the Maldives, and the first democratic, multi-party parliamentary elections were held in May 2009.

What are the constitutional provisions related to the judiciary?

Chapter VI of the Constitution contains provisions to ensure the independence of national courts and regulate their jurisdictions, functions and administration. It lays down the qualifications of judges and magistrates, the modes of their appointment, their salaries and allowances, security of tenure, and process of removal. These provisions were complemented by the Judicature Act of 2010.

The Constitution established the Judicial Service Commission as an “independent and impartial institution” to appoint, promote and transfer magistrates and judges other than the Chief Justice and judges of the Supreme Court, investigate complaints, and take disciplinary action against them, including recommendations for dismissal. It also established separate posts of Prosecutor General and Attorney General.

The Supreme Court has the final authority on the interpretation of the Constitution, the law, or any other legal matter dealt with by the courts. It has the power to assess the constitutionality of any statute enacted by the Majlis, and may deliver advisory opinions upon request from Parliament. It also has appellate jurisdiction regarding decisions of the High Court.

Supreme Court judges are appointed by the President, after consultation with the Judicial Service Commission. The appointee is confirmed by a majority of members of the Majlis present and voting.

How did the relationship between the judiciary and the government develop?

Before the coming of democracy to the Maldives, President Maumoon Abdul Gayoom (who had been in power since 1978) had filled the judiciary with his loyalists. When the first democratically elected government was formed, the newly adopted Constitution had scheduled periodic reappointments of judges based on merit. But the Judicial Service Commission, among whose members were several Gayoom’s loyalists, dismissed the provision as “symbolic” and, in 2010, allowed the judges to be sworn in for life.

Three years later, when presidential elections were held in the Maldives, the Supreme Court stalled the process thrice, on ambiguous grounds. It cancelled the results of the first round of voting, in which Nasheed, who had resigned the previous year, led, but fell short of the required 50% of the vote. When the re-run of the first round yielded similar results, the court postponed the second round.

This was a “subversion of democratic processes”, the United Nations High Commissioner for Human Rights said. Gayoom’s half-brother Abdulla Yameen was elected President.

Under Yameen, the Supreme Court, through a series of rulings, granted itself several extraconstitutional powers. By appointing itself the head of the Department of Judicial Administration in 2014, and seizing the regulatory authority of the Attorney General’s office last year, it granted itself powers to transfer, appoint, certify and dismiss judges and lawyers. In May, it declared itself the final authority to determine the validity of no-confidence votes passed in Parliament.

What is the dynamic playing out now?

It seems that judges loyal to former President Gayoom — who fell out with Yameen and has now joined hands with Nasheed — have turned their back on Yameen. If the President has lost majority, he can be impeached. The opposition has said that it is committed to protesting until the government enforces the court ruling.

What can India do in this situation?

India has issued a strong statement, asking the Yameen government to implement the court’s order. Immediately after the Maldives declared an Emergency on Monday night, India issued an advisory against all non-essential travel to the country.

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