It is surprising how fast things change in a heated political scene. When I wrote my last article, what led Judge Abdulla to Girifushi, I still had a glimmer of hope that the Government may be able to get out of the hole they have dug themselves into.
With regret it does not seem to be the case. This is where I seriously wonder who is advising the President on political and legal matters and to who’s advice he takes.
The leaked audio of the President’s addressed to MNDF personnel, has dashed my hopes of seeing an early closure to the crisis. It is evident from the content and tone, that the President does not even consider that his government may have been wrong in this case. Instead he is preparing for a bigger confrontation and the purpose of the speech is obvious.
He criticised the Judicial Service Commission regarding the confirmation of the Judges who held office prior the the enactment of the New Constitution and disclosed his intention of withholding their salaries and not enforcing the judgments of these judges. [The enforcement of Court Judgements are a sworn duty of the Maldives Police Service, regardless of the consent of the executive.]
The President is likely referring to Chapter XIV of the Constitution on Transitional Matters. He stressed that he was not a lawyer and that he was acting on the legal advice he has received. He did not mention that The Peoples Majlis could not be elected as stipulated in the Constitution. It is clear that the writers had put utmost importance on meeting the dates specified in the Transitional chapter, as they had put in a clause that no amendment to the Constitution can be made until, the newly elected Majlis sat.
Though the dates passed, a solution acceptable to all stake holders was found for the election of the new parliament.
In his Radio address of 27th January 2012 (today), he stated :
“The Supreme Court Judges were appointed in accordance with the Constitution and law. The High Court bench was appointed in accordance with the Constitution and law.
However, it is hard to say that the lower court Judges were appointed as per the Constitution and law,” added the President
JSC was tasked with the appointment of judges in accordance with a vetting criterion established under a statute relating to the Judges, JSC had reappointed judges before the parliament approved the required statute.
In his own words, he is accepting the Supreme Court and High Court as appointed accordance with the Law, hence if the President was so concerned about the decision of the JSC:
Why didn’t he direct the Attorney General to challenge the decision in the Supreme Court?
Why were the judgements of the same judges enforced by the relevant government authorities since 27th July 2010 when the JSC voted for the confirmations?
What has changed so much in the Judiciary in the last 6 months for this drastic action?
And most of all, why is his Government not heeding to the Orders of the Supreme Court and High Court?
His argument that the JSC was tasked with appointment of Judges in accordance with a vetting criterion established under a statute relating to the Judges may be how we would like to have it. However it is not specified as clearly in the Constitution. In fact Article 148 – Appointment of Judges does not even mention the word “law”. However Article 149 – Qualification of Judges (a) states
A person appointed as a Judge in accordance with law, must possess the educational qualifications, experience and recognized competence necessary to discharge the duties and responsibilities of a Judge, and must be of high moral character.
The JSC on 4th August 2010 made a public announcement giving the legal grounds for their action. I am not even going to try to justify who is right or wrong.
It is clearly a matter of the Executive and the JSC reading the same Article to mean different ways, hence it is very clear that the next avenue if to be sought any further, would have been the Supreme Court, which is the institution the Constitution has given the final say. So once again I have to ask you, Sir, if you felt so strongly about this why didn’t you take this matter to the Supreme Court?
H.E. President Nasheed. The army barrack is not the right forum to address or discuss this issue. You are not getting the best legal advice. Please get better legal advice and re consider your stand for the sake of this nation, and address this issue through the Supreme Court and the Parliament.
