Frivolity and Vexation

Brilliance in someone can only be of use to society when it is coupled with sincerity. Brilliance, especially in the professions, can easily become dangerous, when it is used to subvert the cause of justice, when the brilliant exercises the brilliance to promote a bias, or is used to propel blind faith. It is particularly dangerous if the narrowed depth of a particular profession is used to look at social facts in isolation, devoid of the wider context within which the profession operates.

The separation of powers as a system of checks and balances in a state assumes that each power necessarily acts as a counter measure to other powers when one or more powers, either independently or jointly seeks to violate fundamental rights of citizens. The Constitution of any country is a quasi-legal document in a sense. It is primarily a statement of intent and outlines the aspirations of the people. This is NOT to deny that it forms the basis of all legislation and state action, and as such, interpretation of it will be required in a strictly legal sense. Nevertheless, in points of contention, the purpose of a particular provision should be given due consideration and emphasis in its interpretation.

As I write this, there are two very significant cases being looked at in the Supreme Court and the High Court. Lawyers whom I held in high regard are displaying their ignorance and their bias by declaring these cases as frivolous and vexatious. Both the cases that I refer to were filed by the Social Liberal Party. Both cases have been referred to as frivolous and vexatious, and the proponents of these arguments claim that both cases were filed to subvert the efforts of the Elections Commission to meet the 8 October deadline. The proponents couldn’t be any further from the truth. Furthermore, while they try to discredit the Liberal Party for filing these cases, the very same people never bothered to attend the court hearings to listen to the arguments. Oh! No, No! They are The Learned Lawyers, who will pass judgment before even the arguments are articulated. Why don’t these Lawyer Wizards take the arguments as presented by the Liberal Party in Court and reply to it instead of making wild claims? Are they not holding the Courts in contempt by claiming that the Courts are hearing frivolous and vexatious claims, and thereby undermining the credibility of the very same institutions that they are claiming to so dearly uphold and protect? Or are they finally admitting that they are manipulating the Courts to play out the drama that they have written?

Why did the Social Liberal Party file these cases? Let me outline the reasons briefly.

The Case filed in the Supreme Court to challenge Qayyoom’s candidacy has three primary purposes:

1. The purpose of a two term limitation is to ensure that no one can cling on to power long enough to infiltrate public institutions to a level that he or she can make them “his or her own band of instruments” and subvert their functionality and independence and thereby run a dictatorship. Lawyers may not know this, but political scientists, political historians and sociologists know this very well. Question is, has Qayyoom held this post long enough to do this? Is there any hope of public institutions acting independently and fairly to allow a free and fair election with Qayyoom standing as a candidate?
2. The Constitution has created the Supreme Court, which is supposed to be fully independent. This case will test and demonstrate to the public and other observers the degree of independence which is evident, and the capacity of this court to respond to finer points of law and reasoned argument and logical, rational thought; in short their competence, lack of which from any judge requires his dismissal from the bench.
3. While a few people with vested interests would like to see Qayyoom gain Office by hook or by crook, there is a large number of Maldivians who do not believe that Qayyoom should be allowed to contest the elections because they do not believe that a free and fair election can be held if he is contesting. Furthermore, Sovereignty rests with the People, and the People, in a public referendum voted for a Presidential System, and the template for the system presented to the People before they voted specifically made reference to a two term limitation. At no point was any mention made to the public that this limitation would not be applied to the incumbent. Question is, can the Special Majlis, or the Elections Commission, or the Supreme Court override the will of the People expressed in a Referendum?

If no one else had the courage to test this out in the Courts, the Liberal Party did. Those who claim frivolity and vexation should be ashamed to call themselves lawyers of any import.

I rest my first case.

Now for the second case. The Case filed in the High Court, seeking to strike down Article 22 of the Presidential Elections Law has many objectives.

1. This Article was inserted into the bill to circumvent the due processes required by the Constitution to hold a free and fair election. Critical processes such as procedures to ensure that everyone will be able to exercise their right to vote, everyone would have the opportunity to challenge Elections Commission’s decisions in the High Court, the right for people to have knowledge of laws and regulations before they are subjected to it, the right for people to make informed decisions with regard to electing a president, the right for political parties and civil society organizations to prepare and organize themselves to observe elections to ensure laws and regulations are followed, are among rights that are being violated by this article. The fundamental precepts on which state operations lie, the very reasons why Parliament is separated from the Executive, and the purpose of setting up an independent Elections Commission were compromised and the people are being raped of fundamental rights. All in the name of an impending doomsday (10 October 2008). An attempt HAD to be made to see if the Courts would uphold fundamental rights.
2. The High Court is charged with upholding fundamental rights and liberties. There will be many more instances where Parliament will seek to violate these rights for political gain and expediency. This case will send a signal to the people and observers as to what we can expect from the Courts.
3. In addition to violating fundamental rights, the very concept of upholding the Constitution itself is at stake here. Can the Parliament pass law in a fashion which impinges and violates the powers of an independent commission? Can the Parliament order the Elections Commission to violate the constitution? These are critical questions which will be answered by this case. If the High Court rules in favour of the State in this case, it means that independent commissions will no longer be bound by the Constitution, but will be subject to the tyranny of Parliamentary majority. A fundamental derailment of the concept of the Constitution protecting the rights of the minority (in this case the majority of people). Surely, a defining moment in Maldivian Constitutional history?

As a brilliant lawyer remarked, is it because of “granting absolute rights wholesale, or too abruptly” or is it because these rights were granted because there was no alternative at the time, but the very forces which were holding back those rights are now attempting to block the same rights by calling for an election “without much regulation, or without any room for evolution” of institutions which are charged with protecting these rights?

History has shown us time and again, the disasters created by brilliant, yet misguided people, particularly when they are in positions of power, and do not realize that they are playing with the lives of people, and they may be playing God, without being God themselves.

I rest my second case.

It is only when the mettle is tested that the chameleon's true colours will emerge; and emerge it will.