Responsibility

The Maldives has made history, I think (I am not sure on this), by holding a trial with the Parliament as defendant. The Supreme Court has ruled that there is no immunity for parliament in the constitution. Among the reasoning for this ruling was that it is in the inherent power of the Supreme Court to take on the responsibility of deciding what is best for the nation, and that the Attorney General had asked for an opinion from the Court on this issue, and therefore it constitutes as a valid reason for trying the Parliament in Court.

Effectively, what the Court is saying is that if the Executive asks for an opinion from the Court regarding Parliament’s actions and decisions, it then falls into the jurisdiction of the Supreme Court to sit in judgment over Parliament, disregarding the clauses defining Immunity and Privilege of Parliament.

I could make a lengthy case for the Supremacy of Parliament. But that is not the topic of this Post. The topic is Responsibility.

The Parliament is being accused of not discharging its duties and acting “irresponsibly”, and the Supreme Court is going to pass judgment on Parliament any minute now. I do not wish to comment on this issue either.

I just want to pose a few questions regarding responsibility and irresponsibility.

Article 149 (d) of the Constitution says that Parliament should pass a law on judges (or more commonly known as a Judicature Act) which would guide how judges should discharge their duties. While the Constitution was in its final stages of being written, I wanted to submit such an act to Parliament to get it ready for implementation. I was told that the then Attorney General had employed a consultant from the Commonwealth to write such a bill, and the government would submit it to Parliament as a matter of priority. After the Constitution was passed, I begged the Legal Reform people that the first bill should be that because I was afraid that with the high degree of independence being given to judges and the courts, and due to the weakness of the courts, the Judiciary may step out of bounds and start messing things up. I was promised that it would come very quickly, but it never did. To date, there is none. The result? Judges are out of control. They are ruling arbitrarily to send lawyers to jail for non-appearance to court on contempt of court. They have refused to act according to the criminal procedures code “because it was too difficult to do so”. The Supreme Court has ruled to take away powers given to the JSC by law to increase their control on the High Court and Trial Court. The Supreme Court has accepted a case for hearing which was kicked out of the high court without going through an appeals process and reversing the High Court’s Judgment.

They are doing whatever they like in the name of “inherent powers of the Court” while at the same time quoting Constitutional Supremacy. How can you have “inherent powers” which are not defined in the law when the Constitution is Supreme?

Are the courts, specially the Supreme Court acting “responsibly”?

The Legal Reform Ministry of the Qayyoom Government never submitted any bill on parliamentary elections or constituency boundaries. Neither did the Attorney General of the Nasheed Government until early December, when they clearly knew the Majlis was going into recess, and the budget bills were under way. Did the Legal Reform Minister and the Attorney General act responsibly?

Article 155 of the Constitution says quite clearly that the Parliament has the power to pass law which sets out the jurisdiction of all the courts, to pass law on administrative arrangements and procedural arrangements of the courts. Why didn’t the Legal Reform Minister or the Attorney General, submit those bills to Parliament? Were they acting responsibly?

Why isn’t there a Judicial Void in the country in the absence of laws which spell out jurisdiction of courts, administrative arrangements, procedure of courts and laws which spell out qualifications of judges and guidelines for adjudicating? Are the courts acting within the constitution? Does any of these courts have the jurisdiction to pass judgment on anything? Are they acting responsibly now?

Were the former officials of the Legal Reform Ministry acting responsibly when they took a matter before the Supreme Court when all the while they knew they had a High Court Ruling against them, and the Supreme Court had not overturned the High Court’s ruling? Were the same people acting responsibly when they opened up a can of worms and allowed a confused Supreme Court to assume powers out of their jurisdiction? Were they acting responsibly when they took the matter to courts when they knew full well that Parliament never had the chance to make these laws because the same people never submitted the bills for Parliament’s consideration?

Such is Responsibility and how different people interpret it.