In my last Post, I tried to highlight some of the issues with implementing the Constitution and related issues in the emerging new system of governance. From what I observe in Parliament and government machinery, there seem to be more than our fair share of teething problems. Perhaps more than meets the eye?
I have always believed that the benefit we get out of this Constitution will be directly proportional to the strength and integrity of the people sitting on the Supreme Court bench. The reason is quite simple. The government may err, the Parliament may step out of bounds, a trial court judge may be bent, a lawyer corrupt and the high court half asleep, but as long as the Supreme Court is on its toes, most wrongs can be righted. In short, the Supreme Court has the authority to, AND the responsibility of, upholding the Constitution, to the letter, and in its spirit. It is because of this, I made strenuous objections in Parliament when the Speaker was proceeding to ask for a vote on Supreme Court appointments without properly scrutinizing the nominees in Committee as per Parliamentary procedures.
Of course, at that time, when I made those objections in Parliament, demanding for proper scrutiny before confirming Supreme Court judges, everyone accused me of trying to delay the elections because I was an aspiring Presidential candidate. Remember, that was the time when The Void was looming large from above and beneath us. That was when learned men and women, prominent politicians and academics called me the “self proclaimed Thomas Jefferson”.
Anyway, the President nominated the bottom five from a list of eight proposed by the Judicial Services Commission, the Chair of the Judicial Services Commission refused to reveal their findings to Parliament, DRP and PA were falling head over heels to confirm these Judges, MDP and the Republicans staged a fine drama of talking against the appointments and then disappearing from the Majlis when the confirmations came up for vote. A not so fine day in Parliament. One of the worst days in the life of this Parliamentarian. Anyway, if I remember correctly, I was the only one who voted against confirming all five nominations.
Months later, today, comes Supreme Court Ruling number 2008/SC-RU/01. A phantom ruling that no one even asked for. All five Honourable Judges of the Supreme Court took it upon themselves to ask for a ruling from themselves regarding their own power over the entire Judiciary. Surprise, surprise, all five of them unanimously found the motion in their favour. The result? Strike down the article in the Judicial Services Commission Act which gives the JSC the powers to set out administrative procedures in the Courts, and to rule that the Judicial Administrative Services will from today take directives from, and report to, the Supreme Court. Apparently, this was necessary to ensure Judicial Independence. The fact that this effectively compromises the Independence of the Trial and High Court Judges through administrative and budgetary control doesn’t seem to matter.
Where does this leave us? What are its implications? A runaway Supreme Court. The next thing you know, they will take it upon themselves to bring out a ruling that the President and the Parliament should be subject to them. A fine case of Judicial Supremacy if ever there was one. Little do they realize that they have encroached into the powers of the Parliament big time – to amend the Constitution and make legislation. How on earth can the Supreme Court take it upon itself, to define powers for themselves? Bring out a ruling without being asked for one. Where is the precedent for this?
What do we do? Will the JSC and the Parliament have the guts to rein in this runaway Supreme Court and call for the dismissal of all five Judges?
More importantly, HOW MANY MEMBERS OF PARLIAMENT ASSURED THESE FIVE JUDGES THAT A MOTION FOR DISMISSAL WILL NOT GET THE REQUIRED TWO THIRDS MAJORITY? There must be at least 17 who have colluded with the Judges.
Boy, or boy! Am I glad that I did not vote for any one of them on the day of confirmation!
"Government may err"?? How much of such err do we need? A criminal as minister? Unemployment for all people who worked under maumoon, then replaced with uneducated unrealistic people?
ReplyDeleteibra
ReplyDeleteyou were someone i always hated.but since the election and after observing you quite closely i can say that you are of those few people in majlis who are patriotic working genuinely to bring reform to our country.I am proud that you represent male in majlis. thank you very much for your work. KEEP IT UP.
I can’t agree with you more. But Ibra, the problem with your writings is that it is either not understood by most of the people out there or they choose to be blithely ignorant of what you are talking about. I have to admit that I don’t have the knowledge and the intellectual depth required to comment on the actions of a supreme court. But I know I have the commonsense to recognize attempts to drape grim reality - as you have very rightly pointed out, this appears to be an attempt by the SC to usurp a power of the Majlis. What I’m not so sure about is whether SC is doing it consciously or not as I have serious doubts as to whether the people sitting in SC have the intellectual capacity to understand the issues at hand. As you say it is 'scary'. It is scary becasue you know - if you dont its not. Its as simple as that :). Over the last couple of years we made it a habit to create fancy institutions and throw around pretty phrases that we are completely clueless about. We have got an awful lot of learning to do and a terribly long way to go before we even start getting an appreciation of these issues. Anyway, Ibra, good luck with the work you are doing. Best Wishes, Naimbé
ReplyDeleteDear Anonymous December 3, 2008 3:57:00 AM MVT,
ReplyDeleteAll ministers were approved by the Majlis. All constitutional conditions specified for the post of Ministers was met. Who is the criminal who was a minister? Ilyas Ibrahim? Yes he was sentenced for 15 years, escaped the country, never spent a single day in jail and came back to cabinet. Is that what you mean? Or DB Shahid? His court case was carried out under highly questionable circumstances, but he served his sentence, spent years in jail, and it took 20 years for him to get a government job. Isnt that fair enough? Where is the legal requirement that he should suffer for life!!!?? Or are you referring to the Gayoom/DRP cooked up story of Amin Faisal? The truth is, he was NEVER sent to a court, never convicted of ANYthing, NEVER sentenced for ANYthing, No evidence ever found against him. Infact he was in USA for military training when the Nov 3rd happened in Maldives. Gayoom had a 'feeling' that some how Amin may have known something about it. Our very own president Nasheed was labled a traitor, terrorist, theif, and you-name-it by Gayooms courts, government and police! He spent years in jail! So what? Who cares what Gayoom thinks of others? Thats why Maldivians didnt vote for him!
Hello JJ,
ReplyDeleteHow disillusioned can one be. Just like Ameen's cooked up story now you are cooking up a story for DB. I am one who personally conversed with DB in Colombo on 3rd November 1988. DAmn well he was in it. He was in it to the core. He changed stories from that morning to evening as he saw the murderous attempts fail. Go try to fool somebody else. Yes ameen's might be a cooked up story. But DB. Bloody hell. He is a murderer. I know it. I was with him as was a few other students there. This looks more like a revenge mechanism for Sikka rather than running a government just like what maumoon did when he came to power and all nasir loyalists became jobless and a bunch of thugs and ignorants were introduced in to the system. do you really think we are gonna wait for another 30 years to realize. People wake up. Let's make sure these thing don't repeat. Let's keep the message and criticism there from day one. Otherwise it might take another 30 years.
Ibra,
ReplyDeleteFirst, thanks so much for interacting with the people, I think you are one of Maldives heroes, I respect you heaps.
I have a very heavy serious question for you.
Ibra, in your estimation, has the new Government, or the Aneh DhivehiRaaje got any hope of extending freedom of conscience in the Maldives? Let me try explain a little more what I am asking.
A few MDP members were once talking about promoting more freedom of religion in certain cases, but how? Certainly not through passing legislation in a parliament elected by a once moderate people who are becoming more and more fundamentalist. Fundamentalist religion always threatens to be the fabric of a "tyranny of the majority" in many countries, both Muslim and Christian, and maybe MDP need to do more to protect liberty when it is threatened by democracy. Perhaps MDP are trying to get their freedoms protected by a supreme court who will find violaters of religious laws not guilty. Call me desparately naive, but I would like to think Anni does not believe in imposing a strict version of Islam on the people of Maldives, I would like to believe he respects freedom of conscience. He sort of gave me that impression once, but his backing of fundamentalist control of immigration seems to spell the opposite. Ibra, I imagine you have read Abdulla Saeed's (Hassan Saeed's Brother) books on the Qur'an and on Apostasy. Brilliant. It is clear from his masterpiece that the essence of Islam is mercy, dignity, and that Islam was only imposed by Prophet (SAW) when to not do so was to allow an attacker to get you due to warfare.
So, what do you think, Ibra, has the new Government, or thr Aneh DhivehiRaaje got any hope of extending freedom of conscience in the Maldives? I wait to see whether you are brave enough to offer an honest response from your heart at such a controversial question.
Regards,
Abdul-Rahman
Ibra,
ReplyDeleteI am shocked! How can the supreme court, all by itself, without anybody filing a case, rule like that? Supreme court isnt a parliament! This is totally unacceptable! What are you going to do about this? Majlis must do something about this.
@Abdul Rahman :
ReplyDeleteThe short answer is, MDP or any other Party; Nasheed or any other president; cannot "legally" allow freedom of religion for Maldivian citizens because the Constitution requires all Maldivians to be Muslims. The Constitution will have to be changed prior to allowing freedom of religion.
This provision has nothing to do with Islamic Shariah doctrine regarding apostasy. It is the tyranny of the majority being imposed via the constitution. Even as we were writing the constitution, the expert advising us on Islamic Shariah categorically said that Islam does not force religion on anyone. But the Majlis decided that "religious homogeneity" must be maintained in Maldives. You heard it all during the election.
Dear Ibra,
ReplyDeleteThis is scary indeed. At this level I can see that the supreme court has no boundaries whatsoever. They are a bunch of guys who can all decide everything all by themselves. They file their own case all by themselves and rule on it. This must be stopped and reversed. What about the checks and balances? Who checks on them?
Ibra,
ReplyDeleteI agree with JJ. Its the presidents cabinet and he appoints people he can trust. He doesnt have to appoint people Gayoom can trust! There are legal procedures for the Majlis to impeach cabinet ministers if they want to do so. I agree the Ameen case has no truth in it. DB has completed his sentence. The cabinet was approved by the Majlis.
So tell me Ibra, why is it then that Islam is necessary for homegenity?
ReplyDeleteIbra, this is the last time I'll write a long blog but please bear with me one last time and consider all these important thoughts I have to offer and try and give me an answer to one last question, which you have always done so brilliantly and for that I am deeply greatful for your patience, thanks.
I remember a discussion on freedom of religion, and that one or two could not speak their heart on this issue and that was really sad to watch.
We all know Maldivian men who have married foreigners whose children may not be being brought up as Muslims. These kids feel deeply a part of the Dhivehi spirit, and the Rahmathulla (Divine Mercy) is as close to these children as it was close to Maldives through the Shahada (martyrdom) of Mohammed Thakurufaanu. Yet these children will be denied Maldivian citizenship. This is a violation of human rights. All Maldivians are deeply greatful for the sacrifice of the martyrs. But some see their sacrifice as being for the freedom of Maldivians from oppression. At that time the will to freedom, the strength for Dhivehi freedom and dignity was expressed through Islam. But to use Islam now as a force for oppression is against the reason the martyr's died. I have met Maldivians who detest being forced to be Muslim, yet they are genuinely greatful to the martyr's for freeing them from Portugese domination at that time. To many minds this may seem like a contradiction. But for some Maldivians, Dhivehi sovereignty has more to do with the dignity and freedom of Maldives from all oppression.
Fanditha culture, for example, is as Maldivian as fishing and family yet "orthodox" Islam is opposed to Fanditha culture. Nearly 50 percent of Maldivian tradition, which most Maldivians call "Islamic," would be considered unorthodox or bida' (innovation) by the Adhaalaath Brothers, i.e. Islamic fundamentalism is against Dhivehi culture.
One more example. Maldives is traditionally more matriarchal than the West could ever be, this is against some versions of Islamic orthodoxy.
Don't let a Hijab fool you, their are some damn strong husband conquerers under those veils.
Maybe 98 percent of Maldivians think it right that Islam be imposed by the constitution but that is a violation of the human rights of the one Maldivian in ten thousand who know longer believes in Islam, and their will needs to be respected so long as they are otherwise loving and respectful of Maldivian life! which is better than what can be said for fundamentalists who wanted to wage a Jihad against the Government.
It is rediculous to believe that Islam is the source of Maldivian unity. Islam can be used as a force for disunity just as easily, for example, if a group wanted to break away from mainstream Government they could say that their separatist cause is an Islamic Jihad. An example? Maumoon was accused of not being a Muslim, therefore, according to very radical militant Hanbali style Zahiri, (external literalism) he and the NSS, if they defended him, are legitimate targets for Jihad. My point is, Islam can be used as a force for unity or disunity, the only way it could be used for unity would be that the constitution must outline exactly what Islam is, which because their are so many ideas of Sharia'h Law this could only work if a singular President was the sole final word on Islamic Law. Does Maldives need another Al-Azhar derived President, or might we like one from the underground Madrassa's from Riyadh? Just stating all Maldivians must be Sunni Muslim does not mean constitution protects homogeneity.
So tell me Ibra, why is it then that Islam is necessary for homegenity.?
Abdul-Rahman
Ibra,
ReplyDeleteBesides Gayoom, electing rich businessmen to Parliament was the worst thing that happened in Maldives politics. Look at what Gasim did in few days of becoming the Home minister? This is called conflict of interest. He will do whatever it takes to protect resort owners. Imagine if he was the president? The lease extension of resorts have everything to do with all the resort owners in politics. Last night DRP cancelled a meeting and ran after Gasim to beg him to join them. It was like a baby crying for milk. I hope Maldivians will learn the lesson before they vote for a parliament in February 09. We need sincere politicians at the parliament and government. Not businessmen. Not proxies of businessmen. They will never serve the interest of the ordinary man.
@ Abdul Rahman:
ReplyDeleteYou should ask that from those who claim so.
Shall we close this subject, now? Some food for thought : Does religious belief lie in one's mind, or in the law? My religious belief lies in my mind, and I am a Muslim.
BTW : The pseudonym, the Arabic and the "Brother" bit adds a touch of class.
*sigh* I was afraid of this.
ReplyDeleteGood work bringing these issues to the public.
I hear Liberal Party is going to leave the ruling coalition. Any truth?
ReplyDeleteAnonymous :
ReplyDeleteLiberal Party has no such intention as far as I know. At least not for now.
Ibra,
ReplyDeleteYour points about the constitution are excellent, you want to see something like proportional representation (not quite like in European parliament way) in the supreme court (as the interpreters of constitution) so as one party/figure cannot wield absolute power, and this is a principle of liberty. In liberal democratic constitutions, their is always the struggle to balance efficiency with checks and balances. Proportional representation only works in a semi-presidential system (France, Europe) as if parliamentarians do not yieled their individual convictions to get a uniform response to a proposal, Prime Minister and parliament is dissolved by President (Germany, France.) Excessive checks and balances such as in USA leads to deadlock and inefficiency in domestic issues in USA as decisions take to long to make(don't need vote for international relations and war). Executive domination of legislature (executive and the executives cabinet dominates British and Australian House of representatives or lower house, creates efficient Government but not enough checks and balances (Australian senate is either too weak or excessively radical so much a PM has been sacked). In Maldives case, Anni needs to have more power to follow through on his promises, but the danger is would he deliver on his promises or would he reveal a hidden agenda if he really had the power and strong executive domination and control of the spirit of the constitution? To know the answer to this, you have to know, who is funding the MDP financially and pulling the strings? What really is in Anni's heart for Maldives and what is his capacity for being true to his convictions? What amount of power would the institutions give him to implement his desire? I WISH more than anything i knew because i am both scared and excited, mixed confused feelings about future of Maldives.
- Abdul-Rahman
Ibra,
ReplyDeleteAs you have been described as economically the most left wing there is out of the Presidential candiates previously, Inshallah you will help Maldives workers both in this recent incident and in future. Maldivian democratic rhetoric (speeches about human rights etc...) has had a strong liberal flavour, Ibra you can, and I pray you will, balance this with a social flavour... Maldives has been too far to the right for too long! - Abdul-Rahman
Dear Ibra,
ReplyDeleteI heard on news that the government sent a 'letter' (A letter of intent?) to the Secretary-General of ILO saying that Maldives accepts its membership and that Maldives would undertake fully to perform each of the provisions in the ILO Constitution.
However article 115 (K), (2) of the constitution reads: "to enter into and ratify, with the approval
of the People’s Majlis, treaties and agreements with foreign states and international organizations, which impose obligations on citizens"
I am not sure if the letter the government sent falls into the catagory of “treaties and agreements”. I am also not sure if this article would apply to letters, or joining organizations, or applying for memberships either. I am also confused whether joining ILO would mean “obligations need to be borne by the people of the Maldives”, because we already have a Majlis stamped labour law, which may already cover all ILO requirements.
What is your take on this? Do you believe its illegal for the government to send this 'letter' to ILO without approval from Majlis?
Thanks.
Ahmed:
ReplyDeleteRegarding ILO treaty, I understand that the Labour Law already covers all those obligations, and it has been passed by Majlis into law. Therefore it may be constituted that the Constitutional requirement has been met.
The purpose of the relevant Article in the Constitution is to prevent the President from committing the Nation to things which the Majlis has not approved.
I am sorry I can't give a definitive answer to your question. This is simply "my take" on it. There may be finer points of law on which lawyers may differ with me.
Abdul Rahman:
ReplyDeleteYou may have noticed that our Party is the "Social Liberal Party".
Please refer to :
1. http://www.associatedcontent.com/article/110295/the_intellectual_history_of_social.html
2. http://en.wikipedia.org/wiki/Social_liberalism
The Liberal Party is increasingly proving to be the only Party which is matching rhetoric with action.
One important belief in our party is that liberty cannot be protected without equity and a certain degree of egalitarianism. This is founded on the belief that one's Agency is pivotal to practising one's Liberty.
can you explian?
ReplyDeleteegalitarianism
oh puleeze. its mere mortals like us who reads this. and we cant bother to take dictionary for every word.
make it simpler
Anonymous :
ReplyDeleteI am sorry, I was responding to Abdul Rahman.
Egalitarianism means the doctrine of the equality of mankind and the desirability of political and economic and social equality.
These days, you can easily find meanings of words on the web. I keep the toolbar for the following web-based dictionary installed on my browser (just like a google search toolbar). It has a dictionary, a thesaurus, a reference facility and a translation facility, all on the same toolbar. I find it extremely helpful. I would recommend it to all:
http://dictionary.reference.com
toolbar : http://dictionary.reference.com/tools/toolbar/
Haha! That was funny.
ReplyDeleteAnyways, I doubt that we'll see freedom of religion in the Maldives any time soon.
Not even with people like you in the Parliament who ARE aware of terms like Egalitarianism and political equality.
It's sort of funny to see an alliance of parties come to power on the premise of 'removing tyranny' and then imposing the 'tyranny of the majority'.
Just my thoughts.
Regarding the Supreme Court, you said there was no precedent for their actions.
It got me thinking..
This being the first Supreme Court in the country, it's actions will definitely set a precedent for the future.
Are we doomed to a future of radical Judicial activism?
How does one maintain a balance between the powers?!
I am very happy to know that you look to provide agency. Empowerement is a much greater charity than handouts which create a dependancy culture. Of course, there is no welfare state in Maldives but extended family becomes a welfare sysytem for Paatey's! I have seen this immensely. When thinking of agency, one thinks of two main things, training and opportunity, but as Pierre Bordieux pointed out, cultural capital must also be provided. First, on opportunity and training.
ReplyDeleteThe provision of opportunity can be worked out by Government working with private enterprise. For example the Government can approach the resorts and offer subsidies (larger return on bed tax for example) per trainee they take on.
Training can be the same way. I will discuss cultural capital later as it is much more complex and important.
Abdul Rahman
Dear Ibra,
ReplyDeleteWhat just happened in a street of Male' is even more scarier. The gang fights and killings are continuing. We are a small nation of people who shares the same culture, religion, language and ethnicity. Why cant we have peace? What is so wrong amongst us that we must kill each other like this?
Ibra, I am one person who voted to elect you to the Majlis. As an MP and as a politician, I am begging you to please do your part to stop this horrific violence.
Thank you.
Ibra....what do you think about this issue of govt bringing all these prisoners for house arrest? Minister of State for Home Affairs said that it is under the parole program...but the parole board says they were not consulted about it.
ReplyDeleteCan the govt give parole like this?? Is this constitutional???
Ahmed Ali.
For those asking about parolees and pardons : All I can say is the Constitution quite clearly says that convicted criminals can only be pardoned by the President, in accordance with law. I am not certain which law the Minister of State is invoking.
ReplyDelete