Most democracies are built on the premise that all powers of the state emanate from, and reside in the people. Those charged with governance tasks are given a mandate directly or indirectly by the public to discharge certain functions o behalf of the state.
The most daunting aspect of obtaining a public mandate is to face an election and convince the voting public that one is trustworthy enough to be charged with disposing state functions. As per our Constitution, those who will be given these honourable tasks directly by the public are the President and the Vice President of the Country, Members of the Majlis, and those who will be elected to posts (yet to be defined by law) under the local governance/administration system.
No one outside these posts can claim a direct mandate from the people to carry out any public function.
The next class of state officials is those appointed to various commissions and other posts. This class of state officials are appointed to their positions through concurrence between the President (who is elected directly by the People) and a majority of the Majlis (who are also elected directly by the People).
Then there are those appointed by the President to the Cabinet, who are also confirmed by the Majlis. They are similar to the previous class of state officials in that these officials have functions and powers defined either by the Constitution or through some other law.
With the intro duction of an independent Civil Service has cropped up a new class of state officials under the auspicious label of “political appointees”, whatever kind of creatures this new class may comprise of. Both Qayyoom’s Administration and Nasheed’s Administration have “interpreted” the Constitution to assert the legality of these positions. The object of this Post is neither to affirm nor negate the legality of such positions.
It has come to my knowledge that many persons holding such “appointed political” posts of the State intend to contest the upcoming Parliamentary Elections. That they will invariably use state resources and influence of their posts to win the election is enough to nauseate any right thinking individual. That the Constitution clearly says that an MP should not hold any other State Post makes these intentions even worse. True, the Constitution does not explicitly bar any of these people from contesting the elections. But if one reads the relevant sections of the Constitution, it is abundantly clear that the intention of those who wrote the Constitution was to separate the Executive and the Legislature to the fullest level possible and to remove all influence of the Executive from Parliamentary (and other ) Elections. Yet they proceed without a single blush.
Those people holding these “appointed political” posts are not required to seek a public endorsement. Yet those going for elections have put themselves up to be a target for the public. The question is, will these people have the decency to resign from their political posts if they fail to get public support?
More importantly, will the President have the guts to sack them in such an event, and act according to the wishes of the people?
Ah! One could live and die in wishful thinking. One is reminded of Mark Twain’s comment on sanctimonious individuals.
Thursday, February 26, 2009
Friday, February 20, 2009
Decentralization or Recentralization?
When we were writing the Constitution, one of the first decisions that was made by the Special Majlis was whether the Maldives would continue to remain as a unitary state or whether we would opt for a federal state. After much discussion and debate, the Special Majlis, by an overwhelming majority, decided that we would remain a unitary state for a number of good reasons. It was one o f the few things which did not create many divisions in the Majlis. I remember very clearly that the Special Majlis actually adopted a resolution on this issue which was proposed by me. This resolution formed the basis of the development of the Chapter on Decentralized Administration of the Atolls found in the Constitution.
In this resolution, I proposed that the Maldives would remain a unitary state, but each region or atoll would have locally elected bodies and officials to take care of local matters and make decisions on local issues.
When the actual chapter was being drafted in the Drafting Committee, we swayed back and forth trying to determine what level of decentralization, and what powers would be devolved to the various authorities. On the one extreme we had total local governance, with wide ranging decision making, revenue raising and spending powers accorded to these bodies, including certain legislative powers. On the other extreme we had total local administration, which would have brought in central level control on these bodies as far as decision making was concerned.
After much debate, discussion and serious consideration , and after about 7 different drafts, the Committee decided to adopt a versatile model into the Constitution. This model would allow the gradual introduction of local governance, depending on the readiness and strength of the bodies, the prevailing social, economic and political conditions. The tweaking of the sytem would be by law passed by Majlis. To facilitate this, we made two important provisions in the Constitution. One is that we stated that the details of the local government/decentralized system would be prescribed by law by the Majlis, and the other is that we provided for the Majlis to delegate carefully defined legislative powers , such as making by-laws, to local authotrities.
The vision was that initially we would introduce largely administrative powers (an extension of the Executive) to the bodies and gradually move towards more and more powers as these bodies gained maturity and people came to terms with local adminsitration and governance. The other consideration was that of revenue and resources. The legislation was to provide guarantees of revenue raising and distribution of Central revenue to these bodies.
The setting up of this system was left entirely to the Legislature, and had nothiong to do with the Executive. It certainly was not meant for the President to do it via political appointments. It could easily be argued that what we are seeing now is extra-constitutional to say the least.
What we are seeing now is troublesome. It is trouble some because the President has created a set of political appointments which will interfere with decisions in service delivery. For example, the question arises as to whether a school principal should take directives from the Local Councillor, The Deputy State Minister, the State Minister or the Minister of Education. The Constitution (in the absence of a law on local governance) certainly makes provision for the Minister of Education to be held accountable for the actions of the School Principals. If, to get around this, we are to say that the The State Minister in the Province and hence the whole chain of command from there on, will take directives from the Minister of Education on matters related to the schools, this amounts to reverting to the same system of Atoll Chiefs and Katheebs as before.
What, in effect is happening is, because Katheebs cannot be directly controlled by the President anymore (they are in the Civil Service), and the Constitution does not make provision for the President to appoint Atoll Chiefs, the political government is trying to find a way around this to control the populations in time for elections. This has nothing to do with service delivery or efficiency or involvement of the local people. If it is local governance, where is the voice of the people?
It is simply Recentralization (ousting even cabinet ministers from the loop) in the name of Decentralization. Tumultuous days are to come.
In this resolution, I proposed that the Maldives would remain a unitary state, but each region or atoll would have locally elected bodies and officials to take care of local matters and make decisions on local issues.
When the actual chapter was being drafted in the Drafting Committee, we swayed back and forth trying to determine what level of decentralization, and what powers would be devolved to the various authorities. On the one extreme we had total local governance, with wide ranging decision making, revenue raising and spending powers accorded to these bodies, including certain legislative powers. On the other extreme we had total local administration, which would have brought in central level control on these bodies as far as decision making was concerned.
After much debate, discussion and serious consideration , and after about 7 different drafts, the Committee decided to adopt a versatile model into the Constitution. This model would allow the gradual introduction of local governance, depending on the readiness and strength of the bodies, the prevailing social, economic and political conditions. The tweaking of the sytem would be by law passed by Majlis. To facilitate this, we made two important provisions in the Constitution. One is that we stated that the details of the local government/decentralized system would be prescribed by law by the Majlis, and the other is that we provided for the Majlis to delegate carefully defined legislative powers , such as making by-laws, to local authotrities.
The vision was that initially we would introduce largely administrative powers (an extension of the Executive) to the bodies and gradually move towards more and more powers as these bodies gained maturity and people came to terms with local adminsitration and governance. The other consideration was that of revenue and resources. The legislation was to provide guarantees of revenue raising and distribution of Central revenue to these bodies.
The setting up of this system was left entirely to the Legislature, and had nothiong to do with the Executive. It certainly was not meant for the President to do it via political appointments. It could easily be argued that what we are seeing now is extra-constitutional to say the least.
What we are seeing now is troublesome. It is trouble some because the President has created a set of political appointments which will interfere with decisions in service delivery. For example, the question arises as to whether a school principal should take directives from the Local Councillor, The Deputy State Minister, the State Minister or the Minister of Education. The Constitution (in the absence of a law on local governance) certainly makes provision for the Minister of Education to be held accountable for the actions of the School Principals. If, to get around this, we are to say that the The State Minister in the Province and hence the whole chain of command from there on, will take directives from the Minister of Education on matters related to the schools, this amounts to reverting to the same system of Atoll Chiefs and Katheebs as before.
What, in effect is happening is, because Katheebs cannot be directly controlled by the President anymore (they are in the Civil Service), and the Constitution does not make provision for the President to appoint Atoll Chiefs, the political government is trying to find a way around this to control the populations in time for elections. This has nothing to do with service delivery or efficiency or involvement of the local people. If it is local governance, where is the voice of the people?
It is simply Recentralization (ousting even cabinet ministers from the loop) in the name of Decentralization. Tumultuous days are to come.
Tuesday, February 3, 2009
Judicial Independence? Or Independence of the Judiciary?
Much has been said recently about the issue of “independence of the Judiciary” and the whole system of governance in this country is being twisted back on forth before it even had a chance of taking off properly. Before I proceed further on this topic, let me reproduce some relevant provisions in the Constitution for us to consider.
142. The Judges are independent, and subject only to the Constitution and the law. When deciding matters on which the Constitution or the law is silent, Judges must consider Islamic Shari’ah. In the performance of their judicial functions, Judges must apply the Constitution and the law impartially and without fear, favour or prejudice.
149. (d) The People’s Majlis shall pass a statute relating to Judges.
151. Every Judge shall devote his full time to the performance of the responsibilities of a Judge. A Judge
shall perform other work only in accordance with and as specified by the statute relating to Judges.
155. The People’s Majlis shall have authority to pass laws concerning the administration of the courts, the trial and appellate jurisdiction of the courts and trial procedures.
These provisions are pivotal to how the Judiciary is set up, and what was envisioned by the people who wrote the Constitution. Let me first outline what the vision was.
It was envisioned that there would be Judges whose sole responsibility would be to adjudicate and deliver justice, and do so without fear, favour or prejudice, and would be solely bound by law. It was perceived that all aspects of Islamic Shariah would also be codified into law eventually, and then Judges would not have to even revert to Islamic Shariah in any event. This is necessary if there is to be certainty of law and therefore rule of law.
To achieve this, Judges had to be granted a high degree of independence, and the only instances of external scrutiny would be if any one of them became incompetent or committed an act which was unbecoming of judges. They are the only state officials who are appointed for life. Such is the dignity and respect accorded to Judges. By the same token, it is expected that once granted this independence, Judges would remain totally apolitical, and not concern themselves with matters other than adjudication.
Article 142 (above) speaks about Judges being independent. Nowhere in the Constitution is there any mention of the entire Judiciary being independent of other state organs. How can it be? It too, after all, is an organ of the state. The concept of Judges being independent is very important for the rest of my argument. The recent decisions and actions of the Supreme Court is actually undermining the independence of Judges, and opening the doors for Judicial Tyranny.
When we talk about independence of Judges, we are not only talking about Judges being independent from influences from other state organs, but also Judges being independent from one another. In adjudicating on a matter before a Judge, s/he should not consult anyone, including any other Judge. S/he should solely focus on the law, and the facts as presented in evidence, and precedents set by rulings in similar cases, especially those of higher courts.
When we wrote the Constitution, we also envisioned each tier of the Judiciary being independent of the other tiers. That is, the Lower Courts should not be influenced by the Higher appellate Courts, and the High Court should not be influenced by the Highest appellate Court.
That is why we decided to leave the administrative matters to the Judicial Service Commission which would operate in parallel, but would not intervene in any judicial decisions. If the Supreme Court takes on the administration of the entire Judiciary, and the Chief Justice starts making decisions regarding other Courts, the independence of the High Court and the Trial Courts will be compromised.
With this push by the Supreme Court to take on the entire Judiciary as its own domain, it is, I believe, violating Article 151 of the Constitution, as the Chief Justice is seeking to do “work other” than adjudicating when the law does not make provision for it. Imagine this scenario. The Chief Justice decides to sack an employee of a Court (there are about 2000 of them) out of personal prejudice, mandated by the Supreme Court. Where does this person go to seek a remedy? The Courts? And ultimately to the Chief Justice and the Supreme Court who did it in the first place? Just one example of the stupidity of subjecting the administration of all the Courts to the Supreme Court. On the other hand, with the setup we had made, these decisions by the Judicial Service Commission can be taken to the Courts and an independent decision sought by the disaffected person. (I think lawyers call this “Principles of Natural Justice”; i.e, one should not be judging one’s own self to deliver Justice.)
Article 155 (above) gives unequivocal power to the Majlis to make laws both on Jurisdiction of Courts (including the Supreme Court) and on administration of the Courts. The Majlis made such law. The Supreme Court struck it down, quoting “inherent (meaning extra-constitutional) powers” of the Supreme Court (I think Lawyers call it “ultra virese”).
What they don’t understand is that the Constitution gives the complete power of the public purse, hiring of most, and firing of ALL public officials to the Majlis. No one can fire an MP from his or her job. If these taken together doesn’t spell Supremacy, what does? Time to face the facts and retract all that rhetoric and political juggling.
The Majlis is being patient with this unruly child, because this child is the Majlis’s own. It is in the interest of the nation (and therefore the Majlis) that this child is not a victim of infant mortality. The Judges of the Supreme Court may seek to destroy the institution called the Supreme Court. But the Majlis will not allow it. The Majlis will protect its own child, and nurture it to full maturity, because the Majlis has high hopes for this child. The Majlis will remove guardianship from the current five if necessary in order to protect this newborn baby. The Majlis will not let senility be an excuse for infanticide or the raping of a baby. The Supreme Court maybe the “Guardian of the Constitution”, but the Majlis is the “Guardian of the Nation”.
The Majlis is working to seek an amicable, diplomatic and peaceful solution to this acute problem before it becomes chronic, and do it quietly. But with Supremacy will also come responsibility. The Majlis will not hesitate to do what is necessary to protect and defend judges of the Trial Courts and the High Court and hence serve the best interest of this country. Many may think that the Majlis is divided on political lines and therefore can be cuckolded. Forget it. The Majlis will unite when it comes to protecting this nation. The Special Majlis, and the current People’s Majlis have demonstrated that many times. Yes, some MPs, on some occasions have displayed hilarious behavior on the floor of the Majlis. But do review the decisions of the Majlis, especially when we managed to get DRP to bow down, and you will have to agree that in spite of the “comic” nature of MPs, this institution is the institution which has sought protection for the people and fought on behalf of the people to end tyranny. If you think this membership is comic and unruly, just wait until the next elections. Judging by the caliber of candidates being proposed by the “major parties”, we can expect hilarity unbeknownst.
Yes, the Constitution makes excellent provision for Judicial Independence. But the Judiciary cannot be independent from other organs of the State. The Judiciary as a whole will be subject to the Majlis, and hence the People. Only Judges, in their work of adjudicating, is given that privilege. The Majlis will not seek to interefere in the process of adjudication.
142. The Judges are independent, and subject only to the Constitution and the law. When deciding matters on which the Constitution or the law is silent, Judges must consider Islamic Shari’ah. In the performance of their judicial functions, Judges must apply the Constitution and the law impartially and without fear, favour or prejudice.
149. (d) The People’s Majlis shall pass a statute relating to Judges.
151. Every Judge shall devote his full time to the performance of the responsibilities of a Judge. A Judge
shall perform other work only in accordance with and as specified by the statute relating to Judges.
155. The People’s Majlis shall have authority to pass laws concerning the administration of the courts, the trial and appellate jurisdiction of the courts and trial procedures.
These provisions are pivotal to how the Judiciary is set up, and what was envisioned by the people who wrote the Constitution. Let me first outline what the vision was.
It was envisioned that there would be Judges whose sole responsibility would be to adjudicate and deliver justice, and do so without fear, favour or prejudice, and would be solely bound by law. It was perceived that all aspects of Islamic Shariah would also be codified into law eventually, and then Judges would not have to even revert to Islamic Shariah in any event. This is necessary if there is to be certainty of law and therefore rule of law.
To achieve this, Judges had to be granted a high degree of independence, and the only instances of external scrutiny would be if any one of them became incompetent or committed an act which was unbecoming of judges. They are the only state officials who are appointed for life. Such is the dignity and respect accorded to Judges. By the same token, it is expected that once granted this independence, Judges would remain totally apolitical, and not concern themselves with matters other than adjudication.
Article 142 (above) speaks about Judges being independent. Nowhere in the Constitution is there any mention of the entire Judiciary being independent of other state organs. How can it be? It too, after all, is an organ of the state. The concept of Judges being independent is very important for the rest of my argument. The recent decisions and actions of the Supreme Court is actually undermining the independence of Judges, and opening the doors for Judicial Tyranny.
When we talk about independence of Judges, we are not only talking about Judges being independent from influences from other state organs, but also Judges being independent from one another. In adjudicating on a matter before a Judge, s/he should not consult anyone, including any other Judge. S/he should solely focus on the law, and the facts as presented in evidence, and precedents set by rulings in similar cases, especially those of higher courts.
When we wrote the Constitution, we also envisioned each tier of the Judiciary being independent of the other tiers. That is, the Lower Courts should not be influenced by the Higher appellate Courts, and the High Court should not be influenced by the Highest appellate Court.
That is why we decided to leave the administrative matters to the Judicial Service Commission which would operate in parallel, but would not intervene in any judicial decisions. If the Supreme Court takes on the administration of the entire Judiciary, and the Chief Justice starts making decisions regarding other Courts, the independence of the High Court and the Trial Courts will be compromised.
With this push by the Supreme Court to take on the entire Judiciary as its own domain, it is, I believe, violating Article 151 of the Constitution, as the Chief Justice is seeking to do “work other” than adjudicating when the law does not make provision for it. Imagine this scenario. The Chief Justice decides to sack an employee of a Court (there are about 2000 of them) out of personal prejudice, mandated by the Supreme Court. Where does this person go to seek a remedy? The Courts? And ultimately to the Chief Justice and the Supreme Court who did it in the first place? Just one example of the stupidity of subjecting the administration of all the Courts to the Supreme Court. On the other hand, with the setup we had made, these decisions by the Judicial Service Commission can be taken to the Courts and an independent decision sought by the disaffected person. (I think lawyers call this “Principles of Natural Justice”; i.e, one should not be judging one’s own self to deliver Justice.)
Article 155 (above) gives unequivocal power to the Majlis to make laws both on Jurisdiction of Courts (including the Supreme Court) and on administration of the Courts. The Majlis made such law. The Supreme Court struck it down, quoting “inherent (meaning extra-constitutional) powers” of the Supreme Court (I think Lawyers call it “ultra virese”).
What they don’t understand is that the Constitution gives the complete power of the public purse, hiring of most, and firing of ALL public officials to the Majlis. No one can fire an MP from his or her job. If these taken together doesn’t spell Supremacy, what does? Time to face the facts and retract all that rhetoric and political juggling.
The Majlis is being patient with this unruly child, because this child is the Majlis’s own. It is in the interest of the nation (and therefore the Majlis) that this child is not a victim of infant mortality. The Judges of the Supreme Court may seek to destroy the institution called the Supreme Court. But the Majlis will not allow it. The Majlis will protect its own child, and nurture it to full maturity, because the Majlis has high hopes for this child. The Majlis will remove guardianship from the current five if necessary in order to protect this newborn baby. The Majlis will not let senility be an excuse for infanticide or the raping of a baby. The Supreme Court maybe the “Guardian of the Constitution”, but the Majlis is the “Guardian of the Nation”.
The Majlis is working to seek an amicable, diplomatic and peaceful solution to this acute problem before it becomes chronic, and do it quietly. But with Supremacy will also come responsibility. The Majlis will not hesitate to do what is necessary to protect and defend judges of the Trial Courts and the High Court and hence serve the best interest of this country. Many may think that the Majlis is divided on political lines and therefore can be cuckolded. Forget it. The Majlis will unite when it comes to protecting this nation. The Special Majlis, and the current People’s Majlis have demonstrated that many times. Yes, some MPs, on some occasions have displayed hilarious behavior on the floor of the Majlis. But do review the decisions of the Majlis, especially when we managed to get DRP to bow down, and you will have to agree that in spite of the “comic” nature of MPs, this institution is the institution which has sought protection for the people and fought on behalf of the people to end tyranny. If you think this membership is comic and unruly, just wait until the next elections. Judging by the caliber of candidates being proposed by the “major parties”, we can expect hilarity unbeknownst.
Yes, the Constitution makes excellent provision for Judicial Independence. But the Judiciary cannot be independent from other organs of the State. The Judiciary as a whole will be subject to the Majlis, and hence the People. Only Judges, in their work of adjudicating, is given that privilege. The Majlis will not seek to interefere in the process of adjudication.
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