Judicial Reviewing: A Tool to Enable Judicial Misconduct and Political Influence

The promise of an impartial judiciary free of executive or otherwise influence is one of the cornerstones of modern democracy which promises equality to and of all before the rule of law. The measure of trust and confidence of the people in the judiciary and its capacity to function impartially and free of influence serves also to measure the degree of confidence the people have in the democratic system of each nation.

To ensure the integrity and impartiality of the judiciary, judicial reviews plays a critical role in stamping out judicial misconduct. Yet in many democratic states, the process of judicial review is often a major challenge in pursuing without infringing on the judiciary’s independence. It is particularly challenging if altruistic democratic institutional forbearance is absent from the political climate of the nation.

Since the advent of multi-party democracy in the Maldives, a consistent issue raised by every functioning party in the political sphere is the judiciary and its capacity to function independently. It is undeniable that judiciary in the Maldives continues to be subjected to a plethora of issues including judicial misconduct and political influence. Though safeguards are placed in the constitution through articles such as Article 141 (c) which states that “No officials performing public functions, or any other persons, shall interfere with and influence the functions of the courts.”.

However, the lack of institutional forbearance and unprecedented majority over the government and the legislative body has enabled the current ruling party to infringe on the very fundamental rights of the judiciary to function as an impartial yet just entity. The Judicial Services Commission, constitutionally mandated to oversee the judicial reviewing process has been packed with political figures including the President of the ruling party, his former attorneys and close allies installed by the very same legislative body controlled by the ruling party.

This loophole has enabled the ruling party to effectively usurp control over every function of the judiciary through the Judicial Services Commission (JSC) including even that of administrative functions.

In 2020, The UN Special Rapporteur on the Independence of Judges and Lawyers, Diego García-Sayán presented a special briefing to the Un General Assembly where he highlighted on the use of “disguised” sanctions against Judges to intimidate, threaten and ultimately influence the judiciary. This is especially relevant to the Maldives where ruling party parliamentarians openly threaten sitting judges to influence the outcome of key court cases, often to intimidate the opposition and its leaders. The JSC serves as the strong-arming wing of the ruling party, demoting, suspending and launching inquiries against judges based on a whim with no oversight over the JSC itself.

This was particularly evident in the trials of the opposition Presidential candidate President Abdulla Yameen where the initial trial judge was suspended and replaced by a bench of five judges just 4 hours ahead of passing a verdict. While the suspended judge later released a statement accusing the President’s Chie of Staff of making threats to ensure a guilty verdict, the state authorities have refused to inquire into these serious allegations.

In the latest controversial move by the JSC, the commission has launched an inquiry against Justice Mahaz Ali Zahir for purchasing his lunch from a restaurant allegedly owned by an ordinary member of the opposition party. This coincides with the issuing of the verdict for the current case lodged against the opposition’s presidential candidate with Justice Mahaz Ali Zahir being the Supreme Court Justice who led the bench which overturned the 5-year prison sentence against the opposition leader.

Such moves are set to serve as a warning to judiciary that non-compliance with the ruling party’s “enforcers” will result in dismissal or suspension regardless of the position held by the Judge.

This raises serious questions on the nature of judicial reform implemented by the current administration led by President Ibrahim Mohamed Solih. The JSC and the government has engaged in dialogue with many international stakeholders to implement judicial reform, yet fails to muster the courage to address the singular most significant issue that obstructs the judiciary from functioning independently and impartially, the constitution of the JSC.
Without an altruistic and sincere effort to reform the constitution of the JSC, the Maldivian judiciary will remain susceptible to political influence and subsequently judicial misconduct. Judicial misconduct at the top levels of the country is but a symptom of the wider rampant corruption and abuse of power within the Maldivian judiciary. While the real issue here is swept under the barrage of excuses by the state, it is ultimately the democratic system which bears the brunt of this abuse of power and negligence as the people’s confidence in the democratic system continue to dwindle day by day.
So, what drives the Solih administration to pursue such blatant aggression against the judiciary? It is evident that their primary objective is to quell the voice of the opposition by subjectively framing and incarcerating opposition leaders including their Presidential candidate through their extensive control and manipulation of the judiciary facilitated by their parliamentary supermajority making and breaking laws, vocalizing open threats against judges and the opposition and the well-oiled machinations of a politically funded propaganda machine controlling the fourth estate from within the President’s Office.