A rioting mob at the barricades. A government resorting to unconstrained force to quell the will of the people. These are the images conjured up by the term “state of emergency.” These are the images that might justify the former president of Maldives making his peculiar call for foreign military intervention. And yet despite such associations, the reality on the ground during a state of emergency is often markedly different to that imagined.
Take France. Last November, an end was called to the two-year state of emergency that had been implemented after the tragic terrorist attack on the Bataclan theater in Paris. Yet in that interlude, day-to-day life went on as usual. France’s cherished liberté remained intact.
Such a state has recently been declared in the Maldives – the nation I serve as the minister of fisheries and agriculture and lead government representative at the All-Party talks.
A judicial impasse had calcified: The executive and Supreme Court found themselves in an intractable dispute. Yet it appears the judges’ motivations were not of the noble nature expected from those entrusted with such national responsibility. The president was compelled to announce a state of emergency to resolve the issue and clear the threat to national security.
But just as in France, it does little to disturb our citizens’ daily business. In fact, it in no way affects the ordinary people of our island state. The scope is limited only to those under investigation in relation to the recent coup attempt.
It all began on February 1. The five-member Supreme Court issued an unconstitutional and unlawful order for the release and retrial of nine prisoners facing charges ranging from terrorism and attempted murder to treason and embezzlement. One of them was former president Mohamed Nasheed, currently living in Sri Lanka after evading his sentence on medical grounds.
The ruling declared, in contravention of the constitution, that the Judicial Service Commission had no mandate over the Supreme Court. This in effect put the court’s actions beyond scrutiny.
Scrutiny, however, was needed now more than ever. Why had the Supreme Court ordered the release and retrial of guilty parties without overturning any of their convictions? Why was the ruling not made in an open court – as stated by law – but behind the closed doors of chambers? And why was the order announced at 11pm on a Thursday – just as the Maldivian weekend begins? Clearly this was an abnormal ruling.
Why had the Supreme Court ordered the release and retrial of guilty parties without overturning any of their convictions? Why was the ruling not made in an open court?
The Supreme Court’s subsequent behavior – or rather that of Chief Justice Abdulla Saeed and Justice Ali Hameed – reinforces this notion. The state, after reviewing the order, had understandable concerns about the legality of its implementation. The court refused to hear from either the attorney general or the prosecutor general, as it had been obliged to in the past. When the president intervened to ensure the proper functioning of the state, the chief justice cut off all communication to the court.
Indeed, the chief justice went so far as to attempt to remove the attorney general for offering his professional opinion (defeated 3-2). He then tabled another motion to impeach the president (similarly defeated) – a right only Parliament reserves. He then overturned a police arrest warrant for the Judicial Service administrator, accused of arranging bribes for judges.
Crucially, this order came from the chief justice on behalf of the Supreme Court, not from a sitting of the bench. This was patently a court gone rogue – recognizable as such to anyone familiar with the constitution of Maldives.
The necessary state of emergency allowed for the prompt investigation and prosecution of, as well as the search and seizure of evidence (such as million-dollar transactions and houses bought abroad) from, those involved. Basic constitutional rights still stand, such as the right to freedom of expression, access to legal counsel, and fair and transparent hearings.
Moreover, the state of emergency’s purview has shrunk since its inception. Key articles of the constitution shelved on February 5 have been reinstated. The powers of the Supreme Court have been returned, as have those of the Parliament – including the right to remove the president. Only rights currently required for the success of the investigation remain suspended.
The dispute is tapering down. This gives me confidence we should soon see an end to current conditions. Nobody wishes to see it needlessly extended. But the threat to national security and sovereignty must first be cleared. The full extent and depth of the judicial coup shall be uncovered. The mist of conspiracy remains, though it becomes thinner by the day.
Naturally, some sectors of the international community have sided with the judiciary. Neat categories are easy to understand (the Supreme Court is good; the executive is bad), yet not always useful for understanding unique situations. Particularly so in Maldives, a young democracy: 10 years from our first election, the former autocratic leader of 30 years Maumoon Abdul Gayoom – now in coalition with Nasheed in Sri Lanka – still held sway with certain judges.
What is clear is this: Maldivian citizens will not tolerate corruption in our highest court. Remnants of the ancien régime cannot brazenly pervert our institutions to usurp the state. In our country, the only route to power is the front door of democracy. The president took the necessary actions to ensure this remains the case. The fact is that truly independent institutions take time to embed. Clearly, more time is still needed.