Sometimes we can learn more about global forces from small countries than large ones. So it is with the recent struggles over the Supreme Court in the Maldives, the tiny island nation in the Indian Ocean better known for its high-end resorts. The recent firing of two justices of the Supreme Court reminds us one major consequence of the growing judicialization of politics around the world is a politicization of the judiciary. Controlling the judiciary is now a high stakes game in many countries, which in turn can make a mockery of the rule of law, properly conceived.
For the past few years, the Maldives has been struggling with a transition to multiparty democracy. While elections have been held and parliament operates, the quality of democracy is quite thin. The current president, Abdulla Yameen Gayoom, is the brother of the longtime dictator of the country. The media remains independent but the recent disappearance of a journalist brings to mind the bad old days. Civil rights are under attack, as the government has sought to ban public protest and limit freedom of speech. Independent commissions have been undermined. And now the judiciary has emerged squarely as a partisan actor, firmly aligned with the government, with no meaningful internal dissent.
Earlier this month, the People's Majlis (parliament) voted to remove two judges of the Supreme Court, presumably under the guise of "streamlining" the court from seven members to five. The two judges removed, Chief Justice Ahmed Faiz and Justice Muthasim Adnan, had drawn fire from the government for daring to dissent from various rulings, including one that annulled the first round of presidential voting in September 2013. In response to the parliamentary vote reducing the size of the Court, the Judicial Service Commission -- itself charged with protecting judicial independence -- issued a secret ruling finding the judges unfit under new standards. While Article 154 of the Constitution of the Maldives states that a judge may be removed from office only if the Judicial Service Commission finds the person grossly incompetent, or guilty of gross misconduct, the legislation passed earlier this month allowed removal if a judge was simply found "unfit" by the Judicial Service Commission. This statute is facially unconstitutional, but the lower courts were not allowed to hear claims against it, nor to accept any challenge to the dismissal of the judges. Instead, any suits to protest the decision go straight to the Supreme Court itself, now without the dissenting members.
These machinations have has drawn condemnation from the International Commission of Jurists, various Commonwealth bodies, the UN Special Rapporteur on the Independence of Judges and Lawyers, and a visiting U.S. Diplomat. All have criticized the moves as an attack on the independence of the judiciary. Yet in many ways the problem is not judicial independence per se. It is that the judiciary has emerged as a politicized body, whose decisions reflect only one side of a deeply divided polity.
The Supreme Court has become a major political actor, and a fierce defender of any perceived slight to its own honor. Few of its judges have any conventional legal training, and many of its decisions intervene deeply into politics. Its decisions are said to be poorly reasoned, if they are released at all. But anyone in the Maldives who dares to say this is subject to accusations of contempt of court. The Supreme Court has charged the Human Rights Commission with undermining the Constitution for daring to criticize the court in the Universal Periodic Review process. It has ordered the arrest of the head of the electoral commission for testimony in parliament criticizing the court. And it has censured journalists who have criticized it. It thus has disallowed any genuine discussion of its own opinions.
Such actions do not speak of a judiciary that is self-confident in its vision of the law, which always relies on reasoned public opinions. Instead, they present the image of an institution that lacks confidence in its own legal abilities, and so fears criticism. Purging the Supreme Court of dissenting voices only deepens the intellectual isolation of the judiciary, and will lead to even greater perception of a body that stands not for law, but for one side in a bitter partisan struggle.
The broader story is that judges, who now exercise enormous power in many countries, must be held accountable for their actions. But accountability does not allow for changing the standards for removal to eliminate dissenting voices. We observe in this tiny island the type of manipulation found in many "illiberal democracies", which have elections but not the deeper set of institutions that make democracy work.