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The long shadow of authoritarianism April 2011
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| Photo: Meher Ali |
When the recent revolutions in West Asia and North Africa raised the dissent of the governed to an unprecedented crescendo, President Mohamed Nasheed was quick to remind Maldivians of their shared political trajectory with the Egyptians. Both peoples were subjected to three decades of autocratic rule; both ultimately exercised their will not to be governed in this way; and both forced the departure of their authoritarian rulers by staging mass demonstrations remarkable for their presence of passion as well as absence of fear – and violence.
It is indeed true that Maldivians and Egyptians have shared a political trajectory. Now they have both entered a phase in which their paths will either continue along similar lines or diverge wildly, depending on how successful they are in consolidating their nascent democracies. Between 1960 and 2008, the fate of 90 countries that embarked on over 120 large-scale attempts at democratisation suggests it is by no means certain that either Egypt or the Maldives will be successful in keeping their new democracies. In fact, the spectre of reverting to authoritarian rule remains significant in both cases. Around the world, rates of democratic consolidation vary from region to region. In Asia, of 23 democratisation projects between 1960 and 2004, 57 percent ended in reversal, according to Polity IV Project, which studies global trends in regime change. After the initial euphoria when President Nasheed won democratic elections in late 2008, ending Maumoon Abdul Gayoom’s decades in power, hard realities have since set in. Unfortunately, the current political climate in the Maldives provides little reason to believe that the atolls will be able to buck the broader trend and avoid a return
Two years after the current Maldivian government assumed power, democracy most certainly has not become ‘the only game in town’ – the happy state of affairs that most experts agree signifies successful completion of the consolidating process. Ample evidence has emerged during this short period that other currencies of power, deeply embedded in socio-cultural norms formed over centuries of varying types of authoritarian governance, are still very much in circulation in the country. These forms of power most clearly and commonly manifest as clientelism and patriomonialism, where power is exercised through informal networks based on political favours, connections between friends, family and a clique of elite individuals and groups. Such networks of informal power exist in perpetual tension with the official institutions of democracy. In the Maldives, they have created an atmosphere that discourages popular participation, makes a mockery of the rule of law, renders problematic the delivery of public services, discourages both domestic and foreign investment, and is highly conducive to corruption, rent-seeking and other forms of abuse.
Between legislation and politics
The Maldivian Parliament, the People’s Majlis, is one of the most important institutions of the new democracy; unfortunately, it is also where the informal networks of power are most exercised. Just within the past two years of President Nasheed’s administration, instances abound in which MPs have introduced or amended legislation for the benefit of a particular individual or group, to increase their own incomes or political power, to protect members of the former regime’s elite, or to erode the powers of the executive. At the beginning of 2010, for example, the executive branch and the Majlis were at loggerheads over the size of the budget. At the time, the administration was under severe pressure from the devastating effects of the global financial crisis on the country’s economy, a ballooning debt inherited from the Gayoom regime, and international financial organisations and donors breathing down its neck urging stringent austerity measures. As such, the government was more than just a little miffed when the Majlis made several amendments to the budget that increased its size by an additional USD 62 million before passing it.
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Mockery: On 2 August 2010, the Judicial Service Commission (JSC) held a ceremony to have all sitting judges retake their oaths, thus essentially dismissing the Commission’s constitutionally mandated responsibility to remove judges found to be unqualified. As seen in this photo, JSC member Aisath Velezinee interrupted the ceremony, appealing to the gathered judges not to go forward with the oath-taking. Although her appeal was not heeded by anyone present, the outburst was telecast live on some Maldivian television channels, throwing Velezinee into the limelight. She was stabbed five months later.
Photo: Sun.mv |
Three months into 2010, the Majlis passed a no-confidence motion against the then-auditor general, Ibrahim Naeem, over allegations of corruption. Naeem was at the time involved in high-profile investigations of members of the former regime for alleged embezzlement of millions of (US) dollars from state funds. The charges, for which the Majlis eventually removed Naeem from office, accused him of using a state credit card to buy a tie and charter a boat for a domestic trip. All MPs from the ruling Maldives Democratic Party (MDP) voted against the motion, but former President Gayoom’s Dhivehi Rayyithunge Party (DRP) holds the Majlis majority, with the People’s Alliance, led by Gayoom’s brother, MP Abdulla Yameen. Several MDP MPs alleged the accusations against Naeem were politically motivated, but without a Majlis majority, failed to prevent Naeem’s removal from office. With Naeem gone, the cases he was investigating disappeared from the public domain.
By July 2010, relations between the executive and the Majlis had massively eroded. Indeed, a good indicator of this was the arrest that month of MP Gasim Ibrahim, one of the richest businessmen in the country and one of President Nasheed’s rivals in the 2008 presidential elections; he was detained, on charges of bribery of members of the Majlis, along with MP Abdulla Yameen. Both men were released within hours by order of the Criminal Court. Unusual for a court of law in any country, the Criminal Court sat after midnight to order Yameen’s transfer into house arrest. The episode was preceded by the en masse resignation of the entire cabinet, saying that Majlis encroachments on its authority through legislative amendments had made its job impossible.
Before the year ended, there were many other similar motions, boycotts and vulgar partisan spats and disputes that preoccupied MPs’ focus and attention. All the while, important legislation vital for the proper functioning of a democracy – such as the Penal Code, the Evidence Bill and the Business Profit Tax Bill, without which the country’s cripplingly large debt was impossible to pay – were put on the backburner and, in most cases, ignored. On the rare occasion when MPs did manage to focus on the business of legislation, it was more often than not to pass laws that were blatantly self-indulgent.
The last day of the 2010 session, on 30 December, for instance, ended with mass protests on the streets of Male over the Privileges Bill. If passed, this would have increased MPs’ salaries to be at par with their contemporaries in some of the most consolidated – and richest – democracies in the world. Faced with undeniable public anger, some MPs have planned amendments to the bill that would reduce their benefits somewhat; still others are planning a response that involves tripling the height of the Majlis walls, to 12 feet.
Rough justice
This year has begun true to form, with Yameen’s People’s Alliance party as well as factions of the now splintered main opposition DRP boycotting the opening ceremony. Yameen did, however, deign to perform his duty as an opposition MP by issuing a statement in response to President Nasheed’s speech, expressing disappointment that the president had not properly addressed the issue of corruption within his own MDP.
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| Photo: Saif Ali |
The judiciary is another institution of the new Maldivian democracy in which the old system of paternalist governance continues to reign supreme. The judiciary that President Nasheed’s government inherited, therefore, is one comprising of a large number of unqualified judges, several convicted felons and many individuals who remain beholden to the former regime. The JSC, set up by the 2008 Constitution to clean up the judiciary and bring its ethical and professional standards in line with democratic norms, was required to remove all unqualified judges and convicted felons from the bench within two years. The Commission refused to do so, instead dismissing this constitutional requirement as ‘symbolic’. Furthermore, to date it has failed to investigate close to 200 complaints of judicial misconduct, unwilling to give ground even after being taken to court by one frustrated complainant who accused the JSC of neglecting its constitutional duties by arbitrarily dismissing complaints against favoured members of the judiciary. The case was thrown out by the Civil Court in January on less than a technicality – on grounds of tardy time-keeping by the plaintiff, who arrived thirty minutes late for what was to be the penultimate hearing. This was despite evidence during the case revealing that the JSC was operating without a proper procedure for investigating complaints.
The key to the JSC’s open resistance to democratic reform lies in its composition. The 10-member Commission comprises three judges, two members of Parliament, one member of the Civil Service Commission, a member of the law community, a member of the public, the attorney-general and a member appointed by the president (Velezinee Aishath). The three judges all sat on the bench during the regime of President Gayoom, and their survival on the bench depends largely on the continuation of the judiciary as it was prior to democratic transition. The two members of Parliament are keen to continue the status quo, where the judiciary remains under its control.
As far as the representative of the civil service is concerned, the Majlis recently passed amendments to existing legislation that brings the Civil Service Commission, and therefore its representative at the JSC, under its complete control. The law community’s representative was originally to have been elected by votes of the law community itself, excluding sitting judges. A court decision to allow sitting judges to vote in electing a law community representative at the JSC has meant, however, that anyone elected to the post remains beholden to the judges before whom they appear as practising lawyers. The general public’s representative at the JSC, too, has to receive parliamentary approval; as the does the attorney-general, who can, and has been, removed by the Parliament in exercising its powers over
cabinet appointments.
It is not that there are no qualified individuals in the Maldivian judiciary. The Maldivian justice system incorporates both common law and Sharia, and there are a number of qualified young lawyers with law degrees and training from both Western and Arabic universities. Some were trained specifically in anticipation of the new reforms, which were supposed to take place by August 2010. A large number of these individuals, however, have been deliberately sidelined, as the bench continues to be occupied by JSC-approved judges with lower qualifications. The most recent High Court appointments by the JSC, in January, ended in controversy with two failed candidates filing a case against the Commission for being biased in their appointments.
Frustrated by this and related issues seen by many as unconstitutional, starting in August 2010 Velezinee had gone public with the inner workings of the JSC. Many of these criticisms were validated in a recent report issued by the International Commission of Jurists (ICJ), which criticised the JSC for failing to work towards the independence of the judiciary, and for its lack of proper procedure and transparency. One JSC member, the Commission’s vice-president, Afraasheem Ali, responded to the ICJ report by saying it was ‘irresponsible’, and the Commission is yet to discuss any of the recommendations that the ICJ has made. It has chosen, instead, to investigate Velezinee for putting JSC documents in the public domain.
Quality of media
Both the law community and the media have been notably lax in taking issue with the lack of an independent judiciary. This silence exposes the most inexplicable features of the Maldives’ new democracy; it is also one of its most dangerous. The Maldivian media is an interesting beast, the make-up and characters of which is yet to be analysed in any depth despite the explosion in media outlets and output with the transition to democracy. It was only recently, in February this year, that the Maldives Media Council, established in May 2010, got around to adopting a code of ethics for the country’s media professionals. Prior to this, only the state-owned broadcaster, MNBC, possessed a written code of ethics, and that was only published in mid-2010.
Very interesting in the context of media-judiciary relations is a provision in the Media Council’s Code of Ethics banning the media from publishing any material that contradicts or questions the findings of an official investigative body or the ruling of a court. Only legal or professional experts or academic analysts are allowed to publish such commentary, according to the Code. This raises two possibilities: the Maldivian Media Council does not regard local journalists as professionals with the ability to critique or question a court ruling; or two, it regards court rulings as beyond scrutiny. The Maldives shot up the World Press Freedom Index by 53 points in 2009, to occupy 51st place. The previous year, before the regime change, it had been ranked 104th in the world. Despite the increased freedoms, which has remained more or less stable despite a fall of one point registered in the 2010 rankings, a Reporters Without Borders disclaimer with regard to the index is an important caveat with regards to the Maldives: ‘The index should in no way be taken as an indication of the quality of the press in the countries concerned’.
The Maldivian law community, meanwhile, is caught between furthering personal ambition and working towards democratic consolidation. In recent years, the practice of law has become one of the most lucrative and prestigious professions. Established democracies are so familiar with the high status accorded to members of the legal profession as to breed contempt; but members of the relatively new Maldivian law community are often too in thrall of their own success to put personal ambitions aside and pick up the fight for the judiciary’s independence. Such a fight would be a high-risk endeavour in terms of personal ambition: the JSC has the ability to hire and fire judges, and also to curtail the careers of any judges seen as blatantly opposed to its machinations and the informal network of clientelism that holds it together.
The way things stand, there are two distinctive types of legal professionals. First, there are those working to maintain the informal networks of the old regime and blatantly interpret the letter of the law in ways that contradicts its spirit. And second are those who strive hard to remain within the rule of law, and are convinced that as long as they do so, they are carrying out their responsibilities towards judicial independence. This is most evident from the fact that any time the law community has raised questions over the Constitutional or legal basis of any of JSC’s actions, it has been when members of the community were directly affected, such as the issue of JSC’s recent High Court appointments. As long as the JSC remains in its current form, it is very unlikely that the Maldivian law community will come forward with criticism of the current status of the judiciary, let alone come together to campaign for judicial independence the way their peers in Pakistan did not so long ago.
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Greatest job in the world: President Nasheed during the shooting of a public-service announcement on climate change. Photo: Mauroof Khaleel |
The most likely goal of the Majlis is to keep up the appearance that it is carrying out its constitutional responsibility of maintaining parliamentary oversight. So far, it has failed to ask the JSC why it has refused to uphold Article 285 of the Constitution (to remove all unqualified judges from the bench within two years), or why it has failed in its responsibility to investigate any complaint of judicial misconduct in a meaningful way. Nor has the Majlis raised any of the issues highlighted in the ICJ report regarding these failures. Instead, the investigation has focused on administrative details, asking the JSC for records of who attended meetings and who did not, for example. Such ‘scrutiny’ provides the Parliament with the opportunity to appear to the public to be carrying out its responsibilities, while at the same time leaving the JSC to act as it pleases – or as it pleases the Majlis.
By the people?
As countries in West Asia and North Africa are showing, democracy cannot be imposed by force – it gets consolidated if, and only if, the people want it. Democracy is impossible without the people’s will and desire to keep it. The Maldivian population is one of the least educated in the world. According to the UN Human Development Index, there are only eight other countries with education systems ranked worse than that in the Maldives. The average Maldivian adult spends just four years in school. Elsewhere, education has played a significant role in the process of consolidating democracy, and this is one of the main distinguishing features between the Maldives and other countries that have embarked on democratisation in the last decade.
Establishing a government for the people by a society that is generally lacking in an understanding of the fundamentals of democratic governance is tricky. Without a firm understanding of the concept of separation of powers and all that this entails, and conditioned by three decades of autocratic rule, the Maldivian people continue to regard the president as an almighty ruler, in whom all authority and power are vested. Every failure of the government, regardless of the role that the other two branches of power play in it, is therefore seen by the people as a failure of the executive.
The opposition has made the most of this insufficient understanding among the general population, regarding it as the most valuable card in their campaign sleeve. The recent success of former President Gayoom’s DRP in the local council elections – in which the party won a majority of 502 seats from around the country, compared to MDP’s 375 – revealed the stark differences between the population of Male, where the percentage of educated populace is far higher than elsewhere. The MDP won all but two seats in Male, with the DRP picking up the remaining two. Likewise, in Addu Atoll, which recently became the country’s second largest city and contains the largest population of educated people after Male, the MDP won all the seats. In votes cast across the rest of the country, however, the DRP won the most seats. Without entering into cultural determinism, it is possible to say that, without first educating the people about democracy, its consolidation in the Maldives will remain impossible.
Research into democratic consolidation has shown that the more chaotic and unpredictable the transition period is, the higher the chances of democratic breakdown. The last two years in the Maldives have been anything but calm and orderly – political crises have become almost de rigueur, and affect all three of the newly separated powers. The national debt is over USD 600 million, and the International Monetary Fund has warned that the economy is ‘unsustainable’, given a deficit of around 20 percent of gross domestic product. Earlier this year, Wall Street’s Index of Economic Reform ranked the Maldives as one of the world’s most economically repressed countries, criticising it for ‘chronically high’ government spending, widespread corruption, and an outsized and inefficient public sector among other things that prevent economic prosperity. The World Bank describes the country as having one of the most challenging macroeconomic situations of any democratic transition in the past half-century, and the need for a ‘less destructive political climate’ to address the situation.
The US-based think tank Freedom House considers the Maldives to be only ‘partly free’, having scored even lower in civil liberties than in political rights. At the end of last year, Transparency International declared the Maldives one of the most corrupt countries in the world, ranked at 143rd out of 178 – lower than any other SAARC country but Nepal. According to the UN Human Development Index, there are only 62 other countries in the world where people have a worse quality of life than the Maldives, placing it 107th out of 169 countries.
Under such circumstances, the chances of an authoritarian reversal in the course of the next national elections – currently slated for 2013 – appear to be high. This can only be stopped if the three branches of government stop regarding their separation as a bitter divorce, and start working together to consolidate the democracy that the people worked so hard to bring. Of course, this will take time – consolidation is not a short-term project, nor can it be smooth or linear. Given that elections are due in just two years, now would be the time to start.
-- Azra Naseem is a PhD candidate at the School of Law and Government at Dublin City University, Ireland.
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