SPEECH BY HONORABLE ABDULLAH SAEED,
CHIEF JUSTICE OF THE REPUBLIC OF MALDIVES
AT THE
“THE ROLE OF JUDICIARY IN AN INDEPENDENT DEMOCRATIC
SOCIETY”
19 JUNE 2010 AT NALAHIYA HOTEL CONFERENCE HALL.
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Mr. Pravin Parek, President of the Federation of Indian Bar,
Distinguished Judges,
Eminent lawyers and other Invitees,
Ladies and Gentlemen,
Good Morning,
Let me begin by expressing my sincere appreciation and gratitude, on
behalf of the judiciary of the Maldives and on my own behalf to Mr. Pravin
H Parek for kindly hosting this seminar. I also would like to thank and
welcome all the participants here today, for giving the time and attending
this very important lecture.
Mr. Pravin, as most of you would already know, is the President of the
Federation of Indian Bar and he is also a Senior Advocate of the Supreme
Court of India. Coming from the largest democracy in the world, sharing of
Mr. Pravins life time experience in the judiciary of India in different
capacities would indeed be an indispensable asset to our judges and
lawyers.
This lecture is the start of a series of seminars Supreme Court has been
planning to conduct during this year. The present seminar is extremely
significant since I believe that such seminars are an important vehicle for
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providing a platform for judges and lawyers, to deliberate and discuss
crucial and highly intellectual issues that the judiciary faces today. This
time the focus of this seminar is set around the important matter of “The
Role of the Judiciary in an Independent Democratic Society”.
As you all will know, In Maldives the adoption of current Constitution, on
7 August 2008, enabled a system that assures the doctrine of separation of 3
branches of government, and protects individual liberties and fundamental
freedoms.
And
most
importantly,
the
current
constitution
also
demonstrated the country’s progress towards upholding the rule of law,
democratic principles and ensuring the independence of the judiciary. As
in all democratic systems of the world, the constitution of the Maldives
advocates free and fair election, judicial independence, free press and
protection of human rights. The principles of rule of law are the basic
substance of democracy and it includes supremacy of constitution and
equality before the law and civil liberties. The superiority of democracy to
the other systems of government thus no doubt, lies in the principle of
separation of powers and the corresponding checks and balances that the
three arms of the State exercise over one another.
The doctrine of separation of powers has been widely misunderstood to
mean a staunch separation between administrative, legislative and judicial
functions. However, this assumption does not hold good, especially in
modern times, where the interrelationship between various organs of the
State is vast and varied. These functions, therefore, cannot operate
independent of each other and, each arm of the state play their own
independent, yet indispensable role in the governance process. Effective
governance requires that all the above mentioned organs function towards
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the constitutional goal of ensuring that each citizen enjoys the fundamental
rights available to him. In a democracy, the people are paramount, and it is
the inherent duty of the executive, legislature and judiciary to perform
meaningful roles in making the life of the common man better.
There can be no argument that judicial independence is a foundation for
the good administration of justice. The judiciary is one such institution on
which rests noble edifice and the rule of law. It has been authorized all over
the world wherever civilized government systems exist. In its essence
judicial independence is considered to be a fundamental human right. An
independent judiciary has long been recognized as the foundation upon
which a true democracy rests. The independence of the judiciary is as
essential to social peace as is the rule of law. Through judicial
independence, the courts should ensure that the Executive and the
Legislature are held to account for their actions. For more emphasis, the
judiciary interprets the constitution, settle conflicts in the process of
democratization and it safeguards the rule of law. The judiciary is to
protect the rights of the citizens.
Indeed independence of the Judiciary is a very well established principle in
the Islamic Sharia’. In Islamic judicial history we can observe that judges
and other officials are to derive their respective powers through
delegations from Caliph or the Ruler of State. This by no means, did not
affect judge’s ability to be fair, impartial and independent, as they were
always keen to perform their power independently and within the law. It
must also be noted that although political power was concentrated in the
hands of Ruler, the development of an Islamic legal tradition- based on
scholarly interpretation of sacred sources maintained a significant of
autonomy for the judicial field.
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It is clear therefore, that the primary beneficiary of judicial independence is
not the judiciary itself, but rather society as a whole.
Judicial
independence, which is the very essence of judicial function, is a means
toward the far more important goal of maintaining public trust in the legal
system and in the judiciary. It is society's confidence in the impartiality of
individual decisions that forms the core strength of the judiciary as an
institution. To decide impartially therefore, without bias and pre-judgment,
is the highest obligation of every judge. And it is judicial independence, the
freedom to hear and decide cases, without interference and without fear of
the consequences, which is the very foundation of judicial impartiality.
As stated by the distinguished jurist, Justice P.N. Bhagwati “Apart from
the ordinarily recognized sources of danger to the independence of the
judiciary, there is a source of danger which is often not perceived as such,
and it is for that reason much more dangerous than the other sources.
This source of danger lies in unjust and improper criticism of the judges for
the judgments which they deliver.
There is a pernicious tendency on the part of some to attack judges if the
decision does not go the way they want or if it is not in accordance with
their views. Of course, there is nothing wrong in critically evaluating the
judgment given by a judge because, as observed by Lord Atkin, justice is
not a cloistered virtue and she must be allowed to suffer the criticism and
respectful, though outspoken, comments of ordinary men and women. But
improper or intemperate criticism of judges stemming from dissatisfaction
with their decisions constitutes a serious inroad into the independence of
the judiciary and, whatever may be the form or shape which such criticism
takes, it has the inevitable effect of eroding the independence of the
judiciary.
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Each attack on a judge for a decision given by him or her is an attack on the
independence of the judiciary because it represents an attempt on the part
of those who indulge in such criticism to coerce judicial conformity with
their own preconceptions and, thereby, influence the decision making
process.
It is essential in a country governed by the rule of law that every decision
must be made under the rule of law and not under the pressure of one
group or another or under threat of adverse criticism by irresponsible or illintentioned elements; and if a judge is to be in fear of personal criticism by
political or pressure groups or media while deciding a case, it would most
certainly undermine the independence of the judiciary.
Unfortunately, this is what is happening in some countries, and those who
indulge in such improper or intemperate and even sometimes vitriolic
criticisms or attacks on judges little realize what incalculable damage they
are doing to the institution of the judiciary
There is one other aspect of the judiciary that needs to be profiled more
clearly. The public, spurred on by the media and political images, often
thinks of judges as either single individuals or an assemblage of persons.
Yet this image obscures an essential truth, and the denial of that truth
obscures further insights.
The essential truth is that the judiciary is an institution. Its business as an
institution of governance is larger than the individual profile of a judge. It
is important to reflect on the constituent elements of the institution. This
institution consists of the bar and the judges. While judges maintain our
personal integrity, it is the bar that fiercely maintains the independence of
the judiciary as an institution.”
The bar has a vital role to play in safeguarding judicial independence.
Ladies and Gentleman, the concept of an independent judiciary in the
Maldives is a an area of which greater establishment needs to be made. The
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Supreme Court of the Maldives, which under the constitution is the
guardian of the constitution and has the biggest role in upholding this
concept. However as I have stressed over in my speech the establishing of
an independent judiciary in the Maldives is not only the duty of the
judiciary but also of the Executive and the Parliament.
Before I conclude, I would like to thank all the participants for taking part
in this very important seminar. I understand that it is not an easy task to
take this kind of quality time especially in a weekend. As for Mr. Pravin, I
assure you that you have here the cream and essence of the judiciary of the
Maldives and it is my sincere hope that all participants of this seminar will
engage in substantive discussion based on their respective experience. I
hope that they will leave here today with a greater understanding and
knowledge of the subject matter to be discussed today.
Thank you
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