Replacing the Appointed - Part TWO - Political absurdity, judicial popycock and legislative blunder

By: wish4m zahir

Of course there is little need to go into the little intricate details of the legality and constitutionality of President Nasheed's move to replace the eight appointed. This was pointed out in part one of this post. Again, I would like to stress on the point that I have nothing but the utmost of respect to the former Minister Mr. Nasheed and the arguments that I have presented in the preceding part of this post are purely academic in form.

Nevertheless, the part where I emphasize on the political absurdity has been dealt with some detail in the first part. This is where the discussion over the President vs the Parliament comes in. But more can be said over the second part of the title to this post. As mentioned previously, the whole problem here stems from the fact that there are no provisions in the new constitution, even in the chapter on transition, which talks of what happens to the eight appointed. This is the part where the legislative blunder comes in.

Rewinding back four or five years, as the wave of reforms swept the country (and still is breaking) the focus was pure and simple; that the current (as he then was) President Maumoon had to go, or alternatively if he does manage to get himself re-elected with the impending Presidential elections, that he would be essentially stripped of all the controversial powers alongside the more nobler notions of separating the three state powers, and creating more democratic institutions. This was the bonus in it all.

At any rate, the legislature is made up of human beings and its within our nature to be cumbersome in our actions. And it was one such blunder that the legislature never foresaw the matter of the appointed eight.

Having said that, the legislative blunder could have been easily remedied or rectified by the Attorney General or the President. All it would take would be a simple reference of the matter to the Supreme Court for interpretation of the constitution on the matter, as is provided for in the constitution itself. Mr. Nasheed points out in his post that this would have been the more amiable approach that could have been taken by the current administration, and I strongly agree with this. This is where the part of ‘judicial poppycock comes in.

Alright, to put it more bluntly, the eight appointed were sworn in by the Chief Justice of the nation in the presence of the President. Of course this is natural and statutorily sane. And the second part is the funnier one. When the eight sacked took the matter to the Supreme Court, who was there to throw the case out? The Chief Justice, again. If he accepted the case, it would have been equal to the instance where he would be claiming that his administration of oath was by itself null and void. Poppycock is it not. Of course one can avoid the argument by dismissing his function at the ceremony as purely formal in nature, being stipulated for in the constitution. But would that undermine the very oath the appointed eight took?

Thus is my case! The whole problem that had arisen out of all this was a product of legislative blunder, fueled by political absurdity and made even worse by judicial poppycock. The one consolation in all of this would come when February 15 arrives and the Parliamentary spin off is over and done with. All in all, it is all in a big chunky mess.

Replacing the Appointed - Part ONE - An Answer to Mr. Nasheed's blog

By: wish4m zahir

I would like to take some time to address an issue which has gained popular concern among Maldivians of late. It is the issue regarding the eight appointed members of Parliament being replaced by the current President Nasheed, much to the disarray (apparently) of three of the members that were sacked (to use the term loosely).

More specifically, this post is based as an answer, reply and sometimes as a concurrence of the entry in the former Minister of Information, Mr. Mohamed Nasheed’s blog. With respect to the former Minister, there are a few points that he has raised in his blog entitled “Replacing the Appointed” which i disagree, and few which i second. I understand that Mr. Nasheed surpasses me a hundred years in terms of experience and qualification. Yet, I have tried to make use of what I have learned in constitutional and administrative law, with due regard to the political (much rather constitutional) turmoil our nation of laws is in right now. At the very least, consider this post complimentary to Mr. Nasheed’s blog. =)

Firstly, I would like to quote a passage from Mr. Nasheed’s post;
"The naked truth is that the current constitution ratified on 7 August 2008 does not recognize any appointed members in parliament. It talks of a fully elected legislature. It requires a fully elected parliament to be put in place by 15 February 2009. It provides for oath of office for the members of that new legislature. It does not mention anything about an appointed member."

What struck me as interesting is that Mr. Nasheed pointed out that the current constitution is ‘silent’ on this matter. Acquiescence is a validating factor; in simpler terms, what is not prohibited is allowed. The same modern day civil law practice can even be seen in Islamic law with the maxim “al- ashya fil-ibahah” which contemplatively means that the original hukm (ruling) of most is permissible, unless specifically excluded by law. This means that if the constitution is silent on the matter, specifically regarding whether President Nasheed can re-appoint his own members, as long as it is not made illegal, it will be lawful.

Another passage from Mr. Nasheed’s entry got my attention;
"The current parliament is a creature of the old (and now nullified) constitution. The previous constitution did provide for eight appointed members. It provided specific procedures for the appointment and termination of those eight members nominated by the president."

So it means that the current Parliament, until February 15 2009, derives its legality from the old constitution, and sustained by the transitional chapter. From the old constitution, we see that that eight appointed is there to represent the interests of the President and indirectly the state. If the interpretation is that they are there to represent the interests of the President, there is no issue here and the new President should have the discretion to replace them. And if they are there to represent the state, then there might surface a small problem. However, even then, even in the face of this small problem, it does not mean that new President does not have the discretion mentioned earlier. As he is the head of the state, he should have the prerogative to determine the best interests of the State. If one follows this note, President Nasheed can alter the list.

It must be said here that the whole problem here stems from the fact that there are no provisions in the new constitution, even in the chapter on transition, which talks of what happens to the eight appointed. This means that we have to go back to the drafters of the new constitution and analyze the evil that it sought to correct by abolishing these eight members. Particularly, sweeping the Parliament of any ‘unelected’ members.

There was much talk during the drafting of “noble notions of democracy”, “fairness” and “transparency”. I my own opinion, as a vocal critic of the eight elected members during his tenure as opposition mantri, Nasheed has repeatedly denied the legality of these ‘unelected’ members, and upon coming to power, he should have dismissed the current eight and left the seats vacant. As Mr. Nasheed in his blog pointed out, the reason that these eight were replaced instead of dismissed and seats left vacant altogether was to fill the void created by the political absurdity of not having a majority in Parliament.

But understandably, or more so regrettably, politics and constitutionality of problems are fused in our nation of laws, much as it is in almost any other country. The basic fact that we have to face is that President Nasheed has to face the ‘political absurdity’ that is created in the stand which holds his executive position as the President versus the Parliament in the transition period. This particular stand is that the MDP led coalition has power over the executive, while the (now) opposition DRP has power over the Majlis in terms of majority. The same situation was created in the US in the last senate elections where Bush’s Republican Party lost out the Democrats. So as it stood, it was Republican President Bush versus the Democratic Senate. So as it can be seen, this is a normal scenario and President Nasheed cannot take the action to replace the eight, merely out of ‘political absurdity’. This is especially pointed out by Mr. Nasheed when he said in his blog that;
"Yes, I also understand that it would be a political disadvantage to retain those eight members in parliament, when they would not provide the alliance in government [with] the requisite majority in parliament… Yet, those are all political absurdities and political inconveniences. None of them is a constitutional matter or legal issue."

To be continued...

Emergence of DNA Evidence in our Nation of Laws

By: wish4m zahir

Very recently, perhaps on the 14th of November, the Maldives Police Service announced that they had cracked their first case based on DNA evidence. More broadly, the Police have tried to develop its forensics capability first by sending personnel on training as far back as in 2003 to countries such as the US and the UK. Presumably they are back now and the crime lab at the MPS is up and running.

All this seems a breakthrough in terms of criminal justice and Police investigations, and it all invariably is very welcoming to any hopeful in our nation of laws. However it also sparks a lot of thought in our mind as to the weight that is to be afforded to DNA as evidence in Court. The stand is pretty open as there is almost no instance in history of our country where DNA was in issue. And this problem has to be taken in the light of our present legislation, modern practice and the stance in Islam.

DNA, or deoxyribonucleic acid, is the fundamental building block for an individual’s entire genetic makeup - our hereditary blueprint passed on to us by our parents. It is a component of virtually every cell in the human body. A person’s DNA is the same in each cell and it does not change throughout a person’s lifetime. For example, the DNA in a person’s blood is the same as the DNA found in that person’s saliva. DNA also is found in skin tissue, sweat, bone, the root and shaft of hair, earwax, mucus, urine, semen, and vaginal or rectal cells.

DNA, was first described by the scientists Francis H. C. Crick and James D. Watson in 1953. Crick and Watson identified the double-helix structure of DNA, which resembles a twisted ladder, and established the role of DNA as the material that makes up the genetic code of living organisms. DNA is a powerful investigative tool because, with the exception of identical twins, no two people have the same DNA. In other words, the sequence or order of the DNA building blocks is different in particular regions of the cell, making each person’s DNA unique. Therefore, DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same way that fingerprints are used. DNA also can identify a example, during a sexual assault, biological evidence such as hair, skin tissue, semen, blood, or saliva can be left on the victim’s body or at the crime scene. In addition, hair and fiber from clothing, carpet, bedding, or furniture could be transferred to the victim’s body during an assault.

The new constitution, in our nation of laws, ratified recently uses the term “as practiced in other democratic states” a lot. When we consider this, of course the US of A comes to mind. In general, state and federal courts in the United States have increasingly accepted DNA evidence as admissible. The first state appellate court decision to uphold the admission of DNA evidence was in 1988 (Andrews v. Florida, 533 So. 2d 841 [Fla. App.]), and the first major federal court decision to uphold its admission occurred in Jakobetz. By the mid-1990s, most states' courts admitted DNA test results into evidence.

Proponents of DNA evidence fear that successful courtroom attacks on its reliability will erode public confidence in its use, giving the state less power in bringing criminals to justice. But most remain confident that it will be a permanent part of criminal investigation. According to Eric E. Wright, an assistant attorney general for Maine,"[T]he history of forensic DNA evidence consistently and ever increasingly demonstrates its reliability. It has been subjected to savage scrutiny unlike any Forensic Science before, and it has survived. Soon the only wonder about DNA evidence will be: What was all the fuss about?"

Defense attorneys and others who are skeptical about DNA evidence strongly disagree with many of these claims. While generally accepting the scientific theory behind DNA evidence, including its ability to exculpate the innocent suspect, they assert that it is not nearly as reliable in practice as its proponents claim. They argue that DNA evidence may be unreliable for any number of reasons, including contamination owing to improper police procedures and faulty laboratory work that may produce incorrect results.

Barry C. Scheck is a leading critic of DNA evidence. A professor at the Benjamin N. Cardozo School of Law, a defense attorney in several notable cases involving DNA evidence, and an expert for the defense in the celebrated 1995 murder trial of O. J. Simpson, Scheck has led the movement for increased scrutiny of DNA evidence. Conceding that "there is no scientific dispute about the validity of the general principles underlying DNA evidence," he nevertheless argued that serious problems with DNA evidence remained. He found particular fault in the work of forensic laboratories and pointed to research that showed that as many as one to four percent of the DNA matches produced by laboratories were in error. Laboratories denied such claims.

Scheck also criticized the procedures used by laboratories to estimate the likelihood of a DNA match. Because juries consider the probabilities generated by the labs—figures such as one in 300 million or one in 5 million—when assessing the validity of DNA results, it is important to ensure that they are accurate.

It is also important to ascertain the Islamic point of view to all of this, because of the ubiquitous presence of Islamic Shariah within the new ratified constitution. Sheikh `Abdul-Majeed Subh, states: "I would like to stress that DNA as well as the hereditary print are no more than supporting evidences. In other words, they cannot be considered as independent legal evidences on their own. Thus, if we are to consider DNA as evidence that is supposed to establish paternity or prove a crime such as Zina, then it must be supported by clear legal proofs such as witnesses or confession." This stand is corroborated by Sheikh Muhammad Iqbal Nadvi, Imam of Calgary Mosque, Canada, and Former Professor at King Saud Univ., Saudi Arabia, adds: "The DNA testing can be used in Islamic Courts as a supporting evidence in the absence of just witnesses. However, it cannot be the sole and only evidence to prove a huge crime like Zina which entails inflicting severe punishment on the criminal. The reason for not accepting DNA as a sole and complete evidence is that DNA testing cannot tell us whether the one who committed adultery did it willingly or unwillingly, be it the man or the woman."

So perhaps it would not be a mistake to claim that Islam places a lesser of a significance to DNA evidence in criminal matters. It would also not be a mistake to claim that this is only true for Hadd and Qisas crimes such as Fornication, theft and murder. And even then, it may not be a deciding factor but it would certainly be permissible and weighted. For all other ta’ziri matters, DNA is of utmost importance. And these matters essentially take around 90% of criminal prosecution, making it of significant value. However this may be, the MPS maybe questioned by defence lawyers on the accuracies and reliability of their peculiar practices of testing as stressed out by Scheck (mentioned two paras above) especially since our nation of law is just starting out in the high-tech field. So it seems the MPS has a long way to establish the reliability and accuracies of their lab activities in the face of stringent defence attorneys, but the whole notion behind the idea is noble and welcome. Now all that is left is to see Court’s applications of these evidence and their interpretations of laws governing it, which it might be added here, is none where direct legislation is concerned.

The Use of Precedence in our Nation of Laws

By: wish4m zahir

You ask a law student on the first step in legal research and they will tell you that it’s finding the law which governs the dispute. This “law” will not only be simplified by the pieces of paper which we call legislation, but usually consist of both statute and case law. These cases form as the explanation to the letter of the law, providing instances, more than once, where Courts have tried different applications of the statute and the ubiquitous interpretations. The researcher will look for cases “on point”. Having found cases which cover an issue, he is to then consider the present status of the case authorities. This will involve the history of the case – whether it has been appealed, affirmed, reversed, distinguished or overruled. It is also important to find out if the case has been followed and cited with approval or criticized. Such information is of critical importance in evaluating the current status or authority of a case. The weight of a precedent will be affected by the reception given to it by other courts and the position of the courts in the hierarchy which followed it or criticized it. The sad part which needs to be said here is the in our nation of laws, there is no place for any such sort of precedence, as far as case law is concerned.

It has to be remembered here that the legal system and culture in our nation of laws is still in its infancy. It was not long ago that the first law graduates first started their practice in the country, and in fact, the reality that almost none of those names have the prefixed ‘late’ before them tells you how young this “infancy” really is.

Courts have existed in the history of our nation, from the Sultan’s Courts to our modern day civil Court tier system, it has existed. Although this is true, the actual sense of litigation came about very late. This is not a negative point though. We have to remember that the birth place of common law i.e. England, also had an infancy stage where the system crawled before it was firmly established. In those days around the seventeenth century, lawyers (or Barristers) had no proper education and learned the application of the law by experience from the Courts. That is why they were called “lawyers-in-situ” or lawyers-in-sitting. It was as late as the 1800s that law began to be taught as a legal subject in any university in England.

Our culture or history stems from the Islamic practice where the Judge usually takes form of an inquisitorial role without the use of lawyers. Although, it would be incorrect to say that they did not exist altogether. For us, legal representation comes from the principle of “wakalah” or agency where the person acts as the party’s agent in representing him in Court.

Anyhow, there were slight instances where the Maldivian legal system cited cases from the higher tiers in Courts or where the High Court (as it then was the highest tier) reviewed matters and ordered a retrial or overruled the judgment of the lower Courts. However, this was never established as a formal practice. One of the main reason is that there is no case reports to begin with, coupled with the fact that a published case report seemed a too infeasible an entity to embark upon.

So it must be said here, that there is a great need for case reports in our nation of laws. If a published report seems to ‘infeasible’, then resort to e-reports, which are almost cost-less. On any scale, it should be the responsibility of the government to ponder upon it and the necessary costs which are incurred seems to low, when the country’s development in law is considered. The justification for using the authority of cases as precedents is the benefit of stability and continuity derived. People need to know the consequences of their acts with a reasonable degree of certainty so that they may conduct themselves within the law. However, stability must be reconciled with the changing needs of society for the sake of progress. This is where the principles of reasonable presumption of the operation of law come in.

A judgment in the civil courts serves a two-fold function. Its primary function is to settle the dispute between the parties: they are not permitted to relitigate the issues that have been decided. Its second function is to serve as a guiding precedent for any similar case to be decided in the future. n our small country, it does help the fact that the recent Supreme Court decision on the former President's eligibility to run for President's judgement was heard orally by the Chief Justice alone while the whole five-justice panel of the Supreme Court tried the matter, and it certainly does not help that the HIgh Court's recent judgment on the invalidity of the second round of election being after the stipulated 10th October bieng decided as "no available grounds to try the matter". There is a need for the Judges as well as practices to mature and own up to the situation. Written judgements and those with justification to thier ruligns need to be seen. only then can we proceed.

The doctrine of binding precedent (staré descisis) has led to the development of a consistent and coherent body of law. Take for instance in England where a completely new system of law i.e. common law has stemmed from the very basis of precedence. It has maintained continuity and provided equality of treatment for litigants faced with similar problems, while filling in the lacuna left by statute. It has also saved judicial time because later judges do not have to review the laws with every case that comes before them. Precedent has produced a degree of predictability. I