The Maldives faces a constitutional meltdown following a difference of opinion between opposition parties and the government regarding the legitimacy of institutions such as the Supreme Court, after the transition period expired last night.
According to the government’s interpretation, institutions such as the civil service commission, Human Rights Commission of the Maldives (HRCM) and the courts ceased to have legitimacy on conclusion of the interim period at midnight, after parliament failed to legislate for their continuity.
The Attorney General resigned this morning, claiming that while he had some responsibility for the ‘constitutional void’, a great deal more lay with the opposition-majority parliament and Speaker Abdulla Shahid, an MP of the main opposition DRP.
President Mohamed Nasheed had nominated a Chief Justice of the Supreme Court and was reportedly waiting for parliament to pass a bill on judges to determine how many more justices should be elected to the bench, however the Speaker cancelled the session prior to the deadline despite expressing earlier confidence that the interim matters would be resolved before the deadline.
“The Majlis failed to get its work done on time. This left the President with two options: allow the country to have no Supreme Court at all; or issue a decree so at least the administrative functions of the Supreme Court can continue. The President chose the latter option,” said Press Secretary Mohamed Zuhair.
Nasheed issued a decree at midnight that the trial courts – the Criminal and High Courts – would continue to function, while the interim appellate court consisting of four members “of high repute” would oversee the administrative aspects of the Supreme Court, such as receiving appeals.
“We hope Majlis members will hurry up and pass the required legislation so the court can function as envisaged under the Constitution,” Zuhair said.
However the four members of the government’s short-lived appellate court resigned this afternoon, Zuhair later confirmed, citing commitment to other duties but most likely seeking to avoid the political cross hairs aimed at the positions.
Moreover, the Civil Court today ruled that the Supreme Court bench remains valid, and that the Maldives National Defence Force (MNDF) was obliged to return the keys to the building to the sitting judges.
The government will appeal in the High Court – despite the resignation of the Attorney General – using the MNDF, which has its own lawyers, Zuhair stated.
Similarly, the opposition argues that under Article 284 of the Constitution, the Supreme Court is not beholden to the interim deadline and is obliged to function as normal, until the new court is appointed by parliament.
Article 284 under the chapter on transitional matters reads: “The Supreme Court appointed pursuant to this Chapter shall continue until the establishment of the Supreme Court”.
“There’s no argument about it; it’s very clear,” said former Attorney General Azima Shukoor, legal representation to opposition People’s Alliance (PA) MP Abdulla Yameen, whom the government detained for more than a week on accusations of treason and bribery.
“There are no issues with dates – [the Constitution] very clearly states that there has to be a Supreme Court of five members. The government is trying to take control of the judiciary.”
The government contends that the entire chapter on transitional matters – including Article 284 and others governing the interim Supreme Court – were annulled at the conclusion of the transitional period last night, plunging the country into a “constitutional void” following parliament’s failure to legislate the continuation of several institutions.
President’s member on the Judicial Services Commission (JSC), Aishath Velezinee, said the clause relating to the Supreme Court was “not indefinite”, and referred to appointment of judges “at any time within the two year transitional time period.”
“[Husnu Suood] was arguing last night that parliament needed to meet before midnight and approve an extension of the interim period, which seemed like a very sensible thing to do,” Velezinee said. “If [parliament] were working in good faith, they would have done that.”
Writing on his personal blog, independent MP for Kulhudhufushi South, Mohamed Nasheed, who was the legal reform minister when the constitution was ratified, concurred that the country had “officially fallen into a constitutional void” following parliament’s failure to complete transitional matters in the two year period set by the constitution.
Nasheed, who first warned of the repercussions of missing the constitutional deadline for last year’s parliamentary elections, argues that institutions or posts created after a constitutionally stipulated deadline would not be legitimate.
As a consequence, he writes, the legal status of parliament, the Elections Commission and the Anti-Corruption Commission were in doubt, as all three were formed after the deadlines elapsed.
Moreover, he added, the deadline for local council elections passed in July 2009, the new Supreme Court has not been formed, the reappointment of judges was questionable, lower courts had not been instituted and an Auditor General as well as members to the Civil Service Commission and Human Rights Commission are yet to be appointed.
That both the executive and legislature had failed to deliver the lawful state envisioned in the Constitution, Nasheed writes, was a source of “shame and sadness”.
With the two main parties at loggerheads, Nasheed writes that the distance between the parties has only grown and there was no longer an environment conducive to political negotiation and compromise.
Instead of assigning blame, he urged, both sides should be looking for a solution to the crisis.
As a solution, Nasheed suggested the parliament complete transitional matters as soon as possible, and then call a public referendum to determine whether citizens approved of the post-interim process.
The referendum could be held concurrently with local council elections, he suggested, whereby citizens could be asked to endorse new provisions inserted to the constitution to legitimise the “belated” institutions.
“If a solution cannot be found within the constitution, shouldn’t we get the direct say of citizens?” he asked.
Meanwhile, in an possible bid to encourage the opposition to return to the chamber, the Foreign Ministry has suspended the ambassadors to Sri Lanka, China, and Saudi Arabia, all three of whom were appointed by the former administration and were not endorsed by parliament prior to the interim deadline.
The government has also been negotiating with the International Commission of Jurists (ICJ) to send a mission to the Maldives to help establish an independent judiciary.
Commonwealth Secretariat Spokesperson Eduardo del Buey confirmed the Commonwealth Secretariat had received a request from the government of Maldives “for assistance in constituting an interim appellate court drawn from Commonwealth judges.”
“We are considering this request as a priority, and will respond to the Government shortly. In responding, we will be discussing with the Government how best to ensure adherence to the Latimer House Principles, which define the separation of the three branches of Government and to which all Commonwealth governments have committed themselves,” del Buey said.
Velezinee has also called for the mediation of the UN Special Rapporteur on Independent Judiciary, claiming that she did not believe anyone in the country would be trusted enough by both sides to establish the core institution.
Despite the burgeoning political crisis of the the last few days, and aside from minor scuffles between protesters outside parliament last night, Male’ has been relatively calm and turmoil largely restricted to the political echelons.
The holy month of Ramadan begins on August 11, when the pace in the normally frenetic capital typically slows considerably.
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