Dr Waheed has often reiterated that no matter what the findings are of a formal enquiry into the events that led to Mohamed Nasheed’s resignation, his own legitimacy as President of the Maldives remains beyond question.
He bases this claim to legitimacy on the constitution. How much substance does the claim have?
Article 121 of the constitution states the President can quit by submitting his resignation written ‘under his own hand’ to the Speaker of the Majlis. The office of the President becomes vacant as soon as the Speaker receives the resignation letter.
Article 112 (d), meanwhile, states that if the office of the President becomes vacant ‘for any reason’, the Vice President shall succeed to the office of the President.
Nasheed wrote his resignation letter, did he not? Waheed was sworn in as president after the Speaker received the letter, was he not? This means he is the legitimate president, does it not?
Technically, yes. And only if we assume, like Waheed does, that the constitution does not give a damn about whether or not the hand that wrote the president’s resignation letter was forced.
Such narrow constructions of the constitution, although incompatible with the ethos of a new democracy committed to its consolidation, are popular weapons for instating the legitimacy of this new regime.
It has, for example, continuously invoked Article 110 as a reason why elections cannot be held earlier than July-September 2013 without first enacting a constitutional amendment.
Article 110 states that elections for the office of President must be held within 120 days to 30 days before the end of a given five year term. It assumes things are going according to plan and, to ensure the smooth transition of power, it provides a timeframe within which the handover of power can take place democratically, through the ballot box.
The new regime has taken this clause of the constitution to mean that it forbids elections until 120 days before the expiry of a natural five-year term, no matter what.
If this were so, why does Article 125(c) of the Constitution foresee circumstances ‘where fresh elections have to be held for any reason during the currency of an ongoing presidential term’?
Where then is the legal basis for the argument being made by Waheed and the current regime that holding early elections will require a constitutional amendment?
Another question about Waheed and the constitution is: what type of president is he? Is he a caretaker president, or is he president proper?
Article 114 of the constitution says that an incoming president can assume office once he takes his oath before the Chief Justice, ‘at a sitting of the People’s Majlis’.
The Chief Justice administered the oath of office for Waheed’s presidency. And Speaker Abdulla Shajid was present. But it was not done ‘at a sitting of the People’s Majlis’.
According to the constitution this is a type of oath administered not to an incoming president proper, but to ‘any person temporarily discharging the duties of the office of the President’ (Article 126).
Furthermore, the only circumstance in which the constitution envisages the need for such a caretaker is if the offices of both the President and the Vice President become vacant at the same time (Article 125(a)).
By overseeing a caretaker oath for Waheed, did the Speaker of the Majlis de facto deem the offices of both the president and the vice president vacant on 7 February? If not, why was Waheed not sworn in before the Majlis?
Most importantly, if the constitution is to be upheld, such a caretaker figure can only remain as the country’s leader for a maximum period of 60 days.
Elections must be held within that period for both President and Vice President.
So why are fresh elections not being held before 7 April? And again, why is it being said that the constitution cannot accommodate early elections without an amendment?
And, if Waheed took office as a ‘person temporarily discharging the duties of the office of the President’ (Article 126), what business does he have purging the government of high-ranking MDP members, installing a brand new cabinet, and modifying or reversing most major policies pursued by the legitimate government he was supposed to be taking care of?
If President Nasheed resigned voluntarily and Waheed acceded to the position constitutionally, then Waheed’s first trip to the Majlis should not, and cannot, be to address it as President.
Without the Majlis first witnessing him taking the oath, it has no business accepting him as President.
One final question on Waheed and the constitution: if Waheed were such a stickler for it, and were he such a committed democrat, why is he turning a blind eye and a deaf ear to the thousands of people demanding ‘elections now’?
Article 125 of the constitution provides him with the perfect opportunity to give people what they want. All he has to do is resign for there to be an election within 60 days.
Can Waheed take a hit for the greater good? Or is his commitment to democracy as much of a chimera as the ninety-percent support he claims to have?
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