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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When it comes to doing hard important work the only people the President can rely on are the MDP activists.
It is the personal sacrifices made by MDP activists that allowed the people of this country to open their mouth without fear of getting persecuted.
And today everybody has so much to say to the media without thinking through their brain.
And today when President Nasheed assigned 4 people to see to the smooth running of the Judiciary, they have backed down.
These are the kind of people who always wait to eat from the 'cooler side' taking away whatever they can.
Look at the calmness that the Sheikhs are displaying?
As if Islam is only about praying, fasting, growing beards and wearing Hijab.
What both Husnu al Suood and Mohamed Nasheed and the Article seems to purposely forget is that,
Article 301 (a) of the constitution stipulates that the presidential elections should take place and FINISH before the 10th of October 2008.
However since the elections was taken on the 8th of October 2008 and since neither candidate secured the required majority, the presidential election had to go to its second round of voting, which took place on the 28th of October 2008.
Hence the Presidential election which was supposed to be completed BEFORE the 10th of October 2008, was completed on the 28th of October 2008 which is beyond the period stipulated in the constitution.
Hence the LEGITIMACY of the president is itself in QUESTION, because he was NOT elected before the stipulated date i.e 10th October 2008.
If he believes that since his election was not completed before the stipulated period in the constitution, then he should RESIGN or we should hold a referendum as suggested by MP Nasheed to see if the public affirms the current president who was elected after the constitutional deadline of 10th October 2008.
i dont think the pulse of the people is really reflected in the stance of either party.
i for one, wanna live peacefully in this country where i call home...with all my rights and aware of my responsibilities.
@ Praxix
"As if Islam is only about praying, fasting, growing beards and wearing Hijab."
Sadly, that's what a lot of Muslims think about Islam. You can add to that list, "reading Quran without understanding a word of it!"
I agree with Praxis. The so called people of high repute "always wait to eat from the ‘cooler side’". Anni should appoint to his Supreme Court people like Maria, Reeko, Afeef and Aslm Shakir. Mainaa and Abjee also ok.
Any one with common sense will not get in to this trap of puppet supreme court by decree.
Anni ure a bunch of BULL ---- mouth. now look the mess we are in. u n the parliament failed, as the judiciary has failed from day 1 (1980), now uve joined them. May we all see a better day than this.
As i know the one who promised gardens of prosperity and butterflies, all we've seen is things Getting WORSE AND THIS CRAPPY MESS......Looking forward for the next election.... for another bunch of B?uuulll... we are getting F....ed although u get ure share of wealth along with all the other M.....F.....s.....
It is only for personal gain and greed that the DRPA disagreed on the agenda (today majlis), when by Thasmeens own words the Judges bill was done deal already.
Shame on DRPA - the corruptors of this nation.
DRP is doing this as part of do anything and everything to destabilise the government. They are shameless in their persuit. I hope the government will find a way to throw these people (some of them disguised as judges) out of the fase of the country and restore a credible group of people to the helm of all institutions.
@ Ekaloa
"Any one with common sense will not get in to this trap of puppet supreme court by decree."
I agree with you.
The reason Muthasim gave in his request to withdraw his name from the panel of the appellate court is that he do not find the duties required of him by this appellate court legitimate duties under the present constitution.
@ Praxis
"When it comes to doing hard important work the only people the President can rely on are the MDP activists."
You may be right.
The problem is if you are to run a government you would need a diverse variety of expertise from a lot of people. If the people in top government posts are the ones with such expertise, I think they are far too few in number.
So activists or not, the government needs more educated and qualified people.
We should just calm down and stop getting all worked about the state of affairs we have today. Things are working (or not working, should I say??) as they should.
I believe that our flawed constitution is the source of all that we experience today.We have a flawed constitution written and passed by a flawed Majlis. Kutti Nasheed as Law Reform Minister and Azima Shakoor as Attorney General and Gasim as Speaker of the Special Majlis and holding the Finance Ministers portfolio in Gayooms last days in power made sure there were enough holes in the constitution to make governance impossible should Gayoom not return to power.
Time to biff this piece of fiction and create something worthy of our chidrens future.
this is what happens when amateur politicians are elected to make laws and to govern the country.
the last two years (or perhaps 7 yrs) was the most crucial period in the recent history of maldives. but we the people elected a government that wasnt ready to govern. when the governments changed, reform that was the main agenda of previous government wasnt over yet. the last 5 years of maumoon's reign was dedicated to reform. it was going well. hassan, jameel, kudey, kutti, azima didnt do anything but work to bring a modern democracy to this country. even after hassan & co left the government, kutti and azima kept the pace and worked really hard to meet the deadlines. back then 'reform' was the buzz word.
i personally like anni more than maumoon. but i voted for maumoon. because i was 100% certain that with the arrival of a new government the reform that was taking place and not completed, will lose momentum. everyone who was working day and night to change the system of government will have to stop it there and go home.
those who voted for anni him didnt agree with my reason to vote for maumoon. they said even if a cockroach runs against him, they will vote for the roach.
when anni took over the government there were two years left (transitional period) to complete the reform agenda. but since then the word 'reform', that we used to hear so very often those days, faded into thin air. no one talked about it. was removed from political vocabulary. the new ministers hurried to prove that they are better than the previous government and made series of blunders. anni and zaki were busy removing anyone sympathetic to the previous regime from office. no one cared about the reform agenda.
by the time they finished replacing maumoon loyalists with anni loyalists it was time for general election. time to get busy to win the parliament. from the speeches anni gave and the blatant lies he told the islanders with regard to development projects, it was very clear how desperate he was to win the house. one things i noticed was that the president's attack on drp candidates and drp attacks on mdp candidates created so much competition between the parties which i believe lead citizens to choose parties rather than candidates. again the idea was even if a cockroach runs from the party i support, i will vote for that roach.
so in my humble opinion it is the citizens of maldives who are to blame for electing incompetent leaders to the government and to the parliament. lack of experience, knowledge and of course loyalty to the people and the country in those who we elected brought us here. we elected the wrong people at the wrong time.
Our country is now in a mess - thanks to Anni and his paateys.
The truth is President Nasheed and his government doesnt have the capacity to run this country. He created the environment of rebeliouse egoism from the day one of his election. In fact when he Anni the activist he has already created such an environment among the people which cause even seperation among families. What we are seeing today is a situation caused by activist Anni himself.
What I've learned from all this hocuspocus is that all laws and even the constitution can be interpreted to your advantage.
This is insane. i now feel very sorry for voting to bring this activist government. these thugs have proved that they have failed, people have lost their faith on them. anni its better to resign for the betterment of the people. you don't know the rule of law. The holy month of ramadan is at our door step but there is no peace n stability in the country.
@ Kadheeja, let us be realistic. That is the only way we can move forward. The people you mention were not the only ones in the Majlis and we, the people watching the dramas, have not forgotten the many years of nizaamee nukuthaa and the rush to finalise the constitution by the whole lot of them. Its time to put the blame games aside, start talking rationally and consistently and move on. The current constitution has probably had more bashing than all the holy books put together, in the short span of time it has been in existence. We have had enough crap from politicians on all sides - it is the human beings who can make the difference, not the written word. Had previous leaders followed the letter and spirit of even the previous constitution, we would not have had too much to complain about. To all you politicians, lawyers and aspiring lawyers in the Majlis, executive, judiciary and political parties - please, just get on with it, do your jobs, show some example to our youth whom everyone seems to despair about, let us MOVE ON!
@ Mohamed Shareef : I think, like many others seem to (unintentionally or intentionally), you missed out on a crucial part of the equation. PA. Let us hope the future can bring us more cohesion and that the people are becoming more aware of how important the calibre, integrity and capacity of the people they elect to responsible positions are, to their own futures.
This is what happens when we elect a moron as a president. I say the new chief judge should be Reeko Moosa as he has some experience as he has his own court now. Aslam Shakir should be his deputy as he one of the famous thugs of this government.
@ Khadheeja perhaps is right!
But, @ Mohamed Shareef; grown up politicians have all been gobbling on us for too long!
But could you or did you not see that Gayyoom with his cronies were up to nothing but total power for generations to come? And by the time the so called reformed constitution you were thinking could come, the infested parliament would have made this a KINGDOM! Perhaps!
If you wish the LORD AND VASSAL policies of the Kingdoms !!!!
Please stop being hypocritical! We know what hypocrisy is made of!
As for @ Ignored version of the legality of President Nasheed's presidency:
Question is; what is the constitution, and whose constitution are you talking about?
It is the will of the peoples we are talking about! It the will by the peoples and for the peoples put on paper we are talking about!
The peoples had wanted an election to be held prior to the date mentioned.
But the truth was that government were not able to hold election (for whatsoever the reason could have been!) as the the peoples had willed!
And then, despite what had been or was being done, they decided to go for an election and vote!
And they voted as they wanted and as they willed!
When they vote accordingly, it is constitution. It is the will of the peoples!
If they did not wish to go out and vote they would have boycotted it! Then it can be said is illegal!
And it so happened that the winner was Mohamed Nasheed! To my opinion there is no question over the legality of President Nasheed's presidency.
Also, if this was in question, institutions all over the world (I am sure would be watching this happening) would have hinted or questioned about it!
I am most certain that world bodies would be and have been watching this change with keen eyes!
It is also my belief that it is on this basis the United Nations would have accepted President Nasheed to address the General Assembly as the President of the Republic of Maldives!
It is rather annoying how some people wobble morality, justice and integrity for achieving their personal beliefs!
I think it is time that President Nasheed, constitutionally take the responsibility bestowed upon him by the peoples of the Maldives and take up reigns and constitutionally steer the Maldives to safe destination with the help of all powers vested to this effect.
You may take advice for all you like to but, trust no one except ALLAH the Almighty and yourself alone!
Rinz! I do not know whether you knew the following people but lets add them to your list as they will eat any cake, hot, or cold, raw or poisonous without having giving any thoughts to their actions or regard to the consequences, whether constitutional or unconstitutional whether rational or irrational. They are: Moya Naasiraa, Goanibey Kuda Ali, Beyhohko, Olho Olho Kanbulo, Gihthaanu Sakeena, Firihen Faathuma, Kukulhukoe aaminaafulhu, Afihun Kalhey, Kalhu Kahlhaa, Fah Kandaa, Moya Adheela. Also note there are some good candidates kept at Guraidhoo; Bring some more from Angoda in Srilanka, may be Abjee is there now. Potential candidates for a MDP cabinet are available at various mental institutions around the world.
SS I agree with you, at the time the new constitution flawed as it was, was the only way we could shift the machinery aside to have the election we desperately needed to remove Gayoom from power.
What I am saying is we have given the three institutions of our democratic state two years to govern this country within the framework of this constitution. And we now have what they are calling a constitutional void. Well ofcourse there is a void. Wasn't that the plan? The next step would be I suppose for the wannabe presdients to call for Anni's head, if they are not doing so already. How can we work inside a constitution that allows the parliament and the judiciary to block the work of a President we elected to govern our nation?
I say lets do the process all over again, and have President Nasheed oversee the process this time. I believe this is a critical process we should not bypass if we are serious about building a nation we can truly be proud of.
@ mohamed shareef on Mon, 9th Aug 2010 9:43 AM
You write good fiction. Hassan Saeed would I am sure love to have you on his team. Perhaps you already are. Please, do us a favour, stop treating us like we are morons. We are not.
We need Ali Waheed to fill the constitutional void.
@Shafeea, if you get treated like a moron you probably are behaving like one. When self interest overpowers the ability to tell the difference between black and white then the person is surely turned into a moron.
This is what happens when we do things we do not know and try to do things other do by just seeing it. There is no party politics here only fighting for power. We do not understand the rule of game yet we want to play it. This country is too small for government systems like UK or US yet we want it. Party system is one of the core problem here and especially in presidential system. Let the parties be dissolved and declare the MPs and president is independent from this so called party system which Maldivians do not know how to operate and implement.
Khadeeja - yes I agree there are a few changes that would make it easier for such a bad deadlock to be avoided. But I don't think change to legislation by itself would be sufficient to improve things. It is the people involved who make things happen. With the number of politicians, lawyers and wannabe presidents in town, along with paranoia on all sides and public hysteria, practically every word is twisted fifty different ways, spirit and common sense be damned.
Now we know all those people clamoring for reform were only interested in removing Gayoom so that they could gain power, not in the least bit interested in the future of the nation.
The only schedule kept was the presidential elections after the new constitution. The Majlis election was behind schedule. Now you can see that everything else is. So a selfish bunch of b's, the President, the Majlis members and the Judiciary have taken the ordinary citizens for a ride and there is no one to give us justice. That unfortunately is the reality!