By Dr. S. Chandrasekharan
For a young democracy still to settle down, it is but natural that problems would arise over the interpretation of various articles in the constitution. But what is happening in Maldives is different- the country is lurching from one constitutional crisis to another and this is adversely affecting the governance and the economy of the country as a whole.
There is no doubt that the opposition with its brute majority in the Majlis (Parliament) is trying to dictate terms to the executive President and in trying to make his life miserable at every turn, they are in fact wrecking the new constitution and the fine balance that have been introduced between the legislature, the executive President and the judiciary.
With the judiciary still to find its feet and in the absence of “settled laws” it is getting more and more difficult for the President to govern effectively and there is a need for the opposition to review its stand unless they intend to go back to the Gayoom days!
It all began with the resignation of the entire cabinet of President Nasheed on 29th June in protest against the Parliament which thwarted the proper functioning of the cabinet. In my paper 3914 dated 8th July 2010, I posed the question as to what exit strategy the President had in his mind when the reappointed cabinet has to be ratified by the same hostile parliament.
Though President Nasheed had chosen the softest of the options available then, it looked that he had not properly thought out the strategy.
The Majlis dominated by the opposition alliance of DRP and the PA, in invoking the procedures outlined in 17 (i) of the parliamentary rule of procedure was determined not to approve the entire cabinet but only a few of their liking The Government in turn obtained an injunction from the Supreme court and blocked the selective endorsement of the ministers.
This led to a series of protests from the opposition and there have been demonstrations in front of the President’s residence for the last few days and the parliament proceedings have seen ugly scenes for the third week in running.
The Police had to arrest sitting MP s and many cadres of the opposition in the course of the protests. The Supreme Court building was vandalised.. The Police were also forced to use tear gas to disperse the crowds.
The Supreme Court in removing the injunction subsequently gave a vague verdict which while declaring that the parliamentary rules of procedure, specially clause 17 (i) is not in conflict with the constitution, it cannot be used for the endorsement of the cabinet ministers.
The Parliament has since endorsed 7 members of the cabinet in a session boycotted by the ruling party members., But the important ones- those holding the portfolios of foreign affairs, fisheries, education, finance and that of the Attorney General have not been endorsed.
The contention of the government is that the endorsement of the Parliament is only ceremonial and the appointment of the cabinet is governed by articles 129 and 130 of the constitution and that the cabinet minister can be removed only under the provisions of Articles 137 (a),139, and 130 (b)1. It is also the contention of the government that the cabinet ministers cannot be dismissed even if the appointees are rejected by the Parliament (Majlis).
The opposition contends that the minsters not endorsed by the Parliament should be dismissed and the opposition leader Thasmeen Ali has threatened to go to Supreme Court to prevent the five minsters who have not been endorsed from continuing in their posts.
While I am no constitutional expert, it looks that both sides are not fully right and there is some lacuna in the constitution that needs to be corrected.
Article 129 c and d of the Constitution states without any ambiguity that the appointments of the President other than that of the vice president including that of the members of the cabinet shall be approved by the Majlis.
At the same time, the cabinet ministers appointed cannot be disqualified except under the conditions provided in articles 130 b, that mentions of a decreed debt or a conviction in a criminal offence etc. This means that once the cabinet ministers meet the qualifications mentioned in Article 130 (a) , the Parliament has to endorse them and cannot selectively refuse endorsement.
The crucial issues are 1. Whether the individuals can be considered as cabinet ministers when they have not been endorsed by the Parliament. But they have already taken the oath of office under article 131 of the constitution and therefore are ministers. 2. Whether the Parliament can go beyond what is provided under the constitution as qualifications to reject an appointment of a cabinet minister and that too without any other valid reason?
Only the Supreme Court can decide the issue.
The constitutional crisis is distracting the government from dealing with other important issues. The International Monetary Fund has delayed the payment of the third tranche of funds due to “insufficient progress in reducing the country’s state wage bill and delay in the passage of tax measures.” There is also the urgent need to deal with corruption. In the corruption index, Maldives has a lower place that the neighbours, India 87, Sri Lanka 91 and Bangladesh 134. But this must have been before the recent series of large scale scams emanating from India!