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...