Who holds the balance of power in the Other Maldives?

The power balance between ruling party Maldivian Democratic Party and the opposition entered into a new phase yesterday with the parliament’s top posts being taken by leading opposition party Dhivehi Raiyyithunge Party and its coalition partner People’s Alliance.

The new Constitution of the Maldives, ratified in 2008 by former President Maumoon Abdul Gayoom, embodies major changes in the distribution of powers between the Executive, the Legislature and the Judiciary. In addition, a far reaching Bill of Rights, constitutionally mandated independent commissions and major enabling provisions for economic and property rights codifies liberal democratic principles as the country graduates from its least developed country status.

In the Other Maldives birthed on 11th November 2008, the country has been turned upside down by President Mohamed Nasheed as he embarked on ambitious changes to the country’s long term administrative structure, its civil service and its national development path. Hasty introduction of regional provincial administrations, stoppage of ongoing public infrastructure projects, whole sale divesting of public utilities and restructuring of education and health services have failed miserably. Core reasons for the failure of these wide ranging experimental changes include mismatch between the government’s hasty executive actions and its budget; failure to generate projected revenues; and a glaring inability to bring in much publicized bilateral aid and multinational foreign investment. Behind these lies inexperience in revenue and budget management, and in public policy and administration. President Nasheed’s top heavy political machinery is presently grappling with these self made disasters as Maldives, which boasted over 8% annual GDP growth over the past three decades, nosedives into a foreign exchange crisis, rising inflation, sharp downturn in its economic pillar tourism, and breakdown in administration and collapse of social services.

In the context of these governance crises, the dominance of the opposition in the new parliament will be a major concern to the Executive. The 2008 constitution gives the parliament unparalleled powers to make the executive answerable for its every action. From approval of cabinet nominees, accountability of president and his cabinet, determination of matters relating to Independent Commissions and Independent Offices, holding of public referendums on issues of public importance; to tight budgetary control, to taxation and expenditures, to almost every action by the Executive can be interpreted as under the purview of the parliament.

Under Article 70 (b) (3), the law making powers of the parliament includes “the supervision of the exercise of executive authority and ensuring the executive authority is accountable for the exercise of its powers, and taking the steps required for ensuring the same”.

Under Article 116, although the President has the discretion to establish all ministries required within the Government, and determine their areas of jurisdiction, he/she requires the approval of parliament. The parliament may give to the President such opinions and views it has on the ministries and their areas of jurisdiction established in accordance with the article.

Under Article 129 (c), except for the Vice President, the President must receive the approval of the parliament for all appointments to the Cabinet. The Cabinet shall consist of the Vice President, the Ministers given responsibility for the different Ministries, and the Attorney General (Article 129 (d)). Under Article 134, in addition to be responsible individually and collectively to the President, members of the Cabinet are individually and collectively also responsible to the parliament in the manner specified by the Constitution for the proper exercise of the responsibilities and duties assigned to them.

Article 98 gives the parliament broad powers to question not just Cabinet Ministers but any member of the Government. Under Article 98 (a), parliament may demand the presence of any member of the Cabinet or member of the Government to attend its proceedings and “to respond under oath truthfully to questions put to them and to produce documents, required by the People’s Majlis relating to the due performance of the obligations and responsibilities of such person”. Further, under Article 98 (b), “Every member of the People’s Majlis has the right to question, in the manner specified by the People’s Majlis and either orally or in writing, a member of the Cabinet or head of a Government office, concerning the performance of his duties”.

Under Article 99 (a) and (b), the parliament or any of its committees has the power to “summon any person to appear before it to give evidence under oath, or to produce documents” and to “require any person or institution to report to it”. The parliament may also “receive petitions, representations or submissions from interested persons or institutions” (Article 99 (c)).

Under Article 88, the parliament shall determine and control its administrative arrangements, make regulations concerning these matters; and “make regulations and principles concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement”.

These articles, and other supporting articles, give the parliament powers to interpret its constitutional mandates and to establish administrative procedures to implement this mandate. The Executive will have to bow down to the Legislature in these matters. Thus, the constitutional arm of the parliament is far reaching in the 2008 Constitution.

This imbalance of constitutional powers in favor of the Legislature, with the Executive liable to be held in a stranglehold should the Legislature choose to exert its full powers, was purposefully designed by the then opposition, the MDP, to hijack the then Executive led by President Gayoom. In the drawn out fight between the then ruling party DRP and opposition MDP in the last Constitutional Assembly, the disarrayed ranks of Gayoom’s DRP were unable to withstand the strong arm tactics of Speaker Gasim Ibrahim and Chair of the Drafting Committee Ibrahim Ismail. The public fallout between PA and the DRP helped to seal the nail in the Executive coffin as the final chapters of the Executive, the Legislature and Transitional Matters were passed by the Assembly. The fact that both the MDP and the PA, and influential factions in the DRP, were philosophically inclined towards a parliamentary system of governance is also only too clearly reflected far reaching powers of the legislature in the new constitution.

However, the current Executive can take heart from the fact that the opposition does not have the numbers to force the parliament to flex its powers under Article 100 to remove the President or Vice President from office. Under Article 100 (e), a resolution to remove the President or Vice President from office in the procedure duly specified shall only be passed if it receives a two-thirds majority of the total membership of the parliament. Of the current 76 membership of parliament, this means that any such resolution will require 51 votes in favor for it to be passed. Yesterday’s voting on election of Speaker and Deputy Speaker, shows that the DRP/PA coalition still clearly falls 9 votes short of this requirement. In reality, the opposition must obtain all non MDP votes in order to pass such a motion. This is would be a near impossible task since President Nasheed’s coalition partners Jumhooree Party and Qaumee Party hold 1 and 2 seats respectively, while Jumhooree Party leader Gasim Ibrahim is reported to now hold 5 independent MP votes under his control. MDP presently hold 25 seats.

However, Cabinet Ministers are not as secure as the President and Vice President. Under Article 101 (c), a motion of want of confidence concerning a member of the Cabinet shall be passed by a majority of the total membership of the parliament. Of the current 76 membership, this means that any Cabinet member can be removed from office by a no confidence motion with 38 votes in favor. Again, looking at the short history of voting in the new parliament, this looks like to be a very easy task for the opposition. It successfully controlled 42 votes in the election of Speaker of Parliament.

However, the Executive may be able to avoid this situation at the present time, as under the constitution, the current Cabinet (or a new Cabinet should President Nasheed decide on a reshuffle) must be affirmed by the new parliament. Since this requires a simple majority of those members present and voting, the ruling party MDP need only engineer such a majority in the relevant session. Holding 33 votes in its vote bank according to yesterday’s voting, this does not look like a difficult task for MDP.

The Judiciary too is not as independent as the stated liberal democratic principles would enjoin. It too is subject to parliamentary oversight in several ways, as is evident from a close reading of the constitution.

Under Article 141 (a), judicial power is vested in the Supreme Court, the High Court, and such Trial Courts as established by law. The Supreme Court is the highest authority for administration of justice in the country (Article 141 (b)). The Chief Justice, the highest authority on the Supreme Court (Article 141 (b)), shall be appointed by the head of state, the President, after consulting the Judicial Service Commission and confirmation of the appointee by a majority of the members of the parliament present and voting (Article 147).

Similarly, under Article 148, the President as the Head of State shall appoint the Judges of the Supreme Court, after consulting the Judicial Service Commission and confirmation of the appointees by a majority of the members of the parliament present and voting.

Article 149 (Qualification of judges) enjoins the parliament to pass a statute relating to judges. Their salaries and allowances are determined by the parliament “in keeping with the stature of their office” (Article 152).

Parliament holds the ultimate power to remove judges. Under Article 152 (b), “a Judge may be removed from office only if the Judicial Service Commission finds that the person is grossly incompetent, or that the Judge is guilty of gross misconduct, and submits to the People’s Majlis a resolution supporting the removal of the Judge, which is passed by a two thirds majority of the members of the People’s Majlis present and voting.

Under Article 281, the interim Judicial Service Commission appointed in accordance with transitional matters in the constitution ends its term when a new commission is constituted by the new parliament.

The influence of the parliament over the judiciary does not end there. Under Article 158, the membership of the Judicial Services Commission includes the Speaker of parliament, a member of the parliament appointed by it, and a member of the general public appointed by the Parliament. Salaries and allowances of members of the Judicial Service Commission who is not a member of the Executive, the Judiciary, or the parliament are determined by parliament (Article 164).

With these powers and those over independent commissions and independent offices, it is clear that the legislature holds the balance of power in the Other Maldives. However, the powers of the President in nomination of candidates to each of these positions and the powers of the Executive to fulfill the demands of various constituencies will give him negotiating power with the opposition and with individual MPs. The manner in which these constitutional powers affect the country’s administration and the rights and liberties of its populace depends on the collaboration and cooperation between the ruling party and the leading opposition. What is certainly clear is that President Nasheed’s current campaign fear and persecution of opposition leaders will certainly not lead to a conducive negotiating environment.