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#Maldives in Constitutional Crisis: If Judiciary is unconstitutional, then so are President Nasheed, Parliament and Local Councils

Male', Maldives.
President Nasheed now contends that the Judiciary is unconstitutional, alleging that Judges were not appointed as provided in Sections 285 and 149 of the Constitution. However, President Nasheed's so called legal argument against the constitutionality of Judges of the lower court, in reality has no legal leg to stand upon. In actual fact, a close look at the Constitution shows that it is Nasheed's position as President which is unconstitutional. It reveals that Nasheed, the Parliament and Local Council were elected in elections which violated specific sections in the Constitution.

The Constitution specifically states that the first presidential elections to be held under the new Constitution shall be held before 10 October 2008 (Section 301). Further, Section 110 stipulates that elections for the office of President shall be held within one hundred and twenty days (120) to thirty (30) days prior to the
expiry of the existing presidential term.

Although the first round was held on October 8th 2008, the second round was held on October 28th. Hence, the constitutional deadlines set by both Sections 301 and Section 110 were already past when the second round was held, the round in which President Nasheed beat incumbent President Gayoom. Gayoom won the first round of the elections, the round which was held prior to the constitutional deadline.

The second round was held in accordance with provisions in Section 111, but in violation of Sections 310 and 110. Where there is conflict, Section 113 gives sole and final jurisdiction to the Supreme Court. However, this issue was never taken before the Supreme Court, but decided by the interim Elections Commission. It is pertinent to note that 4 of the 5 members of this Elections Commission were MDP members, yet another violation of the Constitution (Section 276).

Section 113 states that the Supreme Court, sitting together in session, shall have sole and final jurisdiction to determine all disputes concerning the qualification or disqualification, election, status, of a presidential candidate or running mate or removal of the President by the People’s Majlis. Hence, Nasheed's election is only valid if it was endorsed by the Supreme Court in accordance with Section 113.

Hence, if, as President Nasheed claims, the Judiciary (except the Supreme Court and High Court) are automatically disqualified from their positions due to debatable violations of Sections 285 and 149, then Nasheed himself is disqualified on the same basis, due to violations of Sections 301, 110 and 113.

Similarly, so is the Parliament. Section 296 (a) of the Constitution stipulates that the first election of members to the People’s Majlis (Parliament) to be held under this Constitution shall be held before 15 February 2009. The current Parliament was elected on May 9th, 2009, more than two months past the constitutional deadline.

Similarly, the Local Council elections were held more than an year after the constitutional deadline. Hence, in the same basis that President Nasheed uses to render the Judiciary unconstitutional, so are the Local Councils.

In actual fact, when the nitty gritty legalities of the various relevant Sections of the Constitution are considered, it is only the Judiciary which remains constitutional and legal.

Section 285 provides that the Judicial Service Commission established pursuant to Article 157 of this Constitution, shall within two years of the commencement of
this Constitution determine whether or not the Judges in office at the said time, possess the qualification of Judges specified in Section 149.

Section 149 specifies the qualifications of Judges. The point that President Nasheed is picking on is that an Act on Qualifications of Judges (ref Section 149 (d) was not passed when the interim judges were declared permanent. However, the Act which constituted the JSC gives it powers to make regulations concerning the qualifications of judges. This is exactly what the JSC did. In addition, Section 274 (Definitions) deems that such regulations which fall within the ambit of statutes enacted by Parliament are also considered as “law”.

Thus, President Nasheed's so called legal argument against the constitutionality of Judges of the lower court, in reality has no legal leg to stand upon. In actual fact, a close look at the Constitution shows that it is Nasheed's position as President which is unconstitutional.

Where then does this leave the country? It leaves the country in dire need of an immediate interim President who can guide the country to the next Presidential Elections, one which can be held within the bounds of the Constitution.

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