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Maldives in Constitutional Crisis: A Public Referendum by Parliament - the most democratic solution

Male', Maldives.
President Nasheed's continued violations of the Constitution and strong arm tactics against the Judiciary need to be stopped, if the country is to return to the democratic reform process begun in 2004. The Constitution and hence the very basis of democracy has been ground under Nasheed's military boots.

Cumulative violations of the constitution by the Executive have forced the Maldives to widespread civic strife which now encompasses much more than can be solved by the release of Judge Abdulla Mohamed, or even the reinstatement of the Judiciary. It encompasses the very liberties and rights on which the nation was created. When such a situation is reached, clearly the oppressor must be removed from office and the country liberated.

All legal minds in the country agree that civic liberties and rights cannot be restored under a President and an Executive which has total and utter disregard for the rule of law. President Nasheed repeatedly refuses publicly, not only to follow the rule of law, but also to allow due legal process to take place. He has turned a blind eye to international calls for a return to due legal process, democratic principles and to uphold the constitution.

The question facing Maldivians, Independent Commissions, civic associations and political parties is how the President can be removed from office through democratic and due legal process. It is apparent that street protests will not achieve this, since the military and police protect the Nasheed regime with their might and arms. Military and police are daily violating fundamental rights of citizens as they crack down on civilians protesting against Nasheed's constitutional violations.

The Constitution empowers the Parliament with constitutional powers to hold the executive accountable to the public.

Section 70 (b) (3) of the Constitution provides that the law making powers of the People's Majlis (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".

The Constitution empowers the Parliament with the powers to impeach the President (Section 100) or any individual member of the Cabinet (Section 101). However, for any impeachment process to be begun under Section 100, requires a resolution to be passed by Parliament stipulating at least one of three possible reasons stated in Section 100. Such a resolution can only be tabled with the signature of 1/3 of the members (Section 100 (b)), and after due process, passed by a 2/3rds majority of the total membership of Parliament (Section 100 (e)).

An impeachment process must also follow the principles and procedures specified in the Regulations governing the functioning of the Parliament (Section 100 (f)). Due process for impeachment is detailed in Section 37 of the Parliamentary Regulations 2010.

The opposition can easily put together the required 26 signatures for tabling an impeachment motion against President Nasheed. It can even obtain a majority vote in the 11 member special committee which is mandatory for reviewing the motion and investigating the charges therein. However, even if the opposition were able to bring the motion to the Parliament floor to a vote, it will be nearly impossible for the opposition to collect the required 2/3 majority (51 votes) for such a motion to be passed.

At present Presisdent Nasheed's party, Maldives Democratic Party (MDP) holds 34 seats, while the opposition coalition holds 35, with the remaining 8 being independents. The opposition seats constitute of 15 seats each held by DRP and PPM, 2 seats each by PA and JP, and DQP's single seat.

Being a Presidential system of governance, the President is elected by a direct votes from the national electorate, and rules only with the support of the majority of his subjects. Hence, a far more democratic process to ascertain President Nasheed's position would be to hold a public referendum on whether he presently holds majority support or not.

Since President Nasheed is adamant that he is in the right with his current actions, it would be a shining example of democracy were he to hold a public referendum on the matter, under Section 115 (p) of the constitution. In fact, by holding such a referendum now, Nasheed would be standing by his avowed word to the public during the 2008 presidential elections, that he would hold mid-term elections.

However, given that President Nasheed this week declared he would not even hold the constitutionally mandated presidential elections in 2013, it would be a vain hope for his subjects to look to him to rectify the current situation through a Public Referendum.

This then leaves the burden on the Parliament, which is empowered in Section 70 (b) (6) to hold "public referendums on issues of public importance". A motion for holding a referendum can be tabled in the Parliament and a vote taken on it by the normal parliamentary process, as such a motion does not constitute the type of matters stipulated in Section 87 (b) of the Constitution or Article 38 of the Parliamentary Regulations (2010). The latter stipulates in detail the matters which fall under Section 87 (b) of the Constitution.

In addition, such a motion can be passed by a majority of the members present and voting. Section 87 (a) stipulates that, unless otherwise provided in this Constitution, all decisions of the People’s Majlis shall be decided by a majority of votes of the members present and voting.

The Constitution does not provide anywhere that a vote on a motion for a public referendum should be decided in a specified special manner different from that provided for in Section 87 (a) on standard decision making in Parliament.

Even if it were to be argued that a vote on a motion for a Public Referendum falls within the purview of Article 38 of the Parliamentary Regulations (and hence Section 87 (b) of the Constitution), it is not an insurmountable obstacle for the opposition.

Section 87 (b) states that, voting on any matter requiring compliance by citizens shall only be undertaken when more than half of the total membership of the People’s Majlis are present at the sitting at which the matter is voted upon.

The bare minimum for more than half of the total membership of Parliament would require 39 MPs present. This is no insurmountable for the opposition, as all parties presently in the civic coalition which called upon President Nasheed to step down, together hold 34 seats. The remaining 5 seats can be obtained from the 8 Independent MPs presently in Parliament, at least 3 of whom have publicly joined the civic coalition.

The holding of a Public Referendum would enable all Maldivians to have a voice in determining the outcome of the current constitutional crisis in the country. It is a far more democratic process of decision making on a matter of great national importance such as this.

Of course, President Nasheed, following his current dictatorial stand on constitutional matters and democratic principles and processes, could refuse to step down even if the Public Referendum result showed that a majority of the electorate was against his remaining in office. Even so, not all doors remain closed to the opposition in such an eventuality. Armed with the majority vote from the Public Referendum, the opposition can now turn to the impeachment process with greater strength lent to it by Section 75 of the Constitution.

Section 75 of the Constitution enjoins Members of Parliament to uphold national interest and public welfare, and not private benefit or the benefit of those with whom they have "special relations" (eg. party interest or business interest).

"Members of the People’s Majlis should be guided in their actions by considerations of national interest and public welfare foremost, and should not exploit their official positions in any way for their own benefit or for the benefit of those with whom they have special relations. They shall represent not only their constituencies but the country as a whole" Section 75.

MPs voting in the impeachment motion are enjoined to vote in the national interest. The national interest in this case would clearly be shown by the result of the Public Referendum. If the majority of the electorate voted against President Nasheed, it is clearly in the national interest that he be removed from office.

The timing is also right for such a public vote to be taken. The Parliament is presently in recess and scheduled for reconvening in early March. This gives all sides more than adequate time to campaign for public support for their views. President Nasheed has the opportunity to present his views first up, in his address to the opening session of Parliament, making the Referendum process even more democratic and fair since it is his position which is in jeopardy should he lose the Referendum. According to Parliamentary regulations, the motion for a Referendum would be tabled after the President's opening address.

In short, there is not argument that a Public Referendum would be the most democratic, fair and peaceful option to resolve the present constitutional crisis.

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