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#Maldives Presidency 2013: Is the Waheed Government unconstitutional? Are early elections constitutional?

Male', Maldives.
Maldives remains in a state of tension as the ex-President Nasheed continues his condemnation of the new Government as unconstitutional and that his own resignation is not legitimate. He alleges that he did not resign, but was deposed by a military coup instigated by President Waheed and former President Gayoom. However, an analysis of Nasheed's public statements show that, fundamentally he too believes that he has resigned, and that his resignation is legitimate. If so, then by the Constitution, the then Vice President ascends to Presidency through due process, which VP Mohamed Waheed did that same day.

Nasheed resigned on Tuesday 7th, after more than three weeks of civic protests against his unconstitutional arrest of a senior judge, interference with the Judiciary, and subsequent violations of fundamental freedoms. He was succeeded by his Vice President, Mohamed Waheed hassan Maniku. Presideent Waheed's government has been accepted by foreign government such as India, UK, US and China as well as international institutions/entities such as the UN and EU.

President Waheed has categorically denied that there was any military coup and all allegations of any involvement with Gayoom in a bid to oust Nasheed. He has also said that Nasheed's arrest of Judge Abdulla Mohamed was unconstitutional, and that Nasheed's continued unconstitutional acts prior to his resignation led to the public protests against him.

On Wednesday, Nasheed led street riots and vandalism in the capital Male' calling for his immediate reinstatement as President, supported by large scale arson and vandalism by his supporters in the islands. Nasheed's argument is that his resignation letter was written in MNDF HeadQuarters while he was surrounded by 18 gun toting servicemen who had demanded his resignation. He contends that this letter has to be dismissed as illegal, as it was written at gunpoint.

However, on Thursday, Nasheed's Legal Secretary at the President's Office, Hussein Hisaan, gave a public statement to Nasheed supporters, saying that Nasheed wrote his resignation letter inside the President's Office, after holding a cabinet meeting. Hissaan said that Nasheed wrote his resignation latter in his presence using his (Hisaan's) pen, and that Nasheed then handed the letter to him for delivery to the Speaker of Parliament. Hissaan stated that he went home without delivering the letter to anyone. Hissaan does not corroborate Nasheed's story of 18 gun toting servicemen surrounding him while he was writing his resignation letter.

This conflict in stories by Nasheed and his Lawyer about Nasheed's resignation letter throws into doubt both Nasheed's and Hisaan's statement about events surrounding the resignation. However, neither Nasheed nor his lawyer deny that Nasheed indeed wrote a letter by hand addressed to the Speaker tendering his resignation from his post as President of Maldives. Further, the Speaker of Parliament, at Dr. Waheed's oath taking, announced on public television that he had received a letter of resignation signed by Nasheed, upon which he invited Vice President Waheed to take oath of office as President.

Top legal minds say that, since there was a letter written by Nasheed by hand addressed to the Speaker tendering his resignation from his post as President of Maldives, and since the said letter was received by the Speaker, this completes the requirements of Article 121 (a) of the Constitution for the resignation of a President. That is, Nasheed's resignation is legal and that the position of President was vacant from that point.

The next allegation by Nasheed and his legal team is that Dr. Waheed's oath of office is not legal as he did not state his given name when taking the oath. However, in this instance too, legal experts cite three reasons for accepting Dr. Waheed's oath taking as legally valid.

These are: 1) the Oath was taken by Dr. Waheed in the presence of the required witnesses, the Speaker and the Chief Justice; 2) Dr. Waheed took the Oath saying "I do swear in the name of Almighty Allah .. " and completed the Oath of Office as President; that is, an oath sworn by him and not by another person, and 3) Dr. Waheed signed the Oath, and hence there is no room for legal argument that Dr. Waheed had not taken Oath of office as President.

Next, come the issue of early elections. Nasheed's call on Speaker of Parliament Abdulla Shahid to take charge of an interim government and hold an interim election within two months, is immediately invalidated as the Speaker cannot take charge of Government unless both President and Vice President resign from office at the same time (Article 124 of the Constitution). Additionally, the fact that Nasheed is calling upon the Speaker to take charge of Government shows that, fundamentally Nasheed too believes that he has resigned, and that his resignation is legitimate. If not, there is no legitimate basis for asking the Speaker to take charge of government.

Nowhere in the Constitution is there provision for an early election, in the face of a legitimate President in office.

President Waheed today categorically ruled out any possibility of an early election. He challenged any person to show him a constitutional basis for an early election.

In summary, President Waheed's presidency is constitutionally valid, and an early election unconstitutional. Once again, ex-President Nasheed is in the indefensible position of having made allegations and demands that have no legal leg to stand on.

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