The Case of the Confused Attorney General

Fathimath Dhiyana Saeed is a sharp and smart woman. She would even have made a good Attorney General (AG) had she given more attention to understanding her role and responsibilities as a cabinet appointee. Sad, but her stint as AG has come to an abrupt end Monday when President Mohamed Nasheed sacked her under Article 115(f) and 137(a) of the Constitution, perhaps breaking her grandfather’s record as the shortest serving AG of Maldives in history.

This is not the first time Dhiyana was confused about her role. She was similarly confused when she was serving as an appointed member of the People’s Majlis during the regime of former President Maumoon Abdul Gayoom. From her speeches and voting pattern in the Majlis, it appeared she sometimes believed she was sitting in the opposition benches rather than among the President’s members.

Dhiyana may have had valid legal points on the issues over which her relationship with the president broke down –influencing parliamentary elections and creation of provinces. However, going to the press with her opinions was a different matter. If she was unhappy with the President’s rejection of her advice she could always have resigned.

In an interview given to Miadhu Daily, Dhiyana said “I joined Attorney General’s office as a State Attorney, after which I held the position of Executive Director and today as I leave office I have held the position of Attorney General; I am happy because I know that I have fulfilled my duties and responsibilities as per the constitution and in the best interests of the people, if I weren’t able to do that I would be holding my head down.”

Must an atoll council be an atoll council?

The term 'Atoll Council' as defined in the decentralization bill currently under debate in the Majils has led to a political maelstrom and a war of words between the President and his Attorney General, who believes the councils are unconstitutional. Below is what the Constitution says on the subject.

Article 230 (b): "For the purpose of governing the administrative divisions according to the principles of decentralization, the President has the power to create institutions, posts, island councils, atoll councils and city councils, as provided in law."

Schedule II of the Constitution lists out the 'administrative divisions.' The list comprises 21 divisions: the existing 20 atolls of Maldives plus Male.

In the light of Article 230 (b) above, the President has the power to create 5 entities, three of which are councils. The question is where do these councils belong?

Let us start with 'island' council, probably the least controversial among the three. There appears to be no dispute that the word 'island' here refers to the existing administrative islands of Maldives (which in some cases could be more than one in a geographical island, e.g. Fuvahmulah).

Defining 'city' council is also not that controversial. According to common perception, Male is the nearest to a city that the Maldives has. Further, Schedule II lists Male as an administrative division. Since it is the only division in the list which is not an atoll, putting 2 and 2 together, it is reasonable to assume that 'city council' belongs to Male.

This brings us to the bone of contention –atoll council. Attorney General Dhiyana Saeed appears to favor the view that an atoll council should belong to one of the 20 atolls listed as administrative divisions in Schedule II. However, this is not how the draft bill on decentralized administration sees things. According to the bill, an 'atoll' council need not belong to just one administrative atoll. Rather it could belong to the 2 - 4 atolls in the provinces proposed by the bill.

The decentralized administration bill is currently in the Majlis, where members will decide the issue and pass the law. After that it could perhaps go to the Supreme Court for a ruling on whether the law is constitutional.

Afeef Faces a Catch-22

Majlis Members nominated to the Judicial Services Commission face a catch-22 situation. When a general election is announced they must contest the election and retain their Majlis seat, or they will lose their place in the Commission. But if they contest the election they automatically vacate their place in the Commission. Thus either way they are doomed. At least this would be the scenario if we are to go by the legal opinion of Attorney General Dhiyana Saeed.

The issue heated up when the present Majlis nominee to the Commission, Thaa Member Hassan Afeef, who is also Chairman of the Commission, filed his nomination to defend his Majlis seat in the coming general election. Citing Article 10 of the Law on Judicial Services Commission, AG Dhiyana has said that Afeef has automatically forfeited his Commission membership. Below is an unofficial translation of the relevant parts of Article 10.

"Article 10: The following are the conditions under which a Commission Member's position may be deemed vacant: … (a.4). Contesting in an election for a political post under the Constitution or under a law…"

Applying this Article to all other members (Except the Ex-Officio members) poses no problems because they may complete their full 5-year terms without taking part in an election. But for a Majlis member nominated to the Commission, it is simply impossible to complete a 5-year term. This contravenes Article 6 of the Law, which says the term of all members (other than ex-officio) is 5 years.

Some legal experts are of the view that it is inappropriate to apply Article 10 literally in isolation without considering other articles particularly Article 6 and without considering common sense or the purpose behind the law. They say a reasonable solution to the impasse would be to allow Afeef to continue in the Commission till the dissolution of the current Majlis.

For the Dhivehi original of the Law click here