Top MDP parliamentarian Hassan Latheef, on Tuesday, presented a nine-point proposal on allowing incumbent councilors to continue performing their duties without requiring an extension to their term, remaining steadfast in his assertion that it would not be appropriate to make a constitutional amendment to extend the term of incumbent councilors with the country in a state of public health emergency over the coronavirus pandemic.
The Constitution establishes the term of incumbent councilors to be three years, as the later extension of the term of councilors to five years does not apply to incumbent councilors, who had been elected prior to the amendment.
The postponement of the local council elections, while necessary to curb the spread of the new coronavirus, will create a legal vacuum, once the term of the current councilors expires on June 3.
The government had originally submitted two pieces of legislature to remedy the situation; a sunset bill to postpone the election as late as January 6, 2021, and a constitutional amendment to extend the term of current councilors until such time as an election is held.
While the sunset bill was passed by the Parliament in late April, the constitutional amendment was tabled over a difference of opinion within the Parliament over the legality of a constitutional amendment at such a time. And even after both the Attorney General Ibrahim Riffath and Counsel General of Parliament Fathimath Filza provided assurance there was no legal obstacle to making the amendment, some parliamentarians, including Hassan Latheef, continued to express reservations, arguing that it went against the spirit of the constitution.
With time running out, parliamentarians wore masks as they gathered for deliberations over the constitutional amendment on Tuesday – the first sitting to be held since the emergence of the coronavirus outbreak within the Maldivian capital.
At the sitting, West Henveyru MP Hassan Latheef said the Parliament needed to consider the situation of the country before making a constitutional amendment. He said that ascertaining that the situation in the country accommodates discussions among the people regarding the proposed amendment was a basic prerequisite to making a constitutional amendment.
He said that was sure in his conviction that the current situation in Maldives did not accommodate for an amendment to the Constitution.
“You can clearly see the reason I’m saying this from [the mask on] my face. And it’s clearly visible on the faces of honorable parliamentarians. We are wearing masks and we are living in fear,” said Hassan Latheef.
Noting that the issue was of chief concern, Hassan Latheef said the Parliament needed to find a solution to the concerns without touching the Constitution.
He said the Parliament had the authority to establish transitional arrangements to solve the legal vacuum, and that it would not require making a constitutional amendment.
“And I don’t believe it to be unconstitutional,” he added.
He highlighted on nine arrangements which can be made by allowing incumbent councilors to continue performing their duties without an extension to their term under a transitional law.
Hassan Latheef said the key point was that a transitional law can be used to establish that councils will continue to be run by incumbent councilors until an election can be held, but that the councilors will no longer be considered elected officials since their term would have expired but as interim officials charged with fulfilling the duties of councilors.
He said he saw no room for such a law to be deemed unconstitutional.
Hassan Latheef said the authorities will need to identify the councilors willing to serve as interim officials and meet the conditions set under the transitional law, and those who do not.
He said the transitional law must declare the action interim councilors can and cannot take, establish a guideline on the use of State funds and assets, a guideline on the use of property under the jurisdiction of the council during the interim period, a special SOP for councils.
The law must also declare the decisions which require authorization from the central government which interim councilors will be compelled to follow.
Hassan Latheef has also proposed that the Local Government Authority must establish a mechanism to oversee the work of councils during the interim period, and that the mechanism must be established following discussions with the government and the Parliament’s Decentralization Committee.
And the transitional law must also declare the action which will be taken for the violation of its provisions by interim councilors.
“For example, that dismissal is a course of action. And to have the circumstances for dismissal stated clearly on this transitional law,” said Hassan Latheef.
The ninth and final point on Hassan Latheef’s proposal is that special arrangements be made by the LGA for councils which lack councilors who meet the conditions set under the law.
Hassan Latheef said he had shared his proposal with the Decentralization Committee, and asked that the committee reflect on his proposal and find a way to remedy the impending legal vacuum without amending the Constitution.
Hassan Latheef a submitted a bill, titled The Special Bill on Ensuring the Operation of Administrative Divisions of Maldives under Decentralization Policy 2020” to extend the term of incumbent councilors without a constitutional amendment in April.
The bill underwent extensive amendments during the committee process including establishing that after the term of incumbent councilors expires, councils will be overseen by interim councilors. The committee also affected significant rollbacks on their powers, including stipulating that interim councilors will require authorization from the LGA before they make decisions such as the donation or sale of a property or asset under the council’s jurisdiction, the lease of a property or asset under the council’s jurisdiction for more than a six-month period, taking loans, investing in public services, spending funds under the name of the people, passing supplementary budgets, changing the administrative structure of councils, or appointing or terminating employees.
However, Attorney General Riffath, Counsel General Filza and several legal experts have advised that a general law cannot be used to override a provision of the Constitution.