Let the people decide: referendums as democracy's last defence

An op-ed by Fayyaz Ismail, chairman of the main opposition Maldivian Democratic Party. 

  

The sweeping changes brought about by our newest constitution in 2008 were crucial reforms intended to democratise power. The Supreme Court became an independent third power, and the parliament became independent of executive picks by the president. Corrupt government officials, bad-acting judges, our police and military institutions, and a host of powers that were previously left unchecked to operate at the whims of the ruler were to be held to account for their various crimes through newly formed independent institutions. There was considerable sense to the reforms proposed; each independent institution and office was created to tackle the most pressing issues of the existing regime.

Originally, the final interpretation of the law was a power attributed to the president’s justice minister. The president was free to investigate, appeal, or annul any legal decision made, with no regard for rule of law. The constitution established the Supreme Court as a third pillar of governance to act as a check to the president’s powers– the circuit would operate independently of the parliament and executive branches, and would be sat by experts in the judicial field. 

The democratisation of power was not limited to the formation of a Supreme Court: The Judicial Services Commission was created to prevent actors of the judiciary from holding the country hostage, while the National Integrity Commission would hold to account the various branches of law enforcement. The Elections Commission was responsible for overseeing and organising free and fair elections, ushering us out of the “kuda kaafu bodu kaafu” era of farcical elections. The Human Rights Commission was mandated with protecting us from breaches of our fundamental rights.

Yet as our promised rights deteriorate rapidly, we are forced to reckon with a difficult truth: these institutions have failed to deliver on the promise of justice that came packaged with our constitution. There is little question that wholesale changes are necessary, and with a contextual understanding of how these systems failed, we might learn how they can be improved for tomorrow. These are simply my musings, in an attempt to contribute to a debate that may lead to a strengthening of these institutions, and a re-invigoration of public hope and trust in these institutions. 

The context within which we talk about these institutions today is starkly different to that in which our constitution was written. Though a myriad of issues still remain, our elections are freer than ever before, state-sanctioned police brutality is minimal by comparison, and political persecution is no longer accepted as the status quo, despite the administration’s attempts to the contrary. 

Yet our institutions can hardly be said to have accomplished the goals for which they were created. Too many deaths still occur under custody, or through the brutality of the police and custodial services, for us to claim that either the NIC or the HRCM have fulfilled their mandate. The Elections Commission stands accused of covering up nationwide identity theft after failing to penalise the ruling party’s submission of thousands of fraudulent party registration forms. Since its inception, a mere MVR 200,000 (US$ 12,970) has been recovered by the ACC, despite investigations into numerous cases of grand corruption. In the public’s eyes, corruption is still rampant, and no meaningful action has been taken against the perpetrators. The Judicial Services Commission has done more harm than good, as evidenced by their role in the unlawful replacement of a majority of the currently serving supreme court.

The problems we face today are more nuanced than was the case during the older dictatorial regimes, yet the root of the problem remains the same: an excess of power, consolidated under a single entity. The separation of the powers of governance across the executive, legislative and judicial branches was supposed to mark an end to the era of a single, unquestioned, unchecked ruler – yet with the presidency and a supermajority in parliament, that is exactly what we are witnessing today. 

Of late, parties that win presidential elections tend to win the overwhelming majority of parliamentary seats as well. President [Dr Mohamed] Muizzu has made full use of this consolidated power, jamming through a constitutional amendment that effectively shackles any parliamentarians to the prejudices of their party authorities – any MP that is removed, for whatever reason, from the party they were affiliated with at the time of election, risks losing their seat in parliament. With the legislative branch firmly under check, the Supreme Court and our independent institutions become little more than playthings for the president. The very mechanisms intended to be checks to such blatant autocracy have now been turned toward the dismantling of the separation of powers enshrined in our constitution. 

In early 2025, two sitting judges of the Supreme Court were removed from office under allegations that lacked any legal merit, and ran counter to all guidelines and norms prescribed by the law. A JSC firmly controlled by the president’s members conducted the investigations, and a subverted parliament swiftly approved the removals. With this, the three powers once again became consolidated under a single ruling power, and the independent institutions once charged with balancing the powers of state and parliament are used toward the ends of the man in charge. Despite a facade of “democratic” governance, the clock rolls backward, and with it go our hard won rights.

Though our country is nigh unrecognisable from the pre-2008 era, the gains we have made to our systems of governance are unstable, and deeply fragile – whether our democratic norms are respected is wholly dependent on the ideology of whatever party we elect to power. Our institutions remain vulnerable to threats and extortion, and are changeable to best suit those in power.

An institution that operates in fear of the administration can hardly be expected to act as a functioning check to their powers; leaving the independence of key institutions such as the Supreme Court and the various commissions in the hands of the parliament appears, in light of recent events, to no longer be a viable option. However, an unelected body, no matter how important, cannot be allowed to operate without safeguards preventing tyranny – the courts must not be allowed to operate above the law themselves, they too must be accountable to someone. 

The solution, I believe, lies with the people. Codifying a law within the constitution that restricts the parliament’s total authority to remove judges of the Supreme Court and members of the independent commissions, instead requiring the additional safety-net of a nationwide referendum to remove a sitting judge will help guarantee their independence, while still ensuring that they are held accountable to the public. This is not to say that we do away with representative democracy altogether – the parliament ought to still act as the first line of defence when it comes to upholding the interests of the people. This additional “failsafe” is only intended to ensure that the actions of the parliament truly do fall in line with the will of the people.

Admittedly, such a system will be expensive and cumbersome. Organising and executing a mass vote is no easy task. There are costs and inefficiencies, but that is part of the point of the matter. In truth, it shouldn’t be easy to remove a Supreme Court justice; there should be a just cause that is supported by the public. The cost of lacking such mechanisms, too, far outweighs the perceived savings – an election costs some tens of millions of Rufiyaa, but the price of years of unchecked bad governance number in the billions. Neither are such systems unheard of – many countries employ referendums as a necessary condition for changing particularly important laws. Our own constitution demands that substantial changes to our systems of governance be approved by the public through a referendum. I only propose that these ideas, which are currently worded vaguely leaving gaping holes in terms of interpretation, be codified and expanded, such that the public’s approval is ensured when it comes to actions that have deep-running consequences for our country. 

Adding failsafes to prevent parliamentary intrusion is a start, but the necessary changes do not end there. As things stand, the president of both the ACC and the EC are directly selected by the president. The JSC, too, includes a representative of the president, a member of the president’s cabinet in the attorney general, the speaker of parliament, and an additional member of parliament (almost always belonging to the ruling party) – enough votes to ensure the commission remains firmly in the president’s clutches. 

Allowing the executive to control those selected to serve on these commissions runs counter to the very reason the institutions were made independent in the first place. A parliamentary committee, controlled by the president’s members, is similarly ineffective at overseeing the commissions. That being said, handing over full control of the commissions back to unelected officials would undoubtedly also be a step back. We cannot go back to a time of judges investigating judges, police investigating police, or other such structures that invariably result in crippling conflicts of interest. 

To this end, I propose a substantial change to the oversight structure of the independent institutions and the judicial system. The JSC can be reorganized to be an elected oversight body that will be charged with holding both the judiciary and our independent institutions to account. The reformed body will encompass the supervisory and investigative functions of the JSC and feature a broadened mandate that include oversight for the other independent institutions, replacing the parliamentary committee as the main oversight mechanism for said institutions. 

The body will be composed of legal experts, economists, human rights defenders, social workers, labour defenders, and experts of other critical fields. These seats will have stringent qualifications, both in terms of technical competence and disciplinary conduct, and though selected by parliament, will require a public endorsement to be confirmed. Backroom dealings, threats, or other forms of overreach might be shelved in favor of a more transparent, directly democratic method for approving the members seated on the commissions. This expanded body will be given authority to investigate, suspend, and initiate removals for members of the court and our other independent institutions – such motions will still have to be approved by parliament, and will also require the additional safety net of a public referendum to be enacted. 

Naturally, concerns arise regarding the effects of insulating the commissions from accountability through parliament; doesn’t giving such authority to a small body of people leave open the path to tyranny? To address this, I propose that a recall mechanism should also be introduced for the public to initiate removals directly– the public must be given the space and capacity to directly organise themselves to remove, not just the occupants of these seats in particular, but all unelected holders of critical seats of power. Such a mechanism will require a considerably more delicate discussion of the nuances of law and politics, but the people, ultimately, must have the final say.

Such reforms may guarantee the independence of the members of these institutions, but questions remain about their financial dependence on the parliament. The ACC and the HRCM already lack the resources to hire competent investigators and administrators to address the unending set of complaints they receive; if their budgets were to be slashed, the commissions will be left with no recourse by which they can continue to function. The use of block grants has had considerable success with regard to creating fiscally independent local councils – there is no reason the same method cannot be applied to our independent institutions and the judiciary. By tying the technical capacity of our institutions to the health of our country’s finances as a whole, we ensure their independence, while improving their capacity as authoritative bodies.

As we discuss the reformation of our governing systems and constitution, some propose a move to a parliamentary system as the means by which to solve the considerable issues we face today. However, I believe that a change to the system that does not take into account these questions of accountability and resilience, and still leaves too much room for actors that seek to dismantle our democratic system. A total switch brings about completely new problems, and we must then start the process of reform from scratch once again. 

Instead, I propose that we develop the system we have with stronger safeguards against autocracy, and stronger mechanisms for public accountability. My proposal, in sum, seeks to enshrine the fundamental rights of Maldivians within our constitution, and protect them from authoritarian leaders that betray the will of the people – surely it is worth the additional costs we must bear if it protects our citizens from those that would abuse their powers. With the weight of 17 years of experience, I believe these changes are a start toward creating a robust system of governance that is answerable to the people, and serves them well.