Supreme Court proceeds with anti-defection constitutional challenge
A digest of yesterday's top story.
19 Feb, 9:00 AM
Maldives Independent
Good morning. We're continuing to follow a Supreme Court case concerning contested anti-defection rules inserted into the constitution. In other news, a parliamentary committee advised the government against 10 percent pay cuts and three senior officials were sacked from the state-owned fisheries company.
The Supreme Court decided to hear a constitutional challenge against anti-defection clauses added to the constitution, deferring a ruling on preliminary objections from the state.
After deliberations on Tuesday morning, the full bench decided to proceed “and to include the judges' position regarding the procedural objection raised in this case when making the final judgment," Chief Justice Muthasim Adnan announced.
The court denied the motion for a ruling on question of jurisdiction and gave the state 10 days to respond to the petitioner’s main argument.
The case concerns controversial amendments made to the constitution in less than nine hours on November 20. According to the new clauses, MPs elected on a political party ticket will lose their seat upon switching parties or following resignation or expulsion from their party. Independent members will also be disqualified by joining a political party.
The legal challenge mounted by former lawmaker Ali Hussain marks the first time that the Supreme Court was petitioned to strike down constitutional amendments as unconstitutional.
When hearings commenced on Monday, the Attorney General’s office contested the Supreme Court’s jurisdiction to review the validity of a constitutional amendment. It lacks the authority to review the substance of constitutional amendments, state attorneys contended, stressing the prerogative of the Majlis to amend the constitution with a a three-quarters majority.
The Supreme Court could only interpret constitutional provisions and consider whether laws or regulations comply with the constitution, State Attorney Fathimath Haleem said. But constitutional amendments are not regular laws as they become part of the constitution itself and the courts cannot declare one part of the constitution as invalid because it conflicts with another, she explained.
But the constitution explicitly states that amendments to the constitution must be made through "laws," the petitioner’s lawyer Mahfooz Saeed countered. As there is no constitutional distinction between constitutional amendments and regular laws, the Supreme Court should determine if changes violate existing provisions, Saeed asserted.
As a third party in the case, the main opposition Maldivian Democratic Party argued on Tuesday that the Supreme Court has the jurisdiction to review amendments that violate the basic structure or fundamental principles of the constitution.
The court was asked to effectively repeal the amendments or to declare that the anti-defection rules cannot apply to sitting lawmakers in the 20th parliament.
According to the challenge, the amendments violate the following articles of the constitution:
Article 4 (Powers of the citizens): "All the powers of the State of the Maldives are derived from, and remain with, the citizens."
Article 8 (Supremacy of Constitution): "The powers of the State shall be exercised in accordance with this Constitution."
Article 26 (Right to vote and run for public office): "Unless otherwise provided in this Constitution, every citizen of the Maldives eighteen years of age or older has the right: 1. to vote in elections, and in public referendums, which shall be held by secret ballot; 2. to run for public office; 3. to take part in the conduct of public affairs, directly or through freely chosen representatives."
Article 75 (Function of members): "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."
Article 90 (Privilege): "No member or other person shall be liable to any proceedings in any court, and no person shall be subject to any inquiry, arrest, detention or prosecution, with respect to anything said in, produced before, or submitted to the People's Majlis or any of its committees, or with respect to any vote given if the same is not contrary to any tenet of Islam. No person or newspaper or journal shall be liable in respect of any report or proceedings made or published under the authority of the People's Majlis, or in respect of any fair and accurate report of the proceedings of the People's Majlis or any of its committees, where this is done in accordance with principles specified by the People's Majlis."
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