"A supermajority is not a blank cheque": is the Maldives anti-defection amendment unconstitutional?

MPs elected on a political party ticket will lose their seat upon switching parties or following resignation or expulsion from their party, the new provisions state, effectively empowering parties to enforce their whip line with the threat of removal from office. Independent members will also forfeit their seat by joining a political party.

The Supreme Court was petitioned, but the case has been in limbo since the suspension of three justices – minutes before a hearing – and their subsequent impeachment derailed the legal challenge. 

Constitutional lawyer Shamsul Falaah's new book 'A Legal Critique of the Constitutional Amendment Establishing Anti-Defection' argues the anti-defection clauses represent an "unconstitutional constitutional amendment" — one that dismantles the basic structure of the constitution, violates fundamental rights, and was passed in a manner that itself breached the constitution's requirements for transparency and public participation.

We asked him about the book's core arguments, the limits of parliamentary power, and what it means for the Maldives' democratic identity.

As I noted in the preface, I wrote this book primarily because I believe that the sixth amendment undermines the constitution's immutable basic structure and core values. To me, this change is a betrayal of the hopes and visions we held, and the promises we made, when this constitution was first framed. Through my research, I’ve come to the conclusion that this is actually an “unconstitutional constitutional amendment.”

I also argue that the parliamentary urgency power was abused to push these changes through without any real necessity. And that’s what troubles me most: a constitution amended in just a few hours. Such a process is not just flawed; it’s dangerous, and it sets a troubling precedent for how these powers might be used in the future.For all these reasons, I believe this is a critical issue that really demands some rigorous research.

In my book, I lay out three core arguments to show why the sixth amendment is actually an unconstitutional constitutional amendment. First, Article 88 (a) (2) is very clear: the Majlis must function in a way that is transparent and accountable. It has to follow democratic principles that ensure full public participation. By pushing this through the way they did, they completely bypassed that constitutional obligation. So I argue that the way they passed this amendment was a total bypass of their constitutional obligation arising from Article 88 (a) (2).

Second, this amendment destroys the basic structure and safeguards of our constitution. Why do I say that? Because it erodes the very democratic and republican nature of our state. It also creates a direct conflict with the separation of powers and actually weakens the authority of the Majlis.

Beyond that, it gives political parties an unfair level of influence, which effectively eliminates the chance for a fair and competitive political system.Finally, my third argument is that this amendment unconstitutionally restricts our fundamental rights and freedoms. I believe it violates our right to be free from discrimination and our equality before the law. It also violates our right to participate in public affairs, whether we do that personally or through representatives we choose.

It even undermines the freedom of expression and the right to form and run political parties. Ultimately, it stops members of parliament from exercising the very freedoms and responsibilities guaranteed to them under Article 75.

When I say a good reform sometimes becomes illegitimate because it was done the wrong way, I am talking about the concept of procedural legitimacy. In constitutional law, there is a vital distinction between substantive legitimacy (the 'what' of a law) and procedural legitimacy (the 'how'). Both are essential. A constitution isn't just a list of rules; it is the specific framework that dictates exactly how those rules are allowed to change. Even if a reform has a sensible goal, it cannot bypass the very procedures that give law making authority.

In constitutional law, the process is the substance. This means that procedural integrity is inseparable from substantive legitimacy. A change must satisfy formal legal requirements while also upholding the deeper democratic values the constitution was built to protect.

In the case of the anti-defection amendment, the problem isn't simply a political disagreement. The issue is that the Majlis did not comply with Article 88(a)(2), which requires public participation and accountability in the legislative process. These requirements are not decorative; they are constitutional safeguards designed to ensure that amendments reflect deliberation, transparency, and public legitimacy. When these safeguards are bypassed, the amendment becomes procedurally defective, regardless of whether the policy goal itself is worthwhile.

Think of these procedures as the guardrails that stop a temporary majority from rewriting the rules of the game to entrench their own power. If you ignore those guardrails, the amendment might exist on paper in a technical sense, but it loses the 'democratic pedigree' that gives constitutional change its legitimacy. This echoes what Lon Fuller called the 'internal morality of law.' So, even a good reform lacks legitimacy if it is pushed through in a manner that bypasses the constitution's own amendment procedures.

It is a common misconception that a supermajority in parliament has the absolute power to change anything they want. In constitutional law, we draw a very clear line between "amending" the constitution and "replacing" its identity. This is what we call the Basic Structure Doctrine.

Essentially, the power given to a parliament is a "constituted power." This means the constitution gives them the authority to maintain and update the house, so to speak, but it does not give them the "constituent power" to tear the foundation down and build a different building entirely. As the landmark Kesavananda Bharati case from the Indian Supreme Court famously put it, you can amend any provision you like, provided the basic foundation and structure of the document stay the same.

So, where is that line? Article 2 of our constitution gives us a very clear starting point regarding the basic features of the Maldivian state. It defines the Maldives as a sovereign, independent, democratic Republic based on the principles of Islam, and establishes it as a unitary state. These are not just words; they are the bedrock of our national identity. Beyond these, other basic features include the rule of law, the separation of powers, judicial independence, and fundamental freedoms and rights. If an amendment "emasculates" or guts these pillars, it stops being a legal change and becomes an unconstitutional replacement. This is not an exhaustive list of the constitution's basic features.

Think of it this way: a constitution cannot logically authorise its own destruction. While a supermajority has the mandate to change circumstantial rules, such as adjusting administrative procedures, it simply lacks the legal authority to dismantle the fundamental pillars that give the document its moral weight and democratic pedigree. When you cross that line, you aren't just changing the law; you are changing the very identity of the state without the direct consent of the people, who are the true holders of the original power.

This is a critical issue. When you combine a parliamentary supermajority with a political culture dominated by powerful individuals rather than democratic party platforms, you end up with what scholars call "executive aggrandisement." In the Maldives, we have historically seen a type of personalist politics. When a president controls the party machinery and has a supermajority at his disposal, the leader’s intent effectively replaces constitutional checks and balances. This shift is made even more absolute by anti-defection rules. These laws essentially force MPs to toe the line of the government or risk losing their seats. Instead of representing their constituents, MPs are coerced into acting as a rubber stamp for the executive.

The danger here is that it creates a "rule by law" environment. This is where the law is used as a tool to entrench power, rather than a framework to limit it. We see this when significant legislation, like court-packing or dismantling local councils, is pushed through with convenient alacrity and a total absence of public consultation.

As I recently observed in the Supreme Court Observer blog, this level of control can render a president an 'elected authoritarian'. The legislature stops being an independent, deliberative body and begins to function merely as an extension of the president’s office. Ultimately, this hollows out the democratic identity of the state that Article 2 of our Constitution was meant to protect. It shifts the very basis of our laws from one of democratic consensus to one of single-leader intent.

When we talk about "collective disrespect", we are describing a very real breakdown in the relationship between the state and its citizens. A constitution is supposed to be a shared social contract, but when you abuse urgency rules to bypass public participation, you transform the law into an executive weapon.

The legal philosopher Lon Fuller famously argued that there is no rational ground for a person to feel a moral obligation to obey a law that is kept secret or created through sudden, unpredictable shifts. Similarly, the late Lord Bingham emphasised that for the rule of law to function, it must be accessible, clear, and predictable. When a supermajority uses "haste" as a political tactic, it signals to the public that the rules are merely obstacles for the powerful rather than protections for the people.This is what scholars call "autocratic legalism." By ignoring procedural safeguards the state effectively tells the citizenry that their voices do not matter. When the law is perceived as a mere instrument for those in power, it loses its moral claim to our obedience.

Also, this breeds a deep-seated cynicism. If the government does not respect its own rules for making laws, why should the public respect the laws that are made? Once that incentive is lost, you are left with social friction and the eventual decay of the constitutional order. It turns a living democracy into a system of mere compliance through force, rather than consent through legitimacy.

I hope this book serves as a catalyst for the kind of rigorous legal critique we rarely see in the Maldives. My goal isn't just to provide answers, but to spark a genuine dialogue about how our constitution should be protected.

The book is an open invitation to academics and lawyers on both sides of the argument to read, compare research, and present their own views. This is especially urgent given that the constitutional challenge has been sitting in the Supreme Court for over a year now; we need this intellectual debate to move the needle.It is also for our lawmakers. It's vital they understand that a supermajority is not a blank cheque to rewrite the nation's identity. There are real, substantive limits to their power, and the process of amending our laws must be as respected as the laws themselves.

And, this is for the public too. I want to empower citizens with the language to understand their own rights, so they know that a constitution only has as much power as the people give it.