—Ahmed Nazeer, P.h.D. Researcher in Public Law, University of Portsmouth
The Maldives Supreme Court has ruled that violation of the constitution has no consequences unless the constitutional clauses explicitly stipulates a penalty. The ruling was part of the court’s justification in refusing disqualification of a government MP that decided to hold a position prohibited undersection 73(d) of the Maldives constitution. The court judgment (2020/SC-C/78, 2020/SC-C/79) was a case filed by an individual at the Supreme Court seeking a ruling that government MP Yaugoob Abdulla was disqualified under the constitution following his appointment to the council of the Institute of Chartered Accountants of Maldives – a regulatory body formed under a parliamentary legislation (Law Number: 13/2020). The Supreme Court failed to provide a sound justification of how the justices arrived at the decision. However, since the tenure of Supreme Court justices hinge on parliamentary support, the risk attached to going against the government super-majority in the government may have been the primary factor that contributed to the flawed reasoning and weak justification of the court. The court’s main argument was that constitutional assembly did not intend disqualification of MPs for holding an office in violation of the constitution, and that the Institute of Chartered Accountants of Maldives was different to other regulatory bodies formed under the laws. Additionally, the court argued that section 73(d) did not mention the penalty for violating the section and therefore would not disqualify an MP. This case has great implications for the Maldivian constitutional sphere because if violation of section 73(d) did not warrant disqualification of MPs they can become ministers, serve in the police or the military, and join the civil service while still holding tenure in parliament.
Section 73 of the Constitution
Section 73 (a) and (b) outlines the qualifications to be a member of the parliament. The members of the parliament must be a citizen of the Maldives; not a citizen of a foreign country; a Muslim and a follower of a Sunni school of Islam; have attained the age of eighteen years; and of sound mind. Section 73(b) states that “a person who has acquired Maldivian citizenship is qualified to be a member of the People’s Majlis (parliament) five years after the acquisition of citizenship and is domiciled in the Maldives.”
Section 73(c) reads that MPs will face disqualification from parliamentary elections, or a member of the parliament immediately becomes disqualified, if he has a decreed debt which is not being paid as provided in the judgement; has been convicted of a criminal offence and is serving a sentence of more than twelve months. The same applies if an MP has been convicted of a criminal offence and sentenced to a term of more than twelve months, unless a period of three years has elapsed since his release, or pardon for the offence for which he was sentenced or if the MP is a member of the Judiciary.
Section 73(d) reads as follows: Unless otherwise specifically provided in the Constitution, a member of the People’s Majlis shall not continue to hold office in:
1) The Cabinet of Ministers. 2) The office of State Minister, Deputy Minister, or other State office of an equivalent level. 3) An Independent Commission or an Independent Office. 4) The Civil Service. 5) A corporation wholly or partly owned or managed by the Government. 6) The Armed Forces. 7) The Police. 8) Any other office of the State except an office held by virtue of being a member of the parliament.
The Supreme Court’s Argument
The case concerned mainly with section 73(d)(3) and section 73(d)(8). In their main argument, the justices stated that section 73 has three parts, 73(a) and 73(b) dealing with eligibility, 73(c) dealing with disqualification, and section 73(d) deals with offices parliament members shall not hold while they are MPs. The justices stated that section 73(d) prohibits certain things but does not specify whether MPs should be disqualified if they did something prohibited under section 73(d). The justification of the court was that section 73(d) could have been under section 73(c) that dealt with disqualification if the drafters intended that MPs should lose their seat if they accept an appointment for a position listed in section 73(d). Further adding to their argument, the justices said that without a legislation prescribing the result of violating a specific constitutional provision, the courts did not have the authority to invent a penalty, and in this circumstance decide to disqualify an MP. However, the general application of this interpretation would mean that if an MP accepted an appointment for any of the offices listed under section 73(d), he would not lose his seat.
Minutes of the Constitutional Assembly and Additional Justification (p16, p17, p18)
Drawing from the minutes of the meetings, the court said that members of the Constitutional Assembly was of the opinion that persons that fall into the categories mentioned under Section 73(c) cannot stand for parliamentary elections. However, anyone that falls under the categories mentioned in section 73(d) can stand for parliamentary elections and must resign from post if they win a parliamentary seat. The members of the constitutional assembly did not intend disqualification of MPs for reasons prescribed under section 73 (d) if they hold a position mentioned in section 73(d) after election to the parliament. Furthermore, the court argued that the drafters of the constitution wanted to free the parliament from the influence of the executive, and therefore, included section 73(d) to ensure that parliamentarians did not fill a position under the executive branch of the state.
Furthermore, the Supreme Court maintained that regulatory bodies governing professional work does not fall into the category of state positions although those bodies rely on funding from the state budget. According to the court, regulatory bodies that oversee the work of services and business such as the Maldives Broadcasting Commission, and regulatory bodies that supervise professional work such as the Institute of Chartered Accountants of Maldives are different. However, the Maldives Broadcasting Commission regulates media professionalism and supervises a professional work. The Broadcasting Commission and the Institute of Chartered Accountants of Maldives are both legal bodies established under a law that receives funding from the state, and there is no virtual difference between the two.
The court sought to interpret constitutional phrases in section 73(d) “Independent Commission or an independent Office.” The justices agreed that narrowing the section to independent commissions and independent offices explicitly mentioned in the constitution would result in MPs being able to perform duties of independent commissions and independent offices not mentioned in the constitution. The court stated that there are independent commissions and offices not mentioned in the constitution formed under legislations, and the purpose of establishing those institutions was promoting multi-party democracy. Without further justification, the court stated, “For the above mentioned reasons the Institute of Chartered Accountants of Maldives cannot be considered as an independent institution under section 73(d).” The court failed to establish why the Institute of Chartered Accountants of Maldives did not fall under section 73(d) of the constitution.
The Maldives Supreme Court’s reasoning is flawed and the general application of the court ruling would disrupt the operation of the Maldives presidential system. Following this ruling, the MPs can now hold various offices in violation of the constitution without losing their seats. The court’s decision will render section 73(d) of the constitution ineffective and the judgment has complicated a constitutional clause that would have prevented MPs holding dual offices that can lead to conflict of interest and influence their duties as parliament members. This case also has greater implications on the judicial independence of the Maldives. The case reveals that the condition of the judiciary has not improved after the new government came into power despite the promises of judicial reform. The Maldives cannot achieve judicial independence without reforming the composition of the judicial watchdog ‘Judicial Services Commission’ to remove the political appointees that sit in, and dominate the commission. Without a robust judiciary, the Maldives would once again face democratic decay and lead to events similar to the 2012 coup and the authoritarian rule of the previous regime.
Suggested citation: Ahmed Nazeer, Violation of Constitution has no Consequences, Rules Supreme Court of Maldives , Int’l J. Const. L. Blog, Dec. 8, 2020, at: http://www.iconnectblog.com/2020/12/violation-of-constitution-has-no-consequences-rules-supreme-court-of-maldives/