Counsel General: Constitution can be amended is this situation

Parliament’s Counsel General, Fathimath Filza, on Monday, said that there was no legal ground to prevent a constitutional amendment a constitutional amendment during the state of public health emergency which is in effect in Maldives over the COVID-19 pandemic.

Filza made the remark after the Parliament Speaker, President Mohamed Nasheed asked for her legal opinion following a debate over the legality of an amendment proposed by the government to the Constitution, which is designed to extend the term of incumbent councilors, in order to solve the legal vacuum which will result from a further postponement of the Local Council Elections 2020.

Maldives invoked a state of public emergency over the COVID-19 pandemic on March 12, and the Local Council Elections, which was originally scheduled for April 4, has been postponed to April 18.

A separate sunset bill has been submitted to postpone the elections as late as January 6, 2021.

Before holding the first reading of the constitutional amendment this morning, Parliament Speaker, President Mohamed Nasheed, directed the attention of the Parliament towards Article 267 of the Constitution, which establishes that no constitutional amendment may be made during a state of emergency.

It led to parliamentarians engaging in debate over the interpretation of the ‘state of emergency’ in Article 267, whether it referred to a state of emergency decreed by the President under Article 253, or whether a state of public health emergency declared by the Health Minister also fell within the context.

Parliamentarians were divided over the issue, and Nasheed asked for the legal opinion of the Counsel General.

Counsel General Filza said that there was no legal ground to prevent a constitutional amendment, for as long as the President does not invoke Article 253 to declare a state of emergency.

Article 253 states that the President has the authority to declare a state of emergency effective nationwide or select areas for a duration which does not exceed 30 days if Maldives faces a natural disaster, an outbreak of a deadly infectious disease, a war, or a situation which threatens national security.

Filza noted that the state of public health emergency in effect in Maldives had been declared under the Public Health Act, which grants the Health Minister the authority to make the declaration, if the Director General of Public Health, based on evidence, establishes there to a public health emergency in Maldives, and finds that it warrants special measures to solve or contain it, and counsels the Health Minister to invoke the provision.

In contrast, the state of emergency which Article 253 refers to is a state which is both declared and sustained in accordance with protocols and conditions which is expressly dictated in the Constitution, said Filza.

She said the authority to invoke a state of emergency under Article 253 lays vested solely on the President, as the Head of State and Head of Government, while the authority to make a decision regarding the presidential decree declaring a state of emergency lay with the Parliament.

Filza said that while the Constitution stated that no constitutional amendment may be made during a state of emergency invoked under Article 267; Article 253, Article 254 and the law on the interpretation of the Public Health Act showed that, the situations which warrant a state of emergency to be declared under Article 267 is different from the state of public health emergency which is currently in effect under the Public Health Act, a law which took effect in 2012, after the Constitution took effect.

It’s clear the state of emergency which Article 267 refers to is the state of emergency decreed by the President, said Filza.

“Therefore, based on the aforementioned points, I conclude that there is no legal ground to object to an amendment of the Constitution, for as long as the President has not decreed a state of emergency under Article 253 of the Constitution.”