Heated questions after state claims no Supreme Court jurisdiction to hear anti-defection case

State attorney Fathimath Haleema failed to answer many of the questions asked by Supreme Court justices on Monday, as the state tries to have the case challenging a contentious amendment to add anti-defection provisions to the Maldivian Constitution tossed out citing lack of jurisdiction of the top court to hear the case.

The constitutional amendment in question was submitted, passed and ratified in quick succession on November 20. It added three more circumstances where parliamentarians will lose their seat. They are:

• If a parliamentarian resigns from or is dismissed or expelled from the party they were elected on behalf of
• If a parliamentarian switches parties or is dismissed or expelled from a party
• If an independent parliamentarian joins a party

Former Kendhoo MP Ali Hussain, an attorney-at-law, filed a constitutional case with the top court on November 24, seeking to have the new provisions annulled.

The first hearing in the case began at the Supreme Court at 11:00 am on Monday – nearly three months after the petition was filed with the court.

Ali’s attorney Mahfooz Saeed asked the court to establish the provisions are void, while Fathimath from the Attorney General’s Office argued that the case does not fit the criteria for a constitutional case, and that the Supreme Court therefore does not have the jurisdiction to hear the case.

She does not believe a case arguing contradictions between different constitutional provisions fits the criteria for a constitutional case.

“We are saying that a case like this does not fall into the mold of a constitutional case,” she said.

Fathimath argues that the constitutional amendment was brought in accordance with the law.

The case is being heard a full bench led by Chief Justice Ahmed Muthasim Adnan, and joined by Justice Dr. Azmiralda Zahir, Justice Aisha Shujoon Mohamed, Justice Mahaz Ali Zahir, Justice Husnu Al-Suood, Justice Ali Rasheed Hussain, and Justice Dr. Mohamed Ibrahim.

The argument prompted questions from the bench.

Suood questioned whether the state is arguing that the Supreme Court would not have jurisdiction to overturn a constitutional amendment that is made without holding a referendum as required.

Fathimath did not provide a direct answer. She repeated that the state does not believe the Supreme Court has the jurisdiction to hear the case.

Suood noted that the case before the bench is a novel one. He said that given the Supreme Court has never heard a case seeking to annul a constitutional amendment, deciding that the court does not have jurisdiction to hear the case would set a precedence that will result in the court losing the power to hear such a case ever.

“If the People’s Majlis were to pass an amendment to repeal the [constitutional] provision that Islam is the state religion, would one not be able to come to the Supreme Court in this situation?” he asked.

But Fathimath failed to provide a direct answer.

“I am not saying that the case cannot be filed with any court in this country,” she responded.

Shujoon asked to which court the state believes such a case should be submitted to.

Fathimath dodged the question again, and after getting repeatedly pressed, said that cases can be submitted to “the related court.”

“I don’t believe that argument holds any merit,” responded Shujoon, after she failed to get a clear answer.

The case stems from the argument that the amendment is in violation of articles 4, 8, 26, 75 and 90 of the Constitution, as well as the basic structure doctrine.

Violation of the articles of the Constitution?

Ali argues that the amendment violates five specific articles of the Constitution. They are:

• 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:

a. to vote in elections, and in public referendums, which shall be held by secret ballot;

b. to run for public office;

c. 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

a. 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.

b. 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.

The legislature was passed by the Parliament, of which the ruling People's National Congress (PNC) holds a supermajority, amid protests by parliamentarians from the Maldivian Democratic Party (MDP) – who hold just a dozen seats in the 93-member Parliament.

MDP said at the time that they weren’t opposed to anti-defection provisions in principle. But they do not believe it should apply to parliamentarians who are expelled – a move that they say severely undermines the independence of parliamentarians.

They also objected to the lack of extensive consultation and debate before making constitutional amendments.

Amendments proposed by the MDP to stipulate that parliamentarians expelled from their parties can only be removed after a recall referendum were rejected.

However, President Dr. Mohamed Muizzu defended the contentious constitutional amendments, describing them as crucial for Maldives’ stability.

Meanwhile, Abdul Raheem Abdulla, the Speaker of the Parliament and chairperson of the PNC, said that legislature would be formulated to strengthen the process for expulsion from political parties.