The Supreme Court of the Maldives

Male’

Republic of Maldives

 

(Unofficial Translation)

A Summary of the Judgement

 

Case number: 17/SC-C/2017

Case filed by: The Attorney General’s Office

Defendant:

Case type: Constitutional Matter

How the case was filed: On request form to file constitutional cases

Date of filing: 03 July 2017

Date of registration: 06 July 2017

Date of decision: 13 July 2017

Time of decision: 18:13

 

Council of Judges who adjudicated the case: Chief Justice Abdulla Saeed, Justice Adam Mohamed Abdulla, Justice Dr. Ahmed Abdulla Didi

Case Summary

  1. This is a constitutional matter which was decided when the Attorney General, under Article 11 (a) 3 of Act Number 22/2010 (The Judicature Act of the Maldives) brought an ex parte legal proceeding pertaining to the definition of the “constitutional matter” stated in Article 274 of the Constitution of the Maldives, to interpret Article 26 (c), Article 30 (a), Article 74 and Article 75 of the Constitution of the Maldives in order to resolve the issue of floor-crossing at the People’s Majlis wherein a candidate elected by a people to represent their constituency in the People’s Majlis because the candidate pledged to promote the views of the political party they support, after winning a seat at the People’s Majlis as a member of the parliamentary group of the political party supported by the people of the constituency and as their elected representative, deceive the very people who elected him and the party whose political platform was used to win the election by defecting to another political party in blatant disregard of the social contract with the people who elected him and to establish that the act of floor-crossing by members of the People’s Majlis, while being detrimental to the establishment and growth of a functional democracy for the sustainable benefit of the people, is a threat to the security and sovereignty of the Maldives.
  2. The main reasons for filing the aforementioned case as put forward by the Attorney General include:
  • That in a multiparty democracy such as the Maldives pluralistic views must be included when deciding on matters of the state and that when the people vote for and elect their representatives to the People’s Majlis for the purpose of promoting the views of the political parties they belong to, the members as elected representatives of the people have an obligation to respect the political views and aspirations of the people of the constituency who voted for them and remain true to the social contract that was established between them,
  • That under Article 26 (c) of the Constitution of the Maldives, every citizen of the Maldives eighteen years of age or older has the right to take part in the conduct of public affairs directly or through freely chosen representatives, that Article 30 (a) gives every citizen the right to participate in the activities of political parties, and in this respect pursuant to Article 26 (c) and Article 30 (a) of the Consitution of the Maldives the right to join a political party of choice and the act of conducting public affairs to promote the ideology of the party through elected representatives are fundamental rights guaranteed to every citizen of the Maldives eighteen of age or older by the Constitution of the Maldives and that while members of the People’s Majlis are elected by the people as their representatives, it is clear that members of the People’s Majlis are elected on their respective party tickets to promote the views of the parties, by a people exercising the freedom and will conferred to them,
  • That urgent measures need to be in place to administer an effective multiparty democracy, to increase accountability before the law and the people, to put national interest and the interest of the people above all and under any circumstances and to foster a spirit of honoring the principles and values of our society; and that the issue of candidates who promote the ideology of a certain political party in order to garner the support of the people of a particular constituency by pledging to uphold party views as their elected representative at the People’s Majlis, and after securing a seat at the People’s Majlis as a member of Parliamentary Group of the political party whose political platform was used to win the election, deceive the party  and the people in absolute disregard of the social contract between them by deserting the party and its ideology and defecting to another political party is detrimental to the establishment and growth of a functional democracy in the Maldives for the sustainable benefit of the people and a threat to the security and sovereignty of the nation,
  • That a system which enables elected representatives of the people to breach the contract they have with their constituents and promote a divergent political view at the People’s Majlis, would facilitate for a compound of influences to infiltrate the parliament thereby posing challenges to the principle of safeguarding the national interest rather than their own interest or that of someone else as stipulated in Article 75 of the Constitution, subsequently impeding efforts to safeguard the security, independence and sovereignty of the Maldives and steer the nation in the path of peaceful and sustainable development,
  • That the act of defecting to another party by an elected representative who contested and won the seat on the ticket of the political party supported by the people of the constituency, would not only lose the confidence people have in their elected representatives and political parties, it would also undermine the purpose for which they were elected and encourage the people to be deceived by their elected representatives in favor of promoting their own interest at the cost of the interest of the people, and that while the act encroaches on a constitutional right of the people, a system which facilitates the elected representatives of the people to act in such a manner contravenes the purpose of the Constitution in protecting the rights,
  • That under Article 4 of the Constitution of the Maldives all powers of the State of the Maldives are derived from the citizens and when the Article expressly states that the power remains with the citizens, it is evident that to interpret the Constitution in a manner which deprives the citizens of the power or in a manner which allows anyone to take advantage of the power is not the aim of the Constitution,
  • With reference to the principles governing democratic societies it is noted that in some developed countries, changing allegiance and switching political parties during the tenure of a member of parliament or floor crossing is limited to ensure that the power of the citizens does not get undermined, in this respect to resolve the disputes which arose in the Indian Parliament between 1967 and 1971 due to members switching parties, Amendment 52 was brought to the Indian Constitution which specified rules for floor-crossing, effectively limiting the right to switch parties in the parliament except under certain circumstances.

Points Noted         

3. When the Constitution of the Maldives, the laws, Act Number 4/2013 (Political Party Act), Act Number 5/2013 (Parliamentary Privileges and Powers Act), the documents submitted by the Attorney General to the trial proceeding at the Supreme Court, oral statements given at the trial proceeding, the floor-crossing rules established in various constitutional systems and Anti-Defection Laws enacted by these countries are examined both from a legal and judicial perspective, the Justices of the Supreme Court who reviewed the case noted the following.

  • The first point being that the public vote to elect members to the People’s Majlis to represent their constituencies based on the political views of the candidates and the political party platform that they contest in and when a candidate who has thus been elected by the people changes allegiance and supports another political view or if the member is dismissed from a political party for going against the approved party lines, the purpose for which the people elected the member to the People’s Majlis would be lost, and for the reason the State is of the opinion that under any of the following circumstances a member would lose his seat at the People’s Majlis and they are; being expelled from the political party on whose ticket the candidate was elected to the People’s Majlis, or leaving the party on whose ticket the candidate was elected to the People’s Majlis, or becoming a member of a party other than the one on whose ticket the candidate was elected to the People’s Majlis; are the points that the Attorney General highlighted.
  • The second point being that in modern constitutional democracies all the powers of the State are derived from and remain with the citizens, that these democracies function on the basis of a “representative democracy” in which powers of the people are vested in officials elected by the people to represent them, although in conducting certain affairs of the State, various constitutional systems have legislated to different degrees the principles of “Quasi Direct Democracy” in which people decide policy initiatives directly and that it is clear these principles are embedded in the constitutional system of the Maldives; that while Article 4 of the Constitution of the Maldives states that “All the powers of the State of the Maldives are derived from, and remain with the citizens”, Article 26 (c) expressly gives every citizen of the Maldives eighteen years of age or older, the right to take part in the conduct of public affairs directly or through freely chosen representatives, and Article 115 (p) of the Constitution makes it clear that holding public referendums on issues of national importance is within the powers and responsibilities of the President.
  • The third point being that Article 2 of the Constitution of the Maldives states that the Maldives is a sovereign, independent, democratic, and unitary Republic based on the principles of Islam and it is clear that the democratic structure of the Maldives is based on a multiparty democratic system and as such Article 30 (a) of the Constitution of the Maldives makes it evident that the right to establish and to participate in the activities of political parties is a fundamental right of every citizen of the Maldives, and that a political party is a group of people who use democratic and legitimate means to win elections and achieve control of the Government on a pledge to establish a specific political manifesto, and that in this respect the role of political parties is fundamental to modern democratic systems to form and shape public opinion and increase awareness on political, economic and social matters of the State, and  it is clear from the introduction to Act Number 4/2013 (Political Parties Act) and Article 2 (a) of the Political Parties Act that a political party is a group of people registered under the Act with a common identity working at their freedom and will, and in accordance with the laws, peacefully and democratically participating in or conducting political activities to nominate candidates to elections specified in  the Constitution and the laws and persuade voters to elect their candidates through popular vote, and that it is evident from Article 3 (a) of the Political Parties Act that the purpose and objectives of establishing political parties include;  allow the needs and views of the people to be represented in the Government,  provide for people’s opinion to be shaped and reflected freely and openly, provide for pluralistic views in the political arena, to encourage national unity in the face of political diversity, to encourage widespread participation in the political life of the nation, to provide for political parties to contest in the elections specified in the Constitution of the Maldives and create collaboration between state institutions and the people.
  • The fourth point being that all the fundamental rights and freedoms prescribed in the Chapter Two of the Constitution of the Maldives and ensured in Article 16 of the Constitution of the Maldives in clear terms state that “This Constitution guarantees to all persons, in a manner that is not contrary to any tenet of Islam, the rights and freedoms contained within this Chapter, subject only to such reasonable limits prescribed by a law enacted by the People’s Majlis in a manner that is not contrary to this Constitution. Any such law enacted by the People’s Majlis can limit the rights and freedoms to any extent only if demonstrably justified in a free and democratic society.” Section (b) of this Article states that “The limitation of a right or freedom specified in this Chapter by a law enacted by the People’s Majlis as provided for in this Constitution, and in order to protect and maintain the tenets of Islam, shall not be contrary to Article (a).”

 

  • The fifth point being that a multiparty political system such as in the Maldives should be shaped and developed in a manner which protects the societal values enshrined in the Constitution and the laws, and based on principles which do not contradict the objectives of establishing political parties, the members elected to represent the people should respect the ideology which they promoted to garner votes from the people and remain free from personal and individual interest and consider public interest foremost and remain steadfast in representing the people as mandated under Article 75 of the Constitution of the Maldives, when a member goes against the ideology for which he was elected and bring forward personal interest or get influenced by another party and work against public interest, is an obvious threat to  the sovereignty of the people which is a basic feature of the Constitution guaranteed under Article 4 of the Constitution and obstruct the strengthening and development of the young multiparty democracy in the Maldives, and goes against the purpose for which the multiparty system was introduced in the Maldives by the State as it clearly paves the way and provides the opportunity for politically and financially powerful parties to shape the political environment, it is not an accepted practice in modern democracies that a member who is elected to parliament by promoting the ideology and manifesto of a particular party while promising the people to remain respectful to these ideologies is elected by the people based on this promise and once elected the member under negative influences decides to change his party, there are various constitutional and legislative solutions established in modern democracies to stop such “floor crossing” practices.
  • The sixth point being that there are two aspects to “floor crossing”: first aspect being that a parliament member votes against the policies and ideology of the political party that he belongs to, this in its own right is (ipso facto) where a member will not lose their seat, however corrective measures can be taken against the member in keeping with the policies of the party that he belongs to, this can be seen in the operational procedures of various modern parties.
  • The seventh point being the second aspect of “floor crossing”: where a member who is elected to the People’s Majlis as a candidate of a particular political party, leaves that political party during their elected term, it is clear that this aspect of “floor crossing” is not accepted in modern constitutional systems, when it’s clear that the basis on which the public voted for that particular member is the political stand of the member and the ideology of the political party on whose ticket the member contested. Many constitutional systems have constitutional and legal solutions in place to prohibit members from leaving the party and political thinking based on which they were elected, the constitutions of some states of the United States of America and other modern democracies give the people of an electorate the right to remove the elected member from position (revocation/recall), the main aim of the recall system is to give people of that electorate the right to remove a member from their position in accordance with the set constitutional procedures, that is if the member turns their back on the thinking for which he was elected and instead of working for the good and betterment of the people, the member works to protect the interests of financially and politically influential parties. In addition to this if a parliament member leaves the party to which he belongs to it paves the way for discord and the public lose confidence in the multiparty system and lose political stability, and thus many constitutional systems codify the situations, conditions and procedures in an anti-defection law, in this respect if a member of parliament leaves his political party or if the member is removed from the party the member will lose his seat, this was decided as such in the 52nd amendment brought to the Constitution of India in 1985 where schedule 10 was added, the validity of this schedule was decided by a ruling of the Supreme Court of India. (Kihoto Hollohan vs Zachillhu and Others) where it was decided that the anti-defection law was indeed valid. In the reasons and aim of submitting the aforementioned amendment include the issue of members of the federal parliament and state assembly of India changing their political party as a matter of national concern and if this wasn’t stopped the basis upon which the Indian democracy was built would be undermined and in addition to this, Singapore, Pakistan, Sri Lanka, Nepal, Bangladesh, Seychelles and many other nations have anti-defection laws and procedures and principles which prohibit “floor crossing”, the reason for such laws not being in place in western Europe is due to the fact that it is very unlikely that a member elected by the people would switch to another political party and hence there is no necessity for such laws. In many of the developed western democracies if a member elected by the people switches parties, he would most likely resign from his post, this is clearly seen in the parliamentary practices carried out in these nations.
  • The eighth point being, in light of the principles stated above, the points highlighted by the Attorney General of the Maldives based on the fact that members elected to the People’s Majlis under the party system established in the Maldives and on a political party ticket, present to the people a manifesto which represents the thinking and ideology of that particular party and after being elected to the People’s Majlis with the votes of these people the member is influenced politically and financially and go against the promises made to the people and bring forth personal and individual interest above that of the interest of the people of the electorate, and change the political party which the member belongs to, this phenomena weakens the confidence of the people in multiparty democracy established in the Maldives, undermines the foundation of the  democratic system of the Maldives, threatens the sovereignty of the people and obstructs the rule of law in the Maldives, hence it is clear that  the act of members of the People’s Majlis switching parties is a phenomena which needs to be immediately  prohibited by law.

 

  • The tenth point being that for the protection and development of the multiparty democracy established in the Maldives, while it is necessary that the People’s Majlis pass a law which establishes the conditions and procedures related to a member losing his seat at the People’s Majlis if the member leaves the political party on whose ticket the member was elected to the Majlis, or joints another party or is expelled from the party, and until such an “Anti-Defection Law” is passed and enacted in the Maldives, it is important to find a judicial solution to the matter put forward by the Attorney General to decide that when a member of the People’s Majlis leaves the political party which he belongs to, he would lose his seat at the People’s Majlis.
  • The eleventh point being that Article 2 of the Constitution of the Maldives states that the Maldives is a sovereign, independent, democratic Republic based on the principles of Islam and is a unitary State and Article 10 (a) of the Constitution of the Maldives states that the religion of the State of the Maldives is Islam and Islam shall be the one of the basis of all the laws in the Maldives and section (b) of the same article states that no law contrary to any tenet of Islam shall be enacted in the Maldives and Article 67 of the Constitution of the Maldives makes it the responsibility of all citizens of the Maldives to preserve and protect the State religion of Islam and hence it is clear that the entire Constitutional system of the Maldives is based upon the exalted doctrines of Islam, the foundation upon which the Constitution of the Maldives is built and the main source which provides the Constitution of the Maldives support and protection is without any doubt the principles and provisions of Islamic Shariah, Article 142 of the Constitution of the Maldives states that the judges are independent, and subject only to the Constitution and law, when deciding on matters which the Constitution or the law is silent, Judges must consider Islamic Shariah. In light of all matters highlighted by the Attorney General related to this ruling of the Supreme Court of the Maldives stating that a member of the People’s Majlis who is elected on a political party ticket, after defending the thinking and ideology of the party decides to leave the party and change to another party poses a threat to the peace, harmony and sovereignty of the State and taking into consideration the matters stated by the Attorney General and in light of the safety and protection of the State and to safeguard and protect the peace and harmony and uphold the independence and sovereignty of the State, the Supreme Court of the Maldives as the highest authority on judicial matters and as the guardian of the law as specified in Article 141 (b) and Article 145(c) of the Constitution of the Maldives and Article 11 of the (Judicature Act of the Maldives) 22/2010 and Article 274 and 74 of the Constitution of the Maldives and as per the Constitution and the laws, considers the interpretation of Article 73(c) and Article 77 of the Constitution of the Maldives which states that if any condition prescribed in these two articles are present then the People’s Majlis member will lose their seat, however the conditions stated in these two article are not specified in the context of inclusion and limitation, Article 73(c) and 77 of the Constitution of the Maldives do not state in direct or indirect terms that a member of the People’s Majlis cannot be removed from his seat apart from the conditions stated in these two articles. The Supreme Court is of the view that for the common good and interest of the society the matters submitted by the Attorney General can be solved under the powers vested in the Supreme Court of the Maldives by the Constitution of the Maldives, this matter can be considered under Article 142 of the Constitution of the Maldives which is to refer to Islamic Shariah, finding solutions to the matters submitted by the Attorney General through Islamic Shariah where the Supreme Court considers all the above mentioned points and the rules of jurisprudence in Islamic Shariah such as “Do no harm” facilitating to maintain peace and harmony and safeguard the sovereignty and independence of the entire State.

 

Ruling:

For the reasons as stated above, when a member of a political party who won a seat at the People’s Majlis in the parliamentary elections because people voted for the candidate on the basis that the candidate contested on the ticket of a particular political party promoting the party’s views and manifesto and pledging to uphold those views, desert the views of the political party whose platform was used to win the election and join another political party or if the member is expelled from the party for violating party lines, consequently destroying the purpose for which the people of a particular constituency elected the member, and therefore it is decided that the People’s Majlis should pass legislation specifying the principles and procedures of disqualification of members of the People’s Majlis  who after being elected on a political party ticket leaves the party or defects to another party or is expelled from the party, and that until such a law is enacted, should any one of the three situation arises in which a member of a political party who won a seat at the People’s Majlis on party ticket is expelled from the party, or a member of a political party who won a seat at the People’s Majlis leaves the party or a member of a political party who won a seat at the People’s Majlis becomes a member of another party, it is decided that from the date the Elections Commission officially informs the People’s Majlis that a member has left a party or been expelled, the member would lose membership at the People’s Majlis and should a seat of the People’s Majlis be vacated in this manner, by-elections for the seat must be held under Article 78 of the Constitution of the Maldives and under Article 5 (b) of Act Number 2/2009 (Parliamentary Elections Act) and under the powers vested in the Supreme Court of the Maldives as the final authority of the Constitution and the laws of the Maldives and pursuant to Article 144 and 145 (c) of the Constitution, the People’s Majlis, the Election’s Commission, State institutions and other relevant parties are directed to comply with the rules specified in the ruling of this case henceforth from today 13 July 2017 on Gregorian Calendar, and so rules the Justices of the Supreme Court who adjudicated the case.

 

 

 

 

 

 

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