Supreme Court rules against overturning amendment on loss of parliamentary seats!
Under the sixth amendment to the Constitution, a Member of Parliament will lose their seat if they switch parties after being elected on a political party ticket, if an independent member joins a party, or if a member voluntarily resigns or is expelled from their party.
A legal challenge has been filed with the Supreme Court seeking to nullify the constitutional amendment that defines the circumstances under which Members of Parliament lose their seats. | Raajje MV
The Supreme Court has ruled by a majority verdict that the constitutional amendment specifying the circumstances under which Members of Parliament lose their seats cannot be invalidated.
This case has been filed with the Supreme Court seeking to invalidate the 6th Amendment to the Constitution. The petition was submitted by legal counsel Ali Hussain.
The Chief Justice delivered the verdict during Wednesday's hearing.
The Chief Justice stated that the Supreme Court must reach a decision on this matter based on four primary points.
1. Whether the Basic Structure Doctrine applies to the Constitution of the Maldives.
The Chief Justice stated that a nation's constitutional framework is built upon its fundamental principles and characteristics. He noted that these essential attributes are enshrined in various provisions of the Maldivian Constitution, specifically citing Articles 2, 4, 5, 6, 7, and 8.
However, the Chief Justice noted that under the procedures for amending the Constitution, not all articles are afforded the same level of protection. He pointed out that while certain provisions can be amended with a three-quarters majority, others require a public referendum to be passed.
The Chief Justice stated that Parliament holds the authority to amend and reform the Constitution, provided such actions are carried out within the boundaries prescribed by the Constitution itself. He further noted that these constitutional limits have been clearly established in previous Supreme Court rulings.
The Chief Justice stated that although the Supreme Court has not formally established a specific basic structure for the Constitution, there are inherent limitations already in place regarding the extent to which the Constitution can be amended.
2. Whether anti-defection principles are, by their very nature, incompatible with the application of a presidential system.
On this point, the Chief Justice stated that while the Maldives follows a presidential system, certain characteristics of a parliamentary system are also evident within the country's Constitution.
The Chief Justice stated that anti-defection principles are established across various countries with similar systems. He further noted that these principles cannot be viewed as exclusive to parliamentary systems.
Furthermore, the Chief Justice stated that this is a principle that could be necessary in a presidential system, much like in a parliamentary one, though he noted that the application of such principles varies across different countries.
The Chief Justice stated that anti-defection principles are not, by their nature, incompatible with a presidential system of government.
3. Does applying this amendment to current members violate the legal principle that laws cannot be applied retroactively?
The petition submitted by Ali Hussain seeks a ruling declaring that the recently ratified amendment to the Constitution cannot be applied to the 20th People’s Majlis.
On that point, the Chief Justice stated that, according to the principles set out in the Interpretation Act, laws and regulations passed by Parliament are generally intended to be applied prospectively from the date of their enactment. The Chief Justice further noted that civil laws are not subject to the same strict prohibition against retroactive application that applies to criminal legislation.
Consequently, the Chief Justice noted on that point that the 6th Amendment to the Constitution would also apply to the current session of Parliament.
4. Whether the 6th Amendment to the Constitution is in violation of Articles 4, 5, 8, 26, 75, and 90 of the Constitution.
The Chief Justice stated that in deciding on this point, it must be determined whether anti-defection measures undermine the fundamental principles enshrined in those constitutional provisions. To illustrate this, the Chief Justice elaborated on the specific details contained within the individual articles.
The Chief Justice stated that he does not believe the sixth amendment to the Constitution undermines those specific provisions or the sovereign power of the Constitution.
Consequently, the Chief Justice concluded in his opinion that there are no grounds to declare the amendment void, further ruling that the provision shall remain applicable to the 20th People's Majlis.
Following this, Justice Aisha Shujoon Mohamed delivered her opinion.
Justice Shujune's Opinion:
The State contends that one of the circumstances under which a Member of Parliament loses their seat—specifically when a member leaves their political party in a manner prescribed by "law"—refers to a law that does not currently exist. However, Justice Shujoon stated that she could not support this argument. She clarified that the reference in question pertains to the Political Parties Act.
Justice Shujoon stated that even if an amendment is passed by Parliament in accordance with established procedures, she believes the Supreme Court has the authority to intervene if that amendment contradicts the fundamental principles of the Constitution. She further noted that such oversight is permissible under the constitutional principle of checks and balances, which allows one branch of government to monitor the actions of another.
Shujune stated that this amendment would impact the rights enshrined in the constitutional chapter on fundamental rights, as well as international treaties to which the Maldives is a signatory, such as the ICCPR, albeit in a limited capacity. In this regard, Shujune noted that certain provisions, such as Article 27 of the Constitution, represent rights that cannot be restricted even during a state of emergency.
Furthermore, Shujoon stated that this amendment paves the way for prioritizing political interests over the welfare of the nation and its citizens, driven by the fear of losing one's seat.
Shujoon believes that Article 73 (e) of the Constitution must be declared null and void.
The opinion of the remaining judges:
The remaining judges on the bench concurred with the opinion of the Chief Justice in this matter.
Consequently, it has been decided that the amendment cannot be nullified.
Background of the case:
According to the sixth amendment to the Constitution, a Member of Parliament will lose their seat if they switch to another party after being elected on a political party's ticket, if an independent member joins a party, or if a member voluntarily resigns or is expelled from their party.
The case filed with the Supreme Court contends that the 6th Amendment to the Constitution of the Republic of Maldives was enacted in violation of Articles 4, 8, 26, 75, and 90 of the Constitution, as well as its basic structure. Consequently, the petitioner seeks a ruling declaring the amendment void and without constitutional authority.
The case was presided over by the full seven-member bench of the Supreme Court. The current bench consists of Chief Justice Abdul Ghani Mohamed, Justice Aisha Shujune Muhammad, Justice Ali Rasheed Hussain, Justice Dr. Mohamed Ibrahim, Justice Hussain Shaheed, Justice Abdulla Hameed, and Justice Mohamed Saleem.
