Usham: Hassan Latheef’s bill is unconstitutional

Vilimale’ MP Ahmed Usham, on Wednesday, said the sunset bill submitted to the Parliament to accommodate an extension to the term of incumbent councilors without making a constitutional amendment, is unconstitutional.

Usham, a former Deputy Attorney General, made the remark in a tweet this afternoon, after the Parliament held the first reading of the bill this morning.

“The purpose of this bill is to extend the three-year term of incumbent councilors established in the Constitution, without making a constitutional amendment,” noted Usham.

މި ބިލުގެ މަގްސަދަކީ ގާނޫނުއަސާސީ އިސްލާހުނުކޮށް، ގާނޫނުއަސާސީގަ ކަނޑައަޅާފައިވާ މިހާރުގެ ކައުންސިލުތަކުގެ 3 އަހަރުގެ ދައުރު އިތުރުކުރުން. ގާނޫނުއަސާސީގައި ލިޔެ ބަޔާންކޮށްފައިވާ މުއްދަތެއް ގާނޫނުއަސާސީ އިސްލާހުނުކޮށް، އާންމު ގާނޫނަކުން ބަދަލުކުރުމަކީ ގާނޫނުއަސާސީއާ ހިލާފުކަމެއް. pic.twitter.com/2AfeyfrRTi

— Ahmed Usham (@a_usham) April 8, 2020

“Altering a term written and declared on the Constitution via a general law, without amending the Constitution, is a violation of the Constitution,” he added.

The bill in question, titled “The Special Bill on Ensuring the Operation of Administrative Divisions of Maldives under Decentralization Policy 2020” was submitted by West Henveyru MP Hassan Latheef.

The bill states that all incumbent island and atoll councilors must remain in power until such time as local council elections is held and new councilors elected. It cites the impending expiration of the term of incumbent councilors, and the legal vacuum which councils will be plunged into if Maldives is unable to hold the local council elections in time due to the “current situation”, and the lack of specific directive on the Constitution regarding how to proceed during such a situation.

The bill is set to take effect the moment it is ratified and published on the Government Gazette, and abolished the moment new councilors are elected and assume office.

Maldives invoked a state of public health 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.

The government had submitted a sunset bill to postpone the elections as late as January 6, 2021, and a separate constitutional amendment to extend the term of incumbent councilors in order to address the legal vacuum which will result once the term of the incumbent councilors expires on June 3.

On Monday, when the first reading of the two bills had been scheduled, 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; on 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 under the Public Health Act also fell within the context.

Both the Parliament’s Counsel General Fathimath Fizla, and the Attorney General Ibrahim Riffath said the state of emergency which Article 267 refers to is the one which is decreed by the President by invoking Article 253, and that there is no legal obstacle to making a constitutional amendment as long as the President has not decreed a state of emergency.

But the debate spilled over to Tuesday, when parliamentarians continued to express reservations over a constitutional amendment.

The Speaker and some other MDP parliamentarians, said that making a constitutional amendment at such a time was against the spirit of the Constitution, and that a remedy could be found in other legislature.

Some also voiced opposition to extending the term of incumbent councilors and said it went against the principles of democracy. They suggested that the President, or the Civil Service Commission, could be granted the authority to appoint officials to oversee councils until new councilors are elected.