Supreme Court greenlights anti-defection case as state’s arguments fall short

The Supreme Court on Tuesday decided to proceed with a case challenging a contentious amendment to add anti-defection provisions to the Maldivian Constitution, as the state failed in its attempt to convince the court it does not have jurisdiction 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 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.

Hearings in the case began on Monday – nearly three months after the case was filed – and continued for a second consecutive day on Tuesday.

The state filed a motion to have the case tossed out, arguing that the Supreme Court does not have the jurisdiction to hear it.

But the bench decided on Tuesday morning to proceed with the case, also announcing that they would include the legal reasoning for the decision in the final ruling.

Following this decision, the state asked for 10 days to build their case – which the court granted.

The state argues that all procedures were followed when making the constitutional amendment – an assertion that is rejected by Ali, who argues that the amendment was made in violation of the procedures set down under Chapter 12 of the Constitution and in violation of the principle of discussion that parliamentarians are required to uphold.

Ali filed the case based on the argument 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.