‘Majlis can do anything they want’: Now what?

Professor D.A. Schmeiser said something with a laugh when he aided the Maldives in drafting its Constitution – a process that took four years: “the Majlis can do anything they want.” They can. No democracy allows for the Parliament to be prevented from exercising its powers.

But who holds the Parliament accountable?

So, what happens if the Maldivian Parliament – the People’s Majlis – decides that Christianity is the state religion of Maldives? What happens if they decide all powers of the state do not rest with the people as is the fundamental basis of the Constitution, but with the President?

This was the crux of the heated debate that took place at the Supreme Court this week. Many found that a constitutional amendment violates the basic structure doctrine of the Constitution. This was raised at the Supreme Court. But this is a novel case – hence the intense debate regarding the reach of the three powers of the state and the jurisdiction of the Supreme Court.

Never in the history of the Maldives has anyone gone to the Supreme Court seeking to annul an amendment to the Constitution.

What happened was that the ruling People’s National Congress (PNC) used its supermajority in the Parliament to amend the Constitution over the course of a single day. Parliamentarians will now lose their seat the moment they are expelled from their party. The opposition believes parliamentarians are being forced to chose loyalty to their party over loyalty to their constituents – the people of Maldives.

Can the Supreme Court overturn a decision made by the Parliament?

The amendment to the Constitution exposes parliamentarians to risk. They will lose their parliamentary seat if they are expelled for deviating from the party line. This undermines their independence. This undermines the independence of the Parliament. It shakes up the fundamental principle of the three powers of the state.

This is the concern of Ali Hussain, an attorney-at-law and former parliamentarian, who is challenging the amendment at the Supreme Court.

“For example, the next People’s Majlis decides that the Maldives will not have a Supreme Court. They remove all provisions related to the Supreme Court from the Constitution. Where will the people go? What should we do?” asked Ali Hussain at court.

“It is something that the people decided. It is something the people decided with a referendum - that the Maldives will have a presidential system. If we look at back when the Special People’s Majlis drafted the Constitution to arrange the system as such, if we look at established jurisprudence, or if we look at published works on the presidential system from a political angle, or even if we look at policies followed by countries with presidential systems – it is clear that the independence of the members of the Parliament is the fundamental principle that is crucial to the upholding and functioning the presidential system.”

His argument is that even the Parliament cannot do whatever it wants. That the court can overturn a decision that violates the Constitution or its fundamental principles.

What does the Constitution say?

• Article 4: All the powers of the State of the Maldives are derived from, and remain with, the citizens.
• Article 5: All legislative power in the Maldives is vested in the People’s Majlis.
• Article 6: As provided for in this Constitution the executive power is vested in the President.
• Article 7: The judicial power is vested in the courts of the Maldives.

‘The judiciary does not have the power to make laws’

The power to draft laws is vested in the Parliament. It has nothing to do with the judiciary. The power and the right to amend the Constitution is vested in the Parliament. The procedure for this is set down under Chapter 12 of the Constitution.

“This is something dangerous. The Supreme Court is being given a power it does not have for the very first time,” said Imthiyaz Fahmy (Inthi), the president of Democrats and an attorney-at-law.

“There were several constitutional provisions introduced during [former] President [Abdulla] Yameen [Abdul Gayoom]’s administration including one to cap eligibility for presidency at 65 years. These changes were reversed and things were set right by the next Parliament. This is the right way of doing this.”

But this still leaves Ali Hussain’s question unanswered. What should be done when the Parliament does something that’s wrong? Should they be left to do whatever they want?

Inthi, who previously served as a parliamentarian for three consecutive terms, said it should be done from within the Parliament. While he does not agree with the amendment, he does not believe the court can intervene. It is the people who will correct the Parliament when they do something wrong. The court cannot intervene, no matter how serious the wrongdoing.

“Some took the example and said the People’s Majlis could have it written that Islam is not the state religion here. What I am saying is this: it is the People’s Majlis that had it written [into the Constitution’ that Islam is the state religion. It is not the Supreme Court that wrote any of this,” he said.

“The people will need to rise up once again and hold them [the Parliament] accountable. They will need to protest. They will need to pressure them. They will have to overthrow the government if that is what it takes. And it is the people who have the power to decide not to vote for these people in the next elections.”

Inthi believes that legislative amendments – no matter how rushed – will be legitimate as long as Chapter 12 is followed.

So, now what?

Ibrahim Ismail (Ibra), who chaired the constitution drafting committee, recalled in a previous media interview how the committee members themselves had discussed the very same question.

“The Majlis can do anything they want,” Schmeiser had responded with a laugh, during this discussion.

The Parliament holds the government accountable. The Parliament makes the laws. And the Parliament removes judges found guilty of wrongdoing.

The question is, what do the people do when it is the Parliament that does wrong. Especially when it is a wrong of such significant consequence.

Who will stop the Parliament from doing whatever it wants? And being the ‘People’s’ Majlis, there’s a lot they can do.

According to Ibra, Schmeiser explained that this problem will be solved by the people in the next election. The parliamentarians will be punished by the people in the election. The Parliament can do anything they want. And that is because it is the “People’s” Majlis. The system does not recognize any other party that decides if the laws the Parliament makes are right or wrong.

And it is the people who can correct the recent wrong.

The Parliament is able to what they want because they are the representatives of the people. The system recognizes the decisions they make as the will of the people. It is the people who will decide if a decision the Parliament makes is wrong. And as the democratic process would have it, it must be decided with the people’s vote.