Maldives Minicoy Mahl Dhivehi
Maldive constitutional and institutional reform
 

Editorial

The Beginning of the Fall
24 July 2004

Established institutions, political maturity, and strong leadership would prevent structural disintegration

Beginning of the Fall
Canadian cemetery

The Maldive People’s Special Majlis (a special plenary of the Maldive parliament) was convened in June 2004 to reform the current Constitution of the Republic of the Maldives. The first sitting of the People’s Special Majlis on 19 July 2004 was presided over by the Speaker of the People’s Majlis (parliament) in accordance with Article 97(2) of the Constitution.

Following a disagreement with the Speaker as to whether the President and Vice-President of the People’s Special Majlis are to be elected by secret ballot or by show of hands, more than 20 members walked out of the House and marched into the Office of the President of the Republic to complain about the Speaker. The President of the Republic very promptly resolved the dispute by agreeing to instruct the Speaker to allow a secret ballot for the election of the President and Vice-President of the People’s Special Majlis.

We are concerned that the members of the People’s Special Majlis are still willing to seek direction from the President of the Republic in relation to parliamentary practices. Any invitation by the members of the People’s Special Majlis to invoke presidential and executive powers in the parliamentary processes will be seen as an attempt to undermine parliamentary supremacy and legitimise the presidential and executive authority over parliament.

"...The members of the People’s Special Majlis ought to know that the President of the Republic is only a creature of the Constitution that gives him certain powers to run his office...."

This appears to be an undemocratic move quite contrary to the very purpose for which the People’s Special Majlis was convened – i.e. to strengthen good governance through fundamental political values such as separation of powers by means of constitutional amendments. The members of the People’s Special Majlis ought to know that the President of the Republic is only a creature of the Constitution that gives him certain powers to run his office. The constitutional status of the decisions of the President of the Republic is another matter that needs to be considered.

In the absence of any specific provision in the Constitution or any statute as to how the President and Vice-President of the People’s Special Majlis should be elected, we are of the opinion that the Speaker, in his capacity as the Provisional President of the People’s Special Majlis, not the President of the Republic, must make the decision in accordance with the Standing Orders of the People’s Special Majlis. Any disagreements with the decision of the Provisional President of the People’s Special Majlis ought to be resolved by that Majlis by invoking its Standing Orders, if necessary after amendment. Where no Standing Orders are in place, they should be formulated and adopted by that Majlis.

Interestingly, some members of the People’s Special Majlis have raised concerns that the Speaker, by directing the People’s Special Majlis to elect the President and Vice-President by show of hands, has breached Article 133 of the Constitution which states that:

Voting in elections and public referenda stipulated in the Constitution and the Law shall be by secret ballot.

The issue is whether this Article applies to this situation at all. This is obviously a matter of statutory construction.

The words of a provision are to be given their ordinary meaning. There is no room for intendment, nothing is to be read in and nothing is to be implied. One can only look fairly at the language used.

"...But, given the reference to “election” and the President and Vice-President of the Special Majlis are also chosen by “election”, it appears, prima facie, that Article 133 would apply to the election of the President and Vice-President of the People’s Special Majlis..."

Article 133 stipulates the way in which people should vote in “elections” and “public referendums”. There is no doubt that the election of the President and Vice-President of the People’s Special Majlis is not a public referendum. But, given the reference to “election” and the President and Vice-President of the Special Majlis are also chosen by “election”, it appears, prima facie, that Article 133 would apply to the election of the President and Vice-President of the People’s Special Majlis. Also the reference to elections “stipulated in the Constitution” in Article 133 opens up an argument that it was perhaps intended to apply to all elections referred to in the Constitution.

If the words of a provision are unclear and ambiguous (which appears to be the case here), the meaning of the provision must be construed in the context in which it is used and, particularly, in light of the way in which the specific statute or Constitution (as the case may be) is organised.

Considering the way the Constitution is organised, it is clear that the sixteen chapters in the Constitution are intended to be self governing. This can be illustrated, for instance, by comparing different chapters in the Constitution. Article 35 in Chapter III, for example, provides that the President of the Republic shall be elected by a secret ballot, whereas no provision in Chapter VI which deals with the People’s Special Majlis provides how the President and Vice-President of the Majlis must be elected. Whilst Article 133 in Chapter XI also stipulates how voting in elections and public referendums must be conducted, no provision in Chapter VI relating to People’s Special Majlis does mention how the President and Vice-President must be elected.

Had the People’s Special Majlis that drafted the Constitution intended the President and Vice-President of the People’s Special Majlis to be elected by a secret ballot, it would have stated that expressly in Chapter VI in the same manner it had provided for the election of the President of the Republic in Chapter III and other elections and public referendums in Chapter XI. But that was not done when the Constitution was drafted. It is not plausible that Article 133 was therefore intended to override all other Articles in the Constitution that relate to all forms of elections. Otherwise Article 35, for instance, would be superfluous.

Therefore, our legal team is satisfied that Article 133 only relates to Chapter XI that concerns elections and public referendums, and not the election of the President and Vice-President of the People’s Special Majlis. That means the Speaker of the People's Majlis has the statutory power by virtue of his office to enounce how the President and Vice-President of the People’s Special Majlis must be elected.

"...Therefore, we are satisfied that the Speaker’s decision to elect the President and Vice-President of the People’s Special Majlis by show of hands was intra vires ex officio...."

In the opinion of our legal team, this appears to be a matter of parliamentary Standing Orders as opposed to a constitutional issue. Therefore, we are satisfied that the Speaker’s decision to elect the President and Vice-President of the People’s Special Majlis by show of hands was intra vires ex officio.

Given this experience, we feel that the members of the People’s Special Majlis must fully understand the scheme and purpose of the current Constitution and the way it is organised before embarking upon their journey to propose substantive amendments to the Constitution.

It is also worth noting that in mature democracies such as our Westminster model here in New Zealand, votes in the House of Representatives are never cast by secret ballot. Mostly voting is done by acclamation (voice). In very rare occasions a show of hands may be called for. In close and contentious issues, or when the Government has a slim majority, a division would be called. In a division, the Speaker would order the bells to be rung and members (those inside the debating chamber and elsewhere) would file out into the "Aye" and the "Nay" lobbies where their names would be recorded by parliamentary staff. How each member voted would then be entered in the Hansard.

"...The Rule of Law would dictate that how members of parliament and other statutory bodies vote be a matter of public record...."

Transparency is a vital part of democracy. Although as individuals, constituents have a right to keep their votes in statutory elections and referendums a secret, members of parliament and other statutory bodies are accountable to their constituents. The Rule of Law would dictate that how members of parliament and other statutory bodies vote be a matter of public record.

It is becoming more apparent that what the Maldives actually needs is established institutions, political maturity, and strong leadership more than some meaningless changes to an unnecessary written constitution. Countries like Great Britain and Northern Ireland, New Zealand and Canada do not have written constitutions but these countries have remained amongst the most developed and democratic countries in the world

Those who advocate democracy ought to conduct themselves in accordance with the democratic traditions that they seek others to embrace.