Supreme Court in defense of the constitution

Written by Ahmed Maajid

At the moment, the nation is invited by circumstances to grapple with an important constitutional question. Can the decisions of the People’s Majlis, which is the legislative organ of the Maldivian polity, be challenged in the Supreme Court? Can Article 88(b) of the Maldivian Constitution be construed to mean that the Majlis has absolute power and that nothing it does or fails to do may be questioned or challenged through the judicial organ of the State?

My answer is this--the decisions of the Majlis may be challenged in the Supreme Court if necessary requirements are present, and Article 88(b) cannot be taken to mean otherwise; this constitutional provision cannot be taken to mean that the Majlis is an absolute authority which is above the rule of law.

POWER SEPARATION AND ACCOUNTABILITY

Articles 5, 6 and 7 of the Maldivian Constitution stipulate that political power in the polity would be separated and assigned to three different organs; namely the Legislature, the Executive, and the Judiciary. Article 8 of the Constitution makes it absolutely clear that none of these bodies but the Constitution holds supremacy or sovereignty, and that all the said organs must operate and function within the confines of the Constitution. They are equal, and if any one of these branches has a higher status, of even a symbolical or theoretical nature, it is the President as head of the Executive by virtue of Article 106(b) of the Constitution.

We must at once understand that the doctrine of Separation of Powers does not mean that the political organs of the State must be independent from one another to such an extent that none of them can touch the other. Constitutional theorists and philosophers are in agreement that the Executive, the Legislature and the Judiciary in a power-separated polity should not be something like three different governments. Such an absolute separation among the organs of the State would lead it to a political impasse sooner or later, and the whole constitutional system would then go to a stalemate.

As such, while the three organs of the State must be independent from one another and separated to an extent necessary to avoid a situation where there is authoritarianism or a one-man dictatorship, it is fundamental that there must be a system of checks and balances through which each and every organ must be able to hold the others accountable, and hold them within the confines of their constitutional authority.

In our system, the checks and balances are well in place. This can be seen from a comprehensive, yet very simple, scrutiny of our Constitution and political system. For example, a major role in appointment and dismissal of judges is played by the People's Majlis (Articles 147, 148(a) and 154 of the Constitution), while the President also has a significant role in the same matter (Articles 147 and 148(a) of the Constitution); the President and his cabinet are constantly checked and almost controlled by the Majlis (Articles 98, 100, and 101 of the Constitution); any act of the Executive Branch (President and the Cabinet and the ministries and departments run by the Ministers, etc.) or independent institutions can be challenged in the Courts, as well as in the Majlis depending on the nature of the issue.

CHECKS ON THE MAJLIS

What about the Majlis? What about the checks and balances that should be there to hold the Majlis accountable? Or, is it only the Judiciary and the Executive that must be checked? Is the Majlis above the reach of constitutional checks? Isn’t there any way in which the other organs can hold it accountable?

Some Members of the Majlis apparently think that the Majlis cannot be subjected to any kind of checks at any time by and/or through the other organs of the State. They seem to believe that the Majlis has supreme, absolute power, and that when the Majlis decides on a matter, there is absolutely no way in which that decision may be challenged for any reason. According to the said MPs, Majlis decisions must stand unchallenged howsoever unreasonable, unfair, unjust, unconstitutional and un-Islamic they are.

Fortunately for the people and the nation, this idea of Majlis Supremacy and Sovereignty is not supported by the Constitution and it is wrong--it is very, very wrong indeed.

As aforementioned, Article 8 of the Constitution states very clearly that it holds sovereignty on behalf of the people, and that all the organs of the State must operate under and in compliance with it. Even the Majlis is under the rule of law (Articles 8 and 299 of Constitution), and it is only logical, therefore, that its decisions may be checked and challenged through the Judiciary unless the Constitution expressly gives it immunity from judicial processes. If the actions of the Majlis are absolutely beyond question at any court, how can the theMajlis be held accountable when and if it breaches the Constitution?

A MISCONCEPTION

Under the British constitution, a decision of Parliament can never be questioned in any court, or by anyone else for that matter. In the English system, there is a doctrine known as Parliamentary Sovereignty, which means that organs of the State in the UK are not equal to one another. There, Parliament is sovereign. If you want to verify what I am saying here, just take any textbook or reference book on British constitutional law and see for yourself. There is often a whole chapter dealing with the doctrine of parliamentary sovereignty or supremacy in the British system.

Some of our MPs think that the Majlis here is beyond judicial checks probably because they make a wrong analogy between the Maldivian system and the British one.

When we wrote our Constitution, we framed it such that there is no sovereignty or supremacy for the People's Majlis, or for any other State organ. As mentioned above, the Maldivian position is that the three organs of the State are equal, and each must be checked, and held accountable by the others. Hence some MPs, I would like to repeat with emphasis, deluded by a misconception if they think that whatever they do, they are out of the reach of the courts—in other words, they are wrong in thinking that they are above the law.

Also, if the Majlis indeed has absolute (mutlaq) power and if its decisions are absolute (mutlaq) and may not be challenged in courts, this should be stipulated not by an academically poor article posted on a blog by an MP, but it needs to be done by the Constitution. Where does the Maldivian Constitution say that the Majlis has absolute (mutlaq) power, and that its decisions are final, absolute, and can never ever be challenged in Courts?

The answer to the above question is, "Nowhere"!

TEXTUAL ANALYSIS AND INTERPRETATION OF ARTICLE 88(b)

There is a claim that Article 88(b) of the Constitution shields any decision or act of the Majlis from being challenged in a Court of law. This claim may be rephrased in a number of ways in order to truly understand what it truly means or implies. It is another way of saying that the People’s Majlis in the Maldives has sovereignty or supremacy; and it is also another way of saying that the Majlis is above the law. We humbly believe that we have already refuted this claim. It does not take a polemical or rhetorical discourse to establish that the notion of Majlis having absolute power and its decisions and acts being unchallengeable is baseless, as can be seen from the above discussion.

We need to conduct a textual analysis of Article 88(b) here. The provision reads as follows: “Unless otherwise specified in this Constitution, the validity of any proceedings in the People’s Majlis shall not be questioned in any court of law.”

The following points for consideration appear at once:

Contrary to what many people seem to recall, the Article does not say anything about the decisions of the Majlis, but it only speaks about “proceedings”, and it begs the question whether this provision can be applied in relation to decisions of the Majlis. Isn't this provision referring to the proceedings and procedures followed in the Majlis, which are regulated by a Rules of Procedure made, interpreted, and applied by the Majlis itself?

The very first look at Article 88(b) makes it abundantly clear there can be situations where even the proceedings in the Majlis can and may be questioned in the courts; hence the phrase "unless otherwise specified in this constitution" at the beginning of the article. The phrasing makes it clear that this provision does envisage situations and circumstances where even proceedings of the Majlis may be challenged in courts, and this is one strong proof against any fantastic claim of Majlis having absolute immunity from judicial action.

Determining the validity of a proceeding, and judicial review of the constitutionality of a decision made by the Majlis are two different things, and therefore, even if one can successfully argue that Article 88(b) guards proceedings of Majlis from being challenged in courts, it does not necessarily and logically follow that Majlis decisions should not be reviewed for constitutionality in the Supreme Court.

With regards to interpretation too, there are a couple of points which we must keep in the back of our heads here: Firstly, we all know that laws must be interpreted in accord with some established principles. Legal provisions, whether they are in a constitution or a primary legislation or a subordinate legislation, should not exclusively and strictly be construed literally. If the literal interpretation does not lead to a conclusion at par with natural justice, rule of law, and the basic doctrinal grounds of a constitution in a particular polity, other rules of interpretation may be, and are being, used. Secondly, we must never forget that it is not the Majlis but the Supreme Court which is given the highest authority to interpret the Constitution as well as other laws in this country (Article 145(c) of the Constitution). It goes without saying for Article 88(b) as well—meaning that how far this provision gives immunity to Majlis from judicial challenge is not to be decided by the Majlis itself, but by the Supreme Court.

CHALLENGING DECISIONS AND PROCEEDINGS OF THE MAJLIS

A reasonable analysis of Article 88(b) together with other constitutional doctrines and principles leads us to a clear and sensible conclusion which is consistent with the principles of equity, justice, the doctrine of separation of powers, the constitutional system of checks and balances on each organ of the State, human rights, and most importantly the fundamentlas of Islam derivable from the Noble Qur'an and the Sunnah of the Blessed Messenger Muhammad (peace be upon him) (See Articles 2, 10 and numerous other constitutional provisions if you want to see constitutional proof that Islam must be adhered to in the interpretation and application of the Constitution and other laws of this country). That conclusion is that both the proceedings and the decisions of the Majlis can and may be judicially challenged in a number of circumstances.

What are those circumstances? When can or may Majlis proceedings and decisions be judicially checked?

Let us now discuss them.

Broadly speaking, the Constitution is clear to any observant reader who wants to know what it says, and not to twist it to serve his own preferences, that there are three grounds on which any proceedings or decisions of the Majlis may be challenged judicially.

In addition, there are two provisions in the Constitution (not three as claimed by a well-known MP and lawyer, as Article 74 of the Constitution does not speak about any proceedings or decisions of the Majlis) which specifically mentions two cases where Majlis decisions can be challenged in Court (Articles 113 and 143(a) of the Constitution). It has been said that these specific cases are the only exceptions to Article 88(b). However, such a claim is constitutionally unwarranted, and does not stand against the tests of a rational interpretation of the Constitution on the basis of justice, human rights, and rule of law. Morever, such a claim embodies an unjustifiably literal and narrow-minded interpretation of the Constitution, which is absurd; and its absurdity would become obvious if you think about what would happen if the decisions of the Majlis fall into one of the three broad grounds mentioned below, but would not be judicially challenged or reviewed.

As I have stated before, any proceedings, decisions, or failures to act, on the part of the Majlis can and may be judicially challenged if they fall into one ore more of three broad categories.

Firstly, the Majlis as an entity, and MPs as individuals, must be accountable where there is a breach of a principle of Islam derivable from the Noble Quran or the Sunnah of the Blessed Messenger Muhammad. This is because of the simple reason that breach of any fundamental tenet of Islam, or any principles derivable from the Noble Quran and Sunnah is explicitly forbidden by the Constitution as aforementioned. If such a breach could not be judicially challenged, it would be absurd in the first place to even prohibit it in the Constitution. Hence, where the laws passed by the Majlis violates Islam (Article 70(b)2.), and where where actions and proceedings of the Majlis are in contravention to Islam, any Maldivian can bring legal action to uphold the Constitution, which undoubtedly and undeniably holds sovereignty (Article 8 of the Constitution).

Secondly, if the Majlis does anything against the Constitution thereby running counter to a constitutional principle of import, then the matter can be challenged at the Supreme Court, by virtue of the constitutional principle that the Supreme Court has the highest authority to interpret the Constitution (Article 143(a) of the Constitution). This would cover such things as striking down unconstitutional laws, as well as nullifying any acts whatsoever which fundamentally and clearly breaches any constitutional principles underpinning the Maldivian constitutional system. The doctrine of separation of powers, the supremacy of Islam and the Constitution, the constitutional authority of the Supreme Court to say the last word on interpreting the Constitution, are examples of such principles.

Thirdly, by virtue of the whole Section 2 of the Constitution (The Section on Fundamental Rights and Freedom), any violation of a human right guaranteed by Islam, the Constitution, and International human rights conventions ratified by the Maldives is subject to the jurisdiction of courts, irrespective of who does the violation, and even if such violation is perpetrated by the Majlis. For instance, if the Majlis starts conducting criminal investigations against Maldivian citizens, incriminating them and convicting them and punishing them without any regard for their basic human rights, then such acts could and should be challenged in courts. The Majlis, a highly political body by nature and rightly so, cannot just shoot a Maldivian citizen on the head with a bullet of political prejudice and hide behind a wall of false interpretation of the Constitution, saying, "look, we are the Majlis, our actions cannot be challenged through the court system, we and what we do are above the law, we can do anything we want, and the law cannot touch us". Such an attitude would be most spectacularly barbaric and against all the principles of natural justice and fairness. Injustices against God-given, constitutionally assured human rights, can never be tolerated, and can never go unchecked. The Supreme Court, being the supreme guardian of justice in the Maldivian polity (Article 141(b) of the Constitution), has the full authority to ensure that justice is delivered in full measure to any citizen who is wronged, no matter who has done the wrong.

ARTICLE 144

A provision of immense importance is embodied in Article 144 of the Maldivian Constitution.

The said provision deals with judicial action in relation to constitutional matters, and its application is general. It does not exclude anybody or any state institution. It clearly states that in case of a constitutional issue, the particular court having jurisdiction over the issue would have the power to declare any statute, regulation or part thereof, order, decision or action of any person or body performing a public function that is inconsistent with the Constitution to be invalid. That this Article covers the Majlis within the ambit of its applicationcan be seen from two considerations: First, it refers to statutes, and secondly it says that it would operate over all persons and bodies performing public functions. Isn't the Majlis a body performing a public function?

The Article in question reads as follows:

"When deciding a constitutional matter within its jurisdiction, a court:

(a) may declare that any statute, regulation or part thereof, order, decision or action of any person or body performing a public function that is inconsistent with the Constitution is invalid to the extent of the inconsistency; and

(b) may in connection with a declaration pursuant to article (b) make any order that is just and equitable, including:

1. an order providing just compensation for any damage sustained by any person or group of persons due to any statute, regulation or action that is inconsistent with the Constitution; or

2. an order suspending the declaration of invalidity (of a statute, regulation or action due to inconsistency with the Constitution) for any period and on any conditions, to allow the competent authority to correct the defect:

(c) may make an order limiting the retrospective effect of a declaration of invalidity of a statute, regulation or part thereof, order, decision or action of any person or body performing a public function that is inconsistent with the Constitution."

JUSTICE AS THE OVERRIDING OBJECTIVE

Articles 2, 10 and many other provisions of the Constitution lay down the rule that nothing can be done or omitted by any state institution in a way that contradicts the Noble Qur’an and the Sunnah of Blessed Messenger Muhammad. One of the most fundamental teachings of Islam, found in both the Qur'an and Sunnah as a pervasive theme, is that of justice. The Qur'an and Sunnah contain numerous injunctions enjoining the Muslims to uphold justice, and the scholars of Islam have often stated that justice, due to the high position afforded to it by God, is nothing but the sixth pillar of Islam. Indeed, no religious book, no philosophical traditions, have commanded and revered justice as much as the Noble Qur'an has. Just consider the following verses from the Holy Book (Translation from The Message of the Qur'an by Allamah Muhammad Asad, may Allah bless his soul):

"BEHOLD, God bids you to deliver all that you have been entrusted with unto those who are entitled thereto, and whenever you judge between people, to judge with justice. Verily, most excellent is what God exhorts you to do: verily, God is all-hearing, all-seeing!" Surah al-Nisa':58 (4:58)

"O YOU who have attained to faith! Be ever steadfast in upholding equity, bearing witness to the truth for the sake of God, even though it be against your own selves or your parents and kinsfolk. ... Do not, then, follow your own desires, lest you swerve from justice ..." - Surah al-Nisa': 135 (4:135)

"O YOU who have attained to faith! Be ever steadfast in your devotion to God, bearing witness to the truth in all equity; and never let hatred of any-one lead you into the sin of deviating from justice. Be just: this is closest to being God-conscious. And remain conscious of God: verily, God is aware of all that you do." - Surah al-Ma'idah: 8 (5:8)

As justice is a fundamental tenet of Islam, and as Islam is the bedrock of the Maldivian polity as per the Constitution (Articles 2, 10, etc.), all the provisions of the Constitution should be interpreted to serve justice and equity in all circumstances.

The bottom line is, justice is the overriding objective. No state institutions, no persons performing public functions no matter how high low the rank of that person is, should be protected or shielded or exposed or punished in a way that undermines justice. These are all self-evident truths if one looks at them from the perspective of political, social or legal philosophy as well.Also, protection of human rights is the prime and ultimate aim of justice, for without the protection of every man's God-given rights, there is no justice.

While this is the case, the Constitution states in conclusive terms, in Article 141(b) that “The Supreme Court shall be the highest authority for the administration of justice in the Maldives.”

Therefore, don’t tell us that injustices and violations of the fundamental rights of citizens should be tolerated let be and forgotten because they are committed by the Majlis. Any MP who thinks so really needs to learn the Constitution, and also try to familiarize himself with basic principles of equity, justice and rule of law. Any MP who thinks so is not qualified to sit in the People's Majlis.

CONCLUSION

This nation is falling down into a pit of darkness mainly because the Majlis is simply not capable to fulfill its functions. I am not saying that all MPs are corrupt or inefficient. There are those of them who have the political will to serve the nation and really and honestly try to make a difference in the lives of the people. However, there is a sizable majority in the Majlis which is interested only in running errands for a militant man on the street who only loves power; and there are some whose ego, vanity and bigotry have taken them to a point where justice and right are just pawns played in a game of words. It was an MP who falls into the latter category who recently led a "criminal prosecution" of a Maldivian citizen in the Majlis (This very same MP, I have been told by a firsthand source, went absolutely mad and berserk when he was informed about the Supreme Court's orders today, while he was in a hall at the Majlis House with some other MPs, and was literally shouting at the very top of his voice, pounding on desks, swearing with the most foul and obscene words available in the Divehi language).

The Supreme Court of the Maldives today took perfectly legal and necessary steps to protect the Maldivian people. They are the first steps to ensure that the Majlis does not hide from the people what they do as agents of the people. They are the first steps to ensure that the Majlis does not first wear the police uniform and investigates criminal accusations against Maldivian citizens, and then wear the judge's gown and convicts and punishes them. Those who are under a delusion should wake up and realize that the Supreme Court has the ultimate authority to interpret the Maldivian Constitution, and that Maldivian citizens who are wronged not only by the Executive branch of the State, but by the Legislative Branch as well can go to the Supreme Court, as the Maldivian Constitution gives it the authority to make sure that everyone who belongs to this country is given access to justice, truly and meaningfully.