HUSSAIN NAZEER [NOON]
In this essay I will discuss about salient features of the newly drafted Constitution of the Maldives. In February 2004, President Gayoom convened the People’s Special Majlis (a constituent assembly) to draft amendments to the constitution aimed at strengthening democracy. Elections took place for this in May 2004.The Special Majlis, is made up of members elected directly, all members of the People’s Majlis , the Cabinet and presidential appointees. A Constitution Drafting Committee was formed to draft a new Constitution for Maldives. Its Chairman is Mr. Ibrahim Ismail. This Committee prepared and presented the draft Constitution. Later members refine that draft and finalized the constitution.
The most prominent feature in the constitutional advancement in The Maldives is that it has constantly responded to the political, social, economic and cultural uniqueness covering inter-relations involving the islands and Atolls, central administrative control, social stratification, an independent system of law and order, and has been conditioned to a great degree by the religion of Islam, and as a corollary to all this by a homogeneous culture.1
Main features of the newly drafted Constitution of the Maldives are:
A fundamental classification is codification or lack of codification. A codified constitution is one that is contained in a single document, which is the single source of constitutional law in a state. An un-codified constitution is one that is not contained in a single document, consisting of several different sources, which may be written or unwritten.
The supremacy of the Maldives was, for the first time, subjected to a set of written laws during the reign of Sultan Muhammad Shamsuddeen. On 19 March 1931 a Council was selected and entrusted with the mandate of drafting the first Constitution of the Maldives. The Constitution that was formulated by the Council was proclaimed and implemented on 22 December 1932.2 From that time onwards Maldives had a Codified constitution. Several amendments were subsequently brought to the first Constitution. The new constitution is the prevalent codified Constitution in our constitutional history.
Separation of Powers
Perceptive that a government’s role is to protect individual rights, but acknowledging that governments have historically been the major violators of these rights, a number of measures have been derived to reduce this likelihood. The concept of Separation of Powers is one such measure. It is an established constitutional principle under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power.
Article 4 of the Maldivian Constitution of 1998 states that there are 3 powers of government. That is legislative, Judiciary and executive. It can be seen from Article 4 that the Maldivian government does not operate a strict separation of powers. The functions of government are clearly divided, but the organs of state overlap. There is a theoretical separation of the Executive and Legislative branches, but Article 4(2) noticeably states that the President occupies twin responsibilities as head of the executive and the judiciary.
The new constitution of Maldives on the other hand produced separation of powers in the Constitution. The Legislative, composed of the Peoples Majlis. The Executive composed of the President, Vice-President, and the Cabinet of Ministers. The Judicial composed of the High Court, the Supreme Court and inferior courts by law.
The Separation of Powers devised by the framers of the Constitution was intended to do one prime object: to prevent the majority from ruling with an iron fist. Based on their experience, the framers shied away from giving any division of the new government too much power. The separation of powers provides a system of shared power known as Checks and Balances. The premise behind it is that when a sole person or faction has a great amount of power, they can become dangerous to citizens. The Separation of Power is a method of removing the quantity of power in any group’s hands, making it more difficult to abuse.
The duty of the Legislative Branch is to make the laws of the nation. This is stated in the first section of the new Constitution as well.
First Article in Peoples majlis section of new Constitution says:
All legislative powers herein granted shall be vested in a Peoples Majlis of Maldives.
The legislative branch of the government consists of the Peoples Majlis. Each member of Majlis is elected by the people of his or her Atoll. The Peoples majlis, with membership based on atoll populations. Members of the Peoples Majlis are elected for five year terms.
The legislative is a completely independent branch of government under new constitution.
Judiciary is the system of courts which administer justice in the name of the sovereign or state, a mechanism for the resolution of disputes. This is stated in the first section of the new Constitution as well.
Subsection (a) of first article in Judiciary Section of new Constitution says:
The judicial power of the Maldives shall be vested in one Supreme Court, High Court and in such inferior courts as the Law may from time to time ordain and establish.
Section (c) of the same article says nobody should influence on the work of Judiciary.
The independence of the judiciary has been lauded as a fundamental constitutional principle. Constitution has been viewed as the primary mechanism for the protection of judicial independence.
The duty of the Executive Branch is to enforce the laws of the Maldives. The branch is headed by the President. This is stated in the first section of the new Constitution.
Subsection (a) of first article in President Section of new Constitution says:
The executive power shall be vested in a President of the Republic of Maldives.
Cabinet of ministers is part of executive power of government. Article I subsection (a) of Cabinet Ministers Section says:
There shall be a cabinet of Ministers to carry out duties on behalf of President and according to this constitution.
The tradition of the Cabinet dates back to the early stages of the Presidency itself. One of the principal purposes of the Cabinet (drawn from Article I, Section 1 of the new Constitution, Section on Cabinet of Ministers) is to advise the President on any subject he may require relating to the duties of their respective offices. Since cabinet members are usually department heads, they are selected by the President and confirmed by the Peoples Majlis. Other than confirmation, there are no legal or constitutional requirements for the job. They serve at the whim of the President. Unlike in many other countries, members of the cabinet are not members of the legislature. In fact, the Constitution prohibits any member of the Majlis from being an officer of the government in Maldives.
The executive is a completely independent branch of government under new constitution.
Establishment of the Rule of Law
Politicians, lawyers, economists and policy-makers often use the term “rule of law” to typify a certain kind of legal-political regime. As the pace of globalization has amplified in the past two decades, many developing countries have prioritized their policy agendas to promote the rule of law. In his book The Morality of Law, American legal scholar Lon Fuller acknowledged eight elements of law which have been accepted as essential for a the world aspiring to institute the rule of law. Fuller stated the following:
1. Laws must exist and those laws should be obeyed by all, including government officials. See Article 1 (b)-b of Peoples Majlis Section.
2. Laws must be published. See Article 40 of Human Rights Section of new Constitution.
3. Laws must be prospective in nature so that the effect of the law may only take place after the law has been passed. For example, the court cannot convict a person of a crime committed before a criminal statute prohibiting the conduct was passed. See Article 38 of Human Rights Section of the new constitution.
4. Laws should be written with reasonable clarity to avoid unfair enforcement.
5. Law must avoid contradictions.
6. Law must not command the impossible.
7. Law must stay constant through time to allow the formalization of rules; however, law also must allow for timely revision when the underlying social and political circumstances have changed. See Article 1 (a) and Article 25 of Peoples Majlis Section of New Constitution.
8. Official action should be consistent with the declared rule. Article 8 of First Section of new Constitution Says: “all ruling power of this nation is vested on the Constitution.” So Executive power must comply with constitution.
As you can see from the above elements, most of it is covered in Constitution and rest of it will be covered in laws made under Constitution. It is a vital part of modern government because; the Rule of Law is a notion essential for a free society, where individual rights are absolute. Its fundamental premise is that the use of force is tightly controlled by objective, predefined laws. It is opposed to the Rule of Men, where those wielding power can use force in any way they choose. Where the whims, envy, or viciousness of the few are unchecked by any restrictions, and everyone else’s lives are at the complete mercy of these thugs.
Even though a written constitution is not a necessary element of democracy – for example, Great Britain does not have one — in the United States, the rule of law is based primarily on the U.S. Constitution and on the assurance that U.S. laws – in concurrence with the Constitution — are fair and are applied equally to all members of society. Similarly I assume that our new Constitution will provide international standard of rule of law.
Constitution is considered the supreme law of the land
The Constitution is a written description of political rules for a system of government and of a social contract for a civil society which anarchy would prevail. The supreme law of land is its Constitution. All laws of land should be made based on constitution. 1
Constitution is supreme law, so it limit on the government, denying total or arbitrary power. It applies to the government specifically, and not to the people qua citizens. It enumerates particular powers the government has, and denies all others. It is written as law, and cannot be changed by the government itself. Following Articles of new constitution shows supremacy of Constitution.
Article 8 of the first Section of new constitution says all the ruling power of this nation is vested on this constitution.
Article 1 (a) of President Section of new Constitution says: “President and Cabinet has power to rule the country according to constitution.”
Article 1 (a) of Cabinet Section of new Constitution says: “There shall be a Cabinet of Ministers to discharge duties according to Constitution and…….”
Article 2 of Judiciary Section of new Constitution says: “ Fadiyaaru function according to constitution and Laws.”
But this law is of the people and for the people. It can only be altered by the people. With the ballot box as their weapon, the people elect public officials to tend to the business of the country. They must submit to reelection and the scrutiny is intense. People gave supreme power to Constitution.
Human rights state explicitly the necessities for a person to benefit rather than suffer from living in a society. They codify man’s protection from the initiation of force, as required by his rational nature. Being required by man’s rational nature, rights are not arbitrary or negotiable. They are absolute requirements for life within a society. Rights are absolute. The new Constitution of Maldives dot down new Human Right issues. The insertion of human rights in the Constitution meant a foremost step forward in human rights development. Some important Articles of new Constitution on Human Right Section are:
Article 1 (a) any person has right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Article 2 (a) Everyone is entitled to all the rights and freedoms set forth in this Constitution, without distinction of any kind, such as race, color, sex, language, political or other opinion, national or social origin, property, birth or other status.
Article 5, All are equal before the law and are entitled without any discrimination to equal protection of the law. [Equality before the law is the principle under which each individual is subject to the same laws, with no individual or group having special legal privileges.]
Article 6, everyone has the right to life, liberty and security of person. [The right to life is the essential right, of which all other rights are corollaries. The right to life states that you own your own body. ]
Article 10 (a) No one shall be held in slavery or servitude. [Slavery was the primary human rights concern to arouse wide international concern. Yet, in the face of universal condemnation, slavery-like practices stay a serious and persistent problem in the closing years of the twentieth century.]
Article 12 Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Everyone has the right to freedom of peaceful assembly and association. [Guided by the Universal Declaration of Human Rights, which affirms the right to freedom of opinion and expression and mindful of the International Covenant on Civil and Political Rights, which reaffirms, in article 19, the right of everyone to hold opinions, without interference, as well as the right to freedom of expression.1]
Article 13 (a) Men and women of according to law, without any limitation, have the right to marry and to found a family. [Article 16 : 1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.2]
Human Rights in the new constitution are comparable with international standards, under Universal Declaration of Human Rights 1948 and Paris Principles.
Judicial review is the power of the judiciary to invalidate the acts of the executive or the legislative where it finds them contrary with a higher norm. Judicial review is an example of the functioning of separation of powers in a modern legal system.
The Constitution does not expressly provide for judicial review. In my view the framers thought the power of judicial review was sufficiently clear from the structure of government that it need not be expressly stated. But it is stated that any acts will be void if it is contrary to constitution. Article 4 (a) of Judiciary Section of new Constitution says, any law or part of law or any act of an official contrary to Constitution shall be void.
According to this article court will held invalidate the acts of the executive or the legislative where it is contrary to constitution.3So Judicial Review allows individuals, Business, and other groups to challenge the lawfulness of decisions made by Ministers, government Departments, local authorities and other public bodies. The main grounds of review are that the decision maker has acted outside the scope of its statutory powers, that the decision was made using an unfair procedure, or that the decision was an unreasonable one.
The presence or lack of entrenchment is a fundamental feature of constitutions. Entrenchment refers to whether the constitution is legally protected from modification without a procedure of constitutional amendment. Entrenchment is an inherent feature in most written constitutions.
The procedure for modifying a constitution is often called amending.
Article 2 (a) of Amending Constitution Section of new Constitution says: Constitution could be amended by a law passed by ¾ of peoples Majlis and assented by President. This article states that amending the Maldives new Constitution is no small task. The framers of constitution, endeavoring to give a comprehensive legal framework for the state, will naturally seek to protect its constitutional provisions from subsequent repeal or amendment. This is the purpose of difficult amendment process. However the authors of the Constitution were clearly aware that changes would be necessary from time to time if the Constitution was to endure and cope with the effects of the anticipated growth of the nation, so they have provided an amending process in the constitution.
Distribution of Sovereignty
Constitutions also establish where sovereignty is located in the state. There are three basic types of distribution of sovereignty: federal, unitary and con-federal.
Article 2 of First Section of new Constitution says: “The Maldives shall be a sovereign, independent, democratic republic based on principles of Islam, and shall be a unitary State, to be known as the Republic of Maldives. In this Constitution, the Republic of Maldives shall hereinafter be referred to as “the Maldives”.
According to this article Maldives is a unitary state. A unitary state is a state or country that is governed constitutionally as one distinct unit, with one constitutionally created legislature. The political power of government in such states may well be transferred to inferior levels, to regionally or locally elected assemblies, governors and mayors , but the central government retains the principal right to recall such delegated power.
The real power is but in the hands of people under new Constitution. Social Contract theory gives this power to three governing bodies of government.
Lines of Accountability
In presidential and semi-presidential systems of government, department secretaries/ministers are accountable to the president, who has patronage powers to appoint and dismiss ministers. The president is accountable to the people in an election. Accountability is the accountability of the government, civil servants and politicians to the public and to legislative bodies such as Peoples Majlis or parliament. Elections are a direct way of holding politicians accountable to the public.
Voting is a check on government abuse that has interesting characteristics. It appears to be a mixed blessing. It’s the first line of accountability. Citizens of Maldives have right to make electorate accountable by vote. Article 11 (a) of Human Rights Section of new Constitution says it is a right of all citizens above 18 to vote in public referendum and all elections.
Parliament questions have a major role in Peoples Majlis today. That is a way for Members of Parliament to hold the government account, either in the form of oral questions to Ministers, or in the form of written questions. Under new Constitution Ministers are held account by this way. Article 30 of Peoples Majlis Section says, every member of the Cabinet of Ministers may be questioned in the Peoples Majlis.
Ways to remove president and no confidence vote on Ministers is provided in new Constitution. This proposition is just a tool provided by the constitution for Majlis members to bring issues and concerns to public attention and to make the government accountable. Following article refers to this;
Article 33 of Peoples Majlis Section says, a motion expressing want of confidence in a member of the Cabinet of Ministers may be moved in the peoples Majlis by addressing to Majlis under the hand of at least ten members of the Peoples Majlis, specifying the reasons thereof.
Article 32 (a) of Peoples Majlis Section of new Constitution says, The President may be removed from office where any of the following matters has been alleged:
- Intentional violation of any Islamic principle, Constitution or any Law.
- Doing something which is not equivalent to do as a President.
- The President becomes permanently incapacitated.
The special Majlis missed a November 2007 deadline for finishing the new constitution, but continues to meet. Three branches are created in the Constitution. Each of these branches has certain powers, and each of these powers is limited, or checked, by another branch. Also the rule of law calls for both individuals and the government to submit to the law’s supremacy. By precluding together the individual and the state from transcending the supreme law of the land, the Framers constructed another protective layer over individual rights and liberties. In addition new Constitution is inline with the provisions of the Paris Principles and the UN guidelines guaranteeing the independence and effective functioning of national human rights.
In my view the new constitution will bring lot of changes to our country. A bit of paper cannot guard people from totalitarianism, of course. It did have a number of positive effects. The key was that it defined limits on the government that everyone had access to. In this way, if the government attempted to reach beyond its limits, the people had clear, objective grounds for resisting it. This allowed for easier organization against violations of their rights, and made them stronger and more confident in dealing with their representatives.
2 . Dhivehi Raajyge Gaanoonu asaaseege hayath, Mohamed Ameen
1 See Article 1 (b) of Peoples Majlis Section of new constitution.
1 Commission on Human Rights resolution 2003/42
3 See Article 32 and 33 of Peoples Majlis Section of new Constitution.