Published simultaneously in Maldives Culture in September 2001

"A structure built on loose sand"

-by a barrister and solicitor of the High Court of New Zealand-

Loose sand

"An Englishman would say the President of the Republic of the Maldives is Her Majesty the Queen, the Prime Minister, the First Lord of the Admiralty, the Chief Constable, the Leader of Her Majesty’s Opposition, the Chief Justice of England and Wales, the Speaker of the House of Commons, the Lord Chancellor, the Head of the Church of England, the Archbishop of Canterbury and the Archbishop of York, all rolled into one....."The Constitution of the Republic of Maldives that came into force in 1968 (and amended in 1970, 1972, and 1975) has been repealed and replaced by a new Constitution assented to by the President of the Republic on 27 November 1997. The new Constitution came into force on 1 January 1998.

The President of the Republic proclaimed in assenting to the Constitution that it was written with a desire to encourage the people of the country to live in friendship, amity and co-operation, and to encourage good deeds and respect among one another and being just, and to live in equality and fraternity. Hence, the Constitution was enacted to enhance the prosperity of the country, the affluence and the happiness of the people.

This article looks at different dimensions of the Constitution and raises some constitutional issues that may lead to an answer that "the Constitution is a structure built on loose sand".

Constitutions differ from laws in that the former emerge from fundamental principles while the latter are derived from politics. Constitutions and laws differ in the dimensions of time in which they operate. Constitutions embody timeless principles while laws reflect the current political atmosphere. It is from the principles set forth in a constitution that laws are derived and subordinated. In a constitutional society, its Constitution ought to be regarded as superior to laws, which tend to evolve to accommodate social changes. A constitution should promote fundamental principles that a society agrees ought to govern the administration of state and guarantee individuals’ rights.

The Constitution of the Maldives comprises of thirteen chapters on the administration of state, two chapters that define general terms and one chapter that deals with individuals’ rights. This article will now examine two aspects of constitutionalism, the administration of state, and individuals’ rights.

King Siri Kula Sundhura Katthiri Bavana (Sultan Mohamed Shamsuddine III Iskander), King of Twelve Thousand Isles and Sultan of the Maldives, gave his royal assent to the first written constitution in the Maldives on 22 December 1932

Article 4 of the Constitution of the Maldives provides that the powers of the state comprise of the executive, the legislature, and the administration of justice ("the judiciary") and those powers vest in the citizens. This Article further provides that the executive power vests in the President of the Republic and the cabinet ministers, the legislative power vests in Parliament, and the judicial power vests in the President of the Republic and the courts. In theory the three powers are identified separately and they appear to be independent of each other. However, those powers are, in effect, administered collectively as a composite whole. To this effect, Article 3 states

Article 33 then designates the President of the Republic as the "head of state" and "head of government". It is said:

With regard to the legislature, Articles 68(1) and 70(1) provide that the speaker and the deputy speaker of Parliament shall be appointed to and removed from office by the President of the Republic. Article 72 further states that there shall be three regular sessions of Parliament every year. While the dates for the commencement and conclusion of these sessions are to be determined by the speaker, he is required to inform the President of the Republic before convening and upon conclusion of each session. This Article also says that an extra sitting of Parliament shall only be held when directed by the President of the Republic.

In respect of the judiciary, Articles 112(2) and 118(2) provides that the chief justice and the judges of the High Court and the judges of the lower courts shall be appointed by the President of the Republic, and may be removed from their office at his own discretion pursuant to Articles 117 and 123.

People's Majlis or Parliament 1998

In effect, the three powers that should have been separated constitutionally are now considered as a composite whole and the President of the Republic is empowered to dictate and invoke the three powers collectively. I thus raise the question, are powers of the state vested in the citizens as proclaimed in Article 4 of the Constitution, or are they vested in the one individual, the President of the Republic?

In addition to these fundamental aspects of the state administration, there are numerous other powers vested in the President of the Republic, and such powers include his supreme authority to propagate the tenets of Islam in the Maldives (Article 38). According to the U.S. Department of State (Maldives Country Report on Human Rights Practices for 1997, released by the Bureau of Democracy, Human Rights, and Labour, January 30, 1998):

An Englishman would say the President of the Republic of the Maldives is Her Majesty the Queen, the Prime Minister, the First Lord of the Admiralty, the Chief Constable, the Leader of Her Majesty’s Opposition, the Chief Justice of England and Wales, the Speaker of the House of Commons, the Lord Chancellor, the Head of the Church of England, the Archbishop of Canterbury and the Archbishop of York, all rolled into one. I thus raise the question, are powers of the state vested in the citizens as proclaimed in Article 4 of the Constitution, or are they vested in the one individual, the President of the Republic?

One might argue that many countries that have " executive heads of state" are not far removed from this situation. However, it should be noted that in those countries that have " executive heads of state" the "head of state" is only directly responsible for the executive and not the legislature or the judiciary. In the Westminster type of democracies there may be instances where the executives and the legislatures fuse to some extent, but even in those situations the judiciary is always kept independent of the other two branches.

If my argument were correct in that the powers of the state in the Maldives vest in one person, namely the President of the Republic, the prosperity of the country, the affluence and the happiness of the people are totally dependent upon the benevolence of the President of the Republic. While an incumbent President of the Republic may be of an exalted moral character and excellence, his successors may not be the same. Does that mean the Constitution warrants the administration of the state powers by one individual at his own discretion?

Order-in-Council of the King Siri Kula Sundhura Katthiri Bavana, King of Twelve Thousand Isles and Sultan of the Maldives to authorise the drafting of the first written constitution of the Maldives,

Although not quite consistent with the universal law, the current 1997 Constitution of the Maldives deals with fundamental rights and duties of citizens at a very general level. It provides for certain fundamental rights, with ratchet clauses that those rights cannot be guaranteed "except as provided by the law". For example, Article 15(c) states:

One would expect such rights to be so fundamental that the Constitution preserves them as guiding principles for lawmakers. One would expect to see clauses such as "no one shall be subject to torture or cruel, inhuman or degrading treatment or punishment" and "no one shall be subject to arbitrary arrest, detention or exile" similar to those found in the Universal Declaration. In the context of the Universal Declaration, the validity of the restrictions placed on the individual rights under the Constitution is another issue.

While the ratchet clauses refer to laws, they do not mean only statutes passed by the legislature, but is very broadly defined to include Islamic canon law known as the Shari’ah and government practices. Pursuant to Article 156, the definition of "law" for the purposes of the Constitution means:

Hence the Constitution is subject to the law including the regulations and practices of the government. That effectively means that not only are practices of government, whether or not they result in barbarous acts which would outrage the conscience of mankind, are protected by the Constitution but also the fundamental rights that should have been protected are not guaranteed for the citizens. I have deliberately referred to Article 15(c) as an example because it encompasses a number of individual rights that can be abused by subordinate legislation enacted by the Parliament or government regulations and practices.

According to the Amnesty International Reports from 1992-2001, the National Security Service of the Maldives continues to detain several prisoners of conscience and possible prisoners of conscience and conditions of detention amounted to cruel, inhuman and degrading treatment. The National Security Service has an open warrant, as a matter of practice, for arrest, search and seizure and to censor, intercept, read, listen or to divulge all forms of private communications among the members of the public, including letters, messages, telephone conversations, electronic mail, data and so on.

While the Constitution provides that these individual rights would not be breached, it is subject to the laws passed by Parliament including government practices and norms. So what is the position of the Constitution? Does it promote fundamental principles that society agrees ought to govern the administration of state and guarantee individual rights? If the Constitution guarantees individual rights are they subordinate to laws including government practices?

The above analysis raises two fundamental issues in respect of the new Constitution of the Maldives. Firstly, I have raised an issue as to whether or not the powers of the state vest in the public or in the President of the Republic. Based on this analysis, I have reached the view that the powers of the state vest in the President of the Republic as opposed to the public. That means the prosperity of the country, the affluence and the happiness of the people are totally dependent upon the benevolence of one person. I then raised a second issue as to whether or not individuals’ rights are guaranteed by the Constitution or are they subject to subordinate laws including practices of the government. My analysis indicates that the current 1997 Constitution is not superior to government practices.

It is conclusive from my analysis that in the Maldives, the President of the Republic is the supreme authority in respect of the executive, the legislature, the judiciary, and the propagation of the only recognised religion- Islam. While an incumbent President of the Republic may be of an exalted moral character and excellence, his successors may not be the same. As Dana Dallas Atchison said "no country should depend upon the benevolence of one or a few individuals for its success". A constitution of a country should be founded on fundamental principles to govern the administration of state and individuals’ rights. A constitution that lacks the fundamental norms of these principles is likely to fall apart in the event of socio-economic or political turmoil, like a sandcastle tumbling down on a sandy beach. Does that mean the Constitution of the Maldives is a structure built on loose sand? People who shoulder the responsibility to take the Maldives into the 21^st Century politics should consider these important constitutional issues.

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