Editorial
The Beginning of the Fall
24 July 2004
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.
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:
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.
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.
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.
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.
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