The hottest issue decided in newly established Supreme Court of Maldives was the case regarding the yearend two month recess of the Parliament. The fundamental question raised was whether the supreme courts decision that to end the member’s recess and to summon the People’s Majlis to complete the two bills related to Elections were democratically proper or not. The verdict also said that the Parliamentary Elections be held before February 15th and the new Majlis assembled by the date stated in the Constitution. And in reverse the argument raised was the question whether the Supreme Court posses the jurisdiction of ruling out an already decided matter within the “law making body of the country”, that is the Peoples Majlis.
The arguments from both the sides were reasonable. Perhaps, in the boundary of legal philosophy, I would prefer the ideology of Social Liberal Party’s leader Mr Ibrahim Ismail. Unlike the lawyers who initiated this case, the argument of Ibrahim Ismail highly emphasized on the constitutional possibilities of taking out the decision. His argument was mainly based on the jurisdiction of the Supreme Court and the doctrine of Seperation of Powers. Subatantial laws applied to support his argument was the Article 83, and 88 (b) of the constitution. The plaintiffs arguments was mainly based on the Article 296, 295 (a) (i), 294, 299 and 8, of the constitution.
Let’s now go through these articles of the constitution. Article 83, states that the Parliament shall have three sessions in a year, and that the beginning dates and the end dates of each session should be specified in the Standing Orders of the Parliament. And Article 88 (b) quite clearly specifies that unless and otherwise specified in the constitution, the validity of any proceedings in the People’s Majlis shall not be questioned in any court of law.
The justification for Article 83 is very clear, because the date specified in the Standing Orders for the beginning of the Major recess for Parliament for 2008 was the end of December. In fact even the Supreme Court recognized this in their ruling. Hence there is no question of legitimacy in their recess. Since they have not breached any law, the yearend recess is a lawful right exercised within the periphery of the constitution. Plus about article 88 (b), It is obvious that not even Supreme Court can decide on the matters discussed on the floor of the parliament Hence we can probably conceptualize that the case held about this issue was evidently unconstitutional.
However, the arguments from the plaintiffs begun with the dates specified in the constitution; that is in article 296 saying that the first election of the Peoples Majlis to be held before 15th February 2009 and the first sitting of this Majlis shall be taken place before 1st March 2009. Which would not be feasible, because the Standing Orders of the Parliament outlines a process for the passing of any bill, and simply following that process would have taken plenty of time. This meant that the bills could not have been passed before the end of the first week of January. That meant The Elections Commission would have about thirty five days to complete the elections. In the meantime, the Elections Commission communicated in writing to the Parliament that they would need the bills to be passed by 18th of December in order to conduct the elections by the 15th of February. They even came in person to Majlis Committee and are on record stating that it could not be done, and they would need a minimum of fifty days to do it. Since the do need time to publish voter lists and registries with enough time allowed addressing voters’ complaints, to educate the Public about the elections. So it was not possible to be held as specified in the constitution by the date specified in the constitution anyway.
Their next argument was on the basis of Article 295 (a) (i), which states that the Peoples Majlis shall carry out all things necessary to facilitate the elections specified in the constitution in the manner provided. That might be adequate, if the task was something which is possible for the parliament to accomplish. Which means they cannot put effort or facilitate anything which is impossible to be done on time and if, might push The Elections Commission towards a big trouble.
Their next argument was originated from Article 294 which declares that the parliament in existence at the time the new constitution came into being would remain until the first parliament under the new constitution is convened. On this subject it strictly prohibits “legal vacuum” between two parliamentary terms. It does not mean that the parliament elected under the old constitution will be called unconstitutional after the after the dates specified in Article 296.
The abstract is that by going for recess, Parliament has not violated the Constitution, and it was not possible to have a proper election anyway in the time specified, and that this was due largely on the failing of the government to submit the bills on time, and had nothing to do with Parliament. The parliament has not acted outside the ambit of parliamentary responsibility and national interest. Parliament has not acted in a manner that would result in an impending breach of the constitution and cause the country’s governance mechanism to actually cripple. And it is important to be noted that Supreme Court is not the ultimate rulers of our legal system. Hence any power determining the validity of proceedings within another power is not constitutional neither democratic.
