Is there a legal basis for altering the Constitutional framework during a Constitutional Transitional Period?
Aishath Azima Shakoor LLB (Hons)(Lon) LLM (UWA)
The term "Constitutional framework" refers to the set of principles outlined in a state's Constitution upon which the rules of governance are anchored. In every state, the Constitutional framework represents the highest point upon which its governing laws are erected.
Therefore, the legislative framework of each state is shaped by the principles enshrined within the Constitutional framework. The governance of the State is delineated and confined to the extent allowed by these principles.
Upon a thorough review of the Constitutional framework of the Republic of Maldives, the following observations are made:
The basic tenets of the State are prescribed in the Constitution of the Republic of Maldives, which defines the parameters and the basis for the formulation of our legal framework.
For the purpose of this discussion, I note the following:
1. Article 4 of the Constitution of the Republic of Maldives states, "all powers of the State of the Maldives are derived from and remain with the people."
2. In reviewing Article 4 of the Constitution, the following interpretation can be made:
a. The extent of the powers of the State conferred by the people (whether direct or indirect) onto any institution or person is prescribed in the Constitution. The same rule applies to the legislative process.
3. When assessing the Institutions of the State provided for in the Constitution, it is evident that the following positions are directly elected by the people:
a. Head of State and Head of the Executive Branch, i.e., The President (Article 111)
b. Members of Parliament or Members of the Legislature (Article 72); and;
c. Local Councils elected under the Decentralisation Chapter (Article 231)
4. A review of the Constitution and the pertinent legislation clarifies that the powers of the State originate from these three key institutions. In other words, these powers are vested in the People. For a clearer understanding, consider the following examples of the extent of powers defined in Article 4;
a. Supreme Court Judges are appointed from a list of names provided by the President (elected by the people) and chosen by the Members of the Parliament (elected by the people). The same principle applies in the appointment of Members of the Civil Service Commission. Civil servants are appointed by a Commission appointed by the above-mentioned process. The Governor of the Maldives Monetary Authority is appointed through the same legal procedure.
b. Legislation governing institutions is crafted by Parliament - members of which are elected by the People and ratified by a President elected by the People. Implementation of such legislation is strictly governed by the extents determined in each law so ratified.
c. Consequently, the powers derived by the Constitution and conferred onto appointees are granted by the People and only to the extent granted by the People.
d. This is the true interpretation of Article 4 of the Constitution which states that “all powers of the state are vested in the people of the Maldives and the sustaining of such powers is retained with the people.”
5. Returning to the title of this essay, I highlight the following Articles enshrined in the Constitutional Framework:
a. The Head of State and Head of Government are the President (Article 106)
b. Such Head of State is elected by a direct vote of the people (Article 108)
c. Term-limit of each Presidential term is 5 years (Article 107)
6. At present, we find ourselves in the midst of the Constitutional Transition Period, i.e., the time between the Presidential Election and the inauguration of the new Presidency. From a constitutional law perspective, this period represents a transitional phase between two presidential terms, characterised by the application of specific constitutional concepts and principles. These are recognised as standard constitutional principles embraced and adopted by democracies worldwide.
7. In light of the constitutional framework, it is essential to raise the following questions concerning the governance of the state of affairs. During the Constitutional Transition Period:
a. Can the Constitution and/or the Constitutional Framework be changed? And
b. Can the Governance Structure of the State be changed?
8. The current constitutional dilemma, which includes the ongoing debate on the aforementioned two questions in the Parliament, is a situation unparalleled in the history of the Maldives since the since the promulgation of the current Constitution, and indeed, throughout the history of any other Constitution of Maldives. While it may seem like a novel legal concept in the constitutional history of the Maldives; however, in my view, it is not the case. Instead, it represents a major constitutional principle promulgated in the Maldivian Constitution, albeit one that has not been previously documented, debated, or adjudicated upon, due to the absence of similar circumstances in the past.
9. Therefore, in light of the bills submitted to the Parliament, which propose amendments to the Constitution, it is imperative to seek answers to the question of whether, “During this transition period, it is possible to change our existing constitutional framework and/or our system of Governance.” In other words, “whether the powers vested in the President, the Parliament and other institutions in normal circumstances would remain the same during this Constitutional Transition Period?” Or “whether those powers would be limited or restricted in any shape or form?”
10. With regards to the abovementioned questions, I note the following:
a. Taking into account the triangulation of the powers of the state, all the powers of the State are derived from the People and remains vested in them.
b. On 30th September 2023, the people of Maldives elected a new President (elect) by a direct vote. The legal consequence of this election is that the People have decided to hand over the Powers vested in the existing Constitutional and legal framework to the newly elected President, as they existed on the date of the election. This authority finds its basis in Article 4 of the Constitution, which affirms that all powers of the state are vested in the people and shall remain with them.
c. Consequently, the decision made by the people on 30th September 2023 is to hand over the governance of the State to the newly elected President, with the powers of the State retained in the same form as they existed at the time of the election. The culmination of this transfer of authority occurs when the newly elected President takes the Oath of Office and assumes the role of the President under Article 114 of the Constitution.
d. The legal consequence of the President-elect’s inauguration is the assumption of the legal powers of the Presidency, conforming to the existing constitutional and legal framework. This transition occurs without any alteration to the foundational constitutional framework upon which the people cast their votes. The constitutional framework must remain unaltered, except for any absolutely necessary adjustments to facilitate services or reasons of national security.
e. Additionally, during this time-frame, the Government must confine itself to providing day-to-day services. Even within the confines of the operation of the Government, it cannot impede or restrict the powers of the newly elected President. Such restrictions are not recognized under the Constitutional Framework of Maldives.
11. The rationale behind the impossibility of altering the constitutional framework during the transition period, from the moment a President is elected to when they take the oath of office, includes, but is not limited to, the following:
a. Neither the Constitution nor the laws of the Maldives confer upon any individual or institution the authority to change any decision made by the People.
b. The role of the State and its institutions during this interim period is to facilitate the seamless transfer of power within the existing legal framework to the newly elected President and anyone appointed thereunder.
c. In theory, even though there is no formal impediment preventing the outgoing Government from attempting to alter the powers vested in the state by the people (due to internal conflict between the incoming and outgoing governments), or to undermine the Constitutional Framework during this transition period, such actions would contravene the fundamental principles of our Constitution and would not be permissible under its provisions.
12. The opponents of this perspective may raise questions about the possibility of altering the constitutional framework within the next 5 years. It is important however, not to misinterpret my stance. I maintain that it is the constitutional and legal duty of those responsible for the State’s institutions to transfer the powers of the State to the newly elected President, as they existed on 30th September 2023 (date of the decision). Furthermore, no one possesses the authority to change or amend the constitutional framework of the State during this transitional period, except in cases of absolute necessity, such as national security concerns. As of now, I do not believe such an exception exists.
13. Hence, in light of the legal principles delineated above, it is my firmly held opinion that during this Constitutional Transitional Period, no individual or institution possesses the legal power or authority to amend the Constitution and/or alter the Constitutional Framework of Maldives.
1st October 2023