Opinion Editorial by Amish Abdullah B.A.LLB, LLM. He is a Pro-Bono Lawyer and Lecturer of Law at Villa College and University of the West of England, Partnership Programme, Maldives and teaches Constitutional Law and other areas of expertise.
The Maldives is witnessing a ‘déjà vu’ about one slumbering debate centric to floor-crossing of the parliamentarians, defecting from one political party to another. The anti-defection law after leaving its imprints in the year 2018, is retaking the shape of contemporary political discourse fastened with Constitutional vacuum.
This slapdash route to Anti-Defection law was taken when the Attorney General filed an Ex-Parte case (2017-SC-C-17) to the Supreme court regarding the defection of twelve MPs who left the governing party in July 2017 leaving behind a political turmoil to deal with the defecting Members of Parliament. The Supreme Court referring to the Political Parties Act (Act no. 04/2013) held that a parliamentarian who loses membership of the party they were elected to will also lose their seat in the parliament. But the Supreme Court overturned its anti-defection ruling in a unanimous decision on February 2018 in case (2018/SC-SJ/01) recording that the anti-defection ruling was issued as a temporary resort to the constitutional dispute case filed by the state, insisting that the relevant authorities have failed to bring to effect an anti-defection law specified in the ruling. Three days after the ruling, the Supreme Court again imposed an injunction against its decision to overturn the anti-defection ruling in case (2018/SC-VA-J/01).
Following the same, the Anti-Defection Act (Act no. 2/2018) was passed by the Parliament in March 2018 which lasted only for nine months and was repealed by (Anti-Defection) Repealing Act (Act no. 7/2018).
The repealed anti-defection law stipulated that lawmakers who are found to have floor-crossed since 13th July 2017 will be unseated in a retrospective manner that challenges the retrospective application of punitive laws as per Article 59 of the Maldivian Constitution 2008 when read with constructive interpretation of the Constitution. This very argument was made when the anti-defection law was challenged in the case Ibrahim Mohamed Solih and Anara Naeem v Attorney General (2018/SC-C/09), where the Supreme court rejecting the argument held that retrospective application of law is constitutionally valid as Article 59 of the Constitution uses the word ‘offense’ while stating that a legislation cannot be enacted retrospectively (from a back date) in a way that it punishes a person for an act which was not an offence under any law when committed but becomes an offense under a later legislation.
The Elections Commission unseated those twelve lawmakers who ushered the defection debate on the ground of floor-crossing. Later the twelve MPs were given reinstatement order after the Supreme Court ruling in Mohamed Ameeth v Elections Commission (2017/SC-C/22). In Ameeth’s case the court declared that even though the Anti-Defection Act can be applied retrospectively, the twelve lawmakers had left their political parties before the date specified in the Anti-Defection Law. Hence it was held that they cannot be dismissed from their seats on the ground of misapplication of the Anti-Defection Law. Later, in November 2018, the parliament repealed the Anti-Defection Law.
The origins of anti-defection laws can be traced back to the mid-20th century when several democracies faced challenges arising from party-hopping by elected representatives. Anti-defection laws were aimed to prevent elected representatives from switching parties, a practice that can lead to political instability, manipulation of power, and erosion of public trust which is needed to maintain political stability. Nations to combat this political turmoil started incorporating provisions in their constitutions to regulate defections. India, with its Tenth Schedule added in 1985, was a pioneer in institutionalizing anti-defection measures. The Indian initiative towards defection influenced other countries, and over time, anti-defection laws have become prevalent worldwide.
Anti-defection laws are typically rooted in the constitutional principles of representative democracy and the idea that elected representatives derive their mandate from the electorate based on the party they represent. Constitutional provisions in different jurisdictions related to anti-defection commonly articulate the circumstances under which a legislator can be disqualified, mechanisms for disqualification, and the authority that can adjudicate such cases.
For instance, the Indian Constitution's Tenth Schedule explicitly outlines the disqualification criteria, including voting against the party's directives, voluntary resignation, and joining another political party. In South Africa, Section 47(3)(c) of the Constitution empowers the legislature to enforce laws regulating defections.
In the Maldives, Article 73(c) and (d) of the Constitution states the disqualification ground for MPs but does not mention ‘defection’ as a ground for disqualification, leaving vacuum for the Majlis to explore the question of defection which is a serious concern if not balanced with the principles of representative democracy as mentioned under Article 88(2) of the Constitution. Article 88(2) empowers the People’s Majlis to make regulations and principles concerning its business within the limits imposed by the Constitution with due regard to representative and participatory democracy, accountability, transparency, and public involvement. That leaves the floor open for parliamentarians to contend their authority.
The constitutional perspectives on anti-defection laws reflect a delicate balance between protecting the stability of the political system and safeguarding the democratic principles of freedom of association as conferred under Article 30 of the Maldivian Constitution safeguarding the freedom to form political parties, associations and societies. Also anti-defection laws challenge the guarantee of the freedom of expression under Article 27 of the Constitution as it bars the MPs from displaying their dissent to their party by leaving it which can be contended as a form of expression in itself.
Certainly, anti-defection laws aim to curb opportunistic political behavior where a parliamentarian elected by the people on the party line’s ideology, when leaving the party attacks the very principle of representative democracy. But the critics argue that they may infringe on the individual legislator's right to dissent or change political allegiance.
Constitutions in several jurisdictions often wrestle in defining the scope of anti-defection provisions to ensure they target genuine cases of betrayal while avoiding undue restriction on the legislators' freedom. Striking this balance requires careful constitutional drafting to address the nuanced nature of political affiliations and the evolving dynamics of the democracy.
Anti-defection laws exhibit considerable variation on the international stage, with each country adapting these provisions to its unique constitutional and political context. European countries such as Germany and the United Kingdom have parliamentary systems where anti-defection laws are less prominent, relying instead on party discipline and political norms.
In contrast, countries like India, Pakistan, and many African nations have stringent anti-defection provisions integrated into their constitutions. Regional organizations like the European Union and the Southern African Development Community (SADC) have also influenced member states' approaches to defection-related issues.
India:
India has a comprehensive anti-defection law embedded in the Tenth Schedule of the Constitution. The law disqualifies members of parliament or state legislatures if they voluntarily give up their party membership or violate the party whip on a vote. The law also allows for the merger of political parties under certain conditions.
United Kingdom:
The UK does not have explicit anti-defection laws, but it has legal provisions to regulate the dissolution of Parliament and the calling of general elections. The Fixed-term Parliaments Act 2011 sets the maximum term for a Parliament, and early elections can only be triggered under specific conditions.
Australia:
Australia has provisions in its Constitution that address the filling of vacancies caused by senators or members of the House of Representatives changing their political party affiliation. However, these provisions are less stringent compared to explicit anti-defection laws in other countries.
Constitutional perspectives on anti-defection laws reveal the complex interplay between upholding democratic principles and ensuring political stability. While they aim to enhance stability and discourage opportunistic party-switching, their impact on democratic principles and individual freedoms remains a subject of debate. The effectiveness of these laws depends not only on their legal frameworks but also on the broader political and constitutional context in which they operate. As political landscapes evolve, so too will the discourse surrounding anti-defection laws and their role in preserving the integrity of democratic institutions.
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