Petition submitted to exempt sitting MPs from anti defection rule

In the ongoing Supreme Court case submitted to the court by former Kendhoo MP and lawyer, Ali Hussain, challenging the newly enacted constitutional amendment imposing an anti-defection rule on sitting MPs, Hussain's attorneys requested the court to declare that the anti-defection regulation is not applicable to sitting parliamentarians.

Presenting their case, Hussain's lawyer Mahfooz Saeed made the request claiming the application of the amendment violates articles four, five and eight, while also contradicting articles 73 and 90.

He explained that the law cannot be applied retroactively, and that this was one of the most fundamental basics of formulating laws. He also added that at the time of getting elected, the sitting MPs would not have had any idea that anti defection rules would be imposed on them.

Based on this argument, Mahfooz, on behalf of Hussain, requested that the amendment not be applied to incumbent MPs even for the interim period.

According to Mahfooz, the amendment to the constitution violates the basic principles of the constitution and contradicts the principle that state power should remain with the people. He argued that state powers are now in the hands of political party leaders, whereas the authority to dismiss or recall members should rest with the people.

This anti defection amendment has disrupted the state's system, he said, adding that Maldives has a presidential system with a constitution that is shaped accordingly. However, MPs losing their seats for switching parties is a feature of the parliamentary system, he said.

Mahfooz said the amendment also mixed up the states' powers.

According to him, it is wrong for the constitution to prohibit MPs from changing political parties and declare it as something they are not allowed to do. If members want to prioritize the interests of their constituents or find themselves in a situation where they must change parties, they should have the opportunity to do so, he said. Outlawing it is unconstitutional, Mahfooz added.

Mahfooz also expressed concern over how hastily the amendment was passed and ratified, pointing out that it was done all within the span of a single day.

He argued that the constitution should not be changed so easily. He pointed out that laws which are typically passed by the parliament are opened for stakeholder discussions and public consultation as well. However, these procedures were not fulfilled, he claimed.

The Attorney General's Office did not respond to the motion presented by Hussain and his team. However, they filed a procedural objection to the Supreme Court claiming the case could not be heard in court.

Attorney General's Office counsel Uza. Fathimath Haleem said the Supreme Court had no jurisdiction to hear the case. She went on to say that while Ali Hussain submitted the petition as a constitutional issue claiming that the sixth amendment to the constitution itself was unconstitutional, the matter did not fall within the realm of a constitutional issue.

Uza. Fathimath said that although the bills to amend the constitution are described as laws, they cannot be given the status of laws. She added that such amendments are passed under a special procedure and that it would result in major procedural issues if they are given the status of laws.

The Attorney General's Office expressed that the office is of the belief that amendments to the constitution are part of the constitution, and said it should be interpreted as such.

Judge Aisha Shujune then asked which courts would be able to hear such cases in that case, to which Uza. Fathimath said that she does not believe constitutional amendments enacted within proper procedures cannot be heard at any court.