December 28, 2008
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A constitutional case has been submitted to the High Court today with a prayer that the court may please rule that the recent decision of the parliament to go into their yearend two month recess while there remained two bills on parliamentary elections to be adopted is unconstitutional and therefore invalid.
The case submitted jointly by Husnu Suood, Colonel Mohamed Nasheed, Mohamed Anil and I are based on five key provisions of the constitution.
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.
Article 296 which requires first parliamentary elections to be held by 15 February 2009 and that the new parliament shall convene its first sitting by 1 March 2009.
Article 295 which prescribes the mandate for the transitional parliament which includes among other things to do every thing to facilitate the holding of elections mentioned in the constitution’s transition chapter as provided in the constitution and passing of legislations necessary under it.
Article 299 which demands all organs of the state (legislature, executive, and judiciary) all independent institutions, independent posts and all people of the country to honor the provisions of the constitution and comply with them.
Article 8 which requires powers of the state to be exercised in accordance with the constitution.
Our case is created on the combined substance of these five provisions. It is developed on the premise that the parliament cannot go on any recess when it has pending obligations to discharge under the constitution - especially in such circumstances where the failure to discharge those obligations would prevent the parliamentary elections from being held as prescribed by the constitution.
In appreciating our case it is relevant to note that the life of the current parliament that exists today (although elected for a full five year term in 2005 under the previous constitution) has been cut short by the new constitution to the end of February 2009.
It is also relevant to note that the constitution of 7 August has converted the current parliament into a transitional institution with a specific transitional mandate to be discharged as prescribed in article 296 of the constitution.
We are saying that the parliament shall take every responsibility for downplaying the significance of the constitutional requirements by planning to go on recess without dealing with the issue of elections laws, thereby throwing parliamentary elections into a flux; elections commission’s pleas into the waste bin; and the administration of the affairs of the state into chaos.
The parliament has been talking rather elaborately about the standing orders and the two month recess it provides at the year end.
Here is the background to that argument. The recess they talk about comes from the model upon which parliamentary work has actually been designed. When the rules were created it was suggested that the parliament would work in three sessions a year and that the parliament would officially begin every year on the last Thursday of every February.
The first session will run for two months, that is to say, from March to April. The month of May would be a recess. The second session would be from June to August for three months -and September would be a month of recess. Third session would be held from October to December end. That is for a period of three months again, followed by January and February to be considered as the yearend recess of two months.
This was the state of affairs until 7 August 2008, when the new constitution was ratified. The new constitution that came into being cut short the term of the parliament convened in 2005 and converted that parliament into a transitional institution thereby affecting the schedule it has for the yearly business and the rules it had earlier created to regulate its business and periods of recess.
It may be relevant to recollect that the recess due in September was done away with to prepare for laws and institutions needed for the presidential elections. And time has come now for the parliament to sacrifice their so called yearend recess to prepare for parliamentary elections.
Not only should they forgo their yearend recess, but they should also bear in mind that the current parliament would suffer a natural death on 1 March when the new parliament takes off.
So there is no question of a two month recess for the current parliament as it has only three months remaining in its life.
Now that the constitution requires the transitional parliament to carry out certain obligations to meet the requirements of the transition the country is placed in, it is imperative that the fundamental law of the land is given prevalence over some standing orders which regulate internal parliamentary business.
The issue of transitional elections (presidential, parliamentary and local councils) is important to fully migrate from the previous constitution to the new constitution. At the moment the country only has a full-fledged president elected under the new constitution while all other institutions remain in transitional mode.
It is sad that some members of parliament have acted rather casually and irresponsibly by showing their indifference to enabling the country to have its first democratically created parliament from taking off on time.
In response to our case in High Court, some say that the defense of parliamentary privilege would prevent us from taking parliament to court. We feel that parliamentary privilege is not enough cover in the instant case.
The privilege as mentioned in article 88 (b) of the constitution is applicable only if the constitution does not provide for a certain matter “otherwise”. The constitution does provide for the dates of elections. The constriction does ask the parliament to work to get the bills in order so that the elections may happen at times prescribed. The constitution does say that the new parliament must meet by 1 March 2009. The constitution does require the parliament in addition to other institutions of the state, to honor the constitution and comply with its provisions.
Our case is based on their refusal to honor the constitution. Our case is not based on any matter that comes within the regular ambit of parliamentary business.
We have gone to court, because the parliament has acted outside the ambit of parliamentary responsibility and national interest. We have gone to court because the parliament has acted in a manner that would result in an impending breach of the constitution and cause the country’s governance mechanism to actually cripple. We have gone to court because the court system - especially the Supreme Court - is the ultimate guardian of our constitution.
December 29th, 2008 at 3:11 am
I really hope the court brings out a ruling quickly cos the time factor is of extreme importance in this case since the Elections Commission needs time to sort this thing through. It’s actually pathetic, the way Mohamed Shihab has been manipulating the parliament from the day he got elected as speaker. I’m sure all those members who voted in favour of a recess have their own agendas planned and what’s best for the country and its people is definitely not part of it. What I found most surprising (though when you think about it rationally, is not so surprising) is that seven of the president’s members (who have been seated there with Mohamed Shihab’s blessing, against the new constitution, and who should not have been there in the first place) abstained from voting. This I believe is the same as voting for a recess in this case, cos if they had voted against a recess, the recess could not have taken place. This does make one wonder how sincere president Nasheed is in his plea with the parliament to pass the said bills. Anyway, I’m really glad you guys took the matter to court cos somebody who knows what’s really going on, needs to come out and rescue this country and its people from the clutches of these power hungry, politically motivated, immorale group of selfish people. I really hope the citizen’s of this country think about these issues when they elect members for the new parliament. My advice to all my fellow Maldivians is; Please don’t sell your votes to the highest bidder in the upcoming election. Put your nation first!
December 29th, 2008 at 6:33 am
Nasheed,
Thank you. I was hoping that a responsible and nation-loving citizen who had the guts took that bold step. Thats exactly why I had mentioned in one of your earlier posts the viability of taking Parliament to court if by their own irresponsible design paved way for violation of the Constitution.
Having read your post which I wholeheartedly agree, I would like to add the following:
Article 268 of the Constitution clearly states that “mi Qaanoon Asaasee aai khilaaf ah kuraa komme kamakee baathil kamekeve”. Therefore, anything that was done in violation of this Constitution would be null and void. Hence, any decision be it made through a parliamentary vote, a parliamentary resolution or through a passed and ratified law or part of such a law would be totally null and void if it was done in violation of the Constitution.
When it is time to uphold our Constitution, defend its powers and previleges against all odds (including such odd behaviours of majority members of a dying selfish parliament whose unfulfilled and partially fulfilled selfish interests which by their own design include hastily making laws for their own benefit and blocking the current President’s reform agenda), there is simply no way a decision of a transition parliament whose self destruction procedure which is clearly stated in the Constitution could reign supreme over the mandatory procedures that are stipulated in the Constitutin.
Therefore, as a citizen of the Maldives, I call on the Speaker to convene an Extraordinary Parliamentry Meeting immediately. I call on the Speaker to bring an end to his holidays and attend office and urge his holidaying members too to return back to the Majlis Floor, keep holding Majlis Meetings and be in the Chambers attending their national duty, finalising our Constitutional responsibilities put on their shoulders.
Nation and National Interests First NOT the selfish interests of members of a dying Parliament..OK:)
Best Regards
azak
December 29th, 2008 at 7:08 am
I also agree with you that the current parliament which has been converted to a transitional creature by the current Constitution could not apply the regulations and standing orders that were made under the previous Constituition to manage the affairs of the former full Parliament.
Therefore the parliamentary vote aimed at earning the members a holiday under the pretext of making us believe them as members of a fully-fledged parlaiment elected under the current Constitution could not be accepted. The Standing Orders and Regulations that were made under the Old Constitution too could not at all be applied to a transitional creature especially at a time when the transitional body has unfulfilled and obligatory duties that need to be fulfilled before the transitional creature (the current Transitional Parliament) dies its natural death as stipulated in the current Constitution. Under Article 268 of the current Constitution, none including the current transitional parliament cannot take decisions that could violate the Constitution.
The current Transitional Parliament (which also does not have its own passed Transition Regulations to conduct its affairs) could not behave like a full parliament elected under the current Constituition at a time when the current Constitution clearly states the exact nature of the current Parliament. As this being the case, the current Transitional Parliament could not strictly act in accordance to every standing order or to each and every regulation that was made to manage the affairs of a Parliament that was created under the former Constitution.
Thank you
December 29th, 2008 at 8:58 am
Excellent move Nasheed. It is good to know there are some of us who are really interested in the well being of this nation. I am rather disappointed with the President Anni and his supporters in Parliament. Of course the 7 members being the people whom he put there against the law, will do as the puppeteer wants. The list of the people who voted to go on holiday is there on Haveeru. Please everyone, read it and make sure these people do not get re elected ….they should go on a loooooooong holiday, never to come back to play a part in destroying our nation.
December 29th, 2008 at 9:49 am
Dear Nasheed
I wonder why prominent lawyers and States men in this country did not take the Government and Parliament to court when they took 17 years to ammend the constitution first time and recently 04 years ? Suddenly everbody seems to have forgotten everything that has happend from 1978 - 2008. hahaha ????
December 29th, 2008 at 10:40 am
While I agree that the parliament was totally irresponsible, I am not sure that the supreme can rule against the parliament. How does one rule against your actions may in the future be in breach of the constitution” ?
As a side note, where can the public find out who voted for/against/abstained a particular motion? I can’t seem to find it in the parliaments website.
December 29th, 2008 at 11:39 am
Nasheed, its good that you did submit a case to Court. However, it unlikely to work. You can see the political gymnastics in this case. President sents several letters trying to get the bills passed on time. His members with JP members vote against it. Just before the election there was news that Gasim and Nasheed were in tension. This was a pior case created to cover up the plan between MDP and JP to delay the next majlis. Court is likey to say that they cannot comment. Clever manipulation by Gasim.
December 29th, 2008 at 11:55 am
You have done well this time. I am so ashamed with the parliamentarians, specially with Shihab, who is so corrupted and with no ethics at all. May be they are upset because the revision to tourism bill did not get through.
1. It was funny and absurd to see Maria with Annis’ boys from front bench on TV last night specially saying that they did do know how to vote. If they cannot be aware of how people move in the parliament, than please don’t take up the post. You should be much smatter than that. This shows what they are not qualified for today smart parliamentarians. May they had some Shula Shiraz as well. Don’t give lame excuses. This issue was brought to the attention of the parliament through out the week by various MP’s. How about MDP’s Afeef and Moosa. Why didn’t they say some thing. I cannot believe Don Bilay he even voted for the recess during the committee time, just don’t say any thing. Shame. Just because Maria was vocal on the issue they did not have choice but to tag along with her. Maria just don’t this case against others.
2. It was very clear from what ADK Nashid said, “He voted on the party line” that this was well organized and they all voted for it. They were elected by the their constituents to be true reps of the people. What party line are you taking about? You should be elected on a party ticket to do such a selfish thing.
3. You are exactly right on the TV. They just want to buy time to get additional funds to and be prepaid for the elections. Shame GASIM, NASHID and the whole business gang in Jumhooree and MDP. My best wishes to you and hope the courts get this issue taken up early. Hopefully this will lead to a day for the people to prosecute SHIHAB.
December 29th, 2008 at 11:56 am
i was just wondering who will take this matter to the cort. Now i am really happy to see the most repected and reliable 3lawer getting together to rescue our nation. Thanks Naseed, sood, and Anil. Good work may Allah bless you all and give success to you work.
December 29th, 2008 at 12:30 pm
The parliament; Hand picked ignorant brutes on the helm of our country!! Some say that they were not aware as to the
nature of the vote they cast that day. what a joke!!! does anybody understand the ramifications of this on the
future of our country?? “Olhigen votu levey parliament”, “ohligen mi gaumu hingumuge kanthathah nethikohlaa
parliament” “Olhigen amilla ah musaarsa bodukuraa parliament” . The “OOPS PARLIAMENT”, i guess the name
suits them better.
December 29th, 2008 at 1:05 pm
Dear Nasheed,I advise you to leave DRP and decide your political future.By reading the Haveeru News(28th Dec) I have learnt that still Gayyoom has presidential ambitious.In the interview given by Faris(Gayyoom eledest son) he has said still many ask from his father to be in one term as a president and people who voted MDP inthihad regret voting the Inthihaadhu and express their disgrace.So it does not necassary to get aways from politics by defeating this time .http://www.haveeru.com.mv/?page=details&id=77584&category=cTrOpir
December 29th, 2008 at 2:49 pm
oops parliament? hahaha. i like that.
thanks nasheed. that was the best we the people can do to salvage our country. the court will hopefully rule that the recess was unconstitutional but i dont know if the court has the power to overrule a majority decision taken by the parliament. as mr speaker’s action clearly suggests that he was in favor of delaying the elections bills, it is quite unlikely that he is going to convene majlis before the holidays are over. what then? where do we go?
December 29th, 2008 at 4:02 pm
Wonder why commenter’s are bashing the president’s MPs. Are they ignorant of the fact that none of them voted for recess?
While their claim of being confused may at the worst be a dubious one - their actions did not contribute any votes FOR a recess.
Who was the idiot DRP MP who last night (on TV) said that the president’s MPs voting resulted in the recess? He needs to learn how to add single digit numbers.
While on the subject of MPs, 18 MPs did not attend that particular sitting. Don’t they carry a portion of the blame? Why don’t we get a list of them and start bashing them. After all, they didn’t think of even attending such an important sitting.
Back on subject, I’m not sure that anybody, not even the supreme court, can do anything. The parliament has been unbelievably irresponsible - but it is the parliament. If the supreme court starts dictating what the parliament should do - where is the separation of powers?
December 29th, 2008 at 4:04 pm
Dear Nasheed,
Thank you and your freinds for undertaking this important initiative. I hope the court would uphold the Constitution.
December 29th, 2008 at 4:26 pm
Dear Nasheed,
While I agree with you on this issue, I am not sure if a court can rule against the parliament yet. Because so far they havent done anything against the constitution. Your case is based on something which MAY happen in the future, due to something they have done.
December 29th, 2008 at 5:00 pm
Anni’s boys in Majlis were on TV last night. They were pleading their case.Apparently they were thoroughly confused! My request to Anni is dismiss these confused boys and appoint more capable ones,if you truly mean what you say. ie If you really want to hold Majlis elections as per the constitution.
And Ministry of Finance should not be paying the (fat) wages to the current Majlis members beyond 1st March 2009.
December 29th, 2008 at 7:02 pm
Dear Nasheed,
Thank you for taking up this issue to the high court. I was expecting at least someone would make such a move before it was too late.
As for the parliament’s decision to go for the year-end recces, those who voted in favour, abstained, were absent, and the speaker should take the responsibility if the nation faces a constitutional void due to failure to pass the parliamentary bills tabled at the majilis.
I was shocked at the comments made by Maria and the President’s appointees on TVM last night in response to the voting in the parliament. It was funny and absurd. It seemed that they were acting like small boys. Last night’s drama on TVM was preplanned by MDP and the President’s appointees as a face saving move in response to the criticisms being thrown at them. Who would believe this? We are not small boys like them to believe whatever they say..
December 29th, 2008 at 7:10 pm
Dear Nashhed. Thank u v.much for ur initiation. Actually now I knew that u guys will not leave our country to sink. I’m suprised that the presidents members were not voting while he has been appealing for that. I believe that members want take rest for tkeir campaign. coz of this decision many people believe that the government also supporting them. because some senior memebers of mdp did vote for leave as well as the presidents members.I really fullu believe the interview u have given to tvm.
I advise u not to leave DRP.
December 29th, 2008 at 7:31 pm
I Fully beieve ur guys initiations.
May Allah bless ur hard work u did for the for the benefit of our country
Thank u Nasheed and other guys.
December 29th, 2008 at 7:39 pm
I’m Happu ur guys submitted the case to the High court. I fully believe that Sood also thinks about the nation. There must be such a bold and understanding figures who will not leave our country to be upside down.
December 29th, 2008 at 10:20 pm
Dear Nasheed,
Thank you and your friends who have shown courages to take the matter to the High Court. Actually everyone knows that the majlis members are acting and voting on their personel preferences than the well being of the nation. We must teach them a good lesson. Even those members appointed by the president did not know what they have been voted for. Shame on them. Actually president must appoint members who are capable and educated to do their job. Not a veteran footballer & a construction supervisor. I wonder why the president could not find better ones for the majlis.
December 30th, 2008 at 12:01 pm
Excuse my ignorance, but is majlis supreme over Supreme Court? Also is Prez supreme over majlis under you new constitutution
December 30th, 2008 at 5:36 pm
As one man with a crutch said recently, Parliamentarians at our Majilis is the ones suffering disability, not him.
December 30th, 2008 at 7:25 pm
The way I see it, the order of power is as follows.
1 - The Constituion
2 - The Courts, The Parliament and The Government
The Constitution gives the Supreme Court the power to decide whether any of the other powers acted within what is prescribed in the Constitution. Hence this is the one and final place any of us can take the matter to.