The Supreme Court on Thursday ruled that contested decisions by parliament to remove Civil Service Commission (CSC) Chair Mohamed Fahmy Hassan and conduct no-confidence votes through secret ballot are unconstitutional.
On December 3, 2012, parliament voted 41-34 to approve amendments to the parliamentary rules of procedure to conduct no-confidence votes to impeach the President and remove cabinet members through secret ballot. The house rules were changed with pending no-confidence motions against President Dr Mohamed Waheed and Home Minister Dr Mohamed Jameel Ahmed submitted by the formerly ruling Maldivian Democratic Party (MDP).
In late November, parliament dismissed Fahmy in a 38-32 vote after the Independent Institutions Committee investigated a complaint of sexual harassment by a female employee of the CSC.
Both moves were challenged at the Supreme Court, which issued injunctions or stay orders to parliament to halt both conducting no-confidence votes through secret ballot and appointing a replacement to the CSC, pending rulings on the legality of the decisions.
In its judgment (Dhivehi) on the constitutionality of secret ballots for no-confidence votes, the Supreme Court ruled 6-1 to strike down the amendment to parliament’s standing orders as unconstitutional. The majority opinion contended that the move contravened article 85 of the constitution as well as parliamentary principles and norms of free and democratic societies.
Article 85 stipulates that meetings of the People’s Majlis and its committees must be open to the public.
In the second judgment (Dhivehi) on Thursday night, the Supreme Court noted that Fahmy was alleged to have committed a criminal offence and contended that the Independent Institutions Committee violated due process and principles of criminal justice procedure in dealing with the accused.
The Supreme Court ruled 6-1 that Fahmy would receive two punishments for the same crime if he was convicted at court following his dismissal by parliament (double jeopardy). Following the judgment, Fahmy would be reinstated and compensated for lost wages since December 2012.
Delivering the judgment, Supreme Court Justice Abdulla Saeed reportedly said that a person should be considered innocent unless proven guilty in a court of law and was entitled to protect his reputation and dignity.
Dissenting opinion
Meanwhile, Justice Ahmed Muthasim Adnan – the only Supreme Court justice with a background in common law – issued dissenting opinions in both cases.
On the constitutionality of the secret ballot, Justice Adnan noted that article 101(f) of the constitution states that “the regulations governing the functioning of the People’s Majlis shall specify the principles and procedures concerning a resolution to remove the President or Vice President from office as provided in this Constitution.”
Unless a clause added to the regulation was explicitly in violation of the constitution, Justice Adnan said that he believed it “could not be challenged in any court in the Maldives.”
He further noted that while article 85 of the constitution requires parliamentary proceedings to be open to the public, 85(b) states that a majority of MPs present and voting could decide to exclude the public or press “if there is a compelling need to do so in the interest of public order or national security.”
Moreover, article 85(c) states, “Article (b) does not prevent the People’s Majlis from specifying additional reasons for excluding the public from all or any part of a committee meeting of the People’s Majlis.”
He added that the secret ballot would be taken at a sitting open to the public.
In the case submitted by Fahmy contesting his dismissal, Justice Adnan’s dissenting opinion noted that article 187(a) of the constitution authorised parliament to remove members of the CSC “on the ground of misconduct, incapacity or incompetence.”
Article 187(b) meanwhile states, “a finding to that effect by a committee of the People’s Majlis pursuant to article (a), and upon the approval of such finding by the People’s Majlis by a majority of those present and voting, calling for the member’s removal from office, such member shall be deemed removed from office.”
Justice Adnan argued that an inquiry by a parliamentary committee into alleged misconduct would not be a criminal investigation. Therefore, he added, the oversight committee would not be required to prove guilt to the extent required at trial before making a decision.
He further noted that parliament’s dismissal under the authority of article 187 and a possible conviction at a late date could not be considered meting out two punishments for the same offence.
Separation of powers
Following the injunctions issued by the Supreme Court in December 2012, MDP MP Eva Abdulla told Minivan News that the supremacy of parliament was at stake in the cases before the apex court.
“By its actions, the Supreme Court is challenging the separation of powers that underpins the constitutional basis of governance,” Eva said.
Meanwhile, Independent MP for Kulhudhufushi South, Mohamed ‘Kutti’ Nasheed, contended in his blog on December 12 that the Supreme Court did not have the legal or constitutional authority to issue the injunctive orders against parliament.
Moreover, the Supreme Court “does not have the power to even accept those cases,” he wrote.
Article 88(b) of the constitution states: “Unless otherwise specified in this constitution, the validity of any proceedings in the People’s Majlis shall not be questioned in any court of law.”
Nasheed argued that decisions made by parliament could not be challenged in court except in instances clearly specified in the constitution, which did not include dismissal of members of independent institutions and amendments to Majlis regulations.
The purpose of article 88 was to prevent parliament’s decisions being challenged or overturned, Nasheed said, as in the absence of such a clause the Supreme Court would become a “People’s Appeal Majlis” with supremacy over the house of elected representatives.
“If every decision of the People’s Majlis is appealed at the Supreme Court in the manner that any judgement by the High Court can be appealed at the Supreme Court, then there is no difference between the People’s Majlis and the High Court,” Nasheed wrote.
This was against the separation of powers envisioned in the constitution, Nasheed said, which vested legislative powers in parliament and clearly specified instances where its decisions could be challenged at court.
Former legal reform minister Nasheed is chair of the Independent Institutions Committee. Asked by the Supreme Court to hand over minutes of the committee inquiry, Nasheed had refused.
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